Budelmann, Kai

Rücker, Eric

English

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Taking Care of Other People’s History?Kai Budelmann, Eric Rücker 2023-11-08T16:00:44In October 2022, Russian military vehicles pulled up in Kherson, then occupiedby the Russian armed forces to surround and secure two buildings. This raid wasnot a counter-resistance operation but initiated what experts called the largestcollective art theft since World War II. Together with Ukrainian helpers, Russianforces removed at least 11,000 out of 14,000 exhibits from two Kherson museumsand relocated them to Russian-occupied territories between November 1st and 3rd,2022. 10,000 exhibits were brought to Crimea, and another 1,000 to Henichesk onUkraine’s Coast.The perceivably shocked reactions (e.g., The Atlantic, Human Rights Watch, TheKyiv Independent) are not made up of thin air. The removal fits well into the narrativethat Russia’s aggression on Ukraine also attacks an independent and distinguishableUkrainian identity. Meanwhile, new light was shed on the events when open-sourceinvestigations uncovered the involvement, identity and background of Ukrainiansworking with the Russian forces.Ukraine and Human Rights Watch consider Russia’s actions to violate internationallaw as “pillage and unlawful appropriation, requisitioning or seizure”. This blogpostassesses the Law of Armed Conflict on cultural property and seeks to dissectRussia’s explanation, namely to only temporarily protect the exhibits against shellingand looting by the Ukrainian armed forces, which seemingly aligns with the 1954Convention’s objective to protect (para. 3 of the Preamble).The 1954 Hague Convention & the Prohibition of Theft and PillagingProtecting cultural property in armed conflict was developed in the 19th century(see Serši#, pp. 5 ff.). The matter has since been picked up in multiple instruments.Cultural property must be spared from attacks (Arts. 27, 56 Hague 1907; Art. 53 API) while attacks against cultural property qualify as grave breaches of internationalhumanitarian law (IHL) (Art. 85(4)(d) AP I). Accordingly, attacks on these objectsmay constitute War Crimes under Art. 8(2)(b)(ix), (e)(iv) Rome Statute, and arguably(OTP’s Policy on Cultural Heritage, para. 73 ff.) Crimes Against Humanity under Art.7(1)(h) Rome Statute. The 1954 Hague Convention for the Protection of CulturalProperty in the Event of Armed Conflict (hereinafter: Hague 1954), negotiated incooperation with the then newly-founded UNESCO, contains the subject’s mostextensive codification. Both Ukraine and Russia are parties to this Convention andits First Protocol, while only Ukraine acceded to the Second Protocol.As a general rule, Art. 4(3) Hague 1954 prohibits any theft, pillaging,misappropriation, requisition, and vandalism against cultural property. Theft andpillage are also prohibited under Art. 47 Hague 1907, Art. 33(2) Geneva IV, andcustomary IHL. Prima facie, one could ponder whether removing exhibits constitutesa misappropriation or requisition under Art. 4(3) Hague 1954. However, this exact- 1 -provision was contained in the rejected Draft-Art. 4(2) Hague 1954 (UNESCO Doc.CBC/3, p. 6).The protection of cultural property is primarily entrusted to the State in which theproperty is located, Art. 5(1),(2) Hague 1954. An occupying power shall, under Art.5 Hague 1954, merely support the occupied State. Exceptionally, para. 2 allowsthe occupying force to take measures herself, subject to necessity, inability of theterritorial state, and in (close) cooperation with the latter. Art. 5(2) Hague 1954 isthus no carte blanche for any benevolent action but contains prerequisites andimposes limits on their discretion.Considering the spirit of Art. 4(3) Hague 1954, questions arise whether removingproperty can be encompassed as a measure under Art. 5(2) Hague 1954 at all.Contrary to para. 1, the wording of para. 2 only legitimizes preservatory actions bythe occupying power as opposed to safeguarding measures. This should not limitprotective measures but prevent occupying powers from taking actions prejudicialto monuments’ national character (Toman, p. 84; Chamberlain, p. 34). In light of theordinary meaning, one can intuitively consider “[moving] cultural property away fromthe shifting frontline” a safeguarding measure (O’Keefe, p. 136). This interpretation issupported by the drafting history, during which representatives invoked the necessityof removing cultural property and agreed that the prohibition of acquisition underArt. 4(3) Hague 1954 shall not inhibit States’ abilities under Art. 5(2) Hague 1954(Toman, p. 71).Art. 5(2) Hague 1954: Necessity, Cooperation and Again Necessity?First, Russia would need to demonstrate that preserving measures were necessaryat all. Ostensibly, para. 2 deems a measure necessary when cultural propertyalready is “damaged by military operations”, i.e., entailing such “that would safeguardcultural property from further damage” (Chamberlain, p. 34). A fortiori, culturalproperty that is in danger but yet to be damaged should be afforded protection aswell (Colwell–Chanthaphonh/Piper, p. 231). After all, a protective provision that onlyenables action after the damage has occurred defeats its purpose. Consequently,assessing whether protection was necessary requires a prognosis.On-site Russian officials claimed a risk of Ukrainian looting and shelling surroundingthe impending retaking of Kherson which occurred a few days later. In line with theICJ’s reasoning in its Corfu Channel case (p. 18), in the absence of publicly availablefacts that would indicate a risk of Ukrainian looting and shelling, it is on Russia todisclose the basis of her assessment or to assume responsibility for her actions. TheUkrainian armed forces do not have a record of attacking cultural property. Also, theRussian forces withdrew from Kherson without a fight a few days later, which, owingto the logistics of such a withdrawal, was likely decided by the time of the removal.Considering, however, the predictive nature of such an assessment, informationavailable may arguably not entirely disprove a risk from the Russian perspective.Hence, the need for protection may not be ruled out. Yet, a low-level threat may onlyserve as a basis for light measures.- 2 -Before we look at the necessity of the actual preserving measures taken, let usexamine Russia’s cooperation with Ukraine, or rather the lack thereof: Under Art.5(2) Hague 1954, the necessary measures shall be taken “as far as possible, andin close cooperation” with the authorities. The formulation “as far as possible” is,however, not to be understood as limiting the obligation to cooperate (e.g., O’Keefe,p. 137). The available information does not indicate any coordination with theUkrainian Ministry of Culture. The only act that could be considered cooperationoccurred with the Ukrainian museum director and staff. Nevertheless, deemingthis cooperation with Ukrainian authorities appears rather absurd. The then-actingdirector was put in charge by the Russian occupiers after the long-time directorrefused to cooperate with the occupying forces and other collaborative Ukrainianmembers of staff went to Russia or Russian-occupied territories. This cannot qualifyas cooperation with Ukrainian authorities and in fact, it could be questioned whetherthe installation of a pro-Russian museum director would not suffice to attribute theiractions to Russia under CIL as reflected in Art. 8 Draft Articles on the Responsibilityof States. However, in the absence of conclusive evidence to that end, the only thingthat appears to be clear is the lack of cooperation required by Art. 5(2) Hague 1954.In any case, the specific measures taken by the Russian forces – removing theexhibits days before they abandoned Kherson without a fight – were unnecessaryto preserve the cultural property. The Convention also contains other obligationsand means that aim to protect without necessitating removal. States are for exampleprohibited from setting up military targets in the vicinity of and directing hostilitiesagainst cultural property (Art. 4(1) Hague 1954), which can be facilitated by markingthe property (Art. 6 Hague 1954). In addition, the omitted cooperation with theUkrainian authorities could have served Russia’s declared goal. As outlined by theUNESCO Military Manual (para. 200), it also remains an option to request technicalassistance or guidance from UNESCO, see Art. 23(1) Hague 1954. Russian officialsprovided no indication as to why these measures would have proven futile from theoutset. Conversely, if the international community was to accept abstract notions ofa threat to legitimize the removal of cultural property, the necessity enshrined in Art.5(2) Hague 1954 would be foiled.ConclusionApart from the information we relied on, there are plenty of suspicious aspectssurrounding Russian operations in Kherson that already indicate ulterior motivesbehind its operations. For example, the museum’s CCTV footage of the removal wasdeleted, and the secret service FSB was allegedly involved in the operation. It is safeto assume that the full scale of Russian operations in Kherson will only surface inthe years to come. What is already certain, however, is that invoking “protection” tojustify bringing cultural property under Russian control alludes to other instances ofRussian lawfare.Beyond emptying museums, Russian forces allegedly dragged bronze statues fromparks, and “evacuated” the 200-year-old remains of Grigory Potemkin. Attackson cultural objects, be they military attacks on the Transfiguration Cathedral,or removing cultural artifacts, touch upon the raison d’être of the 1954 HagueConvention. By erasing and removing Ukrainian cultural objects, Russia is- 3 -attempting to erode the cultural foundations of an independent Ukraine. Evenbeyond Ukrainian interests, it is in the interest of the international community toprotect cultural heritage. Para 2 of the Preamble of Hague 1954 states that anydamage to one State’s culture affects all mankind, since it contributes to the cultureof the world – a formulation, by the way, which was added following a proposition ofthe USSR (Toman, p. 40). The “Bofaxe” series appears as part of a collaboration between the IFHV andVölkerrechtsblog.- 4 -

Taking Care of Other People’s History?

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Taking Care of Other People’s History?

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