La reazione della Comunità internazionale alle distruzioni massicce intenzionali del patrimonio culturale

The recent massive intentional destruction of cultural objects by ISIS and its affiliates in Iraq and Syria, as well as by homologous fundamentalists in other parts of the world (Mali, Yemen), is immediately perceived as an overall attack to culture. At first glance, it could not be wholly equated with what happened during the wars in ex-Yugoslavia in the 1990s. There, each faction targeted “the enemy’s” cultural properties, while the recent attaks by fundamentalists are not directed to a specific cultural heritage, and so “cultural cleansing” assumes an all-encompassing meaning. The destructions perpertated in Afghanistan by the Talibans in 2001 were directed to all not-islamic cultural objects and now ISIS does not spare even islamic cultural sites. It has severely damaged the citadel of Tikrit, birthplace of Saladin, and it has been reported that it threatens to destroy the Kaaba in the Grand Mosque in Mecca. On the other hand, today’s destructions, just as most of those that occurred during the conflict in ex-Yugoslavia, are part of an overall policy, which dramatically comprises various other serious violations of the core international law rules protecting peace and human rights. In more than one occasion, ISIS has concretely linked the destruction of stone architectures to the brutal killing of human beings (suffice it here to remember the beheading of Khaled al-Asaad, worldwide famous Syrian archaeologist, octogenarian head of antiquities and now “martyr” for the ancient city of Palmyra). Is this “cultural cleansing” by ISIS, then, really different in both scale and nature from the destruction of cultural properties we witnessed during the conflict in the ex-Yugoslavia? Perhaps it is: because the attaks are systematic and used as a tactic of war, to intimidate populations, to disseminate hatred, to weaken the grounds for peace; because of the explicit link with the aggression to fundamental human rights; because these attaks are unequivocally very serious, being directed to several sites whose outstanding universal value has been formally recognised by UNESCO; and, particularly because the recent attaks by fundamentalists are not directed to a specific cultural heritage. Under humanitarian law, however, the origin of targeted cultural heritage is irrelevant. As already clearly stated in the Convention for the Protection of Cultural Property in the Event of Armed Conflict, concluded at The Hague in 1954, coherently with the principles underlying the entire international protection of cultural heritage, «damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world». From this point of view, then, attacking cultural heritage is a violation that entails responsibility of the State and of the individual, independently of the cultural origin of the damaged property. The non-recognition of the statehood of ISIS, just as it was for the nonrecognition of the Taliban regime in Afghanistan, must not be seen as a legal obstacle precluding the international Community from adopting countermeasures. Can, hence, cultural sites be effectively protected from direct, wilful aggression? International law could not prevent or stop the destruction in the Balkans or in Afghanistan. In the first case it intervened at the stage of the assessment of responsibility, through the jurisprudence of the International Criminal Tribunal for ex-Yugoslavia – ICTY – referring to the massive destruction of mosques, Christian churches, the old city of Dubrovnik and the old bridge of Mostar, and a Second Additional Protocol was concluded in 1999, to increase the effectiveness of the The Hague 1954 Convention. In the second case the international Community took the opportunity to reaffirm prohibitions under general international law, thus strengthening them for the future, prohibitions that had maybe not been so clearly stated until that moment, through the adoption, in 2003, of the UNESCO Declaration of Principles Concerning the Intentional Destruction of Cultural Heritage, after the destruction of the giant Buddhas of Bamiyan by the Talibans in 2001. Now, facing massive intentional destruction by ISIS and its affiliates, UNESCO strongly condemned these acts from the beginning and outcries coming from the UN agency devoted to culture are developing into concrete proposals to the UN, for the creation of specialized task forces, generally referred to under the emphatic name of “blue helmets of culture”, to be employed for the preservation of cultural sites. This measure, proposed to the Executive Coucil of UNESCO by Italy in March 2015 and realised through the conclusion of a first Memorandum of Understanding between Italy and UNESCO on 16 February 2016, is so conceived as to be possibly effective also at the preventive level (though applicable only in those situations where UN forces are employed on the territory). It is important that no misunderstanding arise as to the operative meaning of the institution of UNESCO “task forces”. In no way it entails an intervention by the United Nations system in a conflict situation “just because of” large scale direct attaks to cultural heritage, as the common reference to such mechanisms under the name of “blue helmets of culture” might suggest. The idea has been concisely expressed by the UNESCO World Heritage Committee in its Bonn Declaration on World Heritage (2015). The members of the Committee «recommend that the Security Council analyzes the possibility of introducing a specific dimension of heritage protection in the mandates of peacekeeping missions where appropriate». It is precisely with a view to timely providing for the necessary professional expertise, which must be well integrated in the UN forces when their mandate includes action for the protection of cultural heritage, that these «mechanisms for the rapid mobilization of national experts» should be established. To be absolutely clear on this point, the General Conference of UNESCO has introduced an amendment to the draft resolution, to state that it adopted the Strategy for Reinforcing UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict «with the understanding that its implementation will be carried out in full coordination and collaboration with concerned Member States and within the framework of United Nations bodies and their mandate». Apparently, the level of the damage lately produced has reached a peak, and more adequate measures, such as the employment of the UNESCO task forces, are required. This step forward of the international practice is wholly in line with the words of the 2003 UNESCO Declaration, a solemn affirmation of the opinio juris of the international Community in this area. Explicitly triggered by the destruction of the giant statues of Buddha in Afghanistan, the Declaration is projected into the future, as a milestone on the path towards legal certainty about the accountability of both States and individuals for acts of intentional destruction of cultural heritage («expressing serious concern about the growing number of acts of intentional destruction of cultural heritage»). The idea that there should be no “gaps” in the international legal system on this issue is clear; being the Declaration per se a non-binding act, its legal significance is to be appreciated for the possible indirect effects it produces on the interpretation and application of other international law sources and – if associated with practice – on the development of general international law. As a matter of fact, the Declaration specifically refers to general international law: the General Conference is «mindful of the development of the rules of customary international law as also affirmed by the relevant case-law, related to the protection of cultural heritage in peacetime as well as in the event of armed conflict». The establishment of UNESCO “task forces” is not the only relevant development in international practice, following the 2003 UNESCO Declaration. The Declaration’s structure (presenting two successive chapters respectively dedicated to peacetime activities and to the event of armed conflict, including the case of occupation) reveals the urgency of ensuring protection from intentional destruction both in time of peace and of war, and independently of the exact legal qualification of the conflict. With reference to individual criminal responsibility, it provides that «States should take all appropriate measures, in accordance with international law, to establish jurisdiction over, and provide effective criminal sanctions against, those persons who commit, or order to be committed, acts of intentional destruction». In contemporary practice, we are witnessing the first international criminal case completely dedicated to acts of intentional destruction of cultural heritage. On 26 September 2015, Ahmad Al Faqi Al Mahdi was surrendered to the ICC by the authorities of Niger. The trial began on 22 August and concluded on 24 August 2016; the judgment was delivered on 27 September. He was accused of having committed, individually and jointly with others, war crimes regarding intentionally directing attacks against several buildings in the cultural site of Timbuctu (Mali), inscribed in the UNESCO World Heritage List, and admitted guilt. This is a very interesting test-bed for existing relevant international law instruments. The international Community was ouraged by the destruction of Timbuktu’s cultural heritage, just as it was by the destruction of the Buddhas of Bamiyan. In the case of Timbuctu, the destructions could more easily be deemed to be «associated with the conflict» (in the words of the Elements of Crimes of the ICC) than in the case of the Buddhas, thus it wasn’t necessary to resort to the cathegory of crimes against humanity to avoid impunity for this act. Nevertheless, the appeal that ICC “learn from the lesson” of the evolutionary jurisprudence of the ICTY and consider the destruction of the ancient cultural heritage of Timbuctu as a crime against humanity, in addition to being a war crime, has been voiced among scholars. The European Parliament, in a resolution of 30 April 2015, explicitly requested to add not properly “cultural genocide” but “cultural cleansing” to the list of crimes against humanity of the ICC Statute («calls on the European Union to take the necessary steps, in collaboration with UNESCO and the International Criminal Court, to extend the international law category of crimes against humanity so that it encompasses acts which wilfully damage or destroy the cultural heritage of mankind on a large scale»). In addition to UNESCO task forces and recent international practice and opinio juris about individual criminal responsibility, a third relevant element must not be forgotten in assessing the contemporary status of general international law on the issue of the protection of cultural heritage: action directed to the protection of cultural heritage has been included in Security Council resolutions adopted on the basis of Chapter VII of the Charter. On one hand, the mandate of the UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) included since its inception, in April 2013, the support for cultural preservation, explicitly mentioning the mission «to assist the transitional authorities of Mali, as necessary and feasible, in protecting from attack the cultural and historical sites in Mali, in collaboration with UNESCO». It realised for the first time a cooperation with UNESCO, to be developed and structured in the future through UNESCO task forces. On the other hand, resolutions about Iraq (2003), and Iraq and Syria in connection with international terrorism (2015), tackle with the specific issue of international traffic of cultural objects. Looting on a large scale and international trafficking of movable cultural properties is practiced by ISIS fundamentalists and other individuals, groups and entities associated with AL-Qaida as a source of funding to support recruitment efforts and to strengthen operational capability to organize and carry out terrorist attacks. The adoption by the UN Security Council of Resolution 2199, on 12 February 2015, which extends to Syria the prohibition of trade in cultural objects already in place for Iraq since 2003, is defined by the Director-General of UNESCO as «a milestone in order to increase the protection of cultural heritage in Iraq and Syria». These recent developments of international practice are of the utmost interest and should always be considered in the overall framework of the international protection of peace and human rights. Underlining the extreme seriousness of the wilful destruction of cultural heritage could almost seem disrespectful, considering the other cruelties to which human beings were and are being subjected. In fact, it makes no sense at all to consider the preservation of cultural heritage separately from the protection of human rights. By definition, cultural heritage is identified because of its value, its significance for the life of the present and future generations, and direct aggression to cultural heritage usually occurs in situations of general and serious violation of human rights. Combating the destruction of cultural heritage is an important contribution to the protection of human rights and must not be perceived as distracting attention from them. On the contrary, the effective protection of human rights is enhanced if this relevant feature of their aggression is properly addressed.