4The Politics of R2P

Understanding the politics of the protection of cultural heritage in armed conflicts warrants consideration of the dynamics of the protection of people in R2P’s original formulation, evolution, and implementation. In response to the visible shortcomings of humanitarian interventions in the 1990s and of the blowback from Annan’s call to reexamine the dual imperatives of honoring individual and state sovereignty, Canada sponsored the International Commission on Intervention and State Sovereignty. The opening sentence of the foreword to its 2001 report, The Responsibility to Protect, described its main objective as trying to provide answers to the question of “when, if ever, it is appropriate for states to take coercive—and in particular military—action, against another state for the purpose of protecting people at risk in that other state” (p. vii). The ICISS process, its two 2001 publications, and their reception and the subsequent normative itinerary have been analyzed by several participants and observers.

This chapter examines the development and implementation to date of R2P in order to identify lessons applicable to the politics of cultural protection. It concludes with the application of these lessons to a possible workable framework for the protection of cultural heritage in armed conflicts.

Lessons from the ICISS Process

It is worth underlining four features that may provide guidance about how best to pursue an international framework for the protection of cultural heritage in wars. First, major states backed ICISS. Canada did the heavy lifting both financially and politically, but Norway, Switzerland, and Sweden, along with foundations (especially the MacArthur Foundation), also were helpful. Such financial and political backing was essential for the work of the commission itself and for follow-up.

Second, in addition to major powers, ICISS enlisted input and support from a diverse range of actors. In order to ensure that the project had legitimacy among various international audiences and to promote widespread buy-in, the sponsors recruited commissioners from the North and Global South (including one of each as cochairs) and from major regions. The countries represented by the commissioners included Australia, Algeria, Canada, Germany, Guatemala, India, the Philippines, Russia, South Africa, Switzerland, and the United States. In addition, the ICISS itself held thirteen consultations worldwide to explore the issues and receive a range of feedback from the public and private sectors.

Third, R2P was able to build on important conceptual precedents. The process for designing a viable framework for human protection purposes did not begin with ICISS. The R2P framework’s dual responsibility—internal and external—drew substantially upon pioneering work by Francis Deng and Roberta Cohen at the Brookings Institution. Their concept of “sovereignty as responsibility” developed for internally displaced persons (IDPs) was an essential building block. It emphasized the need—indeed, the duty—for the international community of states, embodied by the United Nations and mandated since its creation to deliver “freedom from fear” and do everything possible to prevent mass atrocities. In particular, Deng and Cohen’s analyses and advocacy confronted head-on the paradox of sovereignty in the face of massive abuse by a state: the protection of IDPs depended on the cooperation of the state authorities that caused the forced displacement of their citizens in the first place. Ironically, citizens who remained within their own countries had fewer protections than refugees, who in crossing a border could call upon international humanitarian law, IGOs, and NGOs for help, whereas IDPs could not. The scene was set for a normative breakthrough building on the responsible exercise of sovereignty. The commissioners explicitly drew upon Deng and Cohen’s “sovereignty as responsibility” and situated it with respect to three responsibilities of the international community of states.

Fourth, after its initial launch at the 2001 General Assembly, R2P required ongoing promotion, invocation, and support for a decade before the Security Council applied the norm operationally in resolutions on Libya. The ICISS report, completed in August 2001, met a temporary setback with the attacks on September 11. The United Nations, along with its most powerful member state and funder, focused almost entirely on counterterrorism. Nevertheless, the ICISS report was presented to the General Assembly in December and received significant acclaim. Canada continued its advocacy—until the Stephen Harper administration in 2006—which relied in particular on the cochairs, Gareth Evans and Mohammed Sahnoun, and two of the commissioners, Ramesh Thakur and Michael Ignatieff. A small academic cottage industry grew, including the quarterly academic journal Global R2P. Advocacy and monitoring work continued afterward with two New York–based NGOs, the Global Centre for the Responsibility to Protect and the International Coalition for the Responsibility to Protect.

The momentum continued in the lead-up to the September 2005 World Summit for the UN’s sixtieth anniversary. The UN High-level Panel on Threats, Challenges and Change published A More Secure World: Our Shared Responsibility, which affirmed R2P. The following year Annan’s five-year progress report on the Millennium Declaration, In Larger Freedom, called on the Security Council to adopt a set of principles that would affirm its authority to authorize the use of force to prevent and react to crimes of atrocity. Paragraphs 138–40 of the 2005 World Summit outcome document adopted by the General Assembly cited the primary responsibility of each state to prevent and react to crimes of atrocity as well as the international responsibility to build that capacity and to react when mass atrocities nonetheless resulted—two of the three ICISS responsibilities to protect. Over the next decade, the language was referenced in Security Council and Human Rights Council resolutions, and the General Assembly created the Joint Office of the Special Advisor on the Prevention of Genocide and on the Responsibility to Protect.

As noted, then UN secretary-general Ban Ki-moon influenced the operational development of R2P by reformulating the original ICISS concept in his 2009 report, Implementing the Responsibility to Protect. His subsequent annual follow-up reports maintained this new conceptualization. Instead of the three responsibilities enshrined in the 2001 ICISS report, Ban proposed three pillars: the primary responsibility of states to protect their own heritage, the responsibility of others to help build that capacity, and the international responsibility to respond in a timely and decisive manner if the first two pillars were inadequate and mass atrocities took place. The three original ICISS responsibilities can be interpreted to be part of the second and third pillars—although without reference to the three specific notions (prevention, reaction, rebuilding) that track so well with the vocabulary of protecting cultural heritage. Because the pillars are not sequential, they have proved helpful to define political conversations about R2P in UN circles, including in the annual General Assembly Interactive Dialogues on R2P, held from 2009 to 2017. The pillars undoubtedly will remain as R2P becomes a regular item on the assembly’s agenda.

The most visible application of R2P came in 2011 with Security Council resolution 1970, which recalled Libya’s responsibility to protect its population and called for the immediate cessation of violence in the country. Resolution 1973 followed and authorized the use of force to protect civilians in Libya. The subsequent intervention was successful in ending state violence against Libya’s vulnerable population. However, it also exposed the liabilities of mission creep (regime change) and of failing to commit to rebuilding after the bombing halted—arguably, an essential element omitted, or at least downplayed, in the World Summit’s outcome document.

The Responsibility to Protect

Article 1 of the UN Charter is worth citing because the protection of people and cultural heritage is an essential part of the UN’s primary purpose:

to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

As indicated throughout, the ICISS’s original conceptual formulation of a three-pronged framework to ensure the rescue of people—the responsibility to prevent, the responsibility to react, and the responsibility to rebuild—is pertinent for the protection of cultural heritage in armed conflicts. While “military intervention” usually is the contested headline, “Prevention is the single most important dimension of the responsibility to protect,” according to the original ICISS report (p. ix). This first component of R2P is framed in terms of both the root and direct causes of wars, and the report points to the failure of states to live up to the rhetoric of prevention:

Very often, those with the means to act prefer to play the odds, sometimes betting that the situation will somehow resolve itself, or that it will simmer without reaching a boil, or that the resulting conflict will prove less dire than predicted, or that conflict if it does break out can be quickly contained. (p. 20)

For ICISS, addressing both root and direct causes entails measures from early-warning systems to significant investments in political, economic, legal, and military infrastructure to promote human rights and political and economic equality. The real goal for prevention, as the word suggests, is to exhaust measures to “make it absolutely unnecessary to employ directly coercive measures against the state concerned” (p. 23) by helping and encouraging states to promote healthy societies. Whether one is a partisan of universal or national ownership, the total destruction of cultural heritage is a loss for either humanity or a state and its citizens; prevention is clearly preferable to any reconstruction, no matter how authentic and accurate.

The second responsibility, to react, includes a range of options escalating from sanctions, to international criminal justice, and finally to military intervention. Less intrusive options should be considered before more intrusive ones. Hence, military force should be deployed only in cases of profound humanitarian distress and, by extension, serious attacks on cultural heritage—for itself and as a precursor for the mass atrocities that almost certainly will follow.

Once less coercive means have been exhausted or at least seriously engaged, and military intervention presents itself as the only remaining tool for mitigating excessive human risk, “just cause” for intervention must first be demonstrated. According to ICISS, the threshold for just cause is either

Large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or

Large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape. (p. xii)

The World Summit’s outcome document specifically enumerated four triggers: “genocide, war crimes, ethnic cleansing and crimes against humanity” (paragraph 139).

Four other precautionary principles apply to R2P according to the original ICISS formulation. The first is right intention: the purpose of interventions must be primarily about humanitarian objectives. Conflating humanitarian missions with other political aims undermines the legitimacy of a humanitarian-motivated intervention. Best practices suggest the use of multilateral coalitions; guarantees that the beneficiaries actually support an intervention; and consideration of the opinions of neighboring countries. The second principle, last resort, requires that other means for securing a peaceful resolution of an armed conflict be thoroughly exhausted prior to the use of military force. The third, proportional means, calls for the minimal scale, duration, and intensity of military force required to accomplish the goal. The fourth, reasonable prospects, requires that the negative consequences do not outweigh the benefits. These precautionary principles should also apply to international reactions to the destruction of cultural heritage.

The third and final responsibility identified by ICISS, to rebuild, aims to shepherd postconflict states away from being war-torn societies toward more peaceful ones. Undertaking a military operation entails “a genuine commitment to helping to build a durable peace, and promoting good governance and sustainable development” (p. 39). Rebuilding requires a consolidation of peace through attention to ongoing security concerns, the implementation of robust reconciliation programs, and sustainable economic development. Without these elements, forceful intervention may be for naught. Libya is a telling example of intervention without such a commitment. Despite the imperative to stay in the country long enough to cultivate the institutions necessary for a durable peace, prolonged occupation has attendant liabilities that cannot be minimized. It is essential to promote legitimate sovereignty of the state that has suffered an intervention, since the end goal is a self-sufficient and accountable state. A second risk involves large and sudden influxes of external funds into local economies that may create harmful dependencies and disruptions. Finally, reconstruction ideally should not be politicized by outsiders—for example, the announced Russian reconstruction of the medieval Umayyad, or Great Mosque, in Aleppo to curry favor with the Syrian population for the Assad regime that it has propped up. It thus should not occur at the expense of local ownership to ensure that the eventual transfer of responsibility back to local populations is not destabilizing. These considerations are valuable as well when applied to efforts to rebuild immovable cultural heritage after an armed conflict.

ICISS’s three responsibilities have invited criticism, even from advocates of robust human security. Some argue that the implied sequencing of prevention, reaction, and rebuilding can be too mechanical and impede operational plans and implementation. Reluctant states also can manipulate them to forestall action against mass atrocity crimes—for example, if not all potential preventive measures have been exhausted, reaction could be seen as inappropriate. For opponents, the ICISS report’s emphasis on state culpability in such crimes and the conditional nature of sovereignty fuels long-standing criticisms from the Global South, and skeptical member states may have been unnecessarily alienated.

Nevertheless, we believe that ICISS’s original three responsibilities provide the most logical starting point to fashion a workable conceptual framework for the protection of cultural heritage in armed conflicts. While numerous actions to protect cultural heritage can occur simultaneously, for immovable heritage the original three R2P responsibilities can be interpreted as discrete and sequential. If a site is partially or totally destroyed (that is, no effective prevention has occurred), the next option is to intervene to protect what remains or other sites nearby; and eventually to rebuild the compromised one. Hence, the chronology actually is accurate: to prevent; and if that fails, to react; and if those two fail, to rebuild.

Toward a Draft Framework to Guide International Action

Given the similarities between the R2P framework enshrined in the ICISS report and the politics and logistics underlying the prospects for international action to protect cultural heritage in war zones, the original three-part responsibility guides our analysis. The first, the responsibility to prevent damage and preserve cultural heritage, would represent a collection of conservation efforts, aimed at not only averting destruction but also preparing for the worst. Action should occur when it matters most—before the damage occurs or is extensive. As Raphael Lemkin noted, “Burning books is not the same as burning bodies . . . but when one intervenes . . . against mass destruction of churches and books one arrives just in time to prevent the burning of bodies.” If taken seriously, the imperative to prevent damage also requires massive investment in international development to alleviate poverty, income and wealth inequalities, a lack of democratic representation, and other root causes that feed into political instability, conflict, and eventually the destruction of cultural heritage. Protection of such heritage should also be included in the terms of reference for development projects.

Shorter-term and more direct strategies might include education aimed at promoting appreciation for cultural heritage and additional normative prohibitions against its destruction. UNESCO, among other organizations, is already engaged in this work but is underfunded. In contrast to its universally respected role as a standard setter and norm entrepreneur, UNESCO has been criticized for being among the least effective of the UN’s operational organizations.

As promoted through the Abu Dhabi Conference and Security Council resolution 2347, the creation of a network of temporary safe havens for movable cultural heritage provides a backup if a particular area is imminently at risk. Such safe-haven networks should be organized to promote ample availability in every region so that states have the freedom to choose where they want to store their heritage. Given the contentious debates about ownership, some states undoubtedly may be wary of engaging distant safe havens but more amenable to accepting help from neighboring countries, assuming that they are not facing violence and have adequate facilities. Alternatively, small and neutral Western countries—for instance, Switzerland and Sweden—that do not have major encyclopedic museums may also be seen as less threatening temporary shelters than industrialized countries with them, such as France, Germany, the United Kingdom, and the United States. Nonetheless, Switzerland’s agreement to harbor temporarily Afghanistan’s heritage was rejected by UNESCO because of the 1970 convention’s strictures against moving objects from the country of origin. Ultimately, the use of safe havens will depend on trust.

In places on the cusp of armed conflict or where it has already erupted, the application of existing anti-looting legislation is essential, not only because funds raised from the illicit trade in looted antiquities augment the capacity for violence but also because looting destroys cultural heritage. The mandates for preventive peacekeeping operations could also include provisions for the protection of cultural heritage. Macedonia during the Balkan wars was the first and last attempt at the preventive deployment of UN blue helmets, but the experience could provide lessons for future cultural protection deployments. In preparation for such actions, best practices for protecting heritage in wars as well as in peacebuilding should be developed and disseminated. Clearly, resilient societies can become vibrant after armed conflicts, but an essential and often overlooked building block is cultural heritage.

Finally, in preparation for the possibility that destruction does occur, states and their partners—including museums and university archaeological departments—should ensure more adequate and systematic cataloguing of all cultural heritage. Teams should include partners within their territories as well as from outside. Common reporting standards and mechanisms for international sharing of information as part of a comprehensive prevention strategy would also improve the possibilities for postconflict rebuilding.

The second responsibility, to react, would seem to have as narrow a scope when applied to cultural heritage as to people. Moreover, the experience to date with Chapter VII reactions to mass atrocity crimes hardly bodes well for deploying military force to protect immovable cultural heritage. R2P entails an escalating list of nonconsensual interventions—including sanctions, international criminal pursuit, and military force. It is doubtful that sanctions or international prosecutions would be appropriate strategies for mitigating or averting damage to cultural heritage. At best, they seem better suited as post hoc punitive measures that, if effectively implemented, might deter additional destruction or deter the next would-be destroyer of cultural heritage.

For this reason, and although it is an unlikely last resort, our discussion of urgent reactions is limited to military interventions. The exact impact of the creation in 2016 by the Italian government of a brigade of “Blue Helmets of Culture,” followed by the 2017 commitment of Carabinieri forces dedicated to that purpose, is unclear as of this writing. Since 1969, a special emphasis of the Carabinieri has aimed to combat trafficking of and recover Italian heritage. As part of that effort, the return of illegal heritage from other countries and advice and training for their officials have been by-products. MINUSMA’s mandate of military protection of cultural heritage establishes an important precedent, upon which Italy and other states might build. Depending on the timing of military deployments, they could be an element of prevention.

The original ICISS formulation of a just-cause threshold maps onto the protection of cultural heritage. We suggest the following adaptation of what the ICISS might have called “military force for cultural protection purposes”: “Large-scale loss of cultural heritage, actual or apprehended, with genocidal intent or not, which is the product of deliberate action by a state or a nonstate actor, or of neglect or inability to act, or of a failed-state situation; or large-scale cultural cleansing, actual or apprehended.” This threshold would allow preemptive intervention when a group announces its intention or has previously demonstrated a willingness to destroy cultural heritage and approaches a new territory. In addition to the just-cause threshold, any consideration of military intervention should also include, as did the ICISS report, the elements of Just War Doctrine as guidance: right intention, last resort, proportional means, and reasonable prospects.

An additional imperative for military intervention to protect immovable cultural heritage in armed conflicts is a close working relationship with local populations, civil society organizations, and some nonstate actors (for example, the Kurds) that share an interest in the protection of cultural heritage. Beyond general concerns about the optics of intervening on behalf of tangible or intangible heritage while human beings are also at risk, the risk of backlash from locals who feel alienated by the process could also undermine interventions. In addition to the most widely acclaimed sites identified by UNESCO, it is essential to protect the everyday cultural sites and artifacts valued by the people who are in zones of armed conflict.

Bolstered by local knowledge, outsiders are more likely to be seen as legitimate and effective in protecting the interests of the people at risk. In fact, there have been numerous recent illustrations of heroic efforts by local professionals and citizens in Syria and Mali to shelter heritage. Residents of communities under fire and living near cultural heritage are often the first, and perhaps the most important, line of defense.

The third responsibility, to rebuild, will require substantial resources as part of comprehensive peacebuilding efforts, including reconciliation tailored specifically to address cultural destruction. Heritage can be a resource not only for identity but also for social cohesion and for economic growth. It is worth repeating the precedent from the Dayton Accords, namely the provision for a Commission to Preserve National Monuments to identify important sites going forward. Part of peacebuilding may also include the restoration or re-creation of damaged heritage, although this will depend on adequate documentation having occurred prior to any extensive damage. There are ample examples of other successful rebuilding projects, including the Mostar Bridge and the Babur Gardens in Kabul.

Given the three responsibilities, which should be the priority? “Preservation” has long been the goal for defenders of cultural heritage, and it is a synonym for “prevention,” one of UN secretary-general António Guterres’s top three priorities. Also, donor states are relatively generous with resources for high-profile rebuilding after a crisis has effectively unfolded, particularly in comparison with their reluctance to deploy military force. It thus seems sensible to emphasize prevention and rebuilding, even if all three responsibilities remain central for a comprehensive conceptual framework. In fact, the three pillars of Ban Ki-moon’s formulation of R2P—the primary responsibility of states to protect their own heritage; the responsibility of others to help build that capacity; and the international responsibility to respond if the first two pillars are inadequate—also can be applied to operations to protect cultural heritage.

Next Steps

The preceding draft framework for international protection of cultural heritage has explored some of the possibilities by building on previous work by ICISS on R2P and on subsequent UN debates, decisions, and operations. As for any effort in largely uncharted waters, more questions than answers appear. A desirable next step could be the composition of an independent international commission.