4International Law: Problems and Prospects

We have come to the issue of what exists as an international law, an international framework. If you will allow me to enlarge it a bit, I want to speak briefly about the conventions and about the language of these conventions. We have mentioned many of them. And I would like first to commend you, Tom [Weiss], because in your coauthored first Getty Occasional Paper you outlined some of these conventions and some of the work that is being done. If you will allow me to start with a request. I think we should stop saying that it has always been like that in history: somebody comes and destroys heritage. Because if we say this, we eliminate all the efforts that we have made in the twentieth century to create a rules-based mechanism or platform to ensure that this does not happen or at least that from the point of view of international law and our understanding, this should not be done. I have heard this argument many times, of course: Why do you say this? You know, it happens. This is the history of humanity. It means that we have not evolved in our understanding about heritage, about its importance, and then about the way we treat it and the way we communicate as humanity among ourselves and also with the heritage. So this is my first point.

The second is, I just want briefly to mention that UNESCO is the guardian of the six major conventions in the area of culture, and it is the norm-setting organization. Of these six conventions, three, I think, have a very direct impact on the topic that we are discussing, but the others are also very relevant. Of course, the first one is the 1954 Convention. And it is the two protocols on the protection of cultural property in the event of armed conflict. Mounir [Bouchenaki] will speak more on this and on how the Second Protocol has been adopted and evolved. This is one of the Hague humanitarian law conventions. And I would say that nowadays we have 133 countries, as of September 2018, that have ratified this convention. I would say that because of what happened in Syria and Iraq—Da’esh and everything—we have made an enormous effort to have more countries ratify it. The last one of the big countries that ratified it was the United Kingdom, in December 2017, which meant that all of the five permanent members of the Security Council, for the first time, ratified this convention. I think this was a very important moment. And France, in 2015, pledged; in 2016, they ratified the Second Protocol. So I think the framework of the member states that have ratified the convention is there. This is very important in order, on that basis, to continue working. But the situation that evolved around the destruction of heritage made us also very cognizant that a big effort was needed for the widest possible ratification of the cultural conventions. We have made an enormous effort, and I think we have succeeded.

The other convention, of course, is the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. This is the prohibition on the illicit trafficking of cultural property. Now, a few words about it. Many countries are working to restitute stolen property or illicit trafficked property. The problem with this convention was that there was no monitoring mechanism. And in 2012 I convened a meeting of the state parties. You know how difficult it is to amend international law. So the general conference of the state parties decided to establish a committee—now there is a committee and even subcommittees—and require also that state parties present periodic reports. And this was very important. We did that before this big crisis in the Middle East. I come from Eastern Europe. I know the Balkans have been looted, and I was very sensitive to these issues. But it was good that we started this work before, because it helped us a lot later to create platforms and to work on the basis of this convention. So this convention has been ratified by 137 countries. And this was also a problem, because this is a convention very much linked to the illicit trafficking, without conflict, of objects of art. Some of the big art markets were not very enthusiastic about joining this convention. But many now have. So I think we are on a good track of having more countries aligned around this international law.

The most important is the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage. I am not going to elaborate further because you know this convention. I would just say that this convention has been ratified by more member states than any other international legal document; 193 member states have ratified it. This means that there is a lot of political commitment regarding world heritage. It is also important because it contains monitoring mechanisms, as well as prevention mechanisms, in terms of threatened heritage. Of course, we are not speaking only about armed conflict, but other threats to world heritage. And here I would like to pick up once again the issue of rebuilding, because we have to be very careful when speaking about heritage protection. I am referring, of course, to the World Heritage List but not only that. I am speaking broadly about rebuilding heritage. In the history of the World Heritage Convention, there are only two instances when destroyed heritage has been rebuilt and then included on the World Heritage List, and both of them are very emblematic for conflict and war. The first instance is the old city of Warsaw, Stare Miasto, which was totally destroyed during World War II, rebuilt, and then included on the World Heritage List—because it is a symbol of resilience, it is a symbol of, I would say, resistance to the war, and a strong message, once again, against destruction in war. The second instance, once again emblematic, is the Old Bridge of Mostar, which was not on the World Heritage List when it was destroyed. It was destroyed for no strategic reasons. It was destroyed as a symbol of eliminating and destroying the links between communities. And that is why it was rebuilt, under the auspices of UNESCO, and named a World Heritage Site. It is one of the unique cases precisely because of the message that it carries. And that is why I think it is very important to be very careful when we speak about destruction of heritage and then rebuilding it.

Now, let me turn to international law. As I said, I think we have quite a developed framework of international law. As Tom writes in his paper, all the issues about inconsistency in some of the terminology are right. This exists. Maybe there is also incoherence in terms of the monitoring mechanisms for implementation. And I also agree with this. But what I think is probably more realistic to do, because we know how difficult it is with international law and such conventions, is to amend, to adopt. From my own experience, I would say that there is no appetite among member states to adopt additional, new laws. I know this because we adopted this recommendation on restoring urban landscapes. We wanted to make a convention, and we wanted to move on other issues, but member states were very resistant. So if we want to be realistic, I think, we have to develop a different approach, one that is much closer to what is needed today. Of course, the first thing is ratification. I think it is very important for us to continue our very strong effort, so that more countries ratify these conventions. The second is implementation. We may have a wonderful international law, but what if it is not implemented? Where do we go? In this particular case, I think we need to link it with some of the other policies that we want, to link it to the efforts to involve local communities in many of these cases, and to link it to the work broadly of the United Nations, even the Responsibility to Protect. And as I mentioned, when we were thinking of how to move forward in this very complex environment on the basis of the Responsibility to Protect, we actually signed an agreement with the International Committee of the Red Cross, Geneva Call, and many, many others.

The work of the International Criminal Court, I think, is also very important. Actually, it was our idea, UNESCO’s idea, to reach out to the ICC and say, “Well, if we say it’s a war crime, and even the ICC also says it is a war crime, let’s try to do it.” What we did was encourage Mali to ratify ICC, the Rome Statute. Before we did so, we told them, “Ratify it, so that you have another means to prosecute the possible perpetrators of this destruction.” They did ratify it. We went to the ICC, and you know the history. My deputy—your successor, Mounir—Francesco Bandarin, went to testify to the court. We put legal teams together, our legal team and their legal team, working together to make a case, because it was not obvious that it would be successful. And I am very proud that we did that and that it happened this way. As a consequence, the ICC now is working on a policy paper on the destruction of heritage. I spoke with Fatou Bensouda, the chief prosecutor, a couple of months ago, for another reason. I spoke on the phone with her and asked whether they had finalized it. Not yet, she told me, but they are working on it. And I think this will be a next step that will also make a strong legal case for the protection of heritage and the penal code. I think it is very important. Bensouda said probably by summer they will finish their report and publish it, as they did with sexual violence during the war. I think it is an important next step.

Then, of course, there is the work that we have been doing with the Security Council on the adoption of several resolutions. Because, once again, this is the broader international framework, setting the standard for such work. I will just mention a few cases. Resolution 2199 was important from our perspective not only because it included three paragraphs about the importance of heritage protection and against the looting of sites, linking it with terrorism and the financing of extremism, but it was important because it allowed us to create a large platform of cooperation with Interpol, the United Nations Office on Drugs and Crime (UNODC), and the al-Qaida Committee in the Security Council in New York, which were not the usual kind of partners we had. But on that basis, we created not just platforms; every second month, we had video conferences that I organized with my colleagues. For the first time, all these entities put together their synergies. They exchanged data with the International Organization of Customs, with the UNODC, or with us. I had not realized that there was no data sharing before that. But also, because this helps us push strongly, we said member states should take decisive measures.

Now, when we started this work, it emerged that even in the European Union there was no harmonized directive on an object coming from Syria, Iraq, or somewhere moving around the European Union. You cannot trace it, because there is no established route. There is no one single regulation that lets you harmonize the way it crosses borders and where it is and how it goes. So this helped us also push the European Union, which even adopted a new cultural policy. But at that time when I was still at UNESCO, more than fifty countries changed their national registration in some way. The United States also introduced a very important piece of legislation in Congress. They adopted this also. But what I am speaking about in the United States is the same in the European Union. Europe was very strict on the export mechanism but very loose on the import mechanism. So they tightened their control also, and they harmonized their legislation. And I think this was extremely important.

And then, of course, further resolutions were adopted by the Security Council, the last one being 2347. I think it was an important framework of cooperation, because this allowed peacekeepers to train peacekeepers on heritage protection. And by the way, very many armed forces nowadays have introduced protection of heritage for their peacekeepers. Somebody said, “Can we work without even having heritage protection strictly in the peacekeepers’ mandate?” We can. Even just last month, in Italy, they had a training of their armed forces, and they introduced heritage protection. So I will stop here. Just one word. We launched campaigns about UNESCO heritage, but it was not just a social network. Particularly with Italy, it was to trade the synergy between the military, the expert community, the cultural people, and academics in order to work together in similar situations, in order to see how they can leverage their different expertise, in order either to stop illicit trafficking or to do the peacebuilding after a heritage conflict.

Thank you very much for having me here as a rather unorthodox scholar. The first of the two things that I want to outline involves communities. One of the first things I thought when I looked at this lineup of speakers was, why were there no Syrians or Iraqis represented? Or Yemenis? I am very interested in Yemen. And I would just say that going forward, if one—and particularly sitting in the United States—does not want to be charged with a new form of cultural imperialism, it would have to include those actors. As a legal scholar, a colleague, reminded me, in the 1954 Hague Convention, in article 5 on occupation, it actually says that as far as possible any high contracting party has to have the support of competent national authorities of that occupied country in safeguarding and preserving its cultural property. The second point in that article is that in occupied territory, anything damaged by a military operation should be within the purview of competent national authorities; if they are unable to take such measures, we should work closely with them—in cooperation with such authorities—to take the most necessary measures for preservation. So in 1954 it was already sort of established that we would have that community partnership. I think that on anything going forward, even though we have heard great examples of on-the-ground working with people—and there really are terrific case studies that are being presented—those key players really have to be at the table also.

Of course, today heritage is not just about bilateral negotiations between governments, as many people have pointed out. And we all know how predatory states work, even our own. It is also about the protection of minorities. We really have to work at the local level. And one of the most impressive examples that I have seen is the Aga Khan Trust for Culture, in India, specifically Delhi. I also work there on heritage and humanitarianism, looking at things like water, sanitation, issues of caste and class, violence, and gender violence and how that all connects to heritage sites. And I think AKTC provides an on-the-ground model of how it can be done. So it is not a theoretical model, but it is also a research model but also in terms of lines of influence and creating positive change. Of all the different organizations I have looked at, AKTC, I think, is the one to follow.

I fear that we are already on the cusp of being a little late to try to find out what people’s primary needs are, what sort of heritage sites, and not simply reify or further support the monuments that the international community sees as important. I remember one of your colleagues, Nada al-Hassan, talking about how the French media all wanted to talk about Palmyra. She represented the Arab Desk at the World Heritage Center and wanted to talk about all of these other sites. But there was a sense that Europe was claiming Palmyra for itself. So this is something to avoid, going forward. And I also remember, at UNESCO committee meetings, say, parties like Turkey asking why the focus is on sites and not people—again echoing some of the data that Ben [Isakhan] has retrieved. So that is a very educated Turkish ambassador asking why the focus is on classical sites all the time. This comes across as a fairly anti-Islamic sentiment. It was once said of UNESCO that the book of the organization was the Bible. So there is a history there that needs to also be overcome.

It is fair to say, although uncomfortable to accept, that this is a time we need research and reflection because the older approaches, developed in the context of World Wars I and II, do not work anymore and do not serve us. I have to bring up certain levels of hypocrisy, I guess. The United States only recently signed the 1954 Hague Convention, and it has not signed Protocols 1 and 2. Nor is the United States a signatory to the Rome Statute. There is the U.S. withdrawal from UNESCO. So this is another reason to include cultural heritage legal scholars but also to broaden the international feeling, because we start from behind, I think, in this particular setting.

As I mentioned, there has been a focus on Iraq and Syria, but much, much less on Yemen, Libya, and the Crimea. Many people are hamstrung from saying or doing anything because of how some predatory states operate. Yemen—and I am glad Simon mentioned this—is one of the worst humanitarian disasters and also has suffered the destruction of cultural property. In Saudi Arabia, backed by the United States and the United Kingdom, there has been the use of cluster bombs, which are illegal according to the Geneva Convention; there are no consequences. Yemen could not even take the floor, because no one could afford to be sent to speak at various UNESCO meetings. So there is not just implementation; it is even visibility, traction, the countries that count, the countries that do not. I am glad also that people mentioned the Uyghurs. China is fairly untouchable in most UN settings, because it’s the Gulf and China that pay for almost everything, I think, going at UNESCO. The United States could write a check; that might help. And there are real constraints.

I came across documentation from the Iraqi delegation complaining that the United States and its allied forces had also damaged archaeological sites. But this was never addressed. And I do not think it has been addressed yet. So there are other forms of damage. Arab countries, of course, are questioning the intent and the long-term benefits of things that we mentioned earlier today, like safe havens. The idea of giving anything to Switzerland is almost laughable. They see this as a sort of proxy colonialism. And in a sense, because we are vested, I think, archaeologists are probably the worst people to talk about this because we are all— We love this stuff, it’s our job, we get paid to do it. Yes, we are too committed in a sense.

This takes me to a recent British study on the exploitation of local researchers used for British-funded research projects in Iraq and Syria. That is also money for archaeology and training that is being used as a kind of partage for permits. And it is the outsourcing of research by these exploited and alienated people on the ground. As somebody said, conflict creates opportunities.

I want to answer the question about contractors. I think it was last year that some architects and NGOs—I think it was in Mosul—circulated a series of emails, with photographs showing, as the destruction was raging on, that contractors were coming in and bulldozing partly damaged buildings and buildings that were not damaged at all to make way for commercial enterprise. So in the middle of fighting, people were obviously seeing economic advantages. And I’m not sure, but I think the hint was that these were international contractors too. So it is business as usual. And I guess on a more ethnographic or anecdotal note, some consultants I know who were working under UNESCO auspices in Iraq, who have done very good work in the Middle East, were also seeing, through this international network of consultants that we were talking about, a European flavor, that business was being done as well. And relatives of people who were also employed and had connections to very big European companies and banks were also getting a foot in the door. So my concern would be always turning the gaze on ourselves, too, that we as elites and professionals and people who have contacts or may be in business or something, it is all getting mixed in together. One man’s gentrification is another’s destruction. But it is happening. I guess the disgusting element is that it is happening while bombs are dropping and people are dying.

Just two points. First, I think it is very useful to have the reminder that this can be instrumentalized. But instrumentalization is very common, right? So if we think about the anti-impunity norm of the ICC, it has been instrumentalized by a number of states that have actually referred themselves to the ICC—Uganda and others. It has been instrumentalized. So the question is not whether there will be instrumentalization. It will be there. It is there with every norm. The question is, what does it look like in this field, and how do you think about it? So it is important, but we need to put it in perspective. Instrumentalization exists for every single normative project you will have. Second, this question of bilateralism and multilateralism—I think in your project, it depends on what you are trying to do. So if you are trying to set a norm, it has to be multilateral because you have to build consensus. And you are also trying to dilute Great Power interests. That is why we have multilateralism. But if you are trying to do something else, then it might be both, bilateralism as well. But we should also recognize that we have to accept the effects of bilateralism, if applied universally. So if China is engaged in the Belt and Road Initiative in Africa, that is what bilateralism looks like. So we just have to be happy with the fact that if we say we want to act bilaterally, we have to recognize what that looks like when everyone is doing it. I think it is very much dependent on what your objective in the project is, which piece of this you are engaged in. Multilateralism will be important. I think the one piece of this that is more difficult today is that it is even difficult multilaterally to set norms. So some states are looking at—there is a new word for this, and I can barely say it, pluri-lateralism—getting like-minded groups to try to set norms simply because you cannot get a multilateral agreement. But it is rarely an either/or. It depends very much on the objective that you have, right?

I think it depends on the expectations. All this debate about multilateralism and bilateralism, I think, to some extent is probably very important, but they have different purposes. I will continue to think that multilateralism is very important. Not least because it is, indeed, where this kind of setting is. It is where small and big ones are. Otherwise it will just be North-South. It is where everybody shares practices. Sometimes UNESCO or other UN agencies go to places where bilateral organizations cannot go, because they are considered to be neutral, to be about everybody. And I think this should be very much emphasized. It is because it is technical; it is just engaged. And I think this is important. Now, speaking about bilateralism, of course, we should not be naive. Everybody has their own interest. It is like all the development efforts. Tell me how big the proportion of nonearmarked projects or funds in the UN is. We know Nordic countries give more nonearmarked projects. But always there is some kind of an interest. And this is where the multilateral platform made the coherent approach and coordinated all this. It may be for very concrete economic purposes, because it is a former colonial power that wants to tarnish the image in some places, in Africa or Asia or somewhere else. So there is always some kind of an interest. I am not saying it is very negative all the time; not at all. It is just that we have to know that there is something behind this.

But I think the more important part is feeling inclusive. We are living in a world that is fragmented, where there are tendencies to break apart platforms, institutions, and otherwise. It is not ideal. And I know it is very hard. Those of you who have worked in the UN context know how difficult it sometimes is. Sometimes diplomacy is hard work. It is hard work to get a document everybody agrees on. It is work morning and evening and night. But at the end of the day when it is there, you feel rewarded that everybody is united around it. I think this is important.

Now, speaking concretely about UNESCO, of course, things have changed immensely. Because of our financial crisis when the United States stopped paying its dues in 2011, I read everything and looked at the history of UNESCO, including from that point of view. In the 1980s, UNESCO’s staff was three times larger. There were 3,500 UNESCO staff and probably the same number of experts. Now the number is 1,300. I myself cut 30 percent or more of the staff because of the financial crisis. And everything changed. It is much more political; there is more of a tendency to use it for very narrow purposes. And also because today, I think after the 1990s, we see what is happening in the world: conflicts, mostly of a historical and cultural nature. We need only look at Asia, the controversies between Korea and China and Japan and some other countries that were swept under the carpet for decades but now are coming up. And some others. Also, there is the changing geopolitics. All this, of course, affects UNESCO and the other international organizations. So I think you should not expect UNESCO to do everything, like the UN. It cannot do everything. It is about partnerships. It is about leveraging all the different mandates and capacities to do things. If UNESCO and the UN can help build good partnerships, I think this will be a very good cause. This is the only way forward. The other is just simply not possible, and it should not be expected from them.