December 18, 2016

On the Protection of Cultural Heritage

Earlier this month, I spoke at an international gathering of national societies for the promotion of international humanitarian law organized by the International Committee of the Red Cross in Geneva. I spoke on protection of cultural heritage. These were my remarks.

4th Universal meeting of National IHL committees, December 1, 2016, Geneva -- Statement by Karima Bennoune, Special Rapporteur in the field of cultural rights

Honourable Chair, Excellencies, distinguished delegates, ladies, and gentlemen,

I am honoured to take the floor before this important gathering in my capacity as Special Rapporteur in the field of cultural rights.   My recent thematic report to the General Assembly concerned the intentional destruction of cultural heritage as a violation of human rights and I am pleased to have the opportunity to share with you some of my key findings.

Cultural heritage is significant in the present, both as a message from the past and as a pathway to the future. Viewed from a human rights perspective, it is important not only in itself, but also in relation to its human dimension. While specific aspects of heritage may have particular resonance for and connections to particular human groups, all of humanity has a link to such objects, which represent the "cultural heritage of all humankind." Cultural heritage includes tangible heritage, composed of structures and remains of historical, religious, or cultural value, and also intangible heritage made up of customs, beliefs, languages, artistic expressions and folklore.  Tangible and intangible heritage are interlinked and attacks on one are usually accompanied by assaults on the other.

The right of access to and enjoyment of cultural heritage forms part of international human rights law, finding its legal basis, inter alia in the right to take part in cultural life.  Cultural heritage is a fundamental resource for other human rights also, in particular, the rights to freedom of expression, freedom of religion, as well as the economic rights of the many people who earn a living through tourism related to such heritage, and the right to development.  The preservation and restoration of cultural heritage is also a critical tool for reconciliation and peace-building.

Given this importance of cultural heritage for human rights, I welcome the fact that, in its recent Resolution 33/20 (2016) on "cultural rights and the protection of cultural heritage," the Human Rights Council agreed that "the destruction of or damage to cultural heritage may have a detrimental and irreversible impact on the enjoyment of cultural rights."  The Council encouraged States to consider implementing the recommendations that I made to the General Assembly on these issues.

A special protection regime governs heritage protection in times of conflict. The core standards include the 1954 Hague Convention and the protocols thereto. The Hague Convention, requires States parties to respect cultural property and to refrain from any act of hostility directed against it or any use of it likely to expose it to such acts, subject only to imperative military necessity (art. 4).  The Second Protocol strengthens the rule by further limiting the military necessity exception.

I have heard worrying reports of violations of these provisions in recent conflicts. I call on states to recognize that any military necessity exception to the ban on targeting cultural property must be interpreted narrowly, taking into consideration the impact on cultural rights.  All military decisions resulting in the destruction of or damage to cultural heritage should be subject to close public scrutiny.

I note with concern that many States have not adhered to the 1954 Hague Convention and its Protocols, in particular the Second Protocol, which now has 69 parties, since the most recent accession by Norway. I was pleased to learn of the commitment that has been made for the first time by a permanent member of the Security Council, namely, the United Kingdom of Great Britain and Northern Ireland, to ratify the Second Protocol, and I look forward to the achievement of that important step. I call upon all permanent members of the Security Council to follow suit in the next two years so as to demonstrate collective leadership on this critical issue which is at the heart of meaningful peace and security.

In addition to tackling the role of States, attention must also be paid to the robust use of international standards such as article 19 of The Hague Convention - and developing other strategies - for holding non-State actors to account and preventing their engaging in destruction.

Individual criminal responsibility arises from serious offences against cultural heritage, which can rise to the level of war crimes or to crimes against humanity when carried out with discriminatory intent, and may also be evidence of intent to destroy a group within the meaning of the genocide convention. A human rights approach emphasizes accountability.  I welcomed the decision of the Office of the Prosecutor of the International Criminal Court to charge the destruction of cultural and religious sites as a stand-alone war crime for the first time in the case of Ahmad Al Faqi Al Mahdi which has recently resulted in a guilty verdict and 9-year sentence.  I endorse the conclusions in the Al Mahdi judgment that the crime in question aimed at "breaking the soul of the people of Timbuktu" and was of "significant gravity."  I very much hope to see similar prosecutions in future, and to that end I remind States of the vital need to collect and preserve evidence of any such crimes.

In the early twenty-first century, a new wave of deliberate destruction is being recorded and displayed for the world to see, the impact magnified by widespread distribution of the images. Such acts are often openly proclaimed and justified by their perpetrators and represent a form of cultural warfare being used against populations which I condemn in the strongest possible terms.  Such attacks represent an urgent challenge to cultural rights that requires rapid and thoughtful international response.

Acts of deliberate destruction are often accompanied by other grave assaults on human dignity and human rights, including acts of terrorism. They have to be addressed in the context of holistic strategies for the promotion of human rights, and peacebuilding.  Protection of cultural heritage must be included in the mandates of peacekeeping missions.  We must care about the destruction of heritage in conjunction with our grave concern for the destruction of the lives of populations. 

Acts of intentional destruction harm all, target freethinkers in majority groups and often disproportionately affect persons belonging to minorities. They contribute to intolerance and tensions between people, and deprive all humanity of the rich diversity of cultural heritage.

In responding to intentional destruction of cultural heritage today, it is critical to employ a human rights approach. Beyond preserving and safeguarding an object or a manifestation in itself, a human rights approach obliges one to take into account the rights of individuals and populations in relation to them.  It is impossible to separate a people's cultural heritage from the people itself and their rights.

A critical, related question concerns the protection of the defenders of cultural heritage who are at risk and who may even lose their lives in defence of cultural heritage, such as Samira Saleh al-Naimi, an Iraqi lawyer abducted and killed in September 2014 after denouncing destructions of religious and cultural sites by Daesh in her home city of Mosul, and many others who today continue to labour in obscurity and danger. We must not wait until we are mourning the deaths of at-risk cultural heritage defenders to rally to their cause.

People like them are cultural rights defenders. States must respect their rights and ensure their safety and security, but also provide them, including through international cooperation, with the conditions necessary to complete their work, including all needed material and technical assistance, grant them asylum when necessary and ensure that when displaced they are able to continue their work and to take part in the protection and reconstruction of their country's cultural heritage.

I also encourage the development and adoption of a fully gender-sensitive approach to the protection of cultural heritage and to the combating of its destruction, which should include promoting the inclusion of women cultural heritage experts in relevant forums and institutions.

A human rights approach also embraces prevention and the allocation of sufficient budgetary resources both at the national and international levels. Preventive action and education, especially for young people, on the importance of cultural heritage and cultural rights for all without discrimination, and the relevant norms of IHL, are vital. 

Let me conclude by stressing again how crucial it is to consider that destruction of cultural heritage is a human rights issue, including in times of conflict, when human rights law must be taken seriously as a necessary complement to international humanitarian law. When cultural heritage is destroyed, this bears important consequences for a wide range of human rights for current generations and those to come.  

Today, in our collective role as custodians of the past achievements of humanity, we are faced with a stark choice. Will we engage with cultural heritage in its diversity in such a way as to allow cultural rights to flourish and will we protect it, teach youth about it, learn from it and from the history of its destruction, and make use of heritage and its reconstruction to understand ourselves and find solutions to the grave problems that we face? Will we be up to the challenge of protecting the heritage of humanity? If the answer is no, the rights of current generations will be violated, and we will incur the scorn of future generations. Would we not prefer to bequeath a richer legacy? The intentional destruction of cultural heritage is a human rights issue. The approach to stopping it needs to be a holistic one, encompassing all regions, focused on both prevention and punishment, and targeting acts committed by both State and non-State actors, in conflict and non-conflict situations. We must not only respond urgently, but also take the long view.

Thank you.

December 10, 2015

How the Right and the Left Are Getting San Bernardino Wrong

This article originally appeared on The Huffington Post on December 7, 2016.

14 people are dead. 21 are injured.

A young couple armed for battle attacked a Christmas party full of the husband's colleagues. In the face of this nightmare -- both the 355th mass shooting in 336 days in the United States, and one that came less than three weeks after the Paris attacks -- right and left alike are sticking to their scripts rather than grappling with the complex reality. If we are to successfully prevent future massacres, that has to change.

First and foremost, we have to think of the victims and their families.

And then we have to declare all-out war on the political ideology of Islamism that motivated Syed Farook and Tafsheen Malik, while simultaneously standing firm against all attempts to discriminate against Muslims generally. We have to disarm all potential terrorists by toughening up gun control laws and by discrediting the foul ideas that motivate them. (And we have to name those ideas without fear of being labelled politically incorrect. ) The right and the left, more worried about their fight with each other than the fight against terrorism, have made this an either/or choice when it is both/and. We cannot succeed by only doing one of these things or the other.

The right rushed in almost immediately. Twitter was full of smears of all Muslims, President Obama, immigrants, etc. Ann Coulter tweeted: "it's been a 50 year invasion." "Where," shrieked Pamela Geller, "are the programs in mosques and madrassas teaching against jihad? NONE." Are there enough such programs and are they succeeding? No. But, as someone who has spent years traveling the world talking to Muslims, including clergy, who are challenging extremism, I know that this is simply a lie. As the icing on the cake, Marco Rubio now denies that there is any discrimination against Muslims in America.

The left meanwhile, as exemplified by the tepid statements of Democratic candidates -- has only been willing to talk about gun control and has mostly refused to name a key part of the problem in this case -- Muslim fundamentalism or Islamism, a virulent political ideology (which represents the far right of the Muslim political spectrum). That ideology today poses a global threat and is one that many (but not enough) people of Muslim heritage themselves have been fighting against all around the world for years. Hilary Clinton deems it insulting to say "radical Islam." Not saying it, when it represents a reality, is much worse.

The double standards have been stunning. On the right, people who denounced anyone who dared make a connection between the Colorado Planned Parenthood shooter and its own extreme anti-choice discourse were instantly linking the San Bernardino bloodbath to "Islamic" terrorism before there was any evidence other than that the first suspect had a foreign sounding name. On the left, the same people who had instantly (and correctly) recognized the politics of the Planned Parenthood shooting were reticent to admit any connection to terrorism here or to discuss the possible political motivation, even as thousands of rounds of ammunition were being found in the "IED factory" Farook and Malik had in their garage.

The soundtrack to all of this has been a diatribe from the Far Right in the West increasingly suggesting that all Muslims are members of one big sleeper cell and that there is something inherently wrong with this religion, and this religion only. Such views contravene basic tenets of humanism and decency. They also give a powerful weapon both to actual fundamentalists and those who apologize for them by suggesting that the extremists are just fighting an oppressive, imperialist West and defending Muslim interests. Making Muslims into victims, or making them feel like they are, plays into the hands of the fundamentalists who know just how to play that card.

While the Western Right sometimes advocates bigotry and international crimes -- like killing the families of terrorists as Donald Trump appallingly suggests -- in response to Muslim fundamentalist violence, the Western Left often refuses to recognize the reality of that violence and the actual danger posed by its underlying ideology.

They should listen to progressives of Muslim heritage whose words also belie the claims of the Gellers of the world. For example, Algerian anti-extremist activist Cherifa Kheddar, whose own brother and sister were killed by the Armed Islamic Group in 1996, clearly explains that you cannot end jihadist violence without "prioritizing the fight against fundamentalism which makes the bed of jihadism."

A similar point was made by a petition authored by Muslim journalist Mohamed Sifaoui and published last summer in the leftwing and secular French magazine Marianne that was signed by some 2000 people, mostly people of North African, Muslim heritage. "Islamism imposes a war on us and its principle weapon is terrorism, but Islamism also imposes on us a great ideological battle that we must face up to collectively."

In facing up to this very battle, President Obama got some things right in his Oval Office speech though he mainly pledged -- somewhat incongruously -- to continue the same strategy against a threat which has evolved, and emphasized what he would not do. However, he rightly reminded us that Muslim Americans are an integral part of the community. Discrimination is an unacceptable response to terror. Allowing terror suspects to arm themselves inside our borders is not a good idea. And at the same time he insisted that Muslims must confront extremism which is a grave threat and one that has, in fact, taken root in certain quarters, including here in the U.S..

What we need to do now -- rather than giving a forum to self-appointed spokespeople like CAIR who have not led the fight against extremism -- is listen to those who have actually been taking on this very struggle the President referenced. One of those brave people, Ani Zonneveld, the Malaysian American head of Muslims for Progressive Values based in Southern California, wrote to me the day after the San Bernardino slaughter. "You cannot be religious and go out and kill in Islam, and yet again we are witnessing murder in the name of our faith. The fact that guns are easily accessible and there have been more than 355 mass shootings in America to date should be irrelevant to our internal conversation. Our conversation should be why and what is it in our theology that has been so bastardized to give people permission to kill? Until we honestly root this out, we will by default be blamed."

To enable the "rooting out" Ani calls for, the right and the left need to focus on the actual problem and not on each other. They all need to carefully distinguish between Muslims, people of Muslim heritage and immigrants on the one hand, and Islamist extremists on the other. They must be tolerant toward the former who are key allies, and unwaveringly intolerant of the latter. As a necessary first step, they must speak the name of the problem: "Muslim fundamentalism."

The memory of the victims of San Bernardino, and of so many other recent terror attacks around the world, demands nothing less from us today.