Protection of Cultural Property in Prolonged Military Occupation

This year marks the eleventh anniversary of Russia’s occupation and illegal annexation of Crimea, a region internationally recognized as part of Ukraine. Against this backdrop and Russia’s 2022 full-scale invasion and war of aggression against Ukraine, Russian forces have looted valuable artworks, destroyed cultural institutions, including Ukraine’s largest publishing house, and burned Ukrainian books. In areas under Russian control, the Kremlin has systematically targeted Ukrainian cultural identity (see here and here). The Ukrainian language has been banned, books removed from schools, and a pro-Russia, State-approved curriculum imposed. Statues of Taras Shevchenko, Ukraine’s national poet and a powerful symbol of national identity, have been dismantled. President Vladimir Putin has openly denied Ukraine’s sovereignty, claiming its territory is part of Russia (here, here, here, and here).

This post raises the wider question of how international law safeguards cultural property in situations of military occupation, and particularly in prolonged military occupation. It explores the specific impact occupation has on cultural property and discusses the legal obligations imposed on occupying powers under international humanitarian law (IHL) and cultural heritage law. It argues that the risk of destruction, appropriation, and erasure of a population’s cultural identity significantly increases during extended periods of military occupation. Accordingly, the occupying power is strictly obligated under international law to uphold and implement its duties to protect the cultural property of the occupied territory.

What is Cultural Property?

Although the Geneva Conventions of 12 August 1949 and their Additional Protocols of 1977 do not explicitly define the term “cultural property,” IHL defines cultural property through the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954. IHL protects cultural property in both international and non-international armed conflict (see here and here). Cultural property means movable or immovable property of great importance to the cultural heritage of peoples (e.g., buildings and other monuments of historic, artistic or architectural significance; archaeological sites; artworks, antiquities, manuscripts, books, and collections thereof including archives) whether of a secular or religious nature and irrespective of ownership.

As such it is accepted that culture and cultural property are broader concepts than physical objects, and can encompass intangible elements relating to the people whose cultural heritage it forms. As set forth in Article 2 of the Convention for the Safeguarding of the Intangible Cultural Heritage, “intangible cultural heritage” manifests inter alia in the following domains: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship.

Occupants’ Obligations to Safeguard and Respect Cultural Property

During armed conflict, States are under an obligation to safeguard and respect cultural property. The duty to safeguard encompasses all necessary peacetime measures, including the identification, documentation, and marking of cultural objects with a recognized protective emblem. These preventive steps are essential to ensure cultural sites are distinguished and protected before conflict arises.

Respect for cultural property requires abstaining from any attacks against it and forbids its pillage or destruction. Cultural property is regarded as a civilian object entitled to special protection. It must not be targeted or used for military purposes. Importantly, use of a cultural site in support of military action does not automatically render it a lawful military objective. Under IHL, any derogation from its protected status must meet the threshold of imperative military necessity (see here §§ 52-55 and here).

As an occupant, the State is obliged to safeguard cultural property under its control against theft, looting, or unlawful appropriation. If such property is relocated for protective reasons during military occupation, it must be restored to its place of origin once hostilities have ceased. The destruction of cultural property as a method of intimidation against occupied populations or as an act of reprisal is prohibited.

In the context of military occupation, occupying powers frequently engage in looting and destruction of cultural heritage (both tangible and intangible). In such cases, it is common for the occupier to pursue its own agenda and violate jus ad bellum principles by using force against the State’s territorial integrity, resorting to territorial annexation, and breaching the principle of self-determination. Then, the occupant’s actions are often accompanied by policies aimed at eradicating the territory’s language, local culture, traditions, and customs too.

According to Amnesty International,

Russia has systematically sought to eradicate Ukrainian and Crimean Tatar identities by disrupting, restricting or banning the use of Ukrainian and Crimean Tatar languages in education, media, national celebrations and other spheres of life, and oppressing religious and cultural practices that do not conform to those endorsed by Moscow. It has also forcibly transferred population out of Crimea and transferred the Russian civilian population in … .

The Prolonged Nature of Military Occupation and Impact on Cultural Property

Per Article 42 of the 1907 Hague Regulations, occupation commences when a “hostile army” exercises effective control over territory. IHL does not specify how long military occupation must last, for instance two years or five years. IHL instead contemplates that military occupation should be a temporary situation and not result in a permanent condition. This can be read in Article 55 of the 1907 Hague Regulations:

The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

In this article, the words administrator and usufruct allude to the fact the occupant should occupy the territory temporarily. The principle of temporariness of the occupation, in my understanding, suggests a shorter timeframe of exercising effective control over the territory, perhaps shorter than ten years for instance.

While there is no accepted definition of prolonged occupation, it is submitted, prolonged occupation can be considered as an occupation where the occupant exercises effective control over the territory for a period exceeding five years. A period exceeding five years need not reach ten years or more to be considered prolonged. In other words, if the occupation lasts more than five years it may arguably qualify as prolonged, even if it falls short of ten years. However, as will be discussed below, the assessment of the occupation’s duration ultimately depends on the exercise of effective control over the territory.

Article 6 of the Fourth Geneva Convention of 1949, on the other hand, states that:

In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27 , 29 to 34, 47 , 49 , 51 , 52 , 53 , 59 , 61 to 77, 143.

The wording of Article 6 suggests that “the general close of military operations, i.e. the termination of hostilities, moves an occupation closer to its actual end.” This would mean that when hostilities are over, military occupation is over too. However, such a stance is contrary to the concept of effective control over the territory that is at the center of the notion of military occupation. Occupation would end when the military occupant fully relinquishes effective control over the territory.

In fact, each occupation is a distinct case. To declare a one-year rule reads as a misinterpretation of other IHL provisions, particularly Article 3 of the 1977 Additional Protocol I (AP I) to the Geneva Conventions. This statesthat “the application of the Conventions and of this Protocol shall cease, in the territory of Parties to the conflict, on the general close of military operations and, in the case of occupied territories, on the termination of the occupation… .” Here this article tries to remedy the uncertainty created by Article 6 of the Fourth Geneva Convention, which confuses the situations of military operations with that of military occupation.

Yet, this article too does not give an indication when and how military occupation will conclude. The formulation “on the termination of the occupation” suggests there is no time limit when occupation may be over and that its ending is dependent on the moment the occupant desists in exercising effective control over the occupied territory.

Irrespective of how long a military occupation may last, the cultural property of the occupied territory should be safeguarded at all stages of military occupation. All forms of theft, pillage, misappropriation, confiscation, or vandalism of cultural property are strictly prohibited during belligerent occupation (Hague Regulations, art. 56; 1954 Hague Convention for the Protection of Cultural Property, art. 4). The occupying power is obliged to prohibit, prevent, and, where necessary, suppress such acts. It must also refrain from seizing or requisitioning cultural property located in the occupied territory.

Further, Article 5 of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict outlines the responsibilities of occupying powers regarding protection of cultural property during military occupation. Under this provision, the occupying power must, as far as possible, support thelocal authorities of the occupied territory in their efforts to safeguard and preserve cultural property. If cultural property has been damaged as a result of military operations, and the local authorities are unable to take the necessary preservation measures, the occupying power is required again, as far as possible and in close cooperation with those authorities, to take the essential steps to protect and preserve the affected cultural property.

While a legal framework exists under IHL to safeguard cultural property during armed conflict and military occupation, prolonged occupation presents heightened risks, particularly potential violation of the right to self-determination of the occupied territory and those living there. As occupation endures, the likelihood increases that the occupied population’s cultural institutions, language, traditions, and heritage will fall under the prolonged external control of or manipulation by the occupying power. This undermines the right of the occupied population to freely enjoy and exercise their cultural identity, in violation of Article1(2) of the UN Charter, which enshrines the principle of self-determination.

Over time, prolonged occupation can create conditions in which the cultural existence of a group is threatened with erasure or forced assimilation. Indicators of such erasure include the suppression or elimination of the local language and historical narratives, the imposition of foreign cultural norms, imposition of a foreign language, and the systematic removal or destruction of cultural property, cultural symbols, monuments, and cultural heritage sites. Therefore, self-determination should be seen as a wider right, that is more than the freedom and the right to choose one’s government.

As elucidated by the UN General Assembly’s Declaration on the Granting of Independence to Colonial Countries and Peoples, all peoples have the right to self-determination, meaning they may freely decide theirpolitical status and pursue their economic, social, and cultural development without any foreign interference, including being free from occupants’ control. In parallel, all States have a duty to respect and uphold the right to self-determination, in accordance with the principles of the UN Charter. In this manner, prolonged occupation facilitates forced assimilation, endangers cultural property preservation, diminishes cultural uniqueness of the occupied territory and ultimately undermines the claim to the right of self-determination.

Conclusion

The protection of cultural property during military occupation, principally when such occupation is prolonged, raises complex legal challenges. While IHL and cultural property conventions provide a robust framework of obligations for occupying powers, the lived reality in occupied territories often reveals serious violations of international law. Cultural property faces a harsh reality of destruction, looting, and vanishing. As demonstrated by Russia’s occupation of parts of Ukraine, cultural property (both tangible and intangible) can become a direct target in an occupant’s broader strategy of domination over the territory.

Beyond the immediate threat of looting or destruction, an occupant’s control over a population’s cultural property and institutions (e.g. by banning their language, theft and destruction of historical valuables) may lead to the permanent erosion of that population’s ability to preserve its cultural property and identity. Prolonged occupation heightens these risks.

In times of prolonged military occupation, the international community must actively seek ways to strengthen legal accountability mechanisms for violating cultural property. Ultimately, protecting the cultural property of the occupied territory provides the ground to effectively preserve the people themselves and their right to self-determination. This is especially germane during prolonged military occupations.

Note: The author wishes to acknowledge that research for this post has been undertaken within the mandate of the Committee on Safeguarding Cultural Heritage in Armed Conflict, International Law Association.

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Natia Kalandarishvili-Mueller is a Professor of International Law at ALTE University in Tbilisi, Georgia

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

Photo credit: President of Ukraine