Cultural property and cultural heritage: from legal definitions to field practice

Abstract

There is a growing disconnect between the requirements for cultural property protection (CPP) in international law (which is predominantly state-managed and property focused), cultural heritage protection in international human rights law (which is focused on community values, and seen as part of the protection of people and their culture), and the implementation of either school of law in military practice. At the heart of this discussion are struggles between definitions of cultural property and cultural heritage, and how they are used in the creation of inventories designed to ensure the protection of key locations. Inventories, in a sense, are expressions of predominant value judgments.

This paper will begin by reviewing legal explanations of the term 'cultural property' in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, the key legal treaty for CPP in international humanitarian law, giving examples of interpretation from State practice. It will then consider the problems posed by the competing definitions of cultural heritage associated with human rights law, before examining the disconnect between state-led heritage management, and community focused heritage value. Finally, the presentation will examine the place of CPP inventories in military practice (targeting, field operations, and CIMIC), discussing how IHL and IHRL are affected by military practice,  but how they in turn are affected by the laws of armed conflict, in particular the underlying feasibility principle, expressed in, for example, the requirement that “Each party to the conflict must do everything feasible to verify that targets are military objectives” (ICRC Database Rule 16). The paper will conclude by highlighting the areas where gaps remains, and by offering practical recommendations to bring these seemingly diverse areas together.