The Destruction of Cultural Property in The Syrian Conflict Legal Implications and Obligations

International Journal of Cultural Property (2016) 23:1–31. Printed in the USA.
Copyright © 2016 International Cultural Property Society

doi:10.1017/S0940739116000011
The Destruction of Cultural Property

in the Syrian Conflict: Legal Implications
and Obligations
Emma Cunliffe*
Nibal Muhesen†
Marina Lostal‡
Abstract: This article comes as the conflict in Syria has entered its fifth year,
bringing with it loss of life and the displacement of the Syrian people as well
as extensive damage to, and destruction of, the country’s cultural heritage.
This article will first provide an overview and explanation of the national
and international legal framework for protecting cultural property in
conflict as it applies to the Syrian State and the non-State actors involved,
using examples from the whole conflict, including the recent actions of
Da’esh. Second, we demonstrate that the destruction of all types of cultural
property, regardless of its importance, can be considered a prosecutable
violation of these laws, and we examine the possibilities for prosecution.
Following from this discussion, we question whether the existing framework
can be considered effective and consider the role the international heritage
community can play.
*Endangered Archaeology in the Middle East and North Africa, Institute of Archaeology, University
of Oxford, United Kingdom; Email: emma.cunliffe@arch.ox.ac.uk
†Archaeology and Heritage of Syria, Department of Cross-Cultural and Regional Studies, Carsten
Niebuhr Center for Multi-Cultural Heritage, University of Copenhagen, Denmark

‡Lecturer in International Law, Hague University, The Netherlands
ACKNOWLEDGMENTS: We are grateful to the University of Copenhagen and to Ingolf Thuesen,

the head of the Department of Cross-Cultural and Regional Studies, for his continuous support for
the work on Syrian archaeology and heritage. We are also grateful to Jack Williams, Georgia State
University College of Law, for his comments on an early version of this article, and to Roger O’Keefe,
for his comments on military necessity.
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2 EMMA CUNLIFFE ET AL
The destruction and protection of cultural heritage in armed conflicts has been
a feature of war for thousands of years and has received increasing international
focus over the last two decades. While cultural heritage is threatened during peace-
time, the severest damage takes place during social disorder and conflict, not only
resulting in the loss of something unique and irreplaceable but also psychologically
affecting the communities linked to it1 and potentially causing increased violence.2
Furthermore, it is linked to cultural cleansing—the removal of communities by
eliminating their presence in the landscape, leaving them with no “home” to return
to, should such an event become possible.3 Cultural protection, on the other hand,
is increasingly linked to the recovery of psychological trauma and peace building
during and after conflict, in addition to the economic tourism benefits it can
provide.4
In contrast, it is sometimes argued that the targeting of sites and monuments
is irrelevant, given the other extensive human rights abuses that often accompany it.
However, international humanitarian law (IHL), which is the body of interna-
tional law that regulates the conduct of armed conflict and seeks to limit its effects,
protecting people who are not part of the hostilities, binds those involved in
a conflict to respect cultural property and promote its protection. The violation
of this core obligation constitutes a war crime, and, under certain circumstances,
its destruction may even amount to crimes against humanity, as explained by the
International Criminal Tribunal for the former Yugoslavia:
When perpetrated with the requisite discriminatory intent, [destruction]
amounts to an attack on the very religious identity of the people. As such
it manifests a nearly pure expression of the notion of “crimes against
humanity” for all of humanity is indeed injured by the destruction.5
The conflict in Syria has led to hundreds of thousands of deaths, millions of
displaced people, and the damage and destruction of the country’s cultural
heritage. Although the generally accepted start date is 15 March 2011, “armed
conflict” —the point at which a conflict moves beyond an internal disturbance and
IHL becomes applicable—was not officially declared until June 2012.6 The cultural
heritage in Syria has been profoundly involved in the conflict since the beginning,
when the eighth-century al-Omari mosque was shelled.7 Reports of damage to
historic mosques, churches, and archaeological and heritage sites have continued
to mount, and by 27 June 2011, the first group, Le Patrimoine archéologique syrien
en danger, had formed to record and raise awareness of the extent of the damage.
Today, Syria’s heritage is still continuously exposed to various actions that are
resulting in partial or total destruction.
There is a national and international legal framework designed for cultural prop-
erty protection (CPP) in such situations, but (as will be shown) too often it is not
applied or enforced, and it is little understood by most cultural heritage professionals.
The Syrian conflict is particularly complex as it is asymmetrical (that is, internal and
involving the State and non-State actors8) rather than between State parties.9
LEGAL IMPLICATIONS AND OBLIGATIONS 3
This article will first provide an overview and explanation of the legal framework
for protecting cultural property in conflict as it applies in Syria. Previous studies
have focused on World Heritage sites10 or on specific applications of law.11 Second,
we will demonstrate that the destruction of all types of cultural property, regardless
of its importance, can be considered a prosecutable violation of law. Following
from this discussion, we will question whether the existing framework can be
considered effective and consider the role the international heritage commu-
nity can play.
THE NATURE OF THE DAMAGE
Syria contains some of the most globally varied and important cultural heritage in
the Mediterranean: religion and tangible and intangible heritage have intertwined
over many millennia. The country hosts six World Heritage sites, which are all now
on the List of World Heritage in Danger, and 11 sites on the World Heritage Tentative
List.12 However, while it has been argued that Syria’s world heritage is deserving
of special legal protection,13 and international investigation has often focused on
these conspicuous sites,14 Syria also has a rich national and local heritage, reflect-
ing the diversity of its population. While many Syrians whom the authors have
spoken to feel a keen sense of pride in their “universal heritage,” it is often national
or local heritage that contributes most to a sense of identity,15 and both have also
been devastated.16 Their loss should not be overshadowed by the destruction of
the higher profile World Heritage sites, so this article will focus as far as possible
on other examples.
The direct targeting and destruction of sites can have multiple causes: the preven-
tion of the location’s political use; accidental collateral damage in armed clashes;
part of indiscriminate firing of guns and mortars at entire areas; or an obstacle to
other targets and purposively targeted to clear a path.17 In addition, many sites are
reused, whether because they are conveniently located, provide a convenient exist-
ing structure for reuse, or are valuable for their historic and still current strategic
vantage points. There are also occasions when sites are deliberately targeted for
their associations with specific cultural groups.
Looting, and the ensuing illicit trade, is also a common source of extensive
damage. Even the removal of objects with shovels can cause extensive damage to
the fabric of a site, and many sites have been bulldozed to enable easier access to
saleable objects. These objects are as much a part of Syria’s heritage as the sites and
museums they come from, and once stolen, are extremely difficult to trace and
return, particularly since objects looted from sites are unrecorded.
While reoccupation and illegal building were problematic before the conflict,18
the deterioration of security has enabled an increase in these issues. The conflict
has led to a massive displacement of people and the abandonment of entire
villages. Desperate for shelter, groups of civilians have reoccupied ancient sites and
even underground tombs and adapted them to their life.
Lastly, it is important to emphasize the damage caused by iconoclasm, a specific

form of damage that is increasing in the Syrian conflict. Although the seventeenth-
century term specifically means the “breaking of images,”19 in current literature,
it is usually given a wider definition that includes the destruction of specific reli-
gious and symbolic buildings for a religiously motivated purpose, rather than for
a militaristic or social one.20 There have been increasing documented outbreaks
of violence against religious and ethnic objects and structures, committed by
extremists. International attention, in particular, is now focused on the extremist
group Da’esh (more commonly known as the Islamic State of Iraq and the Levant
(ISIS)), who have destroyed monuments and sites as part of their campaign against
idolatry—for example, in Raqqa, and at Heraqla.21 In addition, they have been
linked to the extensive looting and sale of many more artifacts to purchase weapons,
causing some to question the religious motivations underlying their actions.22
CULTURAL HERITAGE OR CULTURAL PROPERTY?
It is important to understand that, legally speaking, distinctions are frequently

made between cultural property and the broader term cultural heritage, and both
international and national definitions of heritage vary. This article focuses on
physical heritage and so uses the legal definition for cultural property in the 1954
Convention for the Protection of Cultural Property in the Event of Armed Conflict
(Hague Convention).23 Article 1 specifies that cultural property includes:
(a) movable or immovable property of great importance … such as
monuments of architecture, art or history, whether religious or secular;
archaeological sites; groups of buildings which, as a whole, are of his-
torical or artistic interest; works of art; manuscripts, books and other
objects of artistic, historical or archaeological interest; as well as scientific
collections and important collections of books or archives or of reproduc-
tions of the property defined above; (b) buildings whose main and effec-
tive purpose is to preserve or exhibit the movable cultural property … (c)
centers containing a large amount of cultural property.
TREATY AND CUSTOMARY LAW

Changes in the conduct of war, both ethical and operative, have resulted in a
complex legal cultural protection framework in national and international law.
Building on their growing international acceptance, there is a gradually increasing
body of precedent for prosecution and implementation. However, to the non-
specialist, the different legal terms and their implications remain confusing. There
is an important distinction between customary international law and the more
commonly known form of international law, called treaty law. International con-
ventions (“treaties”) are legal instruments negotiated, elaborated, and adopted by
States. However, they rarely cover non-international (that is, internal) armed con-
flicts, are not always ratified by all States, and are therefore binding in principle
only on State parties. Treaties only become binding on those States that decide to
join. A signature expresses the intention of the State to comply with a treaty, but
States must still ratify it or accede to it (usually involving national parliamentary
approval) in order to be bound.
Therefore, not all international legislation of this type referring to CPP is binding
on all parties involved in the Syria conflict. The country of Syria is only explicitly
bound by the treaties it has ratified and less definitively by the treaties it has signed.
How these treaties apply to non-State actors is complex and still being examined by
legal experts. However, even if a State has not signed or ratified a convention, some
treaties have become customary international law, which is binding on all States.
According to the International Committee of the Red Cross (ICRC):
[It] is made up of rules that come from “a general practice accepted as
law” and that exist independent of treaty law. Customary international
humanitarian law is of crucial importance in today’s armed conflicts
because it fills gaps left by treaty law in both international and non-
international conflicts … To prove that a certain rule is customary, one
has to show that it is reflected in state practice and that the international
community believes that such practice is required as a matter of law.24
Bearing this in mind, we will now present a brief overview of the key legal treaties
and customary laws applicable in Syria, beginning with cultural heritage destruc-
tion in IHL, and then examine the more specific expressions of CPP in treaty law
and then in domestic law. Through this overview, we will demonstrate the many
ways the destruction of cultural property violates national and international law,
even given the asymmetric nature of the conflict. However, it is not enough to
have a legal framework, and the final section will examine the possibilities for
enforcement.
INTERNATIONAL CUSTOMARY LAW

International human rights law (IHRL) includes the destruction of cultural heri-
tage, and Syria has acceded to / ratified many international conventions that it is
therefore obliged to comply. The 1948 Universal Declaration of Human Rights
(ratified by Syria) forms the basis of IHRL. Article 27 states that “[e]veryone
has the right to freely participate in the cultural life of the community, to enjoy
the arts.”25 As a declaration (compared to, for example, a convention), it is not
binding, but the 1976 International Covenant on Economic, Social and Cultural
Rights (ICESCR) (ratified by Syria) guarantees some of its rights.26 According to
the ICESCR Committee, it obligates the preservation and presentation of man-
kind’s cultural heritage (Article 15(1)(a)). The UN Human Rights Council made it
clear that it is applicable in conflict situations.27 It is debatable to what extent this
applies to Syria’s entire cultural heritage, but since world heritage is “heritage of
mankind as a whole,” the damage and partial destruction of all of its World Heritage
sites must surely qualify as a violation. For example, military forces have occupied
parts of Aleppo, including the citadel and the Umayyad Mosque. This has led to
the targeting of both sites, resulting in structural damage and the loss of the his-
toric Al-Wakfya library and the minaret of the mosque. One recent examination
of 210 locations in the World Heritage site determined that 22 had been destroyed,
48 were severely damaged, 33 were moderately damaged, and a further 32 had sus-
tained possible damage.28 Causes included shelling impacts (which damaged, for
example, the citadel glacis and destroying the minaret of the Umayyad Mosque),
fires caused by shelling (which destroyed, for example, most of the ancient souq
and the historic Al-Wakfya library), and the use of explosives to target military
occupied buildings (which were detonated, for example, in the tunnels under the
historic Carlton Hotel, destroying it) (Figure 1).
The 1949 Geneva Convention and its three protocols (of which Syria is a party
only to the first) are often cited in discussions of conflict legislation: they are con-
sidered a cornerstone of IHL and the subset of IHRL that applies to armed con-
flicts, setting baselines for the treatment of those uninvolved in the conflict.29 In
the context of CPP, they ban the “pillage” (that is, looting) of civilian properties,
including cultural property, and prohibit acts of hostility against, the military
use of, or reprisals against historic monuments and works of art. However, it is
with respect to these treaties that we see the first complexities of the asymmetric
conflict. Syria is not party to Additional Protocol II, which extends the previous
FIGURE 1. The destruction within the Ancient City of Aleppo, which hosts a very rich
urban heritage, including mosques, shrines, and public places such as the souk and the
khans. Some of the city’s urban heritage has been severely affected, and some has almost
vanished in the conflict. This photograph, showing rubble fills in the district of Sharia
al-Sweiqa, was taken in early November 2012 (© AP Images / Polfoto / Monica Prieto).
statues to internal conflicts, so this important legislation is not applicable.30

Pillaging is nevertheless forbidden by the 1907 Hague Convention IV and the
Regulations Concerning the Laws and Customs of War on Land (Hague Regulations),
which is considered to be an important part of the body of customary international
law (Articles 28 and 47).31
TREATY LAW
Today, the principal instrument for CPP is the 1954 Convention for the Protection
of Cultural Property in the Event of Armed Conflict (Hague Convention) (ratified
by Syria) and its additional 1954 First Protocol (ratified by Syria) and 1999 Second
Protocol (signed but not ratified by Syria). These treaties complement the Hague
Regulations. Also of international relevance is the 1970 Convention on the Means
of Prohibiting and Preventing the Illicit Import, Export and Transfer of Owner-
ship of Cultural Property (UNESCO Convention) (ratified by Syria), while within
Syria, the key legislation is the 1963 Antiquities Law.32 The 1995 Convention
on Stolen or Illegally Exported Cultural Objects (UNIDROIT Convention), which
would provide a more detailed protection framework, has not been signed by
Syria.33 These tools are intended to help safeguard cultural property by preventing
its destruction or use for military purposes and by providing systems of protection
and rules for combatants or occupying forces when dealing with the transport and
use of cultural property.34 While there are inconsistencies in their approaches,35
the destruction of culture or cultural property is a war crime.
Lastly, there are also a number of UN Educational, Scientific, and Cultural
Organization (UNESCO) conventions that deal with the importance and manage-
ment of heritage. For the most part, these conventions lack specific obligations,
and it is not clear what level of protection is owed as a result of them; therefore they
are accorded only a brief discussion.
The 1954 Hague Convention, the Hague Regulations, and the First and Second
Protocols are the only legal instruments specifically concerned with the protection
of cultural property in armed conflict, defining cultural property and outlining
appropriate measures to undertake in peacetime and during conflict. All warring
parties, including non-state actors, are bound to observe, as a minimum, the pro-
visions relating to respect for cultural property (Article 19(1)).36 States also agree
to prohibit and prevent pillage and vandalism directed against sites, to refrain from
direct attack, seizure, or capture, and in cases of occupation, to support the local
authority to protect sites. Using cultural property or its immediate surroundings
for military purposes that may expose it to direct attack is prohibited except in
cases of “imperative military necessity” (Article 4). Additional articles include the
use of a “distinctive emblem” that may be placed on cultural property to protect
it from any attacks and the possibility of granting some cultural property “special
protection” (Articles 6 and 8). In addition, each State party agrees to prevent
the exportation of cultural property if it occupies an area and to return cultural
property to the competent authorities (Article 1 of the First Protocol). Neither

treaty includes direct rules for enforcement, leaving this issue to the State parties.
Under the Second Protocol, rather than simply “ensuring respect,” parties must
“do everything feasible” to verify objectives are not cultural property, take all fea-
sible precautions to minimize damage, and refrain from attacks that would cause
incidental damage (Article 7a). The Second Protocol also contains clarification of
“imperative military necessity” and rules for enforcement (Articles 6 and 15–21).
There is also a revised system of “special protection,” called “enhanced protection”
(Article 10), since the initial system was unfeasible. Most importantly, it applies all
of its provisions to internal conflicts. Although Syria has not ratified the Second
Protocol, it did sign it at the time of its adoption. According to the principles of the
1969 Vienna Convention on the Law of Treaties, State parties to these conventions
have made a formal agreement to comply with the tenets.37 A State that has signed,
but not ratified, a treaty has stated its intent to ratify the treaty and is therefore
obliged to refrain from “acts which would defeat the object and purpose” of the
treaty. These obligations end if the State declares that it does not intend to become
a party to the treaty (Article 18). Syria has made no such declaration.
A recent study carried out by the ICRC suggests that the basic principles of the
1954 Hague Convention have become part of customary law and are applicable in
internal conflicts.38 The study was based on an examination and review of State
practice and “belief that such practice is required, prohibited or allowed … as
a matter of law.”39 While there is no global agreement regarding which parts of the
Hague Convention reflect customary law, the core provisions applicable to both
State and non-State parties include: the responsibility of nations to protect cultural
property in their own territory; the obligation to avoid targeting cultural sites
(subject to the imperative military necessity waiver); the obligation to refrain from
acts of reprisal against cultural property; and the obligation to prevent (members
of the military from engaging in) theft, pillage, and the misappropriation of cul-
tural property.40
Given the core provisions in the Hague Convention that are applicable in non-
international conflicts such as Syria, the potential list of violations is considerable.
While there is no agreement about what constitutes “respect,” a number of sites
appear to have been targeted for no obvious military reasons. In some cases, the
damage has been so extensive that not only significant buildings but also large
sections of entire cities have been reduced to rubble, as took place, as previously
discussed, in Aleppo as well as in large areas of historic (and modern) Homs
(Figure 2). Many more sites were damaged when these buildings (and the sur-
roundings) were used for military purposes and then damaged even more when
they were subsequently targeted. A considerable number of videos and images
show the military (re)use of strategic locations such as citadels (for example, Homs
or Qal’at al-Shmemis), high mosque minarets as sniper positions (such as the Abu
Bakr Mosque in Daraa), and even the use of churches, museums, and historic houses
as army barracks, training camps, and field hospitals (for example, the Museum of
FIGURE 2. The destruction within the city of Homs, showing clear evidence of the
lawless, systematic destruction of the urban landscape from heavy fighting. This pho-
tograph, which shows damaged buildings in the Jouret al-Chiyah neighborhood, was
taken in early June 2013 by a citizen journalist and provided by “Lens Young Homsi”
(© Polfoto / AP Images).
Ma’arat al-Nu’man, Idlib, or Deir Cherubim, Saydnaya). Aside from the damage
caused by carelessness, military occupation often involves the digging and con-
struction of defensive positions and tank emplacements in the archaeological
layers, such as at Ebla,41 Apamea, and Tell Jifar.42 These actions fall under the pro-
hibition of acts of hostility directed against cultural property and the use of it and
its surroundings for purposes that may lead to their damage or destruction (both
of which may be waived for imperative military necessity).
Since military use is one of the greatest causes of damage to sites, the ‘impera-
tive military necessity’ waiver deserves a brief consideration. This exception is not
defined in the 1954 Hague Convention itself. It was clarified in the Second Protocol
to which Syria is not a party. It has been argued that the provision significantly
undermines the provisions as a whole,43 and the entire concept has been exten-
sively debated,44 but no consensus has been reached. Marina Lostal has argued that
the 1954 Hague Convention provides a stringent legal standard with respect to the
prohibition of actions of hostility against cultural property, as a site must consti-
tute a “military objective” before the imperative military necessity waiver can
be considered.45 Given this, the many attacks upon civilian cultural property, and
the first occupation of a site for military purposes, must be considered unlawful.
If a site is used for military purposes, under some circumstances it may then be
lawful to attack the site. Of the various examples discussed earlier, conflict occurred
at Homs citadel and Ebla (which both changed hands several times), Apamea, the
Museum of Ma’arat al-Nu’man, and the Abu Bakr mosque only after the site was
subject to military use.
The determination of military necessity is an “open-textured” international
standard—that is to say, it has an unspecific definition—and investigations would
be conducted by the State applying the standard46 and interpreted by reference to
the concept of the “military objective.”47 Any international court or tribunal with
jurisdiction over the matter can review it.48 However, as modern technological
capabilities advance, it is likely that the type of attack must also be considered, in
addition to determining the necessity of the attack, to determine if excessive force
resulting in destruction was used.49 General Dwight Eisenhower wrote in his staff
orders of 29 December 1943: “The phrase ‘military necessity’ is sometimes used
where it would be more truthful to speak of military convenience or even of per-
sonal convenience. I do not want it to cloak slackness or indifference.” Detailed
investigations are necessary on a case-by-case basis when the security situation
allows. Aspects to consider should include military records and diaries and witness
and expert testimonies, along with other information that may help to provide
insight into the military situation at the time of the incident. It is important to
stress that the imperative military necessity test must not be made with hindsight
but that it must take into account the circumstances of the time.
Article 6 of the Hague Convention suggests marking sites with a distinctive
emblem, but this is problematic. Directly identifying a place as important can asso-
ciate it with a particular culture and can render it a deliberate target (as happened in
Croatia), leading to disagreement about whether to implement the provision since
compliance could also result in destruction.50 Fortunately, it is not mandatory,
so there is no penalty for failure to comply.
The last aspect of the 1954 Hague Convention that requires elaboration is the
prohibition and prevention of pillage (Article 4(3)). Illegal excavations and thefts
have been extensively reported at sites (and, to a much lesser extent, at museums)
across Syria.51 Although looting is destructive, it has led in some cases to the site’s
near-total destruction, such as at Dura Europos.52 Official sources list several
museums that have been looted, but social media groups suggest the true number
could be higher.53 The majority of the items taken have been lost without a trace,
even with international assistance. An eighth-century Aramaic golden statue was
stolen from the museum of Hama at the start of the conflict: the theft was reported
to Interpol and its image was circulated on the December 2012 list of most wanted
missing objects, but the item was never located (Figure 3).
According to the 1954 Hague Convention, States agree to prohibit and prevent
the pillaging of sites. However, it has been argued that while the literal interpreta-
tion of this phrase seems to impose an obligation to prevent any pillage, including
such action by the local population, it may actually only refer to acts committed by
FIGURE 3. An Aramaic gilt bronze statue dating to the eighth-century bc was stolen from
the museum of Hama in the early stages of the conflict. In December 2012, the statue was
put on Interpol’s “The Most Wanted Works of Art” poster, and in May 2012, Interpol
also called for vigilance about the looting of ancient mosaics in Syria (photograph from
2009, courtesy of D. Osseman).
the military of the State party.54 While military parties may have been complicit in
the looting at some sites—for example, in Apamea—the looting has been far more
widespread than what is reported, and this phrase is very limiting.55 However,
under IHL, “each party to the conflict must protect cultural property (applicable
in international and non-international armed conflict).”56 This protection should
include the prevention of looting as it can cause catastrophic site destruction, but
this has not yet been explored within the legal framework and, instead, legal cases
have only focused on the removal of objects.57
The 1970 UNESCO Convention is the most broadly ratified treaty regarding
illicit cultural property.58 It clearly states that “the export and transfer of ownership
of cultural property under compulsion arising directly or indirectly from the

occupation of a country by a foreign power shall be regarded as illicit.” It defines
preventative measures State parties should take to prevent the import and acquisition
of illegally exported cultural property and binds them to return objects if requested
by the State party of origin. This latter provision covers only stolen inventoried
objects, and, unfortunately, illicitly excavated objects are excluded. The date of
the convention—1970—is usually taken as the date from which these provisions
should be enforced. Objects that were illegally removed before this date are not
covered.
Whilst Syria has ratified (but not implemented) the UNESCO Convention, it
only deals with looting while States are occupied by a foreign power. All States
must participate in the fight against illicit trafficking, through increased vigilance
against smuggling and by helping to restore stolen objects. The main difficulty is
confirming that objects were looted from Syria. Not only is it extremely difficult to
trace previously unknown objects taken directly from sites, but also not all museum
collections have been inventoried. This latter point is a key requirement of the con-
vention, and the Syrian Directorate General of Antiquities and Museums (DGAM)
are working to rectify this situation. In addition, recovery requires international
co-operation, which is dependent upon the recognition of State parties by State
parties. The United States, for example, does not currently recognize the Syrian
government as a legitimate authority and has no diplomatic relations with them.
Under these conditions, restitution may not be legally possible. After several years
of pressure, the UN Security Council adopted Resolution 2199 in February 2015,
condemning the destruction of Syria’s heritage and reaffirming the importance of
preventing the illicit traffic of Syrian artifacts, as it did in Iraq in 2003. Experience
from Iraq in 2003 suggested that a similar prohibition reduced the amount of
illicit material available on the international market.59 This has since been fol-
lowed up by the adoption of the Operational Guidelines for the Implementation
of the UNESCO Convention at the third Meeting of State Parties in May 2015
as well as a UNESCO-sponsored workshop that is seeking ways to counter the
illicit traffic of cultural objects.60 However, the full implementation of both the
UNESCO Convention and Resolution 2199 requires diplomatic relations to be
implemented in all countries. While neighboring countries are working to repa-
triate recovered objects (with varying effort), the total is likely to be only a tiny
fragment of those removed.
Furthermore, to establish accountability for such violations, and to determine if
the Hague Convention is applicable, those responsible must be caught. The iden-
tity of the looters is largely unknown. The lack of centralized power in some areas
has encouraged the emergence of organized groups who carry out both planned,
selective looting and un-planned, “mob”-style looting.61 Some are armed gangs
incorporating several hundred people, many of whom may be foreigners. Other
illegal excavations are conducted on a much smaller scale and are more likely to
have been conducted by local people, with motivations including poverty, greed,
and money to fund the conflict. The sale of artifacts to buy arms by combatants is
particularly noteworthy62 and has led to additional prosecutions.
At this point, it is worth returning to iconoclasm. Reports detail the destruction
of historic Jewish and Islamic shrines, tombs, and representations of Islamic poets
and caliphs in Raqqa, Damascus, Aleppo, Dera’a, and Idlib,63 many of which hold
(or held) the remains of significant figures. Numerous churches and mosques have
also been attacked.64 Actions include burning, vandalism, shooting, and stabbing
of religious icons and historic documents; the looting of objects and statues; major
structural damage; the blowing up of shrines, mihrabs, altars, and religious statues;
and the removal of bells that called the community to prayer (Figures 4 and 5). The
scale is staggering—for example, almost 1,500 mosques have been targeted appar-
ently for various reasons, including religious extremism.65
Iconoclasm is not a specific crime, but it represents the removal of people’s
ability to participate in the cultural life of the community, as covered under gen-
eral IHL, and it causes cultural property damage as defined in the 1954 Hague
Convention. Religious sites and objects are protected, therefore, from attacks and
prohibited from military use like other importance cultural property.
Finally, there are also a number of international conventions that deal with the
importance and management of various forms of heritage: the 1972 UNESCO Con-
vention Concerning the Protection of the World Cultural and Natural Heritage
(World Heritage Convention) (ratified by Syria);66 the 2003 UNESCO Convention
FIGURE 4. The destruction of the inside of the Khalid Ibn Al-Walid mosque in Homs.
It is believed to contain the tomb of the Muslim military leader Khalid Ibn Al-Walid.
The inside of the mosque has been severely affected, and its roof has collapsed. In addi-
tion, the mihrab (niche) was also damaged (© Polfoto / AP Images).
FIGURE 5. The destruction at the eighth-century ad Umayyad Mosque in Aleppo, which

caught fire in August 2012. Besides the severe damage to the prayer hall and the mihrab
(niche), precious Islamic and Pre-Islamic manuscripts were lost due to the conflagration
that occurred in the library attached to the mosque in March 2013. The rubble at the
corner of the photo indicates the place where the minaret stood (© Corbis Image).
for the Safeguarding of Intangible Cultural Heritage (ratified by Syria );67 and the
2005 UNESCO Convention on the Protection and the Promotion of the Diversity
of Cultural Expressions (ratified by Syria).68 Although they represent binding con-
ventions, their content is mostly programmatic and provide best practice guide-
lines. The World Heritage Convention operates as an exception, functioning at
an international level, and requiring State Parties to submit reports detailing the
management of sites. Sites that are considered threatened can be placed on the List
of World Heritage in Danger, as Syria’s have been, and potentially delisted.69
There are also a number of declarations, of which the most relevant is the
UNESCO Declaration Concerning the Intentional Destruction of Cultural
Heritage.70 It includes a call to members to do everything they can to prevent acts
of intentional destruction of cultural heritage and requests its members to become
parties to both of the Hague Convention protocols. Declarations such as this one
represent the opinion of the majority of the Member States of UNESCO, but
they are not legally binding. However, they can prompt the adoption of another
international treaty or domestic legislation and may also be relevant in proving the
opinion juris of customary international law (that is, put very simply, any actions
carried out by a State are considered to be practically a legal obligation anyway).
In the case of Syria, such declarations have been largely ineffective with regard to
the adoption of the 1954 Hague Convention—one permanent member state of the
UN Security Council still has yet to ratify it—the United Kingdom—and only time
will tell if it helps reduce looting.
It should be noted that many of these conventions and treaties were not written
with long-term occupation by states or other parties in mind, as has happened in
Syria, and so they have no provisions to deal with these situations. In fact, IHL is
only now beginning to examine the legal ramifications of such actions, and new
developments/precedent rulings will have to be made.
NATIONAL LEGAL PROVISIONS

Cultural property in Syria is governed by the 1963 Antiquities Law, which was
amended in 1999, pre-dating several of the key international treaties and conven-
tions (although updates have been drafted.71 The Antiquities Law (Arabic qānūn
al-Aṯār) explains the nature of Syrian heritage, regulating it with penalties in case
of destruction or the failure to protect it: “It is prohibited to destroy, transform,
and damage movable and immovable antiquities by writing on them, engraving
them, or changing their features, or removing parts of them” (Chapter 1, Article 7).
The Antiquities Law sets out laws against the forging and illicit traffic of Syrian cul-
tural heritage, attributing the ownership of all antiquities and artifacts to the State.
Penalties for offences against the country’s heritage range from substantial fines
to imprisonment for either short or long periods. Given this, all of the offences
discussed above are crimes under the Antiquities Law, and some are more clearly
elaborated. The Hague Convention, for example, prohibits military use of the
undefined “immediate surroundings” of a site, while Chapter 2, Article 26, of the
Antiquities Law states: “Heavy and hazardous industries, military facilities might
not be built within 500 meters of registered immovable archaeological and his-
torical properties.” However, the specification that facilities might not be “built”
could be interpreted to allow the creation or placement of movable or temporary
facilities, such as existing mobile weapons arrays or military storage. Similarly,
unlike the Hague Convention, the Antiquities Law explicitly recognizes the crime
of looting, and forgery is also prohibited. All objects belong to the State, and, there-
fore, forgeries, object removal (whether from a site or a museum), and the atten-
dant site destruction are all crimes. While forgeries might not seem problematic, in
some cases, almost a third of objects seized were fake, tying up the resources of the
bodies tackling the looting and encouraging market demand.72
In addition, the conflict has led to the massive displacement of people and the
abandonment of entire villages. Desperate for shelter, groups of civilians have
reoccupied ancient sites and even underground tombs and adapted them to their
life. This has resulted in new buildings that violate the integrity of the site, the
removal of archaeological material for new buildings, rubbish dumps, looting, and
the targeting of the sites. This is particularly prevalent across the limestone massif
in Idlib and the Aleppo provinces, home to the “Dead Cities,” some of which form
a World Heritage site, and at Bosra, where “the residents found the right moment
to push through illegal projects (construction in protected area), [and] it is diffi-

cult to assess today the extent of their illegal actions.”73 The damage caused by
the re-occupation of such sites by civilians is not covered under international
law, which relates to military forces, so those responsible are only accountable
under State law. However, the changes made to the sites do fall under the regu-
lation of Chapter 1, Article 7, of the Antiquities Law with respect to destroying
or transforming sites, and, as such, are crimes. Although, given the likely lack
of viable alternatives for accommodation and shelter, it is questionable whether
prosecution would be appropriate.
THE LEGAL FRAMEWORK: REMARKS
Cultural property clearly benefits from a system of legal protection that imposes
the obligation to protect cultural property in times of armed conflict. However,
the frameworks described are difficult to apply, and in the Syrian case, they have
proven to be inadequate—various violations and offences to cultural and religious
institutions and objects have taken place. The framework contains problems and
a lack of clarity, relating to military necessity in particular. Furthermore, the
treaties that broaden the scope of the obligations to cover internal conflicts have
not been ratified, such as Additional Protocol II to the Geneva Conventions, the
Second Protocol to the Hague Convention, or the UNIDROIT Convention. Even
when ratified, these international conventions have not necessarily been incorpo-
rated into domestic legislation, so they have no supporting state infrastructure.
Nonetheless, given its age, the Syrian Antiquities Law is holding up relatively well,
with some sections being clearer than the international legislation. The revisions to
the Antiquities Law are eagerly awaited, as they are expected to incorporate more
inclusive definitions of heritage as well as the obligations from conventions that
have been drafted since 1963. It has been demonstrated that the Antiquities Law is
complemented by the Hague Convention, and, in some ways, they shore up some
of the weaknesses of each other. It is hoped that the revisions will seek the best of
both. However, it is unclear how the new statutes will be implemented, given the
difficulties in enforcing the current Antiquities Law in the deteriorating security
situation. The fact that the destruction can be classed as violations (and, as will be
shown, as war crimes) demonstrates that there is a legal set of obligations that do
protect cultural property in conflict. These laws have proven to be effective else-
where (for example, during the North Atlantic Treaty Organization’s operations in
Libya).74 Therefore, the problem is not with the legal framework but, rather, with
its enforcement.
PROSECUTIONS AND INTERNATIONAL CRIMINAL LAW
National and international legal frameworks promote and enforce the standards
and values of the societies that created them, attempting to promote these standards
and prevent the consequences of their avoidance by means of punishment.

As such, they represent the aspirations of those societies and should be enforced.
However, the nature of the conflict in Syria presents a particular challenge for the
enforcement of law. The conflict involves multiple actors, some of whom are part
of groups with chains of responsibility, and others are individuals (or may as
well be). Ideas of “territory” and, therefore, responsibility are constantly shifting.
In addition, the conflict is ongoing, and priorities and resources are unsurprisingly
focused on ending the conflict.75
National Prosecutions
Nonetheless, in the first instance, violations involving cultural property can be

tried in Syrian law courts as offences against the Antiquities Law, Article 28 of the
Hague Convention, and IHL:
Syria is obliged to investigate, prosecute and punish the authors of
any such violations, irrespective of their allegiance … The poten-
tial approaches to accountability … would have to be supplemented by
national prosecutions in Syria at some point. Experience shows that only
a very limited number of cases can be dealt with by other States or the
international community.76
However, internal prosecutions are likely to wait until the conflict is resolved and
are ultimately likely to favor the victors in the conflict.
International Prosecutions
Therefore, should the international community feel it is necessary, parties can

be held responsible for violations of IHL. Based on the precedents of the ad hoc
International Criminal Tribunal for the former Yugoslavia (ICTY), a permanent,
treaty-based criminal court was created under the 1998 Rome Statute of the
International Criminal Court (Rome Statute).77 The International Criminal Court
(ICC) is intended as a last resort, investigating and prosecuting only where
national courts have failed, and it is entirely independent.
The destruction of cultural property falls under Article 8 (which covers inter-
nal conflicts), which mandates that intentionally directing attacks against civilian
objects or historic monuments that are not military objectives is classed as “war
crimes.” However, Article 8 has been described as “anachronistic, incomplete and
inconsistent” since it fails to distinguish between the types or scales of attacks on
cultural property and imposes no criminal liability on individuals who utilize cul-
tural property for military purposes, nor does it define cultural objects, even to the
extent of the Hague Convention.78 Its definitions are more in keeping with the 1907
Hague Regulations.79 Illegitimate looting or plunder are accountable.80 Yet despite
the discrepancies between other international conventions and the Rome Statute,
Article 21 of the statute states that the ICC must consider (1) its statutes, then
(2) where appropriate, applicable IHL, and then (3) general principles of law derived
from national systems if they are not inconsistent with international systems. This
suggests that Article 8 should in fact be interpreted in light of the existing legal
framework and that the two are complementary. However, this weakness in the
Rome Statute means that the specific prosecution of cultural violations is largely
a result of the will and interpretation of the prosecutor, so only a prosecution will
determine how useful the ICC is.81
Deliberate attacks against cultural property during armed conflict, such as the
destruction that occurred during the Balkan War in the 1990s, in Iraq in 2003,
and in Mali in 2012, were deemed by the respective tribunals—the ICTY, the Iraqi
High Criminal Court, and the ICC—to be potential or actual violations of the
laws of warfare incurring individual criminal responsibility and thus, constituting
“war crimes,” setting a precedent for the prosecution of the destruction in Syria.82
The UN Human Rights Council has determined that many violations of IHL have
occurred, including attacks against, and the pillaging and destruction of, cultural
property, citing the Hague Convention and the Rome Statute and confirming some
of the offences as war crimes.83 In addition, iconoclasm falls within the ICC’s def-
inition of war crime against cultural objects, and the specific unreasonable nature
of iconoclasm may be taken into account as an aggravating factor when sentencing.
Therefore, there would be grounds for prosecution by the ICC should they gain
jurisdiction over the situation.
However, although Syria signed the Rome Statute in 2000 and should respect
the provisions, it has not ratified it. Without this step, or unless Syria declares
acceptance of the ICC’s jurisdiction, the ICC will only have authority if the issue
is referred to them by the UN Security Council. Given the divisions surrounding
Syria in the UN Security Council, such unified action is unlikely. In 2013, 58 coun-
tries sent a letter to the UN Security Council requesting that the ICC begin an
investigation into war crimes in Syria (referring to human rights abuses, not cul-
tural war crimes).84 The referral was blocked by some Security Council permanent
members, who stated that it might destabilize chances for a peaceful solution.
Even should a prosecution be made, there are limits on the ICC. Should
a party fail to co-operate, the ICC can only refer the matter back to the Assembly
of State Parties (the oversight and legislative body of the ICC) or to the UN
Security Council. Furthermore, the ICC has no official police force: it is reliant
on national authorities to apprehend suspects and transfer them to The Hague,
requiring national co-operation.85
State Prosecutions
Under certain circumstances, a third option exists. Article 28 of the Hague

Convention stipulates that all State parties must take all necessary steps to prose-
cute persons of whatever nationality who breach the convention, no matter where
these violations took place (although whether such cases can actually be pursued in
a particular country depends on its domestic laws).86 While it is theoretically fea-

sible, whether this would actually take place is open to question. The willingness to
investigate, prosecute, and punish crimes of this nature may be reinvigorated fol-
lowing the international outrage and condemnation of the deliberate destruction
of historical sites occasioned by the Islamic State. If domestic prosecutions based
on Article 28 do take place, however, they would be unprecedented.
WAYS FORWARD
There are difficulties in securing the prosecutions necessary to enforce the CPP
framework. Issues include the focus and possible bias of nationally located courts;
the lack of jurisdiction of the ICC and inadequacies of Article 8 of the Rome Statute;
and the lack of international unity. Assuming a prosecution was made, there are
difficulties in apprehending those guilty of violations. Given the many actors and
groups involved in the Syrian conflict as well as the dangerous security situation, it
would be difficult to identify those responsible for violations and even more diffi-
cult to apprehend and transport them. State co-operation would be essential, but
there are large areas of the country that the State currently has little control over.
Yet these difficulties have been overcome before.
In practice, cases must either be tried within Syria or referred to the ICC by
Syrians or the United Nations (as a representative of States outside the affected
territory). At present, the UN Security Council has failed to react in a unified, con-
crete way, and prosecutions are unlikely to come from Syria. Given this impasse,
a new ad hoc tribunal, similar to the ICTY, has been suggested by the UN Com-
mission of Inquiry that could focus exclusively on the Syrian situation.87 This will
present its own problems in implementation—for example, defining a new legal
framework, finding appropriate facilities, recruiting personnel, and ensuring state
co-operation—and all from scratch, which will be both timely and costly.88
In 2013, the Chautauqua Blueprint was signed, which is a draft Statute for a
Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes.89 It was intended to
sit in Damascus with predominantly Syrian judges, which has called its neutrality
into question. The cultural crimes it would have jurisdiction over mirror those
defined by the ICC, with all of its attendant problems.90 It is hoped that if an ad hoc
tribunal were to be created, omissions such as this could be rectified.
DA’ESH: A CASE STUDY
The case of Syria is particularly complex due to the large number of non-state
actors involved, many of whom have no official representation. It is therefore
instructive to consider the most prominent of them—Da’esh. They have com-
mitted a number of prosecutable violations against cultural property within Syria,
among many others,91 including destroying the Assyrian Lion statues in Raqqa with
a bulldozer; the destruction of the Temples of Bel and Baalshamin, seven funerary
towers, the triumphal arch,92 and the likely mining of the citadel and theatre at
Palmyra.93 In addition, they have legalized the taxation of site looting and cre-
ated a Ministry of Antiquities to officially control the looting of sites and the sale
of objects, which has been confirmed by officials from the US State Department,
Homeland Security, the Federal Bureau of Investigation, the US Department of
Justice, and the United Nations at a conference held in September 2015 presenting
newly declassified documents.94
It would be necessary to gather significantly more evidence of Syrian destruction
than is currently available. The limited (confirmed) cultural destruction in Syria
(for example, of the Assyrian Lion statues), while tragic, could hardly be considered
a “grave breach” of IHL (although the extensive damage in Iraq could). The extent
of the looting is hotly debated (particularly since the state of most of the sites was
unknown before they occupied it),95 and many of the sites they have attacked were
already occupied by a military force. The legality of the creation of the Ministry
of Culture is unclear, but there are possible historical parallels. The Einsatstab
Rosenberg was a Nazi educational research institute and museum containing more
than 21,000 artworks stolen from countries across occupied Europe. The Nuremberg
Charter vested the International Military Tribunal with jurisdiction over the war
crime of plunder, and “in the context of belligerent occupation, the Tribunal held
the accused Rosenberg [Chief of the Institute] ‘responsible for a system of organ-
ised plunder of both public and private property through the invaded countries,’”96
for which he was found guilty.97
Da’esh has declared itself a state, but this state lacks formal recognition and
has ratified no international treaties, raising the question of how to hold them
accountable. Neither Syria nor Iraq, the countries where the new “state” is based,
are members of the ICC and are unlikely to cede to ICC governance, even to enable
the prosecution of Da’esh. Whether Da’esh can be referred to the ICC has been
discussed,98 as this could constitute a “situation,” but current arguments are unde-
cided whether the group must be linked to territory. If not, it would open Da’esh
up to prosecution for their actions globally, not just in Syria, but it also raises the
question of the extent to which the state leaders are responsible for the actions of
their members. If the ICC cannot prosecute, then the creation of an ad hoc tribu-
nal, as was established for Rwanda, would allow the enforcement of IHL by the
United Nations with non-member states.99
A ROLE FOR THE INTERNATIONAL COMMUNITY?
Any cases prosecuted will require evidence. There are already a number of orga-
nizations working on war crime documentation, including Human Rights Watch,
the Syrian Observatory for Human Rights, and the Syria Justice and Accountability
Center, but none have the specific remit of dealing with heritage. Activist groups,
often utilizing social media, provide a large amount of information regarding the
destruction of Syrian heritage, but many cannot be verified. Many are authentic
and well intentioned,100 but some, such as Da’esh, are using the conflict as a source
of propaganda to promote themselves and debase their enemies. In January 2014,
the United Nations stopped updating the death toll as it could no longer verify its
information,101 indicating the difficulties even for large organizations.
The DGAM has initiated a series of documentation and digitalization projects,
providing some of the most reliable updates, but for obvious reasons as a state
institution, they are remaining impartial and documenting only the damage, rather
than the offences. Given the security situation and the decrease in resources, both
physical and human, their documentation activities cannot be exhaustive. Local
communities and unofficial bodies that are operating (for example, in Idlib) are
also frequently unable to carry out proper documentation and protection work. It
remains to be seen what role UNESCO will play, although throughout the conflict
new projects have been announced to document and protect Syria’s heritage.102
Evidence suggests that the damage is greater than supposed. Reports at sites such
as Ebla note that looters are tunneling into them.103 Therefore, the extent cannot
be known until it is possible to gain full access.
Many sites are occupied and re-occupied by competing parties as the conflict
progresses. Damage reports not only indicate what happened, but when and
potentially who was responsible. However, given the many caveats involved in
modern methods to record damage, particularly involving social media, it remains
to be seen whether they will be admissible in a court of law and how the caveats can
be faced and dealt with. These problems are already making themselves felt in the
field of human rights.104 Regardless, the international community in general must
accept the responsibility of documenting the violations occurring and address the
difficult issue of responsibility.
CONCLUSIONS
Through the overview of CPP legislation and with reference to the Syrian exam-
ples, this article has demonstrated that there is a significant level of protection for
cultural property in both domestic and international laws governing archaeology
and heritage. At a national level, and where possible at an international level, the
Syrian DGAM has worked within the existing framework of domestic and interna-
tional law, such as the World Heritage Convention, to try and protect its country’s
heritage. However, many other parties have failed to comply, and there are numerous
violations—in particular, the utilization and targeting of heritage sites and
monuments. Even the hands of the United Nations are tied and cannot offer Syria
the support it needs. In May 2015, the United Nations unanimously adopted the
resolution “saving the cultural heritage of Iraq,” but it deliberately omitted Syria,
apparently for political reasons.105 Given the lack of (or perhaps the impossibility
of) the national or international enforcement of these frameworks during conflict,
it must be concluded that they are inadequate for cultural property protection.
Even after the conflict, enforcement will undoubtedly remain problematic, and it is
doubtful to what extent, if any, prosecutions would act as a deterrent, particularly

given that those involved in such war crimes are often involved in worse atrocities
against the people whose heritage it belongs to, for which there does exist a body of
prosecutions as precedent.
However, prosecutions are about more than determent. They serve justice. There
remains a need to build up solid documentation to assist in potential prosecutions.
This will be necessary for the future application of law in the country and to facil-
itate the preservation of heritage for future generations. Yet collecting documen-
tation apportions responsibility for potential offences, which could be extremely
dangerous for those involved. Documentation is therefore best conducted by an
independent party, and it is unfortunate that it is the Syrian people who have the
best access to such information. It may also be highly detrimental to peace building
since parties responsible for the damage are likely to seek to avoid culpability,
threatening the probably fragile atmosphere of co-operation. This in turn raises
moral quandaries regarding priorities—is the price of justice worth the potential
loss of peace? Others have argued, however, that such prosecutions can in fact
enhance the peace process, as it removes those individuals who are most likely to
be obstructive to the proceedings.106
While important, the available legal tools have not been effective in the pro-
tection of Syrian heritage, raising the question of whether force should be used.
Ethical debates are only just beginning among the heritage community on whether
this can be justified in this context,107 but at the time of writing, events may
overtake them. While most feel that human lives must come first, making it
difficult to prevent the use and abuse of cultural heritage, an armed brigade has
formed in Syria to protect the holy shrine of Sayyeda Seinab, outside Damascus,108
and Turkey has cited the protection of an Islamic tomb when sending a military
convoy into Syria.109 Now, as Da’esh control the strategically significant town
of Tadmur, which contains the World Heritage site of Palmyra, the United States
has reportedly agreed “that with the White House imprimatur, the UN Security
Council will be strongly urged to etch a Chapter 7 ‘red-line’ around Palmyra’s
archeological sites and defend them with whatever force and whatever cost
required.”110 Most recently, UNESCO approved a strategy at their thirty-eighth
General Conference for the Reinforcement of UNESCO’s Action for the Protection
of Culture and the Promotion of Cultural Pluralism in the Event of Armed
Conflict,111 in which UNESCO agreed to encourage the inclusion of a cultural
heritage component in UN peace-keeping forces’ training and operations: “Ulti-
mately, it is hoped that increased awareness of [sic] the military on interna-
tional humanitarian cultural heritage law will lead to … significant cultural
heritage sites, which are clearly identified and protected from the conflict.”
This explicitly builds on the precedent that was created when the UN Secu-
rity Council established a peacekeeping mission in Mali, the Multidimensional
Integrated Stabilization Mission, to ensure security and political stability. Its
mandate included assisting “the transitional authorities of Mali, as necessary
and feasible, in protecting from attack the cultural and historical sites in Mali,
in collaboration with UNESCO.”112
A final point concerns the future of the Syrian people. If Syria is to survive this
conflict, when reconstruction starts people will need their shared heritage in which
all Syrians, no matter how different, can find common cause. Heritage authorities
will face challenges such as the invention, implementation, and enforcement of
a complete body of state and legal structures pertaining to the CPP. This will be
particularly difficult given the emigration or loss of numerous heritage and legal
staff and the attrition of the infrastructure. The criminalization of attacks against
cultural property, as well as the efforts to protect the country’s heritage, should
not only be considered a Syrian issue but, rather, viewed from a global perspective
as a concrete threat to modern, diverse societies. The targeting and destruction
of cultural property and heritage in Syria can be viewed as attacks on the very
essence of humanity. Efforts to safeguard cultural heritage in Syria, and to bring
those involved in its destruction to justice, should therefore also be perceived as a
humanitarian effort.
ENDNOTES
1. Viejo-Rose and Stig Sørenson 2015.

2. Isakhan 2013.
3. E.g., Chapman 1994.
4. Viejo-Rose 2013; Viejo-Rose and Stig Sørenson 2015.
5. Prosecutor v. Dario Kordic and Mario Cerkez (Trial Judgment) IT-95-14/2-T (26 February
2001).
6. Arimatsu and Choudhury 2014.
7. Human Rights Watch 2012.
8. In this context, State is distinct from state. A State (often referred to as a State party) is
a country that is formally recognized internationally and which can sign international treaties and
conventions.
9. Several other States have recently become involved in the Syrian conflict—for example,
Russia, France, the United Kingdom—and in at least one case have been accused of damaging
a World Heritage site. However, given the constraints of space, this article will focus on Syria and the
non-State actors involved there, rather than the other State parties. See Ana Maria Luca and Myra
Abdallah, “How Russia Bombed a UN Heritage Site in Syria,” 10 May 2015, https://now.mmedia.me/
lb/en/reportsfeatures/565993-how-russia-bombed-a-un-heritage-site-in-syria (accessed 1 November
2015).
10. Lostal 2015.
11. Gerstenblith 2014.
12. While only 11 sites have been nominated, they make up 12 submitted nominations on the
World Heritage Tentative List, as Dura Europos (8 June 1999) and Mari, Tell Hariri (8 June 1999)
were submitted separately, but have a twelfth nomination as a joint submission (Mari and Europos-
Dura sites of the Euphrates Valley (23 June 2011).
13. Lostal 2015.
14. E.g., Amnesty International and American Association for the Advancement of Science 2013;
World Heritage Committee 2013, 2014; Abdulkarim 2014; Cunliffe et al. 2014; Wolfinbarger et al.
2014a, 2014b.
15. Kila 2012.
16. E.g., Cunliffe 2012; Association for the Protection of Syrian Archaeology, http://www.
apsa2011.com (accessed 30 May 2014).
17. Cunliffe 2014.
18. International Council on Monuments and Sites 2011.
19. Boldrick, Brubaker, and Clay 2013.
20. Kila 2013.
21. Cunliffe et al. 2014.
22. Howard, Prohov, and Elliott 2015. Given the constraints of this article, only brief attention is
given to Da’esh as they are largely treated as a non-State actor.
23. Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May
1954, 249 UNTS 240 (Hague Convention). The term cultural “property” is now widely considered
to be deficient. See Prott and O’Keefe (1992) for its failure to incorporate diverse forms of heritage.
However, “cultural heritage” has yet to receive widespread implementation or to be legally tested.
24. International Committee of the Red Cross, “Customary International Humanitarian Law,”
29 October 2010, http://www.icrc.org/eng/war-and-law/treaties-customary-law/customary-law/
overview-customary-law.htm (accessed 13 May 2014).
25. Universal Declaration of Human Rights, 12 October 1948, UN Doc A/810 at 71 (1948).
26. International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993
UNTS 3.
27. O’Keefe 2014. UN Human Rights Council, Resolution 6/1, 27 September 2007.
29. Geneva Conventions of 12 August 1949, 1125 UNTS 3.
30. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protec-
tion of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609.
31. Hague Convention IV on Respecting the Laws and Customs of War on Land and its Annex:
Regulation concerning the Laws and Customs of War on Land 1907, 187 CTS 227.
32. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property, 14 November 1970, 823 UNTS 231. Antiquities Law,
26 October 1963, Decree no. 222.
33. Convention on Stolen or Illegally Exported Cultural Objects, 24 June 1995, 2421 UNTS 457.
There is a range of international laws and examples dealing with prosecutions for illegally removed
objects seized outside the country of origin, but these are outside the scope of this article.
34. Prott and O’Keefe 1992.
35. For a full discussion, see Prott and O’Keefe 1984; Toman 1996; O’Keefe 2006; Kila 2012; Frulli
2011; Ehlert 2014.
36. Gerstenblith 2014.
37. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331.
38. Henckaerts 2005.
39. Ibid.,178.
40. Gerstenblith 2010, 2014; Henckaerts 2005.
41. C.J. Chivers, “Grave Robbers and War Steal Syria’s History,” New York Times, 6 April 2013,
http://www.nytimes.com/2013/04/07/world/middleeast/syrian-war-devastates-ancient-sites.html?_
r=0&adxnnl=1&adxnnlx=1381999297-uZkVl2qRT6D6kiJ7dGErwA (accessed 17/10/2013). See also
Patrick Cockburn, “The Destruction of the Idols: Syria’s Patrimony at Risk from Extremists,” The
Independent, 11 February 2014, http://www.independent.co.uk/news/science/archaeology/news/the-
destruction-of-the-idols-syrias-patrimony-at-risk-from-extremists-9122275.html (accessed 20 May
2014).
42. Casana and Panahipour 2014.
43. Gerstenblith 2010, 9.
44. Bogliolo 2012.
45. Lostal 2012. The definition of military objective is provided in Article 52(2) of Additional Pro-
tocol I and considered to be part of customary international law: “[M]ilitary objectives are limited
to those objects which by their nature, location, purpose or use make an effective contribution to
military action and whose total or partial destruction, capture or neutralization, in the circumstances
ruling at the time, offers a definite military advantage.”
46. O’Keefe 2008, 2014.
47. See Lostal 2012, 470.
48. For examples of discussions and court rulings, see O’Keefe 2006, 130, 131.
49. For example, in Libya, the North Atlantic Treaty Organization selected more focused ordnance
when attacking a military target to protect a site. See Kila 2012.
50. Kila 2012.
51. Abdulkarim 2014.
53. E.g., “Appel à la préservation des musées syriens adressé aux institutions internationales
et à la communauté internationale,” Le patrimoine Syrien archéologique en danger, 30 April 2012,
https://www.facebook.com/notes/le-patrimoine-arch%C3%A9ologique-syrien-en-danger-
%D8%A7%D9%84%D8%A2%D8%AB%D8%A7%D8%B1-%D8%A7%D9%84%D8%B3%
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54. Gerstenblith 2010, 9.
55. Ali 2013.
56. Henckaerts 2005, Annex.
57. Ibid.
58. For a full commentary on this treaty, see Prott and O’Keefe 1988; O’Keefe and Patrick 1997;
O’Keefe 2007; UNESCO 2011.
59. Brodie 2008; compare Sam Hardy, “Syria/Lebanon: Syrian-Lebanese Antiquities-for-Arms
Trade,” Conflict Antiquities Blog, 12 May 2013, http://conflictantiquities.wordpress.com/2013/05/12/
syria-conflict-funding-lebanon-illicit-antiquities-trade/ (accessed 01 May 2014).
60. Workshop on “Countering the Destruction of and Trafficking in Cultural Property: From
Lessons Learned to Implementation,” 3 June 2015, United Nations Headquarters, New York.
61. Cunliffe 2014.
62. Aryn Baker and Majdal Anjar, “Syria’s Looted Past: How Ancient Artifacts Are Being Traded
for Guns,” Time World, 12 September 2012, http://world.time.com/2012/09/12/syrias-looted-past-
how-ancient-artifacts-are-being-traded-for-guns/ (accessed 12 September 2012); see also Hardy,
“Syria/Lebanon.”
63. E.g., Association for the Protection of Syrian Archaeology (APSA), “Alep Henano: Destruction
la coupole du Meqam Cheikh Yebreq,” YouTube, https://www.youtube.com/watch?v=eEBE3Issjuw
(accessed 1 July 2013); Robert Fisk, “Syria’s Ancient Treasures Pulverised,” The Independent, 5 August
2012, http://www.independent.co.uk/opinion/commentators/fisk/robert-fisk-syrias-ancient-treasures-
pulverised-8007768.html (accessed 6 August 2012); “Damage at the Tomb of Shaykh Abdallah
Sirajuddin,” Free Halab Blog, 26 November 2012, http://freehalab.wordpress.com/2012/11/26/damage-
at-the-tomb-of-shaykh-abdallah-sirajuddin/; “Shaykh al-Yaqoubi Condemns the Bombing of Shrines
in Aleppo,” Free Halab Blog, 24 November 2012, http://freehalab.wordpress.com/2012/11/24/shaykh-
al-yaqoubi-condemns-the-bombing-of-shrines-in-aleppo/ (both accessed 13 May 2014); Human
Rights Watch 2012.
64. E.g., Human Rights Watch 2012; Mediawerkgroep Syrie, “Desecrated Churches in Homs,” 17 June
2012, http://mediawerkgroepsyrie.wordpress.com/2012/06/17/desacrated-churches-in-homs-pdf/
(accessed 1 December 2012).
65. By mid-2013. The date of a report by Syrian Network for Human Rights, Targeting Mosques,
11 June 2013, http://sn4hr.org/public_html/wp-content/pdf/english/Targeting%20Mosques%20
by%20Syrian.pdf (accessed 30 May 2015).
66. Convention Concerning the Protection of the World Cultural and Natural Heritage, 23 November
1972, 1037 UNTS 151 (World Heritage Convention).
67. Convention for the Safeguarding of Intangible Cultural Heritage, 17 October 2003, 2368 UNTS 3.
68. Convention on the Protection and the Promotion of the Diversity of Cultural Expressions,
20 October 2005, 2440 UNTS 311. Due to the complexities of underwater ownership and the fact
that conflict rarely affects underwater sites, the UNESCO Convention on the Protection of the
Underwater Cultural Heritage, 2 November 2001, 41 ILM 40 (2002) will not be discussed here.
69. For a detailed discussion of the extent to which the definition of heritage in the World Heritage
Convention is legally binding in armed confllicts, and the legal implications for the protection of
World Heritage sites. See Lostal 2015.
70. Declaration Concerning the Intentional Destruction of Cultural Heritage, Paris, 17 October 2003,
http://portal.unesco.org/en/ev.php-URL_ID=17718&URL_DO=DO_TOPIC&URL_SECTION=201.
html (accessed 10 May 2014).
71. Directorate General of Antiquities and Museums (DGAM), “Completing New Draft Law
on Protection of Syria’s Archaeological Heritage,” DGAM, http://www.DGAM.gov.sy/index.
php?d=314&id=1114 (accessed 13 May 2014). Perhaps in support of this, during 2014, legal
experts, officials from the DGAM, and other official Syrian bodies collaborated with UNESCO in
order to shed light on the expected benefits of the application of the Second Protocol of the Hague
Convention in the Syrian case.
72. Suleiman Al-Khalidi, “Syrian Violence Threatens Ancient Treasures,” Reuters, 20 February 2013,
http://www.reuters.com/article/2013/02/20/uk-syria-crisis-antiquities-idUSLNE91J01C20130220
(accessed 21 February 2013).
73. World Heritage Committee 2013, 115.
74. Kila 2012.
75. For a full discussion of the prosecution of cultural crimes, see Carcano 2013; Ehlert 2014. For
brevity, this article will not discuss the sentencing of cultural crimes. It is extremely difficult to estab-
lish the value of heritage. (For some examples of methods used, see Darvill, Saunders, and Startin
1987; Darvill and Fulton 1998; Isakhan 2014). In addition, it is likely that, as concepts of cultural her-
itage and cultural property are refined in the heritage and legal spheres, value discussions will change.
76. Human Rights Council 2013, 124.
77. Rome Statute on the International Criminal Court, 17 July 1998, 2187 UNTS 90.
78. Gottlieb 2004, 857.
79. Frulli 2011.
80. O’Keefe 2006, 348.
81. Carcano 2013.
82. See Art. 3(d) of the Statute of the International Tribunal for the Prosecution of Persons Respon-
sible for Serious Violations of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991, 25 May 1993, 32 ILM 1159 (1993); Arts. 13(b)(14) and 13(b)(17) of
the Statute of the Iraqi Special Tribunal, 10 December 2003.
84. Thomas Gürber, Letter to the President of the UN Security Council, January 2013, http://www.
news.admin.ch/NSBSubscriber/message/attachments/29293.pdf (accessed 30 May 2015).
85. For other problems regarding the enforcement of cultural property protection, see Lenzerini
2013.
86. Human Rights Watch, “Syria and the International Criminal Court: Questions and Answers,”
September 2013, http://www.hrw.org/sites/default/files/related_material/Q&A_Syria_ICC_Sept2013_
en_0.pdf (accessed 30 May 2015).
87. Human Rights Council, “Commission of Inquiry on the Syrian Arab Republic: Press Conference,”
http://webtv.un.org/media/press-conferences/watch/commission-of-inquiry-on-the-syrian-arab-
republic-press-conference-geneva-17-march-2015/4116607036001#full-text (accessed 30 May 2015).
89. Chautauqua Institution, “The Chautauqua Blueprint for a Statute for a Syrian Extraordi-
nary Tribunal to Prosecute Atrocity Crimes,” September 2013, http://insct.syr.edu/wp-content/
uploads/2013/09/Chautauqua-Blueprint1.pdf (accessed 30 May 2015).
90. For a more detailed discussion, see Lostal 2015.

91. In fact, there have been at least 50 incidents of varying severity attributed to Da’esh in Syria
alone. See “ISIS Destroys Mausoleums in Syria’s Palmyra,” Al-Arabiya News, 23 June 2015, http://
english.alarabiya.net/en/News/middle-east/2015/06/23/ISIS-destroys-Islamic-mausoleums-in-Syria-
s-Palmyra-.html (accessed 10 November 2015).
92. These events are confirmed in the regular reports published online by the ASOR Cultural Her-
itage Initiative, http://www.asor-syrianheritage.org/reports/ (accessed 10 November 2015).
93. Reported in The Independent on 21 June 2015 and again in Sputnik News on 6 October 2015
(where the theatre is incorrectly identified as the amphitheater). Neither incident is verified; it may
even be the same report. See Alexander Sehmer, “Isis Fighters ‘Plant Mines’ around Ancient Palmyra
Site,” The Independent, 21 June 2015, http://www.independent.co.uk/news/world/middle-east/isis-
fighters-plant-mines-around-ancient-palmyra-site-10335128.html (accessed 10 November 2015);
and Sputnik News, “ISIL Rigs Palmyra’s Ancient Roman Amphitheater with Explosives,” Sputnik
News, 06 October 2015, http://sputniknews.com/middleeast/20151006/1028118213/palmyra-syria-
isil-theater.html - ixzz3nuKaUFFX (accessed 10 November 2015).
94. The event was Conflict Antiquities: Forging a Public/Private Response to Save Iraq and Syria’s
Endangered Cultural Heritage, which was held 29 September 2015 and organized by the Department
of State and the Metropolitan Museum of Art. In addition to podcasts of the event, some slides
and documents have been released, and several blogs have summarized the event. The UK Blue
Shield website has collated all the links into one place for those wishing further information, http://
ukblueshield.org.uk/events/previous-events/conflict-antiquities-forging-a-publicprivate-response-
to-save-iraq-and-syrias-endangered-cultural-heritage/ (accessed 10 November 2015).
95. See the many articles debunking Da’esh myths by Sam Hardy in his Conflict Antiquities Blog,
https://conflictantiquities.wordpress.com/ (accessed 10 November 2015).
96. O’Keefe 2010, 337.
97. Nowlan 1993.
98. Alexander Skander Galand, “The Situation Concerning the Islamic State: Carte Blanche for the
ICC if the Security Council Refers?” EJIL: Talk! Blog, 27 May 2015, http://www.ejiltalk.org/the-situation-
concerning-isis-carte-blanche-for-the-icc-if-the-security-council-refers/ (accessed 30 May 2015).
99. Anthony Moreland, “In the Absence of Sovereignty, How Will ISIS Be Held Accountable for
Their Crimes?” National Security and Armed Conflict Law Review, 10 February 2015, http://nsac.law.
miami.edu/absence-sovereignty-isis-held-accountable/ (accessed 30 May 2015).
100. Perini and Cunliffe 2014a, 2014b, 2015.
101. Kashmira Gander, “UN to Stop Updating Death Toll in Syria Conflict,” The Guardian, 07 January
2014, http://www.independent.co.uk/news/world/middle-east/un-to-stop-updating-death-toll-in-syria-
conflict-9045096.html?origin=internalSearch (accessed 13 May 2014).
102. UN News Centre, “With Syria’s Culture Near ‘Point of No Return’: UN Agency to Create Safeguard
Observatory,” UN Website, http://www.un.org/apps/news/story.asp?NewsID=47911 - .U4jFOvldWoP
(accessed 30 May 2014).
103. Abdulkarim 2014; see also C.J. Chivers, “Grave Robbers and War Steal Syria’s History,” New York
Times, 6 April 2013, http://www.nytimes.com/2013/04/07/world/middleeast/syrian-war-devastates-
ancient-sites.html?_r=0&adxnnl=1&adxnnlx=1381999297-uZkVl2qRT6D6kiJ7dGErwA (accessed
17 October 2013).
104. Centre for Human Rights and Global Justice, “2012–14 Initiative on Human Rights Fact-Finding,
Methods and Evidence,” NYU School of Law Webpage, http://chrgj.org/project/2012-14-theme-human-
rights-fact-finding-methods-and-evidence/ (accessed 30 May 2015).
105. Cara Anna, “Syria: Europeans Block It from UN Culture Protection Measure,” Associated Press, 28
May 2015, http://news.yahoo.com/syria-europeans-block-un-culture-protection-measure-201902142.
html (accessed 15 June 2015).
106. Human Rights Watch, “Syria and the International Criminal Court: Questions and Answers.”
107. Sam Hardy, “Should Cultural Monuments Become an Active Issue of the Human Rights
Agenda?” Conflict Antiquities Blog, 12 May 2013, http://conflictantiquities.wordpress.com/2014/04/12/
amnesty-international-political-violence-cultural-property-community-persecution/ (accessed 01 May

2014).
108. M. Karouney, “Shi’ite Fighters Rally to Defend Damascus Shrine,” Reuters, 03 March 2013,
http://www.reuters.com/article/2013/03/03/us-syria-crisis-shiites-idUSBRE92202X20130303?feed
Type=RSS&feedName=worldNews&utm_source=feedburner&utm_medium=feed&utm_campaign=
Feed%3A+Reuters%2FworldNews+%28Reuters+World+News%29 (accessed 14 April 2014).
109. C. Labrousse, “Turkey Army Convoy Entered Northern Syria to Protect Tomb,” Arab
Chronicle, 24 April 2014, http://the-arab-chronicle.com/turkey-army-convoy-entered-in-northern-
syria/ (accessed 25 April 2014).
110. Franklin Lamb, “The Fall of Palmyra,” Counterpunch, 21 May 2015, http://www.counterpunch.
org/2015/05/21/the-fall-of-pamyra/ (accessed 30 May 2015).
111. UNESCO 2015, 7, point 35.
112. Doc. S/RES/2100 (2013), para. 16(f); Doc. S/RES/2164 (2014), para. 14(b).
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International Journal of Cultural Property (2016) 23:1–31. Printed in the USA.

Copyright © 2016 International Cultural Property Society

The Destruction of Cultural Property

Niebuhr Center for Multi-Cultural Heritage, University of Copenhagen, Denmark

ACKNOWLEDGMENTS: We are grateful to the University of Copenhagen and to Ingolf Thuesen,

THE NATURE OF THE DAMAGE

Lastly, it is important to emphasize the damage caused by iconoclasm, a specific

CULTURAL HERITAGE OR CULTURAL PROPERTY?

It is important to understand that, legally speaking, distinctions are frequently

TREATY AND CUSTOMARY LAW

INTERNATIONAL CUSTOMARY LAW

statues to internal conflicts, so this important legislation is not applicable.30

property to the competent authorities (Article 1 of the First Protocol). Neither

of cultural property under compulsion arising directly or indirectly from the

FIGURE 5. The destruction at the eighth-century ad Umayyad Mosque in Aleppo, which

NATIONAL LEGAL PROVISIONS

to push through illegal projects (construction in protected area), [and] it is diffi-

THE LEGAL FRAMEWORK: REMARKS

PROSECUTIONS AND INTERNATIONAL CRIMINAL LAW

and prevent the consequences of their avoidance by means of punishment.

Nonetheless, in the first instance, violations involving cultural property can be

Therefore, should the international community feel it is necessary, parties can

Under certain circumstances, a third option exists. Article 28 of the Hague

a particular country depends on its domestic laws).86 While it is theoretically fea-

DA’ESH: A CASE STUDY

A ROLE FOR THE INTERNATIONAL COMMUNITY?

doubtful to what extent, if any, prosecutions would act as a deterrent, particularly

1. Viejo-Rose and Stig Sørenson 2015.

90. For a more detailed discussion, see Lostal 2015.

amnesty-international-political-violence-cultural-property-community-persecution/ (accessed 01 May

Henckaerts, Jean-Marie. 2005. “Study on Customary International Humanitarian Law: A Contribu-

———. 2008. “Protection of Cultural Property.” In The Handbook of International Humanitarian

O’Keefe, Roger, and J. Patrick. 1997. Trade in Antiquities. Paris: UNESCO.

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