Ukraine Symposium – The Ukraine Conflict and the Future of Digital Cultural Property

Various international instruments explicitly provide for the protection of cultural property in armed conflict. As conceived, the law was formulated to protect physical works from damage or destruction in war. Events in Ukraine, however, have demonstrated that armed conflict can endanger digital material as well. Some digital creations might even qualify as a digital form of cultural property—that is, digital cultural property. Given the growing prevalence of digital material and the threat posed to all forms of cultural works in war, how should States approach their legal obligation to protect digital cultural property in the event of armed conflict?

Digital Cultural Heritage

Though theoretically applicable to digital works, it is unclear exactly how rules designed to protect physical objects should extend to digital creations. Digital works differ qualitatively from tangible works. They exist in time and space differently from physical things, and they can be reproduced relatively easily in great quantities and with absolute exactness. Nevertheless, the cultural value of at least some digitally created works is unquestionable. The preamble of UNESCO’s Charter for the Preservation of the Digital Heritage recognizes that “resources of information and creative expression are increasingly produced, distributed, accessed and maintained in digital form, creating a new legacy—the digital heritage.” It further acknowledges that preserving digital heritage “for the benefit of present and future generations is an urgent issue of worldwide concern.”

Russia’s invasion of Ukraine has made this starkly evident. In Ukraine, groups such as Saving Ukrainian Cultural Heritage Online (SUCHO) have been racing to save digital cultural information from destruction. Led by three cultural heritage professionals—Quinn Dombrowski, Anne E. Kijas, and Sebastian Majstorovic—and staffed by volunteers, SUCHO is dedicated to identifying and archiving “at-risk sites, digital content, and data in Ukrainian cultural heritage institutions.” The group relies on a combination of technologies, such as the Internet Archive’s Wayback Machine and the Browsertrix crawler, to crawl and archive the digital information of these organizations. Their goal is to back up digital heritage information, including content from websites, digital exhibits, and digitized journal articles, to ensure it is not irretrievably lost in the ongoing conflict.

Sample Browsertrix web crawl of Lysychansk Public Library for Children, Luhansk, Ukraine. Photo courtesy of SUCHO.

The destruction of physical cyber infrastructure, such as internet servers, can result in the loss of cultural information. The bombardment of Ukrainian cities has raised this concern, adding urgency to SUCHO’s mission. For example, hours after SUCHO volunteers backed up the contents of the State Archives of Kharkiv’s website, the site suddenly went offline. Among other things, the site featured digital scans of rare books important to Ukraine’s cultural heritage.

Hostile cyber operations can also damage or destroy cultural information. The Tallinn Manual 2.0 recognizes this possibility and explicitly acknowledges the obligation to protect cultural property in armed conflict. Rule 142 of the Tallinn Manual 2.0 states:

The parties to an armed conflict must respect and protect cultural property that may be affected by cyber operations or that is located in cyberspace. In particular, they are prohibited from using digital cultural property for military purposes.

It is unclear whether any digital cultural information has been lost as a result of cyber operations in the conflict so far. To date, Russia has not deployed cyber capabilities as extensively as many anticipated before the invasion. Nevertheless, hostile cyber operations directed against Ukraine in the past, including attacks linked to Russia against Ukrainian banks and government websites, suggest digital cultural information remains vulnerable to damage or destruction as a result of these activities.

Nature of Digital Works

In discussing the law applicable to cultural property in armed conflict in an earlier post, Dick Jackson reiterated the definition of cultural property provided in Article 1 of the 1954 Hague Cultural Property Convention. Strictly speaking, the Article 1 definition is limited to the 1954 Hague Convention and its protocols, though it commonly serves as the starting point for evaluating cultural property in armed conflict (see, e.g., U.S. Department of Defense Law of War Manual, para. 5,18.1; U.K. Ministry of Defence Manual of the Law of Armed Conflict, paras. 5.26, 5.26.2). The Tallinn Manual 2.0 observes the definition “reflects customary international law” (p. 534).

Article 1’s definition, however, presents challenges when evaluating digital works. As I emphasize in an article in the International Review of the Red Cross, “[d]igital technology … has begun to strain our understanding of what constitutes cultural property,” in part because we interact with digital works differently and because digital material can be reproduced with relative ease and exactness. Digital creations do not exist in time and space like tangible objects, which are affected by their physical presence in the environment. For example, digital works cannot accrue patina like a bronze statue or be worn smooth like the steps of an ancient temple. Because digital works are essentially recreated anew each time their program is executed, they do not record or manifest evidence of their existence over time.

For these reasons, digital works arguably lack what Walter Benjamin called “aura” and “authenticity.” Both are qualities that define unique, physical creations—singular works—and cannot be transferred or exist in a copy. As Benjamin remarked, “Even the most perfect reproduction of a work of art is lacking in one element: its presence in time and space, its unique existence at the place where it happens to be” (p. 169). Writing in the early 20th century, Benjamin leveled his criticism at photography, but his arguments could apply equally to digital creations. Like a photograph produced from a negative, the copy (or recreation) of a digital work is essentially a “most perfect reproduction” of the initial work. Does this mean that we should discount the value of digital creations? Are digital works any less significant because they do not—and cannot—exhibit qualities of aura and authenticity?

Applying traditional notions of aura and authenticity, scarcity and value, to digital creations will undoubtedly leave gaps in the protection of digital cultural property. Whether initially created in a digital medium (“born-digital”), created to replicate physical works in a digital medium (“digital surrogate”), or compiled as a collection of recorded data (“digital data”), digital material does not fall neatly into the categories of “moveable and immoveable” cultural property outlined in Article 1 of the 1954 Hague Cultural Property Convention. Nevertheless, digital works of “great importance to the cultural heritage of every people” deserve to be protected as fully and as vigorously as more familiar forms of physical cultural property.

Duty to Safeguard and Respect Cultural Property

Addressing the challenge of protecting digital cultural property will require a more considered and purposeful approach by States. In particular, States must act deliberately to identify and designate digital cultural property in advance of armed conflict. If possible, States should also mark such property with a special identifier to indicate its protected status under the law of armed conflict.

Article 2 of the 1954 Hague Convention explains that protecting cultural property comprises two components: the duty to safeguard (art. 3) and the duty to respect cultural property (art. 4). States can pursue a variety of preparatory measures to safeguard cultural property, including the preparation of inventories and the designation of competent authorities responsible for safeguarding the State’s cultural property (1999 Second Protocol, art. 5).

In practice, however, States are not always diligent about disseminating information about their cultural property, including what items have been designated as such. As UNESCO’s Protection of Cultural Property Military Manual explains, “almost no state party to the 1954 Convention indicates explicitly, for the benefit of potential parties to an armed conflict on its territory, all the precise objects, structures and sites that it deems ‘cultural property’” (p. 13). Despite this, States are nevertheless obligated to respect cultural property situated within other States’ territory. This duty to respect includes refraining from exposing such property to “destruction or damage in the event of armed conflict” and from directing “any act of hostility” against such property (1954 Hague Convention, art. 4).

In the absence of a State’s notification to others of its cultural property, the Protection of Cultural Property Military Manual recommends that “commanders and other military personnel should treat all objects, structures and sites of historic, artistic or architectural significance on foreign territory as ‘cultural property’” (p. 14). While this solution might prove workable with respect to physical objects, expecting an adversary—in particular its commanders and military personnel—to discern what constitutes an opponent’s digital cultural property seems unreasonable. The effective protection of digital cultural property, therefore, will require States to fully commit to and observe the obligation to safeguard digital forms of cultural property as outlined in Article 4 of the 1954 Hague Convention.

Digital Distinctive Emblem

The use of a distinctive digital identifier akin to the 1954 Hague Convention’s distinctive emblem could help in this regard. Like the Convention’s blue shield emblem, a digital identifier could be used to mark a State’s digital cultural property and put other States on notice.

Article 6 of the Convention provides that “cultural property may bear a distinctive emblem so as to facilitate its recognition.” Article 16 prescribes the appearance of the distinctive emblem, and Article 17 outlines the parameters for its use. Although no digital equivalent of the blue shield emblem currently exists, the utility of such a device is clear. The Tallinn Manual 2.0, for example, notes that “use of a digital marking equivalent that places attackers on notice that the digital items qualify as protected cultural property is appropriate” (p. 536). In the absence of such an emblem, the Tallinn Manual 2.0 suggests the use of “technological solutions,” including file-naming conventions and data tagging, to identify digital cultural property (p. 536).

The lack of a special digital identifier for cultural property is an issue States can and should address. States could potentially amend the 1954 Hague Convention (art. 39) to create a new distinctive digital identifier and formally add the identifier to Article 16 as an additional emblem of the Convention. Alternatively, States could revise the regulations governing implementation of the Convention to establish the new identifier. States pursued the latter approach, which does not entail formal amendment of the Convention, when they created a distinctive emblem for cultural property under enhanced protection in the guidelines for the implementation of the 1999 Second Protocol. Regardless how States choose to proceed, States should seriously explore the creation of a digital identifier to enable and facilitate the protection of digital cultural property.

Concluding Thoughts

Some works created digitally, either now or in the future, undoubtedly will be regarded as having great importance to the cultural heritage of every people. In other words, they will come to be regarded as digital cultural property. Events in Ukraine have highlighted the vulnerability of digital material and the need for greater State attention to the protection of digital cultural works. “[T]here are certainly materials we’ve captured that don’t exist in the physical world,” Quinn Dombrowski of SUCHO explained to me in a recent email. Preventing the loss of these works and fulfilling the promise of cultural protection will require States to acknowledge the significance of digital culture and to act with purpose to safeguard digital creations before armed conflict occurs.

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LTC Ronald Alcala is an Associate Professor in the Department of Law at the United States Military Academy and Managing Editor of Articles of War.

Photo credit: Pixabay