Just War Theory: to what extent does immovable Cultural Property need to be discussed within proportionality calculations

Whilst the destruction of Cultural Property (CP) during warfare is by no means a new phenomenon, evident throughout history as far back as the concept of war itself, from the Persians, Greeks, Vandals and Romans,[1] in times past, such devastation was owed to either collateral effects or military negligence. However, since the twenty-first century there has been a clear paradigm shift in the modus operandi of how CP is treated during warfare. Indeed, since 2015 we have witnessed the Islamic State utilise ancient sites and monuments across Iraq and Syria as a ‘weapon of war’ in an even larger wanton attack against culture, religion, identity and freedom.[2] Unfortunately, currently accepted international law in the preference of the protection of antiquities and artwork over immovable architectural buildings and ancient monuments, has inadequately responded to such threats. Moreover, the concept of property has been but a footnote in the discussion of both traditional and revisionist Just War Theory. This essay has been organised into two components. I will begin first with a discussion and adoption of the definition of Cultural Property by the Hague Convention in argument that we have a normative responsibility to protect CP during armed conflict. I then examine current legal provisions to display how, in reliance upon the ‘principle of military necessity’ The 1954 Hague Convention is ineffective in the protection of immovable CP. The second component of this paper will attempt to intercept CP into Just War Theory, answering the more philosophical question, ‘to what extent does immovable CP need to be discussed within proportionality calculations?’ Ultimately it will be argued, JWT concepts of wide and narrow proportionality help begin to resolve the ethical dilemmas involved in the protection of CP during armed conflict.

Often cited as the “largest displacement of artwork the world has ever witnessed”[3], with the hope of raising funds to continue their campaign, the Nazi regime persuaded collectors to buy stolen antiquities by setting alight over 4800 paintings in an unprecedented ransom situation.[4] With the knowledge the German Army was harbouring captive over 16,000 paintings and sculptures, the threat was rendered successful with the Basel Museum in Switzerland purchasing a great deal of the hostage CP, essentially funding the perpetration of Nazi armed forces.[5]

In the wake of World War II, with the knowledge of the German Army’s involvement in the looting, illegal trafficking, and sale of antiquities, it became apparent the importance of CP was more than localised and relativistic, and was instead the concern, property, and heritage, of all human kind.[6] As such, The Hague Convention of 1954 sought to codify international law ‘on the Protection of Cultural Property in the Event of Armed Conflict.’ Whilst I will discuss both the guiding principles, as well as the inefficiencies of this legal framework within this paper, I find it pertinent to first answer the questions of ‘why is CP important?’, and furthermore, ‘why must it be protected?

What is Cultural Property, and why is this important?

The Hague Convention 1954 defines CP as inclusive of, irrespective of the origin or ownership: [7]

a)  movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;

b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);

c)  centers (sic) containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as `centers (sic) containing monuments'.

As per the above definition, it follows that CP essentially encompasses the tangible and material civic and civilian objects that along with the intangible, such as tradition and oral history, form a society’s ‘cultural heritage’. In an unprecedented and revolutionary move, the convention positions CP with importance not only to the custodian of property but to the international community as a whole, through the inclusivity of items ‘irrespective of the origin or ownership.’ In addition to the phrase ‘… of every people’, it appears that the convention is not only interested in the preservation of individual cultures, but the convergent cultural heritage of the world itself. In the protection of world heritage via CP deemed important at such a scale, discourse between cultural groups can reveal connections and interdependences between communities, that would be impossible given the loss of such heritage. What the definition does not provide us however, is why this is important?

The Human Rights Council notes, “cultural heritage is important not only in itself, but also in relation to its human dimension, in particular its significance for individuals and communities and their identity and development processes.”[8] In a statement that shadows the theories of 20th Century social theorist and philosopher Michel Foucault, ‘personal identity’ is posited here as a dynamic construct formed spatially and temporally through a collective discourse of both ‘self’ and ‘other.’[9] Accordingly, it follows that in order to facilitate the development of both personal and societal identity, and to more importantly ensure a cultural continuum between ages, cultural heritage must be passed between generations. In fact, Jeff McMahan, whom I will later discuss in relation to revisionist Just War Theory, would agree with such sentiment, stating that we have a moral obligation to respect the rights and interests of future generations[10]. Does it follow then that we all have a normative duty to protect the cultural heritage of humanity for future generations to access? Assuming the difficulty in the preservation of intangible culture, such as tradition, memory, and oral history, it would seem as though, in order to ensure the pass over of cultural heritage[11] it is of utmost importance that we protect tangible heritage to create the foundations of both inter- and intra-generational knowledge transfer. However, this generates the ethical quandary of, to what degree must we constrain our behaviour to ensure such futures?

Why current legal framework is ineffective in the protection of CP

The Hague Convention of 1954 along with the two additional Protocols of 1954 and 1999, despite development very late in regard to war theory, is the core international legislation regulating the treatment of CP during armed conflict, that seeks to provide a framework by committing States Parties to refrain “from any act of hostility directed against such property.”[12] Essentially the legislation has three main tenets;

1. Recommendations for the identification and registration of ‘general’, ‘special’ and ‘enhanced’ protection for CP as defined above, as well as the marking of such with a distinctive emblem of the Convention;

2. Advice for peacetime safeguarding measures including inventory creation, emergency measures, designation of special units for protection and localised sanctions for breaches of the convention;

3.  Information regarding the promotion of respect for CP situated within own territory as well as other State Parties within the military and law-enforcement agencies.

However, in such efforts, as I will subsequently argue, the framework itself runs counter to the moral underpinnings utilised to define CP. Firstly, as the onus is placed on each States Party to register what they themselves consider CP relevant to ‘every people’, without guidance, States must address the major philosophical dilemma of ‘what to safeguard?’. Essentially any decision to protect Property A and designate military resources to this effort, is a decision to not protect Property B, Property C and so forth, potentially sentencing the negated CP to armed force destruction. Furthermore, within this process there is an inherent distinction between ‘cultural property’ and mere ‘property’. Whilst we understand from the above definition of CP that it is of importance to the wide international community, I believe most items of property are understood only within the context that was responsible for the generation of the item. From this, a position of impossibility is created for the delegated authority who, in coming from the territory of the CP in question, is expected to be able to remove their personal bias and subjective opinion so to judge the relative merits that appeal to value for all humanity[13]. Moreover, I believe such a judgement can only be conducted retrospectively, in that to deserve the position of ‘cultural significance,’ time must have traversed from the period of creation. For immovable CP, including sacred sites, buildings, infrastructure and so forth, to reach the status of protection under justifications of intrinsic value,[14] arguing that the CP has worth in and of itself, the convention presupposes a tie to intangible culture. It follows then, CP afforded protection under the convention is a protection of cultures of the past, not cultures of the present.

A compounding issue on top of this is that rarely do political and cultural boundaries seamlessly overlap. With war increasingly unconfined to nation-states, the Hague Convention seems inadequate in protecting CP from non-international warfare, especially under oppressive governments that fail to recognise insurgent ethnic or sectarian groups, and their subsequent cultural heritage. In fact, researchers[15] have been very wary of this issue, questioning whether the identification of immovable CP worthy of protection is providing militaries with a potential list of targets. Or, vice versa, nation-states may wrongfully utilise the registration of CP in order to conceal and protect military operatives and resources by evading attacks on the property. Indeed, during the 1991 Gulf War the United States Air Force (USAF) was faced with the issue of whether to attack Iraqi aircraft that were intentionally located within the ruins of a 3,000-year-old Sumerian Temple.[16],[17] Having received training in the Hague Convention, the USAF understood they were only permitted to attack the Iraqi aircraft if they believed the act to be of “unavoidable military necessity.”[18] Sadly, as I will expand upon momentarily, the doctrine of ‘military necessity’ would have revoked the immunity and legal protection of the temple, and permitted collateral risk to the monument.

Even though it was a clear violation of the convention for Iraqi forces to utilise CP in order to shield their aircraft, if my understanding is correct, the convention would have also lawfully permitted the attack by the USAF, and the subsequent expense of CP if the USAF’s objective was unable to be carried out via other methods. Fortunately, the Coalition decided not to target the site, not due to finding alternative means to do so, but rather because they assessed the “aircraft as difficult to service, launch and maintain,”[19] and therefore posed only a low priority risk. Consequently, despite advocating respect for CP through a broad definition, it appears as though the framework of the convention works in direct opposition to the protection of such values, especially noting how frequently the principle of necessity is relied upon. Essentially, the convention is written in a manner that defers interpretation of ‘military necessity’, and resolutions of humanitarian, moral and legal inconsistencies to all individual State Parties.

Within war theory, the principle of military necessity, along with distinction and proportionality, are the three governing tenets of the use of legal force during armed conflict.[20] The principle of necessity runs counter to humanitarian exigencies, in virtue of its very definition. The doctrine permits actions that are deemed relevant to military objectives in offering a definite military advantage. Indeed, Australia’s Law of Armed Conflict manual permits “the destruction of property if that destruction is imperatively demanded by the necessities of war.”[21] Whilst this principle is not a carte blanche for attacks against property, it does raise the question of how to determine whether CP destruction occurred pursuant to military objectives? I believe it fallacious for the Hague Convention to offer CP legal protection against armed conflict, contingent to the principle of necessity that would evade this protection due to the conditions (armed conflict) that were the very reason for protection in the first instance.

However, if we are to consider that the era in which the Hague Convention was conceived, including the subsequent Protocols,[22] CP was utilised exclusively as a means to an end via two main channels:

1. Looting, trafficking and sale on the black market of movable CP (artefacts and antiquities) to fund further military objectives[23];

2. Destruction of immovable CP (buildings and monuments) via collateral damage during armed conflict.

As such, not only does the framework of the convention prioritise the protection of movable CP, of which was the main issue of the time[24], but limits the value of immovable CP for extrinsic justifications in either the housing, refuge, or transport of movable CP. This is also evident in passage (b) and (c) of the definition of CP by the convention.[25] However, as I will outline below, recent extremist behaviour has exposed new approaches to the use of CP in warfare, demanding a response in how to weigh the humanitarian value of protecting CP against the conditions of war, that extends beyond the principle of necessity.

From 2014, the world has witnessed the deliberate destruction of CP by the Islamic State (IS). With the goal of creating a caliphate over the regions of Iraq, Syria and beyond, and abolish modern national boundaries, IS began eradicating polytheism and intentionally destroying idols or ‘infidels’ from opposing ideologies within occupied territory. After capturing the ancient Syrian city of Palmyra in 2015, IS declared “The historic buildings will not be touched and we will not bring bulldozers to destroy them like some people think.”[26] The architecture of the city, of which was an important colony along The Silk Road linking trade from The Eastern Mediterranean to Asia, dates back to the Neolithic period, and is reflective of multiple cultures that shaped its history including Aramaic, Arabic and Greco-Roman, as well as Indigenous.[27]

Since IS took occupation of the city, as the majority of immovable CP under duress was of secular heritage, it was believed by both UNESCO and the international community,[28] the group would limit their activity in the region to the looting and sale of antiquities. Yet, within just one month of occupation, IS began the systemised destruction of Palmyra’s 1st Century CE Temple of Baalshamin, followed by the Temple of Bel, 2nd Century CE Tower of Elahbel, The Roman Triumphal Arch, Palmyra Castle, several ancient tower tombs, monuments and statues until almost nothing remained in the ancient town.[29] Yet, the destruction of Palmyra did not begin with IS. In fact, the city experienced widespread ‘collateral damage’ as a result of armed conflict in the Syrian Civil War between government and insurgent forces years prior, with both parties positioning themselves within archaeologically important areas.[30] However, destruction by IS was anything but a ‘collateral’ effect of fighting and represented instead potentially the first display of immovable CP being utilised as an end in itself. The damage and destruction of Palmyra, as well as subsequent sites that followed, including Nimrud, Hatra, Damascus as well as various other towns of Northern Syria, was not caused via crossfire between IS and other forces, but was carried out via a planned and documented series of attacks utilising bulldozers and sledgehammers.[31] For IS, the destruction of Palmyra was an attempt to remove any trace of culture, civilisation or history that denoted an identity or group in opposition to the organisation. Unlike the assumption made by the Hague Convention, in that immovable CP is collaterally destroyed unintentionally as a result of military necessity, these recent displays by IS demonstrate how CP can be the direct target of military objectives.

I hope through this small discussion it is evident how the Hague Convention, the current legal framework regulating the protection of CP during armed conflict, is inadequate in the protection of immovable CP. Firstly, the convention fails to address issues of ‘what to safeguard’ and ‘how to recognise cultural significance of the present day.’ Secondly, the convention creates complex provisions that have unsuccessfully moved beyond the principle of ‘military necessity’ to suggest under what circumstances immovable CP loses immunity. Lastly, the convention presupposes the destruction of immovable CP is limited to ‘collateral’ effects of armed force, and as such, does little to offer protection or guidance in alternative circumstances. Noting this, it is of no wonder why since 1954 there have been only 17 immovable CP sites registered worldwide[32] (between 10 nation-states) that have been selected for enhanced protection during armed conflict, with the Vatican City the only site listed with special protection[33]. As this is clearly not a representation of the cultural heritage of the international community, I will utilise the remainder of this article to broaden the discourse of immovable cultural property protection (CPP) within Just War Theory by addressing the principle of proportionality.

Just War Theory and the Principle of Proportionality

Research into the protection of CP in war has only recently received support on an international level, prompted by the destruction of cultural heritage in Syria and Iraq.[34] The most developed and explicit research undertaken in this topic to date[35], by Thomas G. Weiss and Nina Connelly advocates for military intervention on the basis that “attacks on cultural heritage – for itself and as a precursor for the mass atrocities that almost certainly will follow.”[36] Unfortunately, such a statement illustrates that the authors conflate extrinsic and intrinsic justifications for the protection of CP, likening the destruction thereof to ‘cultural cleansing’ and ‘cultural genocide.’ Further to this, as other researches have noted,[37] Weiss and Connelly misapprehend familiar components of war theory, confusing attributes of the proportionality constraint to the necessity constraint of jus in bello. As such, I believe it to be more beneficial to return to the original literature of Just War Theory (JWT) in an attempt to answer the question of whether, and under what circumstances, the destruction of immovable CP can be justified.

Just War Theory (JWT), dominated predominantly by two schools of thought, traditional and revisionist views, broadly speaking aims to answer a very similar question, albeit in regard to killing. Traditional JWT, most notably expounded by Michael Walzer’s 1977 ‘Just and Unjust War,’ details two sets of prohibitions governing jus ad bellum (or, the ‘resort to war’; just cause, legitimate authority, right intention, reasonable prospects, proportionality and necessity) and jus in bello (or, the ‘conduct of war’; discrimination, proportionality, necessity).[38] With the discourse between the two camps primarily centred around the independence of jus in bello to jus ad bellum, and thus the permissibility of acts of war without just cause, ethical studies of war have become extremely narrow-minded, with debates of proportionality centred purely on direct comparisons of physical harms to combatants and civilian casualties. As such, the literature has become somewhat divorced from the totality of war (especially in relation to the aftermath, or jus post bellum conditions), rendering the legal policies that have followed, diluted.

If the principle of proportionality, a comparison between the military objectives and the damage caused by such operations, is to ensure the means and methods of warfare are not disproportionate to the result, calculations ought to be a lot more comprehensive and inclusive than revisionist theory suggests. The bombing of Dresden, notorious alongside Hiroshima as an example of the effects of indiscriminate conflict, is evidence that there is much more to the cost of war than the total sum of lives lost. The city centre, comparable to Sydney in scale, was all but annihilated, damaged first by explosives and then incendiaries that left “only the fragile lacework remnants of some buildings.”[39] Prior to the attack, the city was described as:

“Filled with beautiful churches, elegant Baroque apartment blocks, a magnificent opera house (…) Dresden had been a center (sic) of art and culture and a showcase for striking architecture since the beginning of the 18th century.”[40]

Indeed, Walzer in his traditionalist view suggests that we should be weighing “not only the immediate harm to individuals but also any injury to the permanent interest of mankind.”[41] Such injury surely should encompass any loss or damage to immovable CP, noting the value identified in the first part of this paper. Yet, how are we to calculate and compare harm to CP against lives and liberty?

Jeff McMahan, a major theorist within the revisionist discourse, takes a much more moral stance to the legalist views of traditionalist theories. Moving further than purely the distinction between combatants and non-combatants (or, innocent bystanders) for liability to be killed, McMahan distinguishes between combatants with a just cause and those without, in an attempt to argue the impermissibility of unjust combatants’ acts of war.[42] Carrying forth traditional reasons for resorting to war, McMahan suggests the only morally just cause is in the defence of ‘self’ or ‘other.’[43] However, within this argument, to his detriment, McMahan excludes all aggressions that are not directly linked to the protection or loss of human life, and consequently rejects that other goods, such as CP and heritage can ever be relevant in the justification of defensive war. In fact, McMahan categorises the loss or destruction of property as a “lesser aggression”, alongside “certain lesser harms or losses (…) such as wealth, employment (…) or political liberty or self-determination,”[44] due to the presupposition that violence against such goods is utilised as a means only, and therefore conditional and subordinate[45]. This is evident by McMahan labelling the “paradigm instance of lesser aggression” to be that of the Falklands War.[46] Whilst an example of a war fought over sovereignty, it is more so an example of McMahan’s limited and narrow definition of the term ‘property’ to be an area of land.

Whilst I do not want to assume that I can simply mirror either Walzer or McMahan’s accounts of proportionality to weigh destruction of CP, I believe that McMahan’s categorisation of wide and narrow proportionality fits neatly into the idea of CP registration in the Hague Convention. It is untenable to expect that everything valued within a society can be protected from armed conflict, and as such, an element of distinction or discrimination is necessary to ensure the protection of the most valued CP of an area. Consequently, proportionality calculations must begin with whether the CP in question was liable to be harmed. In an extension of McMahan’s terminology, I propose that property that is not liable to be harmed, or rather, considered CP by the Hague Convention would attract proportionality in the wide sense in comparison to property liable to be harmed, or not considered of ‘cultural significance’ and therefore considered narrow in virtue of its’ non-importance. 

If discrimination between cultural property and non-cultural property, and language of ‘liability to target’ is carried forth from the Hague Convention, it would follow, how are we to identify CP during combat? On face value a combatant may judge a building to be worthy of protection due to its scale, location or street presence despite it having little heritage value. In efforts to protect this building during armed conflict the combatant mistakenly causes damage to the neighbouring building, austere in presentation, which has listed enhanced protection under the Hague Convention. In calculations of proportionality, without a lesser-evil justification of military necessity that could excuse the destruction of the CP in question, the goodwill of avoiding damage to the first building, assessed narrowly, would not balance-out the destruction of the second, considered widely due to its CP status. As such, this would suggest the combatant, just or unjust, is morally responsible for the distinction between liability-to-harm concerns of property. Yet, as the legal framework currently stands, despite the recommendation to distinguish immovable CP with an emblem of the Convention, and thus legitimate military targets from culturally significant buildings, the practice of marking property by States Parties is not uniform by any means. Even if it were, are we to expect that a combatant stop fighting in a plight to find an identifying emblem to qualify the status of the building? Even if the emblem was in the combatant’s field of vision, in the fog of war and situations of ‘deep epistemic uncertainty[47]’ it becomes dubious that considerations over which property to protect are prioritised.[48]

If we assume that this issue can been resolved[49], and immovable CP can be easily recognised from liable targets, the question remains what is the proportionate response to a combatant who is threatening damage or destruction of CP? In the defence of CP, as per the Hague Convention, military personnel will be allocated for the protection of said property. Whilst I understand that it is a controversial view, I believe that such personnel ought to be offered a social contract similar to physicians in armed conflict à la neutrality for two reasons:

1. CP is defined as items that hold ‘great importance to the cultural heritage of every people’ and as such has a unique position of impartiality to both sides of conflict ‘irrespective of the origin or ownership’

2. If CPP personnel are liable to be killed, and are as such, then the military must either backfill the role by removing combatants from the frontline into a position of CPP or leave the CP unprotected. Both options come at too weighty a cost that speaks to the benefit of CPP personnel neutrality. 

However, whether the above argument is accepted or not, it does not follow that the CPP personnel are permitted to lethally defend the property in question. If they were, we would assume that the destruction of CP is equal to or more than the loss of a human life. Whilst the comparison of a human life against the loss of CP is not grasped easily by our intuitive faculties, it is clear if we continue to speak of proportionality calculations, we must broach the topic of how to equate relevant goods against life and liberty. Maybe such an equation is in a matter of degrees, in the sense that CPP personnel are not permitted to kill an aggressor to protect one or two cultural properties, but potentially under an aggregate of destruction, lethal force could be made proportionate. McMahan would staunchly disagree with the permissibility of CPP personnel utilising lethal force by suggesting if a state responds to lesser aggressions via defensive force, that state is responsible for the provocation of further military force and all resultant casualties in proportionality calculations.

Potentially an answer to this debate and how to defend CP can be found in the first tenet of jus in bello; discrimination. If we extend JWT calculations to include non-lethal entities such as CP as the traditional theory calls for, it would follow that just combatants in the attack or threat thereof, are guilty of violating discrimination between cultural property and non-cultural, legitimate military targets, and therefore forfeit their immunity to intentional attack. If we are to assume that the destruction (or, threat thereof) of CP can reach a level that will permit defensive lethal force, in doing so we create justificatory conditions for both intentionally killing someone who is destroying CP as well as collaterally harming innocent bystanders in the course of. I believe however, considerations of ‘harm to innocent bystanders’ have already been exhausted by the literature, that would suggest such actions would render the CPP personnel/combatant liable to be attacked and contribute heavily to proportionality calculations.

If this is so, however, then the neutrality of the CPP personnel would need to be revisited. These personnel would surely be considered with combatant status by virtue of being armed and prepared to use force. However, such claims would fall victim to McMahan’s criticism of the ‘presumed permissibility of defensive force’.[50] Here, McMahan illustrates the ludicrousness of the notion of ‘initial aggression’ that justifies defensive force only after an attack has mobilised. What if the only possible way to defend a city’s imminent loss of CP is to defensively attack first? Potentially such questions, however, are better left answered by supreme emergency theorists than within the discourse of JWT.

Lastly, I believe it pertinent to comment on the objection made by Weiss and Connelly, that in order to defend a particular site one must be able to justify the risks to the specific civilians close-by.[51] By utilising the example of a Christian building, Weiss and Connelly suggest risks to innocent bystanders become disparate if you consider whether or not the civilian values the building under attack.[52] They note that since the value of the CP is attributed arbitrarily by ‘others’, those who are endangered purely due to proximity ought to be weighed differently to those bystanders who would see value in the forceful protection of the CP. Whilst I cannot even begin to imagine how such considerations could transfer into practice, or how one could ascertain retrospectively whether the CP in question held value and importance to the harmed civilians, there is a bigger consequence to such a suggestion. Essentially, we would be judging a human life to be of more or less worth given their individual preferences. This is not only considerably morally objectionable; it is also in direct conflict with the Hague Convention’s definition of CP being of interest to “all peoples.” Further, it seems counter to the very efforts of Weiss and Connelly, in their advocation for CP protection, with collateral harm to innocents weighing heavier if bystanders do not value the protection of said building.

The above discussion has been in effort to elucidate whether defensive lethal force can ever be proportionate to CP destruction or threat thereof, and as such aims to strike a balance between the humanitarian concerns of CPP and the humanitarian exigencies of war. To weigh the protection of immovable CP against life and liberty within war theory has proven extremely morally complex. Whilst the intent of the paper was never to arrive at a precise tariff, I hope that it serves as a gesture to why current legal provisions are inadequate in the protection of CP during warfare. It is pertinent that research and philosophical efforts move away from the reliance on the concept of ‘military necessity’ when speaking of the destruction of immovable CP in order to expand and extend this relatively new phenomenon of war. If not, we risk further loss to world heritage, and devastating jus post bellum conditions that jeopardise the rebuilding of community, the re-establishment of identity, and links between a community’s past, present and future. It is in virtue of the relationship between cultural property and identity of the ‘self’ and ‘other’ that CP becomes fundamental in the survival of a people jus post bellum.

[1] Helga Turka, The Destruction of Cultural Property as a Weapon of War: ISIS in Syria and Iraq (Washington DC: Palgrave MacMillan, 2018), 52.

[2] Ibid., 2.

[3] Ibid., 35.

[4] Ibid.

[5] Helen Frowe and Derek Matravers, “Conflict and Cultural Heritage: A Moral Analysis of the Challenges of Heritage Protection,” J. Paul Getty Trust Occasional Papers in Cultural Heritage Policy, no. 3 (2019): 6

[6] Joshua Kastenberg, “The Legal Regime for Protecting Cultural Property During Armed Conflict,” Air Force Law Review, 277 (1997): 297.

[7] UNESCO. Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague (May 14, 1954), http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html (hereinafter the Hague Convention)

[8] Francie Diep, “There’s More to Syrian Archaeology Than Palmyra,” Pacific Standard (August 26, 2016), https://psmag.com/theres-more-to-syrian-archaeology-than-palmyra33650c86f7b1#.tv97lucq9

[9] Michael Foucault, Power/Knowledge: Selected Interviews & Other Writings 1972–1977, ed. Colin Gordon, trans. Colin Gordon, Leo Marshall, John Mepham, Kate Soper (New York: Pantheon Books, 1980), 117.

[10] Jeff McMahan, “Future Generations” in The Oxford Companion to Philosophy, Ted Honderich (Oxford University Press, 2005).

[11] Understood to be a broader term incorporative of both tangible and intangible heritage.

[12] See UNESCO. Convention for the Protection of Cultural Property in the Event of Armed Conflict.

[13] Peter G. Stone, Cultural Heritage, Ethics, and the Military (Woodbridge, Suffolk; Rochester, NY: Boydell & Brewer, 2011), 12.

[14] Rather than protection based on extrinsic justifications that aim to protect against a different valuable goal – i.e. terrorism

[15] Ibid.

[16] See Department of Defense, United States of America. Conduct of the Persian Gulf War: Final Report to Congress 0-2 (April 1992) https://apps.dtic.mil/dtic/tr/fulltext/u2/a249270.pdf

[17] Joshua Kastenberg, “The Legal Regime for Protecting Cultural Property,” 277.

[18] Ibid.

[19] See Department of Defense, United States of America. Conduct of the Persian Gulf War: Final Report to Congress, 133.

[20] Michael Walzer, Just and Unjust Wars: A Moral Argument (New York: Basic Books, 2015), 41.

[21] See Department of Defense, Australia. Law of Armed Conflict: Australian Defence Doctrine Publication, Chapter 2.

[22] I.e. between the years 1954 and 1999

[23] Based on my intuitive judgements I do not believe an argument on the morality of such actions is necessary

[24] See Page 2-3

[25] See Page 3

[26] Turka, The Destruction of Cultural Property as a Weapon of War, 2.

[27] Ibid.

[28] Ibid., 5.

[29] Ibid., 2.

[30] Joshua Kastenberg, “The Legal Regime for Protecting Cultural Property,” 277.

[31] Ibid.

[32] I realise that there may be many factors that prevent the registration of CP with UNESCO and the Hague Convention, namely that the freedom of use of the immovable CP is curtailed due to control regulations stipulated in the Convention.

[33] The difference being that special protection cannot be converted for military objectives during armed conflict

[34] There are only two major projects currently in operation, by The Stockholm Centre and the UK Arts and Humanities Research Council, both funded by the J. Paul Getty Trust

[35] Helen Frowe and Derek Matravers, “Conflict and Cultural Heritage: A Moral Analysis of the Challenges of Heritage Protection,” J. Paul Getty Trust Occasional Papers in Cultural Heritage Policy, no. 3 (2019): 6.

[36] Thomas G. Weiss and Nina Connelly, “Cultural Cleansing and Mass Atrocities: Protecting Cultural Heritage in Armed Conflict Zones,” J. Paul Getty Trust Occasional Papers in Cultural Heritage Policy, no. 1 (2017): 12, emphasis added.

[37] Frowe and Matravers, “Conflict and Cultural Heritage,” 18

[38] Walzer, Just and Unjust Wars, 41.

[39] Tami Davis Biddle, “Sifting Dresden’s Ashes,” The Wilson Quarterly, 29 (2005): 60.

[40] Ibid.

[41] Walzer, Just and Unjust Wars, 129.

[42] Jeff McMahan, “The Ethics of Killing in War” Ethics: An International Journal of Social, Political, and Legal Philosophy, no. 114 (2004): 693.

[43] Ibid., 694.

[44] McMahan, Jeff. What Rights May Be Defended by Means of War, 2013. http://jeffersonmcmahan.com/wp-content/uploads/2012/11/WRMBDBMW-corrected-proofs.pdf

[45] Given that McMahan’s body of work commented upon in this paper was constructed pre-IS attacks on Syria, I wonder if the author would reconsider his position?

[46] McMahan, Jeff. What Rights May Be Defended by Means of War, 121.

[47] I owe this wording to Dr. Garry Young.

[48] And, potentially, rightfully so.

[49] Unfortunately, it is outside the scope of this article to weigh alternative proposals of how best to identify CP against non-culturally significant immovable property

[50] Jeff McMahan, “The Ethics of Killing in War,” 695.

[51] Weiss and Connelly, “Cultural Cleansing and Mass Atrocities,” 25.

[52] Ibid.