The hostilities-occupation dichotomy and cultural property in non-international armed conflicts
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Stanford journal of international law, Vol. 52, issue 1, Winter 2016, p. 1-50
The protracted civil war in Syria and the recent onslaught of the Islamic State have devastated the rich cultural heritage of Syria and Iraq, among their many tragedies. In the wake of this devastation, much public discourse has predictably focused on the destruction and looting as war crimes that violate the well-entrenched prohibitions on unnecessary destruction and seizure, which apply in international and non-international conflicts alike. The stature of these prohibitions as the central pillar of cultural property protection has diminished in recent decades, however, particularly in non-international conflicts that are motivated by racial, religious, or ethnic animus and that increasingly feature prevalent attacks on cultural property. The survival of cultural property instead increasingly rests on affirmative obligations to protect cultural property — which this article terms "protection-plus” obligations because they complement and supplement prohibitions on unnecessary destruction and seizure — which would require participating belligerents with both access and means to take positive steps to secure cultural property from harm. Protection-plus obligations to protect cultural property already exist in some form in international armed conflicts. Unfortunately, the persistent hostilities-occupation dichotomy prevents their unequivocal application during non-international armed conflicts because many such obligations are understood to attach only during occupation, which by definition occurs only in international — and not in non-international — conflicts. The promise and limitations of protection-plus obligations are exposed by considering how such obligations might attach in the overlapping conflicts in Syria and Iraq. This article argues that the enduring preservation of the “cultural heritage of mankind” depends on recognizing a new norm that would incrementally whittle down the hostilities-occupation dichotomy to provide for the application of protection-plus obligations in non-international armed conflicts, and it suggests likely vehicles for doing so.