Stones of the Past: Intentional Peacetime Heritage Destruction and International Law

Abstract: The protection of cultural heritage first appeared in international conventions at the beginning of the 20th century. At the time, protection was only awarded in the event of an armed conflict. Traditionally, questions of heritage and its eventual destruction belonged within the national jurisdiction but the emerge of internationalist ideas of a ‘common heritage of mankind’ changed the perception. This consequently gave rise to a conflict between the principle of sovereignty and the idea that all nations and peoples enjoy rights concerning some cultural heritage. The concept of ‘common heritage of mankind’ is closely tied to another, obligations of erga omnes character. Such obligations represent values considered inherent to the international community as a whole. The purpose of this text is to investigate the current international norm concerning intentional damaging intervention in cultural heritage of outstanding universal value on their territory. As no reference is made directly to such intentional destruction in relevant binding conventions, this text will investigate its substance under relevant peacetime conventions or under customary international law. By the help of four cases, all cultural heritage threatened in peacetime by the government of their host states, and the consequent reactions from other states and relevant international actors the aim is to analyse the legality of the destruction under international law. This method is based on the theory that states when evaluating the lawfulness of their actions observe state practice in relation to relevant incidents and that this gives rise to a body of norms. The analysis of these cases show that intentional damaging intervention is a violation of a State Party’s responsibilities under the World Heritage Convention today and can be ground for legal remedies on the basis of erga omnes. It does not however, indicate that it would have given rise to a customary obligation to refrain from heritage destruction even if consensus is emerging.