Shattered Stones, Shattered Societies: Confronting Destruction of Cultural Property in Post-Transitional Societies
| Date | 01 December 2005 |
| DOI | 10.1177/016934410502300404 |
| Author | Yaron Gottlieb |
| Published date | 01 December 2005 |
| Subject Matter | Part A: Article |
SHATTERED STONES, SHATTERED SOCIETIES:
CONFRONTING DESTRUCTION OF
CULTURAL PROPERTY IN
POST-TRANSITIONAL SOCIETIES
YARON GOTTLIEB*
Abstract
The universal phenomenon of destruction of cultural property is particularly prevalent in
territories subjected to years of armed conflicts and within nations led by repressive regimes.
Societies emerging from these conflicts or tyrannies have therefore to resolve, among numerous
other dilemmas, the challenge of confronting past destruction of their cultural heritage. The
article addresses some of the subject’s complexities: conundrums involved in the restoration of
cultural property; prosecution of perpetrators; the importance of addressing the crime and its
repercussions through truth commissions and reparations programmes; and the protection of
cultural property in the new constitutions of two post-transitional societies – Cambodia and
Afghanistan. In recognition of the diversity of post-transitional societies, the article does not
attempt to propose a singular conclusion regarding the implications of the destruction of
cultural property on these societies. Rather, the article raises points for consideration and
presents different perspectives on the potential tensions created in that field while underscoring
the importance of addressing past destruction as an integral part of the society’s course to
reconciliation.
1. INTRODUCTION
Cultural property has been long recognised as bearing tremendous importance to
humanity, as symbolising both the uniqueness of a certain society and the shared,
universal set of high values. Nonetheless, throughout history cultural property has
suffered extensive devastation. Numerous incidents of destruction of cultural
property conducted in the past three decades, including the pagodas destroyed by
the Cambodian Khmer Rouge regime, the attacks on the Old City of Dubrovnik
during the war in the former Yugoslavia, and the destruction of the Bamiyan
Buddhas in Afghanistan, indicate that phenomenon to be still commonplace.
Destruction of cultural property is particularly prevalent in territories subjected
to years of armed conflicts and within nations ruled by repressive regimes. Societies
emerging from these conflicts or tyrannies have therefore to resolve, among
Netherlands Quarterly of Human Rights, Vol. 23/4, 613-636, 2005.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 613
* LL.M., New York University School of Law. This article is based on a paper written for the course
‘Transitional Justice in Times of Transition’ taught by Professor Alex Borraine and Professor Paul
Van Zyl. I would like to thank Paul Van Zyl and Pablo de Greiff from the International Center for
Transitional Justice for their insightful comments on the article.
614
numerous other dilemmas, the challenge of confronting past destruction of their
cultural heritage.
This article will address some of the dilemmas post-transitional societies
1
face in
that field. Following an introduction on the definition of cultural property, the
article will raise general points for consideration upon confronting past destruction
of cultural property and will discuss conundrums involved with the restoration of
cultural property. The article will then examine the application of various post-
transitional mechanisms to the issue at hand: prosecution of perpetrators;
addressing past destruction through the work of truth commissions and in
reparations programmes; and protecting cultural property in the new constitution
of post-transitional societies through an analysis of the constitutions of two post-
transitional societies: Cambodia and Afghanistan.
Although the discussion will be divided into several parts, it should be
considered as a whole since a comprehensive and holistic approach provides the
ideal discourse in the field of transitional justice. As each society has its own ways of
dealing with the past and building its future, the article does not attempt to propose
a blueprint solution to these issues, but rather raises points for consideration and
presents different perspectives on the potential tensions created in the field.
2. WHAT IS CULTURAL PROPERTY?
The terms cultural property and cultural heritage
2
are complex and multifaceted, as
manifested by the lack of a unified definition of the terms in international legal
sources.
3
A full survey of these sources exceeds the scope of this article, yet the
following observations are worth noting: the different definitions of these terms vary
in their methodology, scope, and form. For example, while some conventions list
the potential types of property (e.g. paintings, rare manuscripts, and products of
archeological excavations) to be included under the definition, others define
cultural property in general terms.
4
In some cases, the conventions define sub-
categories of cultural property, based on differences in the property’s cultural
value.
5
Other international conventions do not use the terms cultural property or
Yaron Gottlieb
1
For the purposes of this article, the term ‘post-transitional societies’ will refer to those societies
which emerged from illiberal rule and have established, or are in the process of establishing, a new
regime based on democratic values.
2
Both terms – cultural property and cultural heritage – have been used and referred to in
international instruments. For the purposes of this article, these terms will be used interchangeably.
3
See, for example, the different definition of the terms in the following international conventions:
Article 1 of The Hague Convention for the Protection of Cultural Property in the Event of Armed
Conflict, signed at The Hague, 14 May 1954, 249 United Nations Treaty Series 240 (hereinafter ‘The
1954 Convention’); Article 1 of The Convention on the Means of Prohibiting and Preventing the
Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted 14 November 1970,
823 United Nations Treaty Series 231 (hereinafter ‘The 1970 Convention’); and Article 1 of The
Convention Concerning Protection of World Cultural Property and Natural Heritage, UN Doc. A/
CONF. 48 /PC/11/Add. 3, 15 (1972) (hereinafter ‘The 1972 Convention’).
4
The 1970 Convention, for example, presents a list-type definition, while the 1954 Convention
defines cultural property in general terms.
5
This concept was applied, for example, in the 1954 Convention, by granting ‘special protection’ to
certain objects of ‘very great importance’ – see Article 8 of the Convention.
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