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Marina Lostal, International Cultural Heritage Law in Armed Conflicts: Case-Studies of Syria, Libya, Mali, the Invasion of Iraq, and the Buddhas of Bamiyan

Marina Lostal, International Cultural Heritage Law in Armed Conflicts: Case-Studies of Syria,... Despite the multiplicity of legal sources and instruments, the international community has not been successful in the protection and safeguarding of cultural heritage materials during violent conflicts due to the absence of an overarching applicable regime. By using the timely cases from Syria, Libya, Mali, Iraq and Afghanistan, Marina Lostal has investigated the legal challenges to address the critical gaps in international protection regimes in her International Cultural Heritage Law in Armed Conflicts: Case-Studies of Syria, Libya, Mali, the Invasion of Iraq, and the Buddhas of Bamiyan. The main idea is that adoption of new instruments to reinforce protection only serves to multiply the number of treaties and, therefore, perpetuate the problems. To solve the dilemma, the author focuses on the existing law by placing the World Heritage Convention (1972) at the center of the field (pp 1–2). Having addressed the inadequacy of the treaties for protecting international cultural heritage in armed conflicts as well as the lack of consensus on the conception of ‘cultural property’ (pp 2–5), the author attempts to develop a coordinated approach to cultural property in conflicts by analyzing the interaction between the World Heritage Convention and the other relevant treaties (pp 10–12). The author divides her work into six major chapters. Chapter 1 concentrates on the wrongfulness and inadequacy of ‘revisionist’ and ‘idealist’ theories in providing effective norms for protecting cultural properties in armed conflicts. The author argues that adoption of a new set of rules (a revisionist opinion) is not a solution and, conversely, we need to reexamine the major rules of the all relevant conventions since all the newly adopted rules have led to further changes to the terms under which cultural property is protected (pp 19–37). Then she rightly notes that turning the obligations of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict into customary international law (an idealist opinion) would not dissipate the existing problem (the lack of a proper legal framework concerned with the protection of cultural heritage) (pp 37–47). In Chapter 2, the author proves the existence of ‘International Cultural Heritage Law (ICHL)’ based on the international law principles concerning the protection of cultural heritage, such as ‘protection’, ‘relative or common interest’ and ‘States’ different duties in protection’. It is possible to consider all these principles as a distinct ICLH based on their systematic objective (pp 48–62). Then she discusses that the ICLH principles integrated with those of humanitarian law, including ‘precaution’, ‘distinction’ and ‘proportionality’, protect cultural heritage in armed conflicts (pp 63–67). Chapter 3 is the last component of the author’s argument. The main idea is that the protection of cultural property in armed conflicts based on the universally accepted World Heritage Convention would constitute a comprehensive legislative framework for the field of cultural heritage protection (pp 69–70). Addressing the unique features and biding obligations of the Convention (pp 73–80), the author interprets the main rules of the Convention within the context of the 1969 Vienna Convention to conclude that the World Heritage Convention is applicable in armed conflicts (pp 80–88). In the subsequent three chapters, Lostal looks at the variety of protective norms resulting from the integration of the World Heritage Convention and the 1954 Hague Convention. Having referred to the Syrian conflict, the author indicates that the principle of protection would be fulfilled by drawing compelling inventories (pp 102–103), the inclusion of norms specific to world cultural heritage in military manuals (pp 103–106), and safeguarding world cultural heritage against foreseeable effects of conflicts (pp 106–111). Following an in-depth analysis of the conflicts in Libya and Mali, with their diverse array of cultural heritage sites, the author describes how the 1999 Second Protocol as a supplement to the 1954 Hague Convention extends the precautionary measures to non-international armed conflicts (pp 132–135). Having mentioned the Second Protocol’s measures in the protection of cultural heritage in times of armed conflicts, Lostal criticizes the existing integrated regime comprising the 1954 Convention, the World Heritage Convention and the Second Protocol for lack of a crime for violation of world cultural heritage leading to individual criminal responsibility (pp 143–144). Finally, in Chapter 6, the author concludes by addressing the 2003 invasion of Iraq and the Afghanistan war to introduce a minimum legal framework for armed conflict arguing that the World Heritage Convention (Article 6(3)) protects cultural heritage from intentional damage and destruction in times of peace (p 159). Considering the fact that none of the legal frameworks applicable in peacetime have managed criminal responsibility for destruction of cultural heritage, the author suggests, with a view to the future law, that a new concept of crime against common cultural heritage should be reappraised (pp 157–160). Overall, Marina Lostan addresses a discourse of notable interest in International Cultural Heritage Law in Armed Conflicts: Case-Studies of Syria, Libya, Mali, the Invasion of Iraq, and the Buddhas of Bamiyan. I strongly recommend the book to international lawyers and political scientists interested in the protection regime in the law of armed conflict. The well-structured analysis of the protection regime of cultural heritage and theoretical perspective of the author serves the book as a remarkable contribution to the literature. Based on the World Heritage Convention as the foundation for the author’s conceptual argument, Lostal suggests a special protection regime which is applicable in both times of war and peace, managing the criminal responsibility for the offenders. A timely picture of the destructive conflicts in Syria, Iraq, Libya, Afghanistan and Mali allows the author to tailor her specific protection regime to cultural heritage. She uses these case studies to provide a formula for the gap in the existing regime of protection of world cultural heritage especially in times of armed conflict. The major challenge the author faces is the lack of common legal ground in the protection of cultural heritage due to the unclarity over basic concepts, such as ‘cultural property’ and ‘protection’. Regardless of the existence of a large body of literature on international cultural heritage law in an international legal context, the lack of an overarching applicable regime of protection still remains as an open challenge for the literature. However, the specific regime offered by the author as an alternative to fill the gaps in the exploration of the protection regime makes the book valuable, original and a significant contribution to the literature. © Oxford University Press 2019; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Conflict and Security Law Oxford University Press

Marina Lostal, International Cultural Heritage Law in Armed Conflicts: Case-Studies of Syria, Libya, Mali, the Invasion of Iraq, and the Buddhas of Bamiyan

Journal of Conflict and Security Law , Volume Advance Article – Sep 1, 2007

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Oxford University Press
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© Oxford University Press 2019; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
ISSN
1467-7954
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1467-7962
DOI
10.1093/jcsl/krz025
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Abstract

Despite the multiplicity of legal sources and instruments, the international community has not been successful in the protection and safeguarding of cultural heritage materials during violent conflicts due to the absence of an overarching applicable regime. By using the timely cases from Syria, Libya, Mali, Iraq and Afghanistan, Marina Lostal has investigated the legal challenges to address the critical gaps in international protection regimes in her International Cultural Heritage Law in Armed Conflicts: Case-Studies of Syria, Libya, Mali, the Invasion of Iraq, and the Buddhas of Bamiyan. The main idea is that adoption of new instruments to reinforce protection only serves to multiply the number of treaties and, therefore, perpetuate the problems. To solve the dilemma, the author focuses on the existing law by placing the World Heritage Convention (1972) at the center of the field (pp 1–2). Having addressed the inadequacy of the treaties for protecting international cultural heritage in armed conflicts as well as the lack of consensus on the conception of ‘cultural property’ (pp 2–5), the author attempts to develop a coordinated approach to cultural property in conflicts by analyzing the interaction between the World Heritage Convention and the other relevant treaties (pp 10–12). The author divides her work into six major chapters. Chapter 1 concentrates on the wrongfulness and inadequacy of ‘revisionist’ and ‘idealist’ theories in providing effective norms for protecting cultural properties in armed conflicts. The author argues that adoption of a new set of rules (a revisionist opinion) is not a solution and, conversely, we need to reexamine the major rules of the all relevant conventions since all the newly adopted rules have led to further changes to the terms under which cultural property is protected (pp 19–37). Then she rightly notes that turning the obligations of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict into customary international law (an idealist opinion) would not dissipate the existing problem (the lack of a proper legal framework concerned with the protection of cultural heritage) (pp 37–47). In Chapter 2, the author proves the existence of ‘International Cultural Heritage Law (ICHL)’ based on the international law principles concerning the protection of cultural heritage, such as ‘protection’, ‘relative or common interest’ and ‘States’ different duties in protection’. It is possible to consider all these principles as a distinct ICLH based on their systematic objective (pp 48–62). Then she discusses that the ICLH principles integrated with those of humanitarian law, including ‘precaution’, ‘distinction’ and ‘proportionality’, protect cultural heritage in armed conflicts (pp 63–67). Chapter 3 is the last component of the author’s argument. The main idea is that the protection of cultural property in armed conflicts based on the universally accepted World Heritage Convention would constitute a comprehensive legislative framework for the field of cultural heritage protection (pp 69–70). Addressing the unique features and biding obligations of the Convention (pp 73–80), the author interprets the main rules of the Convention within the context of the 1969 Vienna Convention to conclude that the World Heritage Convention is applicable in armed conflicts (pp 80–88). In the subsequent three chapters, Lostal looks at the variety of protective norms resulting from the integration of the World Heritage Convention and the 1954 Hague Convention. Having referred to the Syrian conflict, the author indicates that the principle of protection would be fulfilled by drawing compelling inventories (pp 102–103), the inclusion of norms specific to world cultural heritage in military manuals (pp 103–106), and safeguarding world cultural heritage against foreseeable effects of conflicts (pp 106–111). Following an in-depth analysis of the conflicts in Libya and Mali, with their diverse array of cultural heritage sites, the author describes how the 1999 Second Protocol as a supplement to the 1954 Hague Convention extends the precautionary measures to non-international armed conflicts (pp 132–135). Having mentioned the Second Protocol’s measures in the protection of cultural heritage in times of armed conflicts, Lostal criticizes the existing integrated regime comprising the 1954 Convention, the World Heritage Convention and the Second Protocol for lack of a crime for violation of world cultural heritage leading to individual criminal responsibility (pp 143–144). Finally, in Chapter 6, the author concludes by addressing the 2003 invasion of Iraq and the Afghanistan war to introduce a minimum legal framework for armed conflict arguing that the World Heritage Convention (Article 6(3)) protects cultural heritage from intentional damage and destruction in times of peace (p 159). Considering the fact that none of the legal frameworks applicable in peacetime have managed criminal responsibility for destruction of cultural heritage, the author suggests, with a view to the future law, that a new concept of crime against common cultural heritage should be reappraised (pp 157–160). Overall, Marina Lostan addresses a discourse of notable interest in International Cultural Heritage Law in Armed Conflicts: Case-Studies of Syria, Libya, Mali, the Invasion of Iraq, and the Buddhas of Bamiyan. I strongly recommend the book to international lawyers and political scientists interested in the protection regime in the law of armed conflict. The well-structured analysis of the protection regime of cultural heritage and theoretical perspective of the author serves the book as a remarkable contribution to the literature. Based on the World Heritage Convention as the foundation for the author’s conceptual argument, Lostal suggests a special protection regime which is applicable in both times of war and peace, managing the criminal responsibility for the offenders. A timely picture of the destructive conflicts in Syria, Iraq, Libya, Afghanistan and Mali allows the author to tailor her specific protection regime to cultural heritage. She uses these case studies to provide a formula for the gap in the existing regime of protection of world cultural heritage especially in times of armed conflict. The major challenge the author faces is the lack of common legal ground in the protection of cultural heritage due to the unclarity over basic concepts, such as ‘cultural property’ and ‘protection’. Regardless of the existence of a large body of literature on international cultural heritage law in an international legal context, the lack of an overarching applicable regime of protection still remains as an open challenge for the literature. However, the specific regime offered by the author as an alternative to fill the gaps in the exploration of the protection regime makes the book valuable, original and a significant contribution to the literature. © Oxford University Press 2019; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

Journal

Journal of Conflict and Security LawOxford University Press

Published: Sep 1, 2007

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