World. Protecting civilian populations or protecting heritage: armies and governments should not have to choose according to international law. It is this double necessity that underlines the latest report from Human Rights Watch (HRW) on the use of explosive weapons. The NGO is in fact campaigning to have a declaration adopted at the international level, proposed at the end of 2022 in Dublin. This “Declaration on the protection of civilian populations against the use of explosive weapons” constitutes a step forward for international law according to HRW which aligns the arguments to evolve the legal framework of reference (the 1954 Hague Convention and its two additional protocols).
Current conflicts prove how destructive the use of missiles, shells and bombs is for densely populated areas, “the blast effect and the perimeter of the explosion” as well as the lack of precision, according to the report. The incessant bombings on Kharkiv in Ukraine serve as an example and illustrate the consequences of heavy artillery on the urban fabric: hundreds of buildings destroyed, including several listed buildings dating from the 1930s. The cases of Sarajevo in Bosnia in the 1990s and Sanaa in Yemen (2015) are also mentioned, as is Gaza before the current conflict (the report was written in early 2023). In each chapter, the report cites testimonies from residents and local NGO leaders. HRW finally recalls that the Declaration proposes a broader definition of cultural heritage than that of the Hague Convention, by integrating intangible heritage.
Does this Declaration have a chance of being adopted by all countries and, above all, applied? Since the end of 2022, it has been signed by more than 80 states (but not by Russia or Israel), including almost all NATO members. According to lawyer Vincent Négri of the Institute of Social Sciences of Politics – ENS Paris-Saclay, “it is a sign that the law is evolving, the Declaration highlights the obligations linked to the respect of certain rights”. He believes that linking heritage protection and civilian protection from the perspective of explosive weapons is desirable, because “in a conflict, it is the culture of local populations that is at risk, and it must be protected, including for refugee populations”. The case of the Armenian populations of Nagorno-Karabakh is a recent example, as is that of the inhabitants of the Gaza Strip since October 2023.
A very utopian text
The Declaration suggests several avenues for improving this protection, including the training of officers in charge of heritage within the armed forces. France already has officers of this type with the Army Heritage Delegation (Delpat), and NATO has just created a specialized unit on these issues. Vincent Négri concedes that “the vocation of an army is not to ensure the lasting protection of cultural property”, and the Declaration considers other possibilities. It would be useful, according to the text, to modify authorizations during artillery bombardments, with an obligation to obtain authorization from civil authorities upstream. This seems utopian since the agreement of the general staff and representatives of local power would be required, assuming that the two States had signed this Declaration.
The other weakness of the text is that it remains non-binding, unlike the Hague Convention and that of Geneva (1949). And he does not mention non-state actors (Hamas, Islamic State). Although these entities cannot sign an international convention or agreement, they are nevertheless involved in several conflicts. However, Vincent Négri believes that the text strengthens international law, which must be considered as a whole: “This is what we call “soft law”. This is in addition to the 1954 Convention and the Rome Statute of the International Criminal Court. This status puts pressure on the military through their individual responsibility for the destruction. » The Declaration also proposes collecting evidence of destruction of cultural property and attacks on civilian populations without worrying about intentionality: an evolution compared to the Hague Convention. Vincent Négri specifies that it would be enough to prove that “ the belligerents were aware of the location of the heritage sites” during the bombings.
