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The Armenian Massacres of 1915–1916 a Hundred Years Later pp 161–179Cite as

Armenian Cultural Properties and Cultural Heritage: What Protection under International Law One Hundred Years Later?

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Part of the book series: Studies in the History of Law and Justice ((SHLJ,volume 15))

Abstract

“Cultural genocide” is not per se covered by the 1948 UN Convention. However it was very carefully taken into consideration in works of the most prominent scholars immediately after the Armenian massacres of 1915–17. The fact that violent acts of cultural destruction and other similar actions directed at annihilating the distinctive culture of a group are usual precursors of massive killings and of other serious violations of human rights was evident before and during WWII and is even more evident today. Consequently the few limited, albeit significant, international legal rules concerning the protection of cultural heritage that were in force in 1915 have considerably developed and are still evolving, within the protection of human rights and peace. Today, States are under the duty to protect cultural heritage whatever its origin, both in time of peace and in time of war, and the UN Security Council itself endorses UNESCO’s efforts, addressing not only the unlawful destruction and looting and smuggling in the event of armed conflicts, but also “the attempt to deny historical roots and cultural diversity” because it “can fuel and exacerbate conflict and hamper post-conflict national reconciliation”. In this context, the recent attention paid by Turkey to the protection of certain specific Armenian sites is an undoubtedly positive sign, and it is essential that involvement of all relevant stakeholders in the management of the properties is ensured.

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Notes

  1. 1.

    Since the legal concept of genocide had not been conceived yet at the time of the Armenian events and modern Turkey does not recognise them as genocide, the “‘g’ word” is not indisputably applied to the Armenian deportations and massacres. For instance, it is not employed in the U.S. Turkey Christian Churches Accountability Act (H.R. 4347) of 18 July 2014, but it is explicitly employed by the European Parliament in its resolution of 18 June 1987 on a political solution to the Armenian question. However most historians consider the killings the first genocide of the twentieth century (see Cooper (2005), p. 81–93).

  2. 2.

    See Lemkin (1933); Kebranian (2016). Lemkin did not succeed in having either offence juridically codified, but “if we take Lemkin’s writings from the 1930s and 1940s together, then we learn that (his idea of) ‘genocide’ names the crime (as both barbarian and vandal” (see Kazanjian (2011)).

  3. 3.

    Quotation from the Preamble of the Convention.

  4. 4.

    See Moses (2010). In his analysis of how genocide was perpetrated during WWII, Lemkin identifies several techniques of genocide in the political, social, cultural, economic, biological, physical, religious and moral field, mass killings being only the most evident of the physical techniques of genocide. As for the cultural techniques of genocide, they touch, on the one hand, on government control of the programs taught in schools and on limiting the freedom of artistic expression, on the other hand on depriving the population “of inspiration from the existing cultural and artistic values. Thus, especially in Poland, national monuments were destroyed and libraries, archives, museums, and galleries of art carried away” (see Lemkin (2008-Second Edition), p. 84).

  5. 5.

    For the sake of compromise, Lemkin accepted that “for the purposes of international legislation the definition must be limited to more basic elements, such as killings, mayhem, and biological devices, as, for example, sterilization”, as he saw that cultural genocide would encounter strong objections from many UN delegates, for whom only mass murder “shocked the conscience of mankind”, even though he had written that “cultural genocide is the most important part of the Convention” (see Moses (2008), p. 12).

  6. 6.

    On the position of the European Union see infra, Part III.

  7. 7.

    See Kebranian (2016).

  8. 8.

    See Walasek (2015).

  9. 9.

    See Riedlmayer (2002).

  10. 10.

    See in particular Articles 23(g) and 27 of the Regulations annexed to the Convention (Law and Customs of War on Land). Turkey ratified the 1899 II Hague Convention in 1907, while it has never ratified the subsequent 1907 Hague Convention.

  11. 11.

    This also leads one to think that obligations of respect in 1915 did not yet bind territorial States with reference to “their own” cultural properties, in contrast with the subsequent regime established in the 1954 Hague Convention. The label “crimes against humanity” was first used for a category of international crimes in 1915, when the governments of France, Great Britain and Russia issued a joint declaration denouncing the Turkish government’s massacre of the Armenian population. Nothing, though, came out of this pronouncement and in the end the Treaty of Lausanne did not include provisions for the prosecution of Turkish nationals and consequently the potential prosecution of those charged with violations of the “laws of humanity” for crimes against the Armenians of Turkey was removed. It can be agreed that “such a clearly politically motivated decision did not, however, alter the fact that criminal responsibility had been recognised” (see Bassiouni (2011), p. 94), hence the WWI facts have influenced subsequent developments in general international law, without being covered by those subsequent rules.

  12. 12.

    See infra, § 4. Manuscript illumination is a crucial element in the strong Armenian tradition of providing sacred texts with beautiful, authentic and meaningful physical forms.

  13. 13.

    Fortunately, the resilience of cultural heritage (immovable, movable and living) is great and, in the long run, usually stronger than the violence used by criminals pursuing cultural cleansing policies. It descends from the vital identitary role of culture and from the interconnections among cultures. As Ghandi observed, “No culture can live if it attempts to be exclusive”.

  14. 14.

    Cultural annihilation is pursued through different kinds of action, including the destruction and expropriation of properties, but also the defacement of sacred sites converted into sites for menial functions, such as stables (taking example from the distant past of the Armenian events at the beginning of the XX century) or parkings (as happened, instead, at the end of the XX century, during the conflict in former Yugoslavia).

  15. 15.

    See European Parliament Resolution of 30 April 2015 on the Destruction of Cultural Sites Perpetrated by ISIS/Da’esh (2015/2649(RSP)), para. 17.

  16. 16.

    Massive intentional destruction of cultural heritage has been condemned by the international community by recognising individual criminal responsibility as a war crime, since probably a better charge under the crimes against humanity, at least for the most recent events by ISIS and its affiliates, is lacking at the moment (on recent developments in State practice and opinio juris about these issues after the 2003 UNESCO Declaration of principles concerning the Intentional Destruction of Cultural Heritage see Mucci (2016).

  17. 17.

    See UNESCO General Conference, Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict (Doc. 38 C/49, of 2 November 2015), particularly paragraphs 8–10, recalling also UN Security Council Resolution 2199(2015), linked to previous Resolution 1483(2003). In Resolution 2347(2017), adopted on 24 March 2017, the Security Council has recalled its previous resolutions condemning again the illicit traffic and wilful destruction of cultural properties, but emphasizing that also “the attempt to deny historical roots and cultural diversity […] can fuel and exacerbate conflict and hamper post-conflict national reconciliation, thereby undermining the security, stability, governance, social, economic and cultural development of affected States”.

  18. 18.

    Lemkin regretted that his proposal for the introduction of acts of barbarism and vandalism and of the complementary “principle of universal repression” had not been accepted by the Madrid Conference on the Unification of Penal Law in 1933 because “an international convention, duly signed and ratified by the countries there represented in 1933, would have made it possible, as early as that date, to indict persons who had been found guilty of such criminal acts whenever they appeared on the territory of one of the signatory countries” (see Lemkin (2008), p. 92.) An enhanced attention to the “cultural precursors” could be usefully considered as an element to be taken into consideration in the perspective of the prevention of genocide, under an acception, though, far more extended than Lemkin’s and applicable also to actions directed at indigenous peoples (see the idea of “the emergence of synergies between cultural rights, cultural heritage and genocide prevention” in Novic (2016)).

  19. 19.

    See Kebranian (2016), p. 247.

  20. 20.

    The Holy Cross was reopened in 2007, but as a museum, while the Armenian community wanted it to be returned to its original function (see Ekmanian (2010)); the inscription, in 2016, of the site of Ani by Turkey in the World Heritage List was cherished by most of the Armenian community, stressing, though, that it was an Armenian, not a Turkish site (see Armenpress (July 2016)). As for Saint Giragos, it was renovated and reopened in 2011 as part of a reconciliation process begun by the government, but it has been seized in April 2016, together with a number of other churches and other properties in the city of Diyarbakir (see Yeginsu (2016)).

  21. 21.

    Cf. Article 5 of the Convention.

  22. 22.

    See Francioni and Lenzerini (2003); on the difference between obligations of means and of result in the works of the International Law Commission see Dupuy (1999).

  23. 23.

    The Declaration was adopted “Mindful of the development of rules of customary international law” (see Preamble).

  24. 24.

    The destruction of the Buddhas of Bamiyan could not be considered a war crime, since the giant statues were not destroyed in the course of fighting and, at that time, the Bamiyan Valley and the rest of the country were free of hostilities and held securely under the Taliban government control. Their demolition was in no way facilitated or motivated by the conflict, while a legal state of belligerent occupation is not indisputably applicable to non-international armed conflicts (see O’Keefe (2014), p. 516). Not to mention the difficulty of categorizing contemporary conflicts under the “classic” distinction of international and non-international conflicts (see Akande (2011)). At the same time, it was not easy, under those circumstances, to clearly assess a specific violation of the obligations of the State for the protection of cultural heritage in time of peace, apart from the already-mentioned general obligation of protection under the World Heritage Convention. While the moral condemnation of the wilful act of destruction by a shocked international community (that had fruitlessly tried to make the Talibans recede from their intent) was strong and immediate, the answer provided by the international legal order was not clear. This uncertainty of the rules was unacceptable, thus the Member States of UNESCO adopted the 2003 Declaration of principles.

  25. 25.

    To be absolutely clear on the issue of necessary coordination with the UN, the General Conference of UNESCO has introduced an amendment to the draft resolution which states that it has adopted the Strategy for Reinforcing UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict “with the understanding that its implementation will be carried out in full coordination and collaboration with concerned Member States and within the framework of United Nations bodies and their mandate” Cfr. UNESCO Doc. 38 C/Resolution 48 cit., § 1.

  26. 26.

    See UNESCO Doc 200 EX/Decisions, Paris, 18 November 2016, Decision 5.I.F.2. at §7. Curiously, and in a less imperative way, in this Decision the Executive Board “Recalls that activities foreseen in the Strategy for the reinforcement of UNESCO’s action for the protection of culture and the promotion of cultural pluralism in the event of armed conflict and its proposed action plan should be conducted in accordance with relevant United Nations rules and decisions and in full respect of the prerogatives of the competent United Nations bodies”, while these two requirements (express consent of the territorial States concerned and compliance with relevant UN normative framework) were placed at exactly the same level in the previous Resolution of the General Conference (see supra, at note 25).

  27. 27.

    See ICOMOS World Reports on Monuments and Sites in Danger, 2002/2003 and 2006/2007, http://www.icomos.org/risk/.

  28. 28.

    See European Parliament Resolution on Cultural Heritage in Azerbaijjan, PT6_TA(2006)0069.

  29. 29.

    See the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the Unidroit Convention on Stolen or Illegally Exported Cultural Objects, Rome, 1995.

  30. 30.

    See Article 47 of Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 29 July 1899. See also supra, at § 2.

  31. 31.

    The Nuremberg Tribunal condemned Alfred Rosenberg, inter alia, for the activities of the Einsatzstab Rosenberg, an organisation which planned and directed the looting of the cultural treasures of nearly all Europe (see Nowlan (1993)). At the trial Colonel Storey compared these activities to those of a horde of vandals forcing a treasure house and proved “the execution of the policy to strip the occupied countries of the accumulated product of centuries of devotion to art and the pursuit of learning”.

  32. 32.

    Scholars think that “arguably, the stormy negotiations on the text of the Draft Declaration and its final rejection have put an end to the debate on the existence of legal regime of the succession to responsibility for internationally wrongful acts against cultural heritage committed in the second world war” (see Jakubowski (2015), p. 198).

  33. 33.

    Peters (2012), p. 141.

  34. 34.

    See Halperin (2015); Finkel (2016).

  35. 35.

    The Euphronios Krater was acquired by the Metropolitan Museum in 1972; the krater had probably been illicitly excavated in Italy in 1971. On the necessity of developing alternative means to traditional treaties, confirmed by recent cases regarding the illicit traffic of archeological relics, see Casini (2011). It is certainly true that “this is happening, in part, because, in most cases, actual control and effective restitution can only take place after a specific agreement between the actors involved is reached”. “In part”, though, these settlements are also the proof of a new approach, trying to reconcile opposite stands in the interest of public access to cultural properties and to encourage more accurate and transparent acquisition policies by the museums.

  36. 36.

    All the movements of the book have been traced and are referred to in Aleksanyan et al. (2016).

  37. 37.

    UNESCO established the Memory of the World Programme in 1992. Impetus came originally from a growing awareness of the parlous state of preservation of, and access to, documentary heritage in various parts of the world An International Advisory Committee (IAC) first met in Pultusk, Poland, in 1993. It produced an action plan which affirmed UNESCO’s role as coordinator and catalyst to sensitize governments, international organizations and foundations, and foster partnerships for the implementation of projects. The Memory of the World Register was founded on the 1995 General Guidelines and has grown through accessions approved by successive IAC meetings. The full list of registered heritage is available on UNESCO website at http://www.unesco.org/new/en/communication-and-information/memory-of-the-world/register/full-list-of-registered-heritage/registered-heritage-page-1/.

  38. 38.

    As noted by Fiks (1973), many of the Matenadaran’s manuscripts have had an adventurous life.

  39. 39.

    See Armenpress (December 2016). Catholicos Aram I of the Great House of Cilicia has affirmed that the lawsuit demanding the return of the Armenian Catholicosate of Cilicia in Sis will be formally submitted to the European Court of Human Rights and that this will be the first legal action taken against Turkey after the Armenian Genocide of 1915. He stated also that this legal action is the result of long and serious reflection, consultation, and study, and is based on the provisions of international law, including the decisions of the Lausanne Conference of 1932 pertaining to the minorities living within the boundaries of the Republic of Turkey (see The Armenian weekly (December 2016)).

  40. 40.

    The adoption of a relevant law in Turkey in August 2011 is one of the main positive preconditions of the request. Nevertheless, there are also a number of practical legal and political obstacles which severely hinder the issue of property return. Among the legal obstacles are the issue of the legal status of the churches (as some religious communities are not recognized by the Turkish State), the limitations of retroactivity (as the law is applied to properties confiscated after 1936, while most of the church properties were confiscated between WWI and 1936) and the fact that some properties have been sold. On the issue see Hovyan (2015).

  41. 41.

    Cited by Kebranian (2016), p. 45.

  42. 42.

    The UNESCO 2003 Declaration concerning the Intentional Destruction of Cultural Heritage affirms both State responsibility and individual criminal responsibility and specifically refers to general international law: the General Conference is ‘mindful of the development of the rules of customary international law as also affirmed by the relevant case-law, related to the protection of cultural heritage in peacetime as well as in the event of armed conflict’. Very recently, in September 2016, the International Criminal Court delivered the first decision of an international criminal tribunal in a case completely dedicated to acts directed against cultural heritage (ICC, Trial Chamber VIII, Judgment and Sentence in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi (Situation in the Republic of Mali), 27 September 2016, No. ICC-01/12-01/15). The places where ISIS has damaged cultural heritage include also some routes of the Armenian deportation in 1915; in 2014 ISIS also destroyed the Armenian Genocide Memorial Church in Syria (see The Armenian Weekly (September 2014)).

  43. 43.

    In 2001, UNESCO, with the support of UNDP and in co-operation with the Armenian government, prepared a Donors’ Conference as part of a larger program designed to strengthen national capacity for the preparation of well-designed projects aimed at attracting external funds (see UNESCO, UNDP and Republic of Armenia (2001)).

  44. 44.

    On the inscription relating to the previous destruction of the kachkars in the Djulfa cemetry, see Bachoian (2011). Thanks to an ongoing research project of the Australian Catholic University - the Julfa Cemetery Digital Repatriation Project - the entire medieval cemetery is being digitally recreated in three interactive installations, two of them to be positioned respectively in Yerevan and in Sydney and one international touring installation (see Institute for Religion and Critical Inquiry). For a photographic journal of the first stages of the project see Crispin (2013).

  45. 45.

    See World Heritage Committee, Decision 40 COM 8B.28. An interesting example of input from civil society concerns the site of Ani: it is the project to rebuild a 10th century bridge which crossed the Akhurian River and connected the Turkish border to the Armenian medieval capital. It was suggested in 2010 by Armenia’s International Council of Monuments and Sites (ICOMOS), in conjunction with the Economic Policy Research Foundation of Turkey (TEPAV) (see Orenstein (2010)).

  46. 46.

    Clavero (2008), Introduction.

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  1. University of Rome “Tor Vergata”, Rome, Italy

    Federica Mucci

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Correspondence to Federica Mucci .

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  1. University LUISS-Guido Carli, Rome, Italy

    Flavia Lattanzi

  2. University of Teramo, Teramo, Italy

    Emanuela Pistoia

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Mucci, F. (2018). Armenian Cultural Properties and Cultural Heritage: What Protection under International Law One Hundred Years Later?. In: Lattanzi, F., Pistoia, E. (eds) The Armenian Massacres of 1915–1916 a Hundred Years Later. Studies in the History of Law and Justice, vol 15. Springer, Cham. https://doi.org/10.1007/978-3-319-78169-3_7

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