Russian invasion of Ukraine and the international legal protection of cultural property

Posted on: March 3, 2022 by

It has been alarming to witness the invasion by Russian troops of Ukrainian territory over the last seven days. Distressing images of the bombardment of cities, communities under siege and refugees pouring into neighbouring countries have proliferated online. The primary focus of the international community has understandably been on the protection of human life and the cessation of violence affecting civilians across the Ukraine, as well as the clear violation of the principle of state sovereignty.

But it is also worth turning our attention – ever so briefly – to the potential attacks on cultural heritage, which in some ways can be equally vicious and demoralising, with long-term effects that could be felt for decades to come. We have heard unsettling reports of the destruction of a folk art museum in Ivankiv, north of Kyiv, and threats to the various monuments around the country, including World Heritage Sites like Kyiv Pechersk Lavra in the capital (see recent Guardian report here). There have also been reports of major damage to an opera house in the eastern city of Kharkiv after a Russian cruise missile attack two days ago.

It goes without saying that targeting cultural property during a time of armed conflict is a war crime under the Rome Statute of 1998, which established the International Criminal Court (ICC). Article 8(b)(ix) of the Rome Statute specifically includes within the scope of war crimes ‘intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes [and] historic monuments’ (provided they are not military objectives), and such crimes can be prosecuted at the ICC in the Hague. Unfortunately while Ukraine signed the Statute and accepted its jurisdiction for crimes committed on Ukrainian territory from 2013 onwards, Russia, since first signing in 2000, subsequently withdrew its signature in 2016. This means ICC prosecution for war crimes in this conflict, whether in relation to cultural sites or otherwise, would be very difficult. Nevertheless, the ICC Prosecutor has recently announced an investigation into Russia’s actions in Ukraine more generally, accompanied by referrals from 39 different states party to the Rome Statute.

More broadly under international law, there is the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 which enshrines the ‘respect’ for cultural property at Article 4. The term ‘cultural property’ includes movable or immovable property of great importance to the cultural heritage of every people, as well as museums, large libraries and depositories of archives (as set out in Article 1). As for ‘respect’, this includes (a) refraining from using cultural property in a way likely to expose it to destruction or damage and (b) refraining from acts of hostility directed against such property. Unfortunately the obligation was watered down at the time of the Convention by the insertion of a waiver where ‘military necessity imperatively requires such a waiver’ (Article 4(2)). Therefore if imperative military necessity justifies an attack on cultural property, such an attack would not violate the Hague Convention.

The difficulty has always been determining what exactly constitutes an imperative military necessity. The international community recognised this shortcoming in the Convention and sought to rectify it in a Second Protocol signed in 1999, which clarified that the waiver is only available where (a) the property has become a military objective by its function and (b) there is no feasible alternative to attacking it (Article 6 of the Second Protocol). And while Ukraine ratified the Second Protocol in June 2020, Russia never ratified it. As a result, the more honed definition of military necessity would not be directly applicable in the present context. That said, it is very likely that the Protocol’s definition is commensurate with the custom of international law, so that an attack would likely violate the Convention unless it was justified according to narrowly crafted terms like those of the Second Protocol. For more on this debate, see Kevin Chamberlain’s fascinating book War and Cultural Heritage – A Commentary on the Hague Convention 1954 and its Two Protocols, the latest edition of which was published in 2014 (pictured above; see specifically pages 30-33).

What does all this amount to? Despite the comforting language around ‘respect for cultural property’ in the Convention, there remains the troubling waiver for imperative military necessity. If the matter makes it to the International Court of Justice (ICJ), which is perhaps getting more likely by the day (Ukraine already brought proceedings on 26 February against Russia for cessation of hostilities), then the waiver would have to be given proper judicial treatment. In another context, the ICJ has started to wade into cultural heritage protection during armed conflict and occupation in the recent interim decision of Armenia v. Azerbaijan (2021), though that did not relate to the Hague Convention but rather to another international instrument, the Convention on the Elimination of All Forms of Racial Discrimination of 1965.

In addition to outright attacks on cultural property, respect for cultural property at Article 4 of the Hague Convention also extends to prohibiting and preventing theft, pillage, misappropriation and vandalism of cultural property. While there have not yet been confirmed reports of such actions taking place over the past week, some with special knowledge of ancient sites in the region around Crimea have warned via social media of potential looting. Thankfully Article 4 affords no military necessity waiver if such actions do take place – which is logical, since when would military necessity ever require theft or looting? Nor indeed does the waiver apply to reprisals against cultural property. These paragraphs (3 and 4) of Article 4 place a strict obligation on the state in control of the territory to prohibit and prevent such actions, whether undertaken by soldiers or indeed (to the extent feasible) by civilians. Though let’s hope it never comes to this.

Since both Russia and Ukraine have acceded to the First Protocol to the Hague Convention, each must ensure that cultural property is not exported from a conflict zone it occupies. Should such property end up in a third state then that third state would be under an obligation (if also party to the First Protocol) to take the property into its custody and return it to its territory of origin at the close of hostilities. This is a broader obligation because it applies to states not directly involved in the conflict itself. The UK, France, Switzerland, Japan, Canada and over 100 other states are also party to the First Protocol. For now, we can consider this Protocol at best a band-aid aimed at curbing the illicit removal of items from a war zone. But at least there is a mechanism for return should such cultural property be removed.

Last autumn we reported on a decision by the Amsterdam Court of Appeal involving certain Scythian artefacts from the Crimea lent to a museum in the Netherlands, known as the ‘Crimean Treasure’. It seemed at the time like a relatively civil dispute between four museums in Crimea and the Ukrainian State over who should claim the return of these items from the Amsterdam museum. But now, following Russia’s invasion of Ukrainian territory proper on 24 February, the dispute has been put into sharp relief: this was not simply about the location of a few museum pieces: it was instead a precursor to a much wider and far more devastating conflict, one just waiting to be unleashed.

*** We will be hosting a webinar called War and the Legal Protection of Cultural Heritage on 6 May 2022 at which experts will discuss many of the issues raised above. Click the link for more details. *** 

Image at the top shows a bus burning on the road between Kyiv and Kharkiv on 24 February 2022 after the beginning of the Russian invasion (public domain image from Voice of America, Yan Boechat/VOA).