This year’s annual meeting of the American Society of International Law in Washington, D.C., concluded with a special panel discussion on Protecting Cultural Heritage in Conflict Zones. The discussion was held off-site at the National Museum of Asian Art on Saturday, April 1st. Conference attendees who registered for this special event enjoyed private small-group tours of the museum before it opened to the public.
The panel consisted of Patty Gerstenblith, Distinguished Research Professor of Law and Director of the Center for Art, Museum, and Cultural Heritage Law at Loyola University (Chicago) College of Law; Brooke Guven, Head of Environmental, Social, Governance, and Sustainability at Cerberus Capital Management; Richard Kurin, Distinguished Scholar and Ambassador-at-Large at the Smithsonian Institution; and Zaydoon Zaid, President of the American Foundation for Cultural Research. Tess Davis, Executive Director of the Antiquities Coalition, served as the moderator.
To begin the discussion, Davis asked Kurin to justify devoting time and treasure to protecting cultural heritage in the midst of an armed conflict when there is so much human suffering that needs to be alleviated. Shouldn’t the humanitarian needs of non-combatants take precedence? Or, to put it the question another way, isn’t the protection of cultural heritage a luxury that we should only indulge in during peacetime? Kurin insisted that cultural heritage shouldn’t be seen as a luxury, but rather as an essential source of strength and resilience and strength during times of adversity and suffering. As an example, he pointed to the makeshift conversion of Kiev’s subway stations into concert venues to provide a safe space for both classical and contemporary music performances while the city is still vulnerable to Russian missile and drone strikes.
Kurin also noted that armed conflicts aren’t fought exclusively over land and natural resources. Many also have a cultural component. Indeed, one impetus for Vladimir Putin’s war of aggression against Ukraine is the destruction of its cultural identity as something unique and distinct from that of Russia. Fortunately, the war seems to have had precisely the opposite effect. Gerstenblith agreed with Kurin’s remarks about the cultural dimension of warfare, noting that Rafael Lemkin’s original draft of the 1948 Genocide Convention included a cultural heritage provision. Although this provision was not included in the final draft of the treaty, the fact that it was given serious consideration indicates that the protection of cultural heritage has deep roots in international law.
Gerstenblith provided an overview of the international legal framework for the protection of cultural property. The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict obligates state parties to adopt protective measures to designate and safeguard cultural property within their respective jurisdictions during peacetime. It also requires state parties engaged in armed conflict with another state, or occupying the territory of another state, to respect cultural property and refrain from looting or endangering it. These obligations include the creation of special military units charged with safeguarding cultural property by, for example, creating “no-fire lists” of buildings and monuments that should not be targeted for military strikes. State parties also are required to enact criminal sanctions for violations of the convention.
The 1970 UNESCO Convention Prohibiting the Elicit Import, Export, Transfer of Ownership of Cultural Property establishes a framework for state parties to enact preventative measures to combat trafficking in cultural property. These include periodic inventories, export certifications, trade monitoring, and criminal sanctions. The treaty also establishes restitution provisions for the recovery of illegally exported cultural property, as well as measures to facilitate cooperation, the exchange of information, and mutual assistance among state parties.
The bifurcated approach established by these two foundational treaties offers many advantages. However, complications can arise when a country has ratified one of the treaties but not the other. For example, in the aftermath of the U.S. invasion and occupation of Iraq in 2003, efforts to combat the destruction and looting of cultural heritage sites initially were hamstrung by the fact that the U.S. had signed but never ratified the 1954 Hague Convention. As a result, U.S. military personnel were not subject to the same rules and procedures for the protection of cultural property that guided the operations of coalition forces from jurisdictions that had ratified the treaty. Eventually, U.S. commanders concluded that the only way to effectively safeguard Iraq’s cultural heritage was for the U.S. to voluntarily adopt the rules and procedures specified under the treaty. This experience provided the impetus for the U.S. Senate to finally ratify the Hague Convention in 2009.
Kurin explained how the belated ratification of the Hague Convention by the U.S., and the subsequent enactment of its implementing legislation, led to the creation of the Cultural Heritage Coordinating Committee (CHCC) by the State Department in 2016. Building upon the legacy of the “Monuments Men” during World War II, the CHCC coordinates the federal government’s diplomatic, military, and law enforcement initiatives to protect and preserve cultural heritage sites throughout the world, to combat trafficking in illegal antiquities, to disrupt trafficking networks, and to facilitate the lawful exchange of cultural property. Kurin described the establishment of the CHCC as a game changer that has enabled 16 federal agency partners to more effectively communicate with each other and better coordinate their efforts to safeguard the world’s cultural heritage.
Davis asked Zaid to comment on the ongoing civil war in Yemen and how the situation there differs from recent conflicts in Syria and Iraq. As in Syria and Iraq, Zaid explained, insurgent groups with political aspirations have been looting cultural heritage sites trafficking in cultural property to finance their operations. However, the scale of pillage is even greater in Yemen, due to the total collapse of central authority in much of the country. This power vacuum has opened the door for criminal gangs, with no political agendas, to join the in the looting and trafficking. The withdrawal of most Western observers and aid workers, due to safety concerns, makes it impossible to accurately monitor what is happening. Despite this dire state of affairs, a few bright spots have emerged, most notably the recovery of 77 Yemeni cultural objects recently seized by U.S. government, which will be held for safekeeping at the National Museum of Asian Art on behalf of the Republic of Yemen, pending a resolution of the conflict.
Davis asked Guven to comment on the role of the private sector in protecting cultural property and cultural heritage. Guven said that there is a common misconception that investors are indifferent, if not actively hostile, to laws and regulations that safeguard cultural heritage. In fact, many of the wealthy clients of Cerberus Capital Management and other private equity firms also are patrons of the arts. They don’t want to invest in businesses or projects that cause damage to cultural property or endanger cultural heritage. The problem is that the executives and fund managers who run Cerberus don’t speak the language of cultural preservation. Guven described her role as akin to that of a translator. She makes sure the legal and regulatory frameworks that protect cultural heritage are communicated to the relevant decision makers using terminology that is familiar to people whose background is in finance and accounting (due diligence, liability, risk management, etc.) Some of her biggest challenges are spotting the potential for investments to damage or endanger cultural property, connecting the dots, and navigating inconsistencies in regulatory regimes among jurisdictions.