Cultural Heritage
and natural heritage … situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources …” Article 6(3) provides: “Each State Party to this Convention undertakes not to take any de- liberate measures which might damage directly or indirectly the cultural and natural heritage … situated on the territory of other States Parties to this Convention” (emphasis added).
Article 4 clarifies that the duty to ensure conser- vation and protection of world heritage sites lies primarily with the State in whose territory the site is located. It would seem apparent that Aprophe has failed in this duty. Yet the fuller context of this provision seems to indicate that the intention of this provision is to preserve national sovereignty in dealing with cultural heritage sites, rather than imposing an internationally enforceable obliga- tion to do so. The clearer obligation, as articulated in Article 6(3), is not to damage sites located in other nations, but this is not relevant to the Jes- sup problem.
UNESCO adopted one other source of interna- tional law in 2003. In March 2001, the Taliban rulers of Afghanistan intentionally destroyed the two monumental Buddha statues that had been carved into the cliffs at Bamiyan. The exact date when they were carved is not known but is es- timated to have been in the sixth century. These were the two largest known representations of Buddha; one stood 58 meters and the other 38 meters tall, and they had endured, despite earlier attempts to destroy them, for more than four- teen centuries. In response in 2003, UNESCO adopted the Declaration concerning the Inten- tional Destruction of Cultural Heritage. Perhaps the core statement of the Declaration is in Article 1: “The international community recognizes the importance of the protection of cultural heritage and reaffirms its commitment to fight against its intentional destruction in any form so that such cultural heritage may be transmitted to the suc- ceeding generations.” While the Declaration is
clear in condemning the intentional destruction of cultural heritage, its status as a non-binding statement means that, at most, it has become part of the principles of customary international law.
Francesco Francioni and Federico Lenzerini sug- gest that the destruction of the Bamiyan Bud- dhas was a violation of customary international law.5
Among the sources they cite are the 1954
Hague Convention, the ICTY statute, several UNESCO recommendations, and Article 4 of the 1972 UNESCO World Heritage Convention. Af- ghanistan ratified this convention in 1979, but the Bamiyan Valley was only inscribed on the World Heritage List in 2003. Francioni and Lenzerini also rely on the principle of intentional destruction of religious sites as a form of discriminatory perse- cution, as evinced in the Nuremberg International Military Tribunal following World War II and in the ICTY case, Prosecutor v. Dario Kordic and Mario Cerkez, where the defendants were charged with discriminatory attacks on mosques in Bosnia and Herzegovina.6
However, Aprophe did not destroy
the Mai-Tocao Temple as the result of religious discrimination or persecution since the Temple is of cultural and religious significance to both na- tions.
In addressing the applicability of international le- gal principles to the domestic destruction of cul- tural heritage, Francioni and Lenzerini conclude:
We are aware that one may object to the applicability of the customary principle that prohibits the commission of acts of violence against cultural property in internal armed conflicts. Such objection lies in the fact that this principle should be limited to international conflicts, to situations of mili- tary occupation of foreign territory, and not be applicable to opposite factions fighting in non-international armed conflicts. How- ever, the universal value of cultural heritage seems to exclude such a conceptual dis-
ILSA Quarterly » volume 20 » issue 4 » May 2012
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