The hostilities-occupation dichotomy and cultural property in non-international armed conflicts.

Author:Carstens, Anne-Marie

The protracted civil war in Syria and the recent onslaught of the Islamic State have devastated the rich cultural heritage of Syria and Iraq, among their many tragedies. In the wake of this devastation, much public discourse has predictably focused on the destruction and looting as war crimes that violate the well-entrenched prohibitions on unnecessary destruction and seizure, which apply in international and non-international conflicts alike.

The stature of these prohibitions as the central pillar of cultural property protection has diminished in recent decades, however, particularly in non-international conflicts that are motivated by racial, religious, or ethnic animus and that increasingly feature prevalent attacks on cultural property.

The survival of cultural property instead increasingly rests on affirmative obligations to protect cultural property--which this Article terms "protection-plus" obligations because they complement and supplement prohibitions on unnecessary destruction and seizure--which would require participating belligerents with both access and means to take positive steps to secure cultural property from harm. Protection-plus obligations to protect cultural property already exist in some form in international armed conflicts. Unfortunately, the persistent hostilities-occupation dichotomy prevents their unequivocal application during non-international armed conflicts because many such obligations are understood to attach only during occupation, which by definition occurs only in international--and not in non-international--conflicts.

The promise and limitations of protection-plus obligations are exposed by considering how such obligations might attach in the overlapping conflicts in Syria and Iraq. To be sure, any belligerent who flagrantly violates the longstanding prohibitions against unnecessary destruction and seizure will similarly disregard positive obligations to protect cultural property. Nevertheless, many conflicts engage military actors and non-state actors who are not flagrant violators and who can usefully implement tangible, if moderate, improvements in protection, often without compromising their strategic objectives. This Article argues that the enduring preservation of the "cultural heritage of mankind" depends on recognizing a new norm that would incrementally whittle down the hostilities-occupation dichotomy to provide for the application of protection-plus obligations in non-international armed conflicts, and it suggests likely vehicles for doing so.

INTRODUCTION I. THE HOSTILITIES-OCCUPATION DICHOTOMY IN THE PROTECTION OF CULTURAL PROPERTY DURING ARMED CONFLICT. A. "Hostilities" and "Occupation" Distinguished B. Codifying the Dichotomy: The 1899 and 1907 Hague Conventions Governing Land Warfare and Naval Bombardment. C. Chipping Away at the Dichotomy: The Affirmative Protection of Cultural Property During World War 1 and World War II. D. Rebuilding the Dichotomy, but Adding Protection During Non International Armed Conflicts: The 1954 Hague Convention. 1. Adding Protection During Non-International Armed Conflicts: The Precedent of the 1949 Geneva Conventions 2. Two Sets of New Obligations in the 1954 Hague Convention: Protection During Non-International Armed Conflicts and Protection-Plus Obligations.! E. Adapting and Eroding the Dichotomy in Non-International Armed Conflicts: The 1977 Additional Protocols to the 1949 Geneva Conventions and the 1999 Second Protocol to the 1954 Hague Convention: 1. The 1977 Additional Protocols I and II.: 2. The 1999 Second Protocol.: F. Reinforcing the Dichotomy in the New Millennium: Customary International Law and the Conflict in Iraq: II. THE PRINCIPAL PROTECTION-PLUS OBLIGATIONS TO PROTECT CULTURAL PROPERTY DURING ARMED CONFLICT. A. Duty to Secure Endangered Cultural Property. B. Duty of "Vigilance" C. Duty to Repair; III. A FIVE-YEAR NARRATIVE OF CULTURAL HERITAGE DESTRUCTION IN SYRIA AND IRAQ. IV. WHITTLING DOWN THE HOSTILITIES-OCCUPATION DICHOTOMY TO IMPROVE PROTECTION FOR CULTURAL PROPERTY IN NON-INTERNATIONAL ARMED CONFLICTS. A. State Practice During Armed Conflicts and in Military Manuals. B. Jurisprudence of International Tribunals and other Secondary Sources. C. Challenges to the Incorporation and Implementation of Protection-Plus Obligations in Non-International Armed Conflicts? CONCLUSION: The multifaceted cultural heritage of Syria and Iraq has been devastated and depleted by the prolonged civil war in Syria and by the recent assaults of the Islamic State, the extreme Islamist terrorist organization with strongholds in Syria and Iraq (also known as ISIS or 1SIL). (1) Years of recurring armed clashes between Syrian forces and rebel groups in the Syrian city of Aleppo have reduced much of the city's striking historic and religious architecture to rubble and ruin, devastating a World Heritage site that remains one of the world's oldest continuously inhabited cities. (2) Destructive attacks, rampant looting, and military use during the past five years have also plagued many of Syria's other rich archaeological sites. (3)

Beginning in 2014, the Islamic State's brazen demolition of ancient monumental treasures in Syria and northern Iraq escalated the scale of destruction. From their demolition of the Tomb of Jonah to their more recent attacks on the famed ancient temples and tombs of Palmyra and the archaeological city of Nimrud, this new wave of destruction and desecration came to headline the five-year narrative of cultural heritage destruction in the region. (4) In the wake of losses in Syria and Iraq, the United Nations (UN) Secretary-General and the Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO) have characterized the protection of cultural heritage as essential to international security. (5)

For its part, the international community has responded to the escalating devastation in Syria and Iraq with a rising cacophony of widespread shock and condemnation. (6) It also has expressed frustration at shortcomings in the existing legal regime governing the protection of cultural property during non-international armed conflicts.

The conflicts in Syria and Iraq between government forces and organized rebel groups (including Islamic State militants) qualify as non-international armed conflicts under international law. Armed conflicts are classified as non-international, or "not of an international character," (7) when they involve "protracted armed violence between governmental authorities and organized armed groups or between such groups within a State." (8) Such armed conflicts today not only account for the vast majority of armed conflicts, (9) but also are responsible for the bulk of conflict-related devastation of cultural property.

Negative rules of restraint require belligerents to undertake good-faith efforts to avoid unnecessary destruction and seizure of cultural property. (10) Viewed as the central pillar of cultural property protection, these longstanding prohibitions originated in rules that govern hostilities in an international armed conflict, but today they have widespread application. They are embodied in both customary and conventional law, have permeated all stages of an armed conflict, and apply to belligerents in both international and non-international conflicts alike. In the conflicts in Syria and Iraq, therefore, both government forces and those groups of non-state actors that bear hallmarks of an organized military force must abide by rules of restraint against unnecessary destruction and seizure.

Yet these well-entrenched prohibitions prove woefully ineffective against the current scourge for several reasons. First and foremost, rules based on good-faith adherence cannot protect the "cultural heritage of mankind" in conflicts where belligerents flagrantly violate these rules and target cultural property precisely for its cultural connotations. As the recent conduct of Islamic State militants in Nimrud and Palmyra demonstrates, some belligerents commit cultural heritage destruction as part of the strategy of war." This tendency is amplified in armed conflicts characterized by their ethnic and cultural dimensions.

Moreover, the negative rules of restraint do not reach the conduct of opportunistic third parties--local inhabitants, criminal organizations, or displaced persons--who sometimes pose further threats to cultural property, but who typically are not bound by these international legal rules. The looting of museums in several international and non-international armed conflicts of the past quarter-century confirms the serious threat posed by third parties. The 2003 looting of the Iraq Museum in Baghdad remains the preeminent example in the context of an international armed conflict, (12) but similar looting of museums has taken place in non-international armed conflicts. In Afghanistan, seventy percent of the collections of the National Museum in Kabul disappeared in the conflict that followed the 1988 Soviet withdrawal, including ivory plaques, ancient coins, and the national archives. (13) In Iraq during the 1990s, local mobs looted eleven of Iraq's thirteen regional museums, and the archaeologically rich country was afflicted by illicit looting by armed groups at many of its prominent archaeological sites. (14)

Several supplemental layers of legal protection have developed over the course of the past century to bolster protection for cultural heritage during armed conflict, including against the threats posed by malfeasants, misfeasants, and nonfeasants. These rules include an accumulation of positive obligations, which can range from a duty to provide urgent repairs to a duty to secure cultural property from persons outside the military regime's direct control. (15)

This Article refers to these positive rules as "protection-plus" obligations, on the premise that they complement and supplement the well-entrenched prohibitions that...

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