Photo: “Palmyra” by Tate Paulette (ASOR)

On November 20th, Dr Helga Turku, who authored a piece in our second issue “When Cultural Property Becomes a Tool of Warfare: Law, Politics, and International Security,” spoke with us via Skype on “Cultural Property as a Weapon of Warfare.”

Dr Turku talked about the purposeful destruction of cultural property in Iraq and Syria by ISIS. In the short term, this behaviour can be explained as an activity to disseminate the militant group’s message and recruit, as well as being a significant source of income. In the long term, the objective is to wipe out any trace of culture, art and religions not in line with ISIS’ world view, and to directly threaten security in the region and beyond.

There has been international response to this issues, since under international criminal law, unlawful attacks against or appropriation against cultural property are considered war crimes. In 2016, Al Mahdi was successfully tried at the International Criminal Court and convicted of “intentionally directing attacks against buildings dedicated to religion and historical monuments” for attacking mausoleums and mosques in Timbaktu.

Dr Turku concluded by discussing the outstanding issues at play as well as options to rebuild and preserve. For instance, other extremist groups have used similar techniques in attacking religious sites, museums, and libraries in Egypt, Libya, Tunisia, Yemen and Mali. The antiquities black market is a global problem as verifying where antiquities originate from is difficult and the market is worth a billion dollars. Beyond the continued destruction of cultural property, what should happen afterwards? Should reconstruction using 3D technology be undertaken, what about Amnesty programs and repatriation?

Above is the audio of her presentation and we would like to open the discussion up to our readers to participate and have included some questions to continue the dialogue :

1. This question places the focus on the buyers of cultural artifacts. What role can domestic legal systems play in limiting the sale of cultural artifacts to finance terrorism? Is there enough “deterrence” to the purchasing of such artifacts?
2. This question places the focus on the link between cultural property and nation building. Is the protection of cultural artifacts limited by the reality that many of the “nations” represented by specific cultural artifacts no longer exist in that geographic area or hold any territory as a “nation”?
3. The article mentions that the US “has identified the trafficking of cultural property from war zones as a terrorist offense”. If such a crime also applies to buyers of cultural artifacts, is this a model that could be emulated to deter buyers?
4. A crime of “cultural genocide” has not been acknowledge in international law, but such acts can be factors used to prove biological/physical genocide and have been prosecuted at the ICC as war crimes. Are there advantages to classifying the destruction of cultural property as a separate crime of “cultural genocide”?
5. While the Al Mahdi case is the first conviction at the ICC for the crime of intentionally targeting cultural heritage, it has received criticism of ringing hollow as a precedent, specifically due to the fact that the amount of evidence and the admission of guilt made it an easier case to prosecute. Consider the potential lacunae or inadequacies in Article 8(2)(e)(iv) (Rome Statute) and if and how the ruling could have taken a bolder approach to further encourage the development of the court’s jurisprudence.
6. In Turku’s article, she spoke about the strategic destruction of cultural property in Iraq and Syria specifically in relation to financing terrorism, and international efforts to achieve security, national reconciliation, and peace-building. Consider the duty of the international community in the protection of cultural property from other communities, perhaps from indigenous peoples in North America, and the role of soft law instruments in protecting indigenous cultural heritage.
7. Irina Bokova, Director-General of UNESCO, and Fatou Bensouda, Prosecutor of the ICC, recently signed a Letter of Intent formalizing and strengthening their collaboration (November 6th 2017). Prosecutor Bensouda is also finalizing a new policy initiative on cultural heritage, scheduled for 2018, which is to serve as a comprehensive guide to her Office’s approach to the matter. These developments are critical in condemning the unlawful destruction of cultural heritage. However, how do you see communities being best included in the protection, preservation and conversation of heritage as well?
8. Since the publishing of Turku’s article, the ICC issued a Reparation Order in the Al Mahdi case, establishing that the victims of such crimes were entitled to compensation. How do you see reparations playing a role in the protection of cultural heritage?
9. I am curious about the expansion of the protection of cultural heritage beyond situations involving armed conflict. While the results in the Al Mahdi case are relatively heartening, are there any international legal mechanisms that could potentially enforce domestic preservation of heritage in situations that do not amount to war crimes? While more contemporaneous cases could surely be found, I am thinking of the confiscation of Indigenous artifacts during religious ceremonies such as the Kwakwaka/wakw potlatch of 1921 (where many artifacts have yet to return to their owners).
10. While Turku discusses intangible elements of cultural property, the examples mentioned in her article are all physical manifestations of it (Palmyra, the Buddhas of Bamiyan, Timbuktu etc.). Could a claim ever be mounted against the destruction of cultural heritage/property that is purely intangible such as the belief that a particular being resides in an area (as in the recent SCC case where the Ktunaxa Nation believe a Grizzly Bear Spirit will be displaced and forever lost if a ski resort is built)?
11. As territories in both Iraq and Syria are slowly being liberated from ISIS control, how do you see the recovery of priceless historical artifacts playing out in the future? More specifically, how would you envisage the roles various actors will hold in this process, namely supranational organizations such as UNESCO, national governments, both from Iraq and Syria, as well as other regional actors where artifacts might have been smuggled to, as well as local communities on the ground?
12. Turku’s piece highlights the role the United States’ government has had in putting the theft and destruction of cultural property on the security agenda. However, with the US’ recent withdrawal from UNESCO, consider its role changing in this area, namely its input in developing future international policies on the destruction of cultural property.
13. In Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) the SCC recently allowed the commercial development of a religious and culturally significant site. Do you have any reflections on this decision? How can we reconcile calls for protection of cultural heritage in wartime with the peacetime destruction of such heritage?
14. It seems to me that the issue of identity building as well as destruction has been a part of history since, well, the beginning of warfare. Why is it that it is only now that you think the destruction of cultural property should be on the international security agenda? If nations have been known to destroy cultural property throughout history, why is it only because ISIS have made greater efforts to monetize such efforts that it needs to be on the international security agenda? Is nation building and cultural property really only vital to save if it has a physical price put on it?
15. Turku argues in her piece that the concept of cultural property should integrate both its “humanness and its thingness”. In conceptualizing the former component, should the protection of cultural property relate to the principle of civilian immunity?
16. How can enhanced measures to protect against the destruction of cultural property balance principles of humanity and military necessity?