Protection of intangible cultural heritage in time of war: state of the art and future prospects

The protection of cultural heritage in armed conflict has been widely explored. Recent crises have raised some questions on this subject. First, it seems that a progressive dissolution of the boundaries between various legal regimes—such as cultural rights, human rights law, UNESCO Conventions and armed conflict law—for the protection of cultural heritage in times of conflict is emerging. Second, the protection of intangible cultural heritage has often been overlooked, probably owing to the intrinsic nature of the nontangible propriety that is defined as heritage. To discuss these issues, this study aims to undertake a twofold investigation. First, it examines what kind of protection for intangible cultural heritage international law grants beyond special protection for bearers as per Article 27 of the GC IV and Article 46 of the Hague Regulations. In this respect, on the one hand, it questions whether the safeguarding of intangible cultural heritage can amount to an erga omnes obligation, taking into account the responses of the international community to recent conflicts. On the other hand, it analyses how the cardinal principles relating to the conduct of hostilities—such as the principles of military necessity, distinction, proportionality, and precaution—can be applied with respect to intangible cultural heritage. Second, in light of the legal framework explored thus far, it uses a case study based on the protection of intangible cultural heritage during armed conflicts in Iraq to demonstrate what is still needed in the “field”, despite the potential legal shift mentioned above. To this end, the presentation ends with the proposal to develop a new normative instrument through the integration of existing legal provisions and acts. This new instrument, which may take the form of a new UN resolution even under Chapter VII of the United Nations (UN) Charter, should prospect that intangible heritage needs to be incorporated into the peace and security agenda of the Security Council, as well as being included in all legal instruments to be enhanced in armed conflicts.