The War of Aggression Against Ukraine, Cultural Property and Genocide: Why it is Imperative to Take a Close Look at Cultural Property

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For too long, a great deal of energy has been invested in trying to decipher obscure statements made by Vladimir Putin (a true “masterclass of disinformation”: Åslund 2021; cf. Kappeler 2021). Now that Putin has started a war of aggression against Ukraine, it is high time that we take his denials of Ukrainian statehood and the appropriation of Ukrainian history seriously. His words have gained a whole different meaning against the backdrop of an armed aggression, in the course of which one of the first missiles hit a television tower in Kyiv just located next to the site of the Holocaust memorial Babyn Yar. The Ukrainian president Volodymyr Zelenskyy underscored the highly symbolic impact of this attack on the site of one of the largest WW2 mass graves in Europe: “Such a missile strike shows that for many people in Russia, our Kyiv is completely foreign. They know nothing about our capital. About our history […] But they have an order to erase our history. Erase our country. Erase us all.” In this post, we argue that it is imperative to take a close look at the (mis-)treatment of cultural property in this war of aggression: the deliberate destruction of cultural objects, an essential, indeed indispensable element of the collective memory of a people, is nothing less than an assault on the (cultural) identity of this very people. This is what we are witnessing right now in Ukraine.

Since Jean-Jacques Rousseau (2002 [1762], p. 160) it has been common ground that war “is not a relation between man and man, but a relation between State and State” – and we may add “not between society and society.” Who then, by military means, attacks what holds society together in its inmost folds, does not only violate the rules of war (see infra). It rather challenges its very foundations. The Preamble of the Rome Statute voices this concern: “all peoples are united by common bonds, their cultures pieced together in a shared heritage, […] this delicate mosaic may be shattered at any time.” Shelling a memorial site, a theatre, a church … is thus not an attack on Ukraine alone. It is an attack against humanity as a whole.

The Protection of Cultural Property in IHL                                                   

In an international armed conflict, Art. 4 (2) of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is central. It prohibits intentional acts of hostility directed against cultural property, which includes, according to Art. 1, movable as well as immovable property of great importance to the cultural heritage of every people. Protected are, inter alia, monuments, archaeological sites, as well as works of art. The exemption of military necessity overriding this protection is to be interpreted restrictively (Art. 6 of the Second Protocol to the Hague Convention for the Protection of Cultural Property, representing customary international law, as explained, e.g., by Herman with further reference to Chamberlain 2014, p. 30-33; cf. also ICRC IHL Database). Hence, without going into any details, each party to the conflict must protect cultural property, and must refrain from all seizure of or destruction or wilful damage done to cultural property. Neither is a form of theft, pillage, misappropriation of, or act of vandalism directed against, cultural property allowed.

The Destruction of Cultural Property in the Current War in Ukraine

Counting more than three weeks since the start of the invasion on 24 February 2022, there are already multiple reports of cultural property being damaged or destroyed and the situation is worsening constantly (for stock-taking by the Ukrainian authorities see here, for twitter posts, for instance by the Deputy Director of the French Army Heritage, see here; for an ICON call for support, see here). While it goes without saying that in the current situation independently verified information is scarce, it is hard to overlook the large scale destruction that has already taken place. The following list is illustrative, most certainly not complete, and yet, a pattern is slowly emerging, the longer the attacks last:

Amongst the first and most prominent cases of recent reports is the destruction of roughly twenty-five paintings by the Ukrainian artist Maria Prymachenko which were burned as a result of an attack by Russian forces on the Ivankiv museum, housing precious Ukrainian folk art (see, e.g., here). The missile attack (mentioned above) which appeared to target a TV tower in Kyiv, caused a fire at a museum building on the Babyn Yar memorial site (BBC report) and further damage was reported at a Jewish cemetery at the site (see the report here). Currently, under heavy shelling, Kharkiv, a UNESCO Creative City for Music, is under major risk and damage has already been incurred to buildings in its city center: when missiles were fired at the Freedom Square, an opera house and a concert hall were damaged (reported, e.g., here); the city’s landmark “Slovo” building has been directly hit, too (cf. the report here). As a result of shelling on 2 March, also the Assumption Cathedral, a Russian Orthodox church, was damaged, with stained-glass windows and decorative features destroyed (reported, e.g., here). On 9 March, the Kharkiv Art Museum, housing a collection of over twenty-five thousand items, was hit and had its windows shattered. While the collection was not destroyed directly, the temperature and humidity cannot be controlled anymore, hampering the preservation of paintings (reported, e.g., here). Further damage was also reported in the historic centre of Chernihiv, which is on Ukraine’s World Heritage Tentative List (see UNESCO Statement). Heavy shelling has also destroyed parts of the 16th century monastery Holy Dormition Sviatohirsk Lavra in eastern Ukraine, one of the three most sacred sites in Ukraine for Orthodox Christian believers (NYTimes report). On 16 March, a disgraceful bombardment of the Mariupol drama theatre, in which several hundred persons were sheltering at the time, was reported (e.g. here).

On top of the tragic loss of civilian lives and the immense cultural loss that has already been incurred, cultural property which can be considered under severe threat includes the Seven World Heritage sites in Ukraine: St. Sophia Cathedral and Kyiv Pecherk Lavra, Kyiv Monastery of the Caves, Old Quarter of the Western City of Lviv, Black Sea Port City of Odessa; furthermore, the archaeologic artefacts from the Black Sea colonies, the Scythians, and the Crimean Tatars. Also, Ukraine’s archives, including documents from the Soviet period, are at risk: by destroying information that does not fit the Russian occupiers’ narrative, there is a danger of an “archivocide” (see Mattingly).

What is Being Done in Ukraine to Protect Cultural Property at Risk?

In a hopeful effort to safeguard as many valuable objects as possible, museum staff and art conservators but also civilian residents have taken up measures: cultural property which is movable is being transported to safer locations; immovable objects such as statues have been protected with sandbags or wrapped with protective foil (see, e.g., CNN report). The UNESCO is in contact with Ukrainian authorities to mark cultural sites and monuments with the distinctive “Blue Shield” emblem (Art. 16 1954 Hague Convention) to avoid damage. Priority is given to properties inscribed on the World Heritage list, such as the Saint-Sophia Cathedral and Related Monastic Buildings, Kyiv-Pechersk Lavra (see UN news, UNESCO). Reports of the word “CHILDREN” painted in large Russian letters in front of the Mariupol drama theater, however, show the sad limits of such protective measures.  

The Destruction of Cultural Property is a War Crime, which is also Related to Genocide

Provided that the objects are not military objectives, intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes or historic monuments is a war crime (ICC Statute, Arts 8(2)(b)(ix) and 8(2)(e)(iv)). The same goes for destroying or seizing the enemy’s property (which includes movable cultural property) unless such destruction or seizure be imperatively demanded by the necessities of war (ICC Statute, Arts 8(2)(b)(xiii) and 8(2)(e)(xii)). In the context of the occupation of the territory of Crimea, the ICC Prosecutor found in its 2020 Report on Preliminary Examination Activities (para 278) “a reasonable basis to believe that, from 26 February 2014 onwards, […]” war crimes have been committed which include “seizing the enemy’s property that is not imperatively demanded by the necessities of war, with regard to private and cultural property, pursuant to article 8(2)(b)(xiii) of the Statute.”

Instead of the devious genocide assertions raised by Russia to start this war of aggression (see the Order by the ICJ from 16 March 2020 paras 37ff, 59; cf. Janik, explaining how Russia “mocks” international law), unfortunately, the concerns raised by Ukraine that Russia is or aims at committing genocide, have to be taken seriously and cultural property is an important element in relation to this claim. While genocide, according to Art. 6 Rome Statute, requires acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group […]”, evidence for such specific intent and manifest pattern can be demonstrated by “acts that are directed specifically against a group’s cultural heritage” (emphasis added by the authors; ICC Policy on Cultural Heritage, 2021, para 78; see also ICJ, Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) [2007] Judgment, para. 344 (endorsing the observation in the Krstić Trial Judgment, para. 580)). Those acts may also, on their own, either inflict serious mental harm (an element of Art. 6(b)), and reinforce the seriousness of acts charged as genocide under Art. 6(b) to (d), or serve as aggravating circumstances for genocide convictions (ICC Policy on Cultural Heritage, 2021, para 78). In the Reparations Order of the Al Mahdi case (paras 89-90), the ICC considered the mental pain caused by the attacks on the cultural property sites, in particular the ancestral burial sites, so great as to necessitate both individual and collective reparations. While the current definition of genocide (Art. 2 Convention on the Prevention and Punishment of the Crime of Genocide) does explicitly not include “cultural genocide” as proposed by Lemkin in 1944 (p. 79; cf. for the current discussion, e.g., Schabas 2009, p. 271–2; Novic 2016; p. 52–6, and Bilsky/Klagsbrun 2018), cultural destruction can, in addition to other elements, indeed provide important supportive evidence for genocidal intent.  

The Urgent Need for Monitoring and Documentation

As a large amount of cultural property has already been destroyed in this war, and malicious intentions seem to be driving Putin, it is imperative that any destruction or damage of cultural property be closely monitored and documented. Since Putin denied the genuine statehood and cultural identity of Ukraine, we should be warned that a “cultural genocide” might occur. At the moment, it is difficult to verify beyond doubt that the Russian forces are intentionally damaging or destroying cultural property. However, if this were the case, not merely the war crime of cultural property destruction would be committed, but also elements of the crime of genocide. The increasing scale of destruction makes it all the more difficult to turn a blind eye to this pattern that is steadily developing.

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