Protecting cultural heritage: our obligations and actions

UNESCO has defined cultural heritage as the tangible objects (artefacts, museums, monuments, etc) and intangible assets (practices, knowledge, skills, etc) that have symbolic, historic, ethnological and social importance. For decades, cultural heritage has been targeted in conflicts. Major examples include the destruction of the Bamiyan Buddha statues by the Taliban in Afghanistan in 2021; the 2015 attacks by Daesh on the historic city of Palmyra in Syria and on Mosul's museum, libraries and universities in Iraq; and the looting of Sudan's national museum by the Rapid Support Forces. But despite international obligations, the cases of cultural destruction have been increasing, and very little emphasis has been placed on why cultural heritage matters.

Pakistan is highly vulnerable to rich cultural heritage both in terms of cultural sites (Mohenjo-daro, Taxila, Makli Necropolis) and symbols (languages, practices, diversity) but also faces internal security threats from extremist groups, ethnic or sectarian clashes, illegal smuggling of antiquities from Taxila or Mohenjo-daro and vandalism of cultural or public property due to insurgency or separatist movements. These threats pose serious danger to cultural heritage preserved for centuries, as its destruction means erasing the identity, history and memory of people and is also against human dignity. But there is little Pakistani legal scholarship on cultural heritage protection in conflict, despite Pakistan's obligation under international law.

The Hague Convention 1954 was the first international treaty exclusively dedicated to safeguarding cultural heritage in both international and non-international conflicts. The First Protocol (1954), adopted alongside the convention, prevents the export of cultural property, and the Second Protocol (1999), adopted decades later, introduced individual criminal liability for grave violations. This convention was an historic development that laid the foundation of international cultural heritage law and influenced later treaties like UNESCO conventions, some additional protocols of the Geneva Convention and rules of international humanitarian law.

Article 53 of the additional protocol I (1977) of the Geneva Convention prohibits any hostile action against historic monuments, artworks or places of worship during war or conflict, while Article 16 of the additional protocol II (1977) prohibits internal attacks on cultural sites and places of worship, as it was the first treaty dedicated to internal conflicts.

Furthermore, Rule 38 of Customary International Humanitarian Law (CIHL) prohibits any attacks against cultural property, while Rule 40 Prevents stealing, destruction or seizure of cultural property.

The Hague Convention (1954) formed the basis of two UNESCO conventions for the protection of cultural heritage. The 1972 World Heritage Convention provides protection to the cultural sites of member states for which UNESCO maintains a list. Conversely, the 2003 Intangible Cultural Heritage Convention safeguards cultural assets and expressions like traditions, knowledge, skills and practices. These conventions provided a strong foundation for international cultural heritage law and led to the ICC's recognition of cultural destruction as a war crime.

In the Al Mahdi case of 2016, the ICC convicted Al Mahdi of the war crime of intentionally destroying 10 cultural and religious monuments during Ansar Dine's (militant group) seizure of Northern Mali in 2012. Sentenced to 9 years in 2016, he became the first person ever to be convicted by the ICC for destruction of cultural heritage exclusively. This expanded the scope of international criminal accountability and reinforced the principle that cultural heritage has universal value to humanity.

Pakistan has ratified both UNESCO Conventions, affirming its commitment to safeguard both tangible and intangible aspects of cultural heritage. The country has also acceded to the 1954 Hague Convention and its First Protocol, affirming its commitment to protect cultural and natural heritage during armed conflicts. Although Pakistan has not ratified additional protocols I and II of the Geneva Convention (1977), the country is still under international obligation to safeguard cultural heritage during both international and internal conflicts under rules 38 and 40 of customary international humanitarian law.

Pakistan's constitutional framework does not explicitly safeguard cultural heritage during conflicts. But there are some provisions that indirectly relate to it. Article 28 of the Constitution guarantees the right to preserve language, culture, script and diversity as recognition of UNESCO's 2003 convention on intangible cultural heritage. Moreover, Article 9 guarantees the right to life and security. Through several judicial precedents by our superior court, Article 9 has been extended to a broader meaning, including environment, dignity and quality of life. Hence, the destruction of heritage indirectly violates the right to life with dignity, as it deprives communities of their identity and memory.

Pakistan, despite its international commitments and obligations, has weak enforcement mechanisms due to some institutional gaps, absence of legislation and lack of awareness of the importance of cultural heritage of universal value. There is no comprehensive law incorporating the 1954 Hague Convention into domestic practices. The Antiquities Act 1975 focuses on cultural preservation, but no specific provision protecting cultural heritage during armed conflicts is given, due to which incidents like the attack on the seated Buddha carved on rock near Jahanabad, the vandalism of tombstones from the 15th-century mausoleum of Jam Nizamuddin II, and terrorist attacks on several Sufi shrines in an attempt to discourage Sufi culture remain unchecked.

To conclude, Pakistan does have international obligations and commitments but lacks legal enforcement at the domestic level, both in the context of protecting intangible and tangible cultural heritage during armed conflicts. Moreover, most Pakistani legal scholarship focuses on human rights, terrorism and constitutional rights. There is a lack of academic analysis comparing Pakistan's international cultural heritage protection obligations with domestic enforcement, and no strong foundation exists in Pakistani courts, like the Shehla Zia case, which can lead to recognition of cultural heritage protection explicitly as a right to life. Hence, protecting cultural heritage is a moral duty, and true preservation demands that these commitments translate into stronger domestic protections.