Karima Bennoune: le patrimoine culturel vu comme un droit de l'homme
Le patrimoine culturel est important, car il fait le pont entre le passé, le présent et l’avenir. Sous l’angle des droits de l’homme, il est important non seulement en lui-même, mais aussi dans sa dimension humaine, affirme Karima Bennoune. En sa qualité de Rapporteuse spéciale des Nations Unies dans le domaine des droits culturels, elle a décidé d'accorder une place prioritaire à la destruction intentionnelle du patrimoine culturel. Le premier rapport thématique qu'elle présente à l'Assemblée générale des Nations Unies, le 27 Octobre 2016, est consacré à cette problématique.
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The report’s primary message is that cultural heritage is a human rights issue to which we must take a human rights approach. Beyond safeguarding an object or a manifestation in itself, a human rights approach obliges one to take into account the rights of individuals and populations in relation to them. It is impossible to separate a people’s cultural heritage from the people itself and their rights.
This is certainly the way it is often experienced by local populations. Haider Oraibi, the Director of the National Museum of Iraq, was reported to have wept after learning of Daesh destruction of Iraq’s relics, remarking, “They're just statues, [b]ut for us, they're living things. We came from them, we are part of them. That is our culture and our belief.” When extremists attacked Mosul’s museum, he was quoted as saying, “it was like someone wanted to kill you, like a murder.” One can hear in these words how much pain and suffering is caused by such destructions and how in fact they represent an assault on human dignity and human rights.
Protection of the defenders of cultural heritage
A critical, related question concerns the protection of the defenders of cultural heritage who are at risk, such as those who have curated and protected the National Museum of Afghanistan through decades of war and worked tirelessly to reconstruct the damaged pieces that could be saved after some 2,750 pieces were destroyed by the Taliban in 2001.
Some cultural heritage defenders have laid down their lives in its defence, such as Aida Buturovic, a librarian killed in 1992 on her way home from working to save rare books at the National and University Library of Sarajevo on the day it was shelled, or those who have fallen in recent years such as Anas Radwan, a young Syrian architect killed in 2013, reportedly by a barrel bomb, while documenting damage to heritage in the old city of Aleppo, or Khaled al-Asaad, the Syrian archaeologist who died defending Palmyra in August 2015, or Berta Cáceres, noted campaigner for indigenous rights and indigenous heritage, including natural heritage, gunned down in Honduras in March 2016, and many others who today continue to labour in obscurity and danger. I pay tribute to all of them. We must not wait until we are mourning the deaths of at-risk cultural heritage defenders to rally to their cause. Such figures may also include ordinary people like those women I observed in North Africa sleeping in shifts inside a mausoleum to protect it after it had been attacked.
People like them are the guardians of cultural heritage, and are cultural rights defenders. They often put their safety and economic security on the line to carry out this work. States must respect their rights and ensure their safety and security, but also provide them, including through international cooperation, with the conditions necessary to complete their work, including all needed material and technical assistance, grant them asylum when necessary and ensure that when displaced they are able to continue their work and take part in the protection and reconstruction of their country’s cultural heritage.
I also encourage a fully gender-sensitive approach to the protection of cultural heritage, which should include: recognizing the work of women cultural heritage defenders, who may in addition face gender discrimination and combating the particular challenges faced by women in accessing cultural heritage without discrimination and even in ensuring that their heritage is recognized in the first place.
Cultural heritage is a fundamental resource for other human rights
The right of access to and enjoyment of cultural heritage is a human right guaranteed by international law, and it must be taken seriously. As stressed by the Human Rights Council in its recent Resolution 33/20 (2016) on “cultural rights and the protection of cultural heritage,” “the destruction of or damage to cultural heritage may have a detrimental and irreversible impact on the enjoyment of cultural rights.”
In addition, cultural heritage is a fundamental resource for other human rights, including the rights to freedom of expression, freedom of thought, conscience and religion, as well as the economic rights of the many people who earn a living through tourism related to such heritage. It is crucial to understand that tangible and intangible heritage are closely interlinked and that attacks on one are usually accompanied by assaults on the other. In addition, while specific aspects of heritage may have particular connections to particular human groups, all of humanity has a link to such objects, which represent the “cultural heritage of all humankind,” in all its diversity. This is reflected in UNESCO’s Culture Conventions and standard setting instruments aimed at protecting cultural diversity and heritage.
In the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage adopted in 2003, the international community reaffirms its commitment to fight against the intentional destruction of cultural heritage in any form so that it may be transmitted to the succeeding generations. “Intentional destruction” is defined as “an act intended to destroy in whole or in part cultural heritage, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience”.
Despite the existence of a special protection regime governing heritage protection in times of conflict, much remains to be done to implement these norms. The core standards include the UNESCO 1954 Hague Convention and the protocols thereto. The Hague Convention requires States parties to respect cultural property and to refrain from any act of hostility directed against it or any use of it likely to expose it to such acts, subject only to imperative military necessity (art. 4). The Second Protocol strengthens the rule by further limiting the military necessity exception.
However, many States have not adhered to these standards, especially the Second Protocol, and I have heard worrying reports of violations of these provisions in recent conflicts. I call on states to recognize that any military necessity exception to the ban on targeting cultural property must be interpreted narrowly, taking into consideration the impact on cultural rights. All military decisions resulting in the damage to cultural heritage should be subject to close scrutiny. In addition to tackling the role of States, attention must also be paid to the robust use of international standards such as article 19 of The Hague Convention – and developing other strategies – for holding non-State actors to account and preventing their engaging in destruction.
A cultural warfare
Importantly, individual criminal responsibility arises from serious offences against cultural heritage. I welcomed the decision of the Office of the Prosecutor of the International Criminal Court to charge the destruction of cultural and religious sites as a stand-alone war crime for the first time in the case of Ahmad Al Faqi Al Mahdi, which has recently resulted in a guilty verdict. I endorse the judgment’s conclusion that the crime in question was of “significant gravity.” I very much hope to see similar prosecutions in future, and to that end I remind States of the vital need to collect and preserve evidence of any such crimes.
In my report, I give examples of recent acts of destruction which deeply affected local populations. These are just a few examples and reports are forthcoming from many regions of the world of a similar pattern of attacks by States and non-State actors. Unfortunately, there is a long history of such acts in all regions of the world, whether in wars, revolutions or waves of repression. However, in the early twenty-first century, a new wave of deliberate destruction is being recorded and displayed, the impact magnified by widespread distribution of the images. Such acts are often openly proclaimed and justified by their perpetrators and represent a form of cultural warfare being used against populations which I condemn in the strongest possible terms. Such attacks represent an urgent challenge to cultural rights that requires rapid and thoughtful international response, including by the UN human rights system.
A question of human dignity
As stressed in the preamble of the 2003 UNESCO Declaration “cultural heritage is an important component of cultural identity and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights”.
Acts of deliberate destruction are often accompanied by other grave assaults on human dignity and human rights. They have to be addressed in the context of holistic strategies for the promotion of human rights and peacebuilding. Protection of cultural heritage must be included in the mandates of peacekeeping missions. We must care about the destruction of heritage in conjunction with our grave concern for the destruction of the lives of populations.
Acts of intentional destruction harm all, and often disproportionately affect persons belonging to minorities. They contribute to intolerance, and deprive all humanity of the rich diversity of cultural heritage. Sites that are testimonies to the friendship and interactions between groups are also particularly targeted.
There are many examples where destruction is part of the “cultural engineering” practiced by diverse extremists. To deal with these forms of cultural heritage destruction, the international community must tackle, in accordance with international human rights standards, extremist and fundamentalist ideologies, sectarianism and discriminatory attitudes towards, inter alia, those with different views, minorities, indigenous peoples, which often lead to cultural cleansing in the form of cultural heritage destruction.
Some of the grave violations I have just described have received deserved international attention in recent years. However, I also note many ongoing acts of destruction of cultural heritage in many regions which often go unnoticed by the international community, targeting in particular indigenous peoples. Hence, we must not only respond to the Palmyra moment as it were, but use this moment to shine the light on other patterns of past or current heritage destruction, which also constitute human rights violations. For example, in the report, I recall the grievous history of destruction of diverse forms of indigenous cultural heritage in many parts of the world as a systematic part of, inter alia, colonialism or nationalist policies in post-colonial States, and I note that the totality of these acts have had long-lasting effects on the human rights of many indigenous peoples in diverse geographical contexts.
As a conclusion, I would like to stress again how crucial it is to consider that destruction of cultural heritage is a human rights issue, including in times of conflict, when human rights law is a necessary complement to international humanitarian law. When cultural heritage is destroyed, this bears important consequences for a wide range of human rights for current generations and those to come. Cultural heritage is a record of the genius of human beings, that which we leave behind for the next generations to mark our path through this world, and quite simply irreplaceable even in a digital era. Let us come together with urgency and thoughtfulness to protect it.
Karima Bennoune is a professor of international law at the University of California–Davis School of Law. She grew up in Algeria and the United States and now lives in northern California. She was appointed UN Special Rapporteur in the field of cultural rights in October 2015.