Author: Sherine Al Shallah
Committee: Eppo & Cultural Heritage Crimes Committee
Date: 16/11/2024
Background
The attacks on Lebanon since September 2024 have destroyed (in Nabatieh) and threatened to destroy (in Tyre and Baalbeck) significant cultural heritage sites.1 The destroyed sites in Nabatieh include the heritage souk that dates to the Ottoman and Mamluk eras. According to a local resident, ‘[i]t was the heart of the city; historically, Nabatieh was a link between Sour, Sidon, Jezzine, and all the other localities in the south, and merchants all converged to this place.’2 Tyre was the Phoenician city in which purple was invented and that founded colonies such as Cadiz and Carthage, and has been inscribed on the World Heritage List since 1984 for its important archaeological remains mainly from Roman times. Baalbeck was inscribed on the World Heritage List in the same year and was also a Phoenician city that retained a religious function during Roman times due to being the site of the sanctuary of the Heliopolitan Jupiter that attracted thousands of pilgrims. Baalbek is one of the finest examples of Imperial Roman architecture in the world.
Copyright: Mohammad Yassine. Source: L’Orient Today.
On 17 October 2024, ICOMOS Lebanon issued a statement calling for action against the threats to cultural heritage sites in Lebanon.3 On the same day, the International Alliance for the Protection of Heritage in Conflict Areas (ALIPH) announced the institution of emergency measures to move some of the threatened cultural objects into safe places in collaboration with local non-governmental organisations.4 Since then, Lebanese local media has called for state and international attention to the ongoing destruction of tangible and intangible cultural heritage in Lebanon as a result of the ongoing armed conflict since September 2024.5
Copyright: © Ko Hon Chiu Vincent. Source: Ko Hon Chiu Vincent
The intensified threats to Baalbeck as the entire town has been ordered to evacuate including the UNESCO World Heritage site have attracted protests from Parliamentarians and civil society, and finally global attention.6 Even if the site is spared, the forced possibly permanent displacement of the local population and craftsmen who look after the site and bear a special relationship with it persists. UNESCO is convening an extraordinary session on 18 November to discuss the endangerment of heritage sites in Lebanon and a request for Enhanced Protection, a mechanism established by the 1999 Second Protocol 7 to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Convention)8 to ensure ‘full and effective’ protection of cultural property during armed conflicts. 9 Whereas it is crucial that the heritage sites are protected, movable heritage (cultural objects) must also be protected under international law; which also imposes obligations to protect people and safeguard their cultural life (intangible cultural heritage).
Copyright: Le Monde France.
International Law Framework: Tangible and Intangible Cultural Heritage
The obligations for protection of both tangible and intangible cultural heritage during armed conflict are outlined in rules on the protection of cultural property in international humanitarian law (IHL). 10 IHL is principled on a basic understanding that there are certain sites, deemed to be ‘sacred’, that war must not be enacted upon.11 Under Article 9 of the 1954 Convention, ‘[a]ll warring parties, including non- state actors, are bound to observe, as a minimum, the provisions relating to respect for cultural property’. Moreover, designated cultural property could be granted Special Protection if entered in the ‘International Register of Cultural Property under Special Protection’ that is maintained by the Director-General of UNESCO.13
Special Protection could be granted to movable cultural property refuges, monument centres and immovable cultural property of great importance, and it implies that he parties to the 1954 Convention undertake to ensure an immunity to cultural property from acts of hostility in an armed conflict.14
The Second Protocol of the 1954 Convention also provides a system of Enhanced Protection (Article 11). 15 Enhanced Protection adds to Special Protection and is based on the idea that invoking a waiver to attack a cultural property based on imperative military necessity is not an option for the adverse party, and is granted under a set of circumstances outlined in Article 10:
1. it is cultural heritage of the greatest importance to humanity;
2. it is protected by domestic measures that recognize its cultural and historical value and
ensure the highest level of protection;
3. it is not used for military purposes or to shield military sites, and the Party that has control
over the property has formally declared that it will not be so used.
IHL Special Protection and Enhanced Protection of sites, buildings, and objects of cultural, historical, spiritual, scientific, or artistic significance are linked to people. The protections are directed towards ‘movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history whether religious or secular’16 ; ‘it is prohibited to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.’17 Protection under IHL is not limited to having physical access to cultural heritage sites and spaces where heritage is expressed, but refers also to having access to instruments, objects, and artefacts that are necessary for enacting the heritage.18
The Rome Statute of the International Criminal Court (Rome Statute) protects cultural heritage and deems its destruction without military necessity to be a war crime. 19 As such and unless the attacks against cultural heritage sites in Nabatieh, Tyre, Baalbeck and elsewhere in Lebanon could be justified under military necessity, then they could be construed as war crimes under international criminal law.
International cultural heritage law also continues to apply during armed conflict. While the text of the Intangible Cultural Heritage Convention 20 includes provisions for safeguarding intangible cultural heritage in situations of ‘emergencies’, it does not make explicit reference to armed conflicts, nor to migration, either voluntary or forced, as possible threats leading to the deterioration, disappearance or destruction of intangible cultural heritage. 21 A study’s example of a seasonal stonemason on restoration projects at the World Heritage archaeological site of Bosra in Syria explaining how all restoration work stopped when the conflict started, articulates the real implications of armed conflict on both tangible and intangible cultural heritage, and the implications of safeguarding intangible cultural heritage on the protection of tangible cultural heritage. 22
The destruction of heritage has been linked not only to the displacement of populations but to their permanent displacement, 23 which highlights the reconciliation thesis that cultural heritage protection is significant for long term reconciliation after conflict. The protection and safeguarding of cultural heritage has implications on the protection of cultural identity and linkages with human rights. 24 An osmosis between international human rights law, international humanitarian law and international cultural heritage law leads to the conclusion that the safeguarding of cultural heritage could amount to an erga omnes obligation. 25 Human rights and cultural heritage protection obligations continue to bind during armed conflict. Even if IHL explicitly refers to tangible cultural heritage (sites and objects), the safeguarding of intangible cultural heritage is also crucially maintained through a robust set of international instruments.
Cultural Objects and Role of EPPO
Aside from the risk of damage or destruction of cultural heritage sites, another threat to cultural heritage in Lebanon as to any cultural heritage within the context of armed conflict is the risk of cultural object looting. The exponential growth in the international art market has been coupled with an increase in cultural object trafficking, such that the black market in art (including antiquities and archaeological objects) is becoming as profitable as the market in drugs, weapons and counterfeit goods. 26 Some estimates indicate that as much as 80-90% of antiquities on the world market come from unprovenanced sources, and their circulation is often linked to other forms of organised crime such as money laundering – thus not only posing a threat to the objects themselves but also to global peace, security and the enjoyment of all human rights. 27 The European Union (EU) has established instruments to combat trafficking in cultural objects as a matter of human rights realisation. 28 The instruments cover primary and secondary legislation, codes of ethics and best practice guidelines, national and supranational case law, an operative infrastructure, in addition to international conventions under UNESCO. 29 In addition, the Council of Europe adopted the Convention on Offences relating to Cultural Property (2017 Convention), 30 to prevent and combat the illicit trafficking and destruction of cultural property. The 2017 Convention explicitly refers to the 1954 Convention and its two Protocols, and specifically deals with the criminalisation of illicit trafficking to establish a number of related criminal offences. The 2017 Convention calls on state parties to facilitate co-operation for the protection and preservation of cultural property in times of instability or conflict, including for the establishment of safe havens for ‘foreign movable cultural property’ endangered by conflicts. 31
Whereas articles 34 and 35 of the Treaty on the Functioning of the European Union (TFEU) enshrines the principle of the free movement of goods (including cultural goods) as a fundamental pillar of the internal ‘common’ market; 32 Article 36 exempts from this principle ‘national treasures possessing artistic, historic or archaeological value’. The EU system has produced harmonising ‘legislation’ that has implications on the definition of ‘national treasures’: Regulation no. 116/2009, Reg. 880/2019 and Directive 2014/60/EU ‘on the return of cultural objects unlawfully removed from the territory of a Member State’. 33 Together with the two regulations, the two EU directives on the return of cultural objects – Directive 93/7/EEC (1993)134 and Directive 2014/60/EU (2014)135 have ‘contributed to shifting the burden of proof in transactions involving cultural objects’ such that cultural object traders are incentivised to verify provenance of objects. 34
European Council Regulation no. 116/2009 35 ‘on the export of cultural goods’ establishes a common export policy for cultural goods exported outside EU borders and that are subject to an export license. The scope of cultural objects falling under the Regulation has been defined in a list of objects annexed to the Regulation, in addition to chronological and monetary bases identifying cultural goods. The definition of cultural goods in the Regulation is not identical to the definition of ‘national treasures’ referred to in Article 36 of the TFEU (referring to national listing systems). Therefore, there may be cultural objects that do not fall under the scope of the Regulation, but that do fall into national categories of cultural heritage, to which national export controls apply.
Regulation no. 880/2019 sets out the conditions for the introduction of cultural goods, and the conditions and procedures for the import of cultural goods, and provides a means to safeguard humanity’s cultural heritage and prevent the illicit trade in cultural goods, in particular where such trade could be connected to terrorist financing. 36 The Regulation sets out a system of ‘import licences’ for the most endangered cultural goods and ‘importer statements’ for other categories of cultural goods. The regulation defines ‘cultural goods’ as any asset bearing importance for archaeology, prehistory, history, literature, art or science that belongs to the categories listed in the regulation’s Annex. 37 According to the Regulation, the storage and exchange of information between Member States’ national authorities, in particular concerning import licences and importer statements, is carried out through a centralised electronic system. The system is set up and managed by the Commission, which could also organise training and capacity-building activities aimed at non-EU countries. 38 Regulation no. 880/2019 reaffirms that ‘[t]he exploitation of peoples and territories can lead to the illicit trade in cultural goods, in particular when such illicit trade originates from a context of armed conflict’ and states that ‘[t]he Union should accordingly prohibit the introduction into the customs territory of the Union of cultural goods unlawfully exported from third countries, with particular emphasis on cultural goods from third countries affected by armed conflict’. 39
Under the EU Security Union Strategy and the EU Strategy to tackle organised Crime for 2021-2025, EU Member States are also bound to introduce measures on traders and intermediaries in the art trade that impose obligations under the EU anti-money laundering framework. EU Member States can prosecute the violations of international humanitarian law rules on the respect of cultural property as well as offences relating to the illicit trade, money laundering and organised crime. The role of the European Public Prosecutor’s Office (EPPO) in this regard is in dealing with cases of misuse of EU funds in the cultural sector. The 2022 EU Action Plan advocates that ‘[t]he European Public Prosecutor’s Office (EPPO) could investigate and prosecute specific cultural goods trafficking related offences falling within its competence’.
This would apply to situations where the illegal circulation of Lebanon’s cultural property would involve money laundering and perhaps also in the cases of avoidance or circumvention of EU sanctions.
1 s.alshallah@unsw.edu.au; Sherine is a UNSW Doctoral Researcher in Refugee Cultural Heritage and Connected Rights Protection, Affiliate of the Kaldor Centre for International Refugee Law and Associate of the Australian Human Rights Institute. Sherine is a visiting doctoral researcher at the University of Milan-Bicocca from October to December 2024.
2 Walid El Houri, ‘Our heart that burned’: Israel is wiping out centuries of heritage in southern Lebanon, Untold Mag, 30 October 2024 <https://untoldmag.org/our-heart-that-burned-israel-is-wiping-out-centuries-of-heritage-in-southern-lebanon/>; Daniel Jonas Roche, ‘Bombs Over Baalbek: Lebanon Culture Minister warns important heritage sites are at risk by Israel’s invasion, including UNESCO World Heritage Sites’, The Art Newspaper, 11 October 2024 <>; UNESCO World Heritage List: Tyre <https://whc.unesco.org/en/list/299>; UNESCO World Heritage List: Baalbeck <https://whc.unesco.org/en/list/294>.
3 Suzanne Baaklini, ‘Apocalyptic scene in Nabatieh: Israeli aviation destroys several centuries-old souks’, L’Orient Today, 13 October 2024 < https://today.lorientlejour.com/article/1431198/apocalyptic-scene-in-nabatieh-israeli-aviation-destroys-several-centuries-old-souks.html>.
4 ICOMOS Statement on immediate and grave threats to Lebanon’s cultural heritage, 17 October 2024 <https://www.icomos.org/en/89-english-categories/home/143498-icomos-statement-on-immediate-and-grave-threats-to-lebanon-s-cultural-heritage>
5 ALIPH, First emergency measures to protect cultural heritage in Lebanon, 17 October 2024 <https://www.aliph-foundation.org/storage/wsm_presse/Vnrj1EBKW3HExYfqFUjaDufNO2QN21W697gqvYNs.pdf>.
6 See for example Nelly Aboud,’ Israel Targets Lebanon’s Heritage as Local Authorities Fail to Fulfill Their Role’, DARAJ Media <https://daraj.media/en/israel-targets-lebanons-heritage-as-local-authorities-fail-to-fulfill-their-role/>.
7 Hélène Sallon, Lebanon’s ancient city of Baalbek bears the scars of Israeli bombs, Le Monde <https://www.lemonde.fr/en/international/article/2024/10/24/lebanon-s-ancient-city-of-baalbek-bears-the-scars-of-israeli-bombs_6730359_4.html>; See Endorse the letter from the Lebanese Parliament Members to UNESCO DG Azoulay (Change.org Petition), <https://www.change.org/p/endorse-the-letter-from-the-lebanese-parliament-members-to-unesco-dg-azoulay-eefb70a1-69f6-463c-b4d7-08f4c4a1ab9d?utm_medium=custom_url&utm_source=share_petition&recruited_by_id=84d27f40-9daf-11ef-8b79-6b524f058744>.
8 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, adopted 26 March 1999 (entered into force 9 March 2004).
9 Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, opened for signature 14 May 1954 (entered into force 7 August 1956).
10 See UNESCO, Enhanced Protection: Cultural Property of Highest Importance to Humanity
11 See Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, opened for signature 14 May 1954 (entered into force 7 August 1956), arts 1, 4. Similar rules are also found in customary international humanitarian law.
12 Tuuka Kaikkonen and Cian O’Driscoll, ‘Seeking Sanctuary: The Pre-History of Cultural Heritage in the Ethics of War’ in in William Bulow, Helen Frowe, Derek Matravers and Joshua Lewis Thomas, Heritage and War: Ethical Issues (Oxford University Press, 2023).
13 Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, opened for signature 14 May 1954 (entered into force 7 August 1956) arts 11-14.
14 Ibid. art 9.
15 International Committee of the Red Cross, ‘1954 CONVENTION ON THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT AND ITS PROTOCOLS’, Advisory Service on IHL (April 2021) <https://www.icrc.org/sites/default/files/document/file_list/dp_consult_5_1954_cultural_property.pdf>.
16 Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, opened for signature 14 May 1954 (entered into force 7 August 1956), art 1.
17 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978), art 53.
18 Kalliopi Chainoglu, ‘The Protection of Intangible Cultural Heritage in Armed Conflict: Dissolving the Boundaries Between the Existing Legal Regimes?’, 2017(2) Santander Art & Culture Law Review 3.
19 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 8.
20 Convention for Safeguarding of the Intangible Cultural Heritage, opened for signature 17 October 2003, 2368 UNTS 3 (entered into force 20 April 2006).
21 Geraldine Chatelard, Survey report: Intangible Cultural Heritage of Displaced Syrians (UNESCO, 2017). The Operational Directives for the Implementation of the Convention mention ‘armed conflict’ in relation to requests for International Assistance that constitute emergency requests (paragraph 50).
22 Geraldine Chatelard, Survey report: Intangible Cultural Heritage of Displaced Syrians (UNESCO, 2017).
23 Ross Burns, ‘Weaponising Monuments’, (2017) 99(3) International Review of the Red Cross 937.
24 Ibid.
25 Ibid.
26 Andrzej Jakubowski, ‘The Role of EPPO and Criminal Cooperation in Curbing Crimes against Cultural Heritage in the EU’, Speech at Intangible Cultural Heritage Under European Union Frameworks: Workshop on the occasion of Intangible Cultural Heritage Day 2024, , 29 October 2024.
27 Ibid.; See also Diogo Machado, The EPPO and Cultural Heritage Crimes Subcommittee speaks at the ICOMOS Symposium (6 September 2023) < https://www.steppo-eulaw.com/2023/09/06/the-eppo-and-cultural-heritage-crimes-subcommittee-speaks-at-the-icomos-symposium/>.
28 Ibid.
29 Francesca Fiorentini, The Institutional and RegulatoryFramework for the Protection of Cultural Heritage in the European Union, Presentation at Intangible Cultural Heritage Under European Union Frameworks: Workshop on the occasion of Intangible Cultural Heritage Day 2024, , 29 October 2024.
30 Convention on Offences relating to Cultural Property (2017) CETS No. 221 https://www.coe.int/en/web/culture-and- heritage/convention-on-offences-relating-to-cultural-property.
31 Ibid. art 21(c); Council of Europe, Explanatory Report to the Council of Europe Convention on Offences relating to Cultural Property (2017) CETS No. 221 (paragraph 126)) <https://rm.coe.int/council-of-europe-convention-on-offences-relating-to-cultural-property/1680a5dafb>; ‘Protecting cultural heritage from armed conflicts in Ukraine and beyond’, Research for CULT Committee (March 2023) < https://www.europarl.europa.eu/RegData/etudes/STUD/2023/733120/IPOL_STU(2023)733120_EN.pdf>.
32 Ibid.; See Case 7/68, Commission v. Italy, [1968] ECR 618: goods within the meaning of the Treaty are (i) products that can be evaluated in money and (ii) that can be subject to commercial transactions.
33 Francesca Fiorentini, The Institutional and RegulatoryFramework for the Protection of Cultural Heritage in the European Union, Presentation at Intangible Cultural Heritage Under European Union Frameworks: Workshop on the occasion of Intangible Cultural Heritage Day 2024, , 29 October 2024.
34 Protecting cultural heritage from armed conflicts in Ukraine and beyond’, Research for CULT Committee (March 2023) < https://www.europarl.europa.eu/RegData/etudes/STUD/2023/733120/IPOL_STU(2023)733120_EN.pdf>.
35 Council Regulation (EC) No 116/2009 on the export of cultural goods, 18 December 2008 (entered into force 2 March 2009).
36 Regulation (EU) 2019/880 of the European Parliament and of the Council of 17 April 2019 on the introduction and the import of cultural goods PE/82/2018/REV/1., art 1.1.
37 Ibid., art 2.1 lit. (1).
38 Francesca Fiorentini, ‘The Institutional and Regulatory Framework for the Protection of Cultural Heritage in the European Union’, Presentation at Intangible Cultural Heritage Under European Union Frameworks: Workshop on the occasion of Intangible Cultural Heritage Day 2024, , 29 October 2024; Regulation (EU) 2019/880 of the European Parliament and of the Council of 17 April 2019 on the introduction and the import of cultural goods PE/82/2018/REV/1.
39 Andrzej Jakubowski, ‘The Role of EPPO and Criminal Cooperation in Curbing Crimes against Cultural Heritage in the EU’, Speech at Intangible Cultural Heritage Under European Union Frameworks: Workshop on the occasion of Intangible Cultural Heritage Day 2024, , 29 October 2024; Regulation (EU) 2019/880 of the European Parliament and of the Council of 17 April 2019 on the introduction and the import of cultural goods PE/82/2018/REV/1.