This Thursday, along with Tufts, Oxford, and Fresno State Universities, our Center will co-sponsor a webinar on cultural heritage in law and diplomacy. In advance of that event, we are publishing here short posts by the participants, which will serve as the basis for discussion at the webinar.

In this contribution, Michalyn Steele (Brigham Young University) addresses issues surrounding the cultural property of Indigenous peoples:

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In an increasingly mobile, global society, the significance of place as integral to cultural and spiritual identity can be elusive. While there are a wide variety of beliefs and practices among Indigenous peoples, many Indigenous peoples conceive of themselves as people of a particular place. Especially for the Indigenous peoples of North America, their origin stories and creation cosmologies tie their identity, their purpose, and their worship inextricably to those places of sacred origin and obligation. In this conception, land is not fungible and sacred practices are not transferrable to new locations when peoples are displaced. Depriving Indigenous people of meaningful access to these sites or despoiling the sacred character of these sites irreparably compromises their ability to practice their religion. The failure to appreciate the sacred character of Indigenous sacred sites or the callous calculation that reduces these sites to their economic exploitability does existential damage to the religious liberty of the Indigenous people.

Take, for just one example, the Lakota peoples and Paha Sapa, the area around the Black Hills that the Lakota hold most sacred as “the heart of everything that is” and the womb of Mother Earth. The discovery of gold by settlers despoiled the Lakota people of their legal interests in Paha Sapa in violation of their treaties with the federal government. They were cut off from their sacred sites and thereby deprived of access to crucial religious rituals. In 1980, the United States Supreme Court found that the Black Hills had been taken from the Lakota people by coercion and deception, and the tribes were awarded significant money damages. However, the Lakota people, among the poorest communities in the United States, have refused the money, maintaining that Paha Sapa was never for sale. They never wanted the money, they wanted access to their sacred sites.

As with the Lakota, the all-too-common shared histories of Indigenous peoples involve violence to Indigenous identity, cultural cohesion, and religious liberty. In the United States, the 574 federally-recognized tribes and many other tribes lost to the modern era or still seeking recognition, share variations on the theme of a history of cultural, political, geographic, and religious displacement. The driving forces of this historical assault were the twin animating principles behind Manifest Destiny: the inexhaustible appetite for the lands and resources of the tribes by would-be settlers with their certainty of a divinely-sanctioned superior right to those resources, and an abiding conviction in the supremacy of non-Indian religion and culture. These principles led the United States to embrace the coordinated policies of forced allotment and assimilation to clear title to Indigenous land holdings for settlement and to induce tribal peoples to abandon their lands, language, identities, and religion.

President Theodore Roosevelt said the allotment policy was to act as a “great pulverizing engine” to break up the tribal land mass.  Similarly, the United States implemented a policy to strip tribal children of their language and religion by placing them in boarding schools, where they were educated as domestic servants and forbidden from speaking their Indigenous languages or participating in their traditional religious rites. Their hair was cut and their clothing taken. Many children went years without seeing their parents and many experienced devastating isolation upon an attempt to return to their homes and territories.

As a result of this cultural-religious violence, many Indigenous communities now must rely on the permission of private landowners or governmental agencies to access sacred sites lost during this process. President Clinton’s 1996 Executive Order 13,007 directed governmental agencies to seek to accommodate religious use and access for tribes. But the effort has met with mixed success at best. Congress passed an unenforceable bill, a mere sense of the Congress resolution, that Indigenous sacred sites should be protected and preserved. The Supreme Court has wrestled with fitting the requirements of the First Amendment’s religious liberty protections to the site-specific requirements of Indigenous religious practice. Even the Religious Freedom Restoration Act, designed in part to compel the federal government to justify its substantial burdens on religious exercise, has been a mostly impotent tool in crafting protection and access to Indigenous sacred sites.

In sum, the legal protections and political will to provide meaningful access and protection to Indigenous sacred sites in the United States has been ineffectual. Until people of good faith and good will join together to seek accountability for prioritizing Indigenous access to sacred sites, the violence to Indigenous religion continues.

This Thursday, along with Tufts, Oxford, and Fresno State Universities, our Center will co-sponsor a webinar on cultural heritage in law and diplomacy. In advance of that event, we are publishing here short posts by the participants, which will serve as the basis for discussion at the webinar.

In this contribution, Leonard Hammer (University of Arizona) offers some thoughts on cultural heritage protection.

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Some of the key missing tools in cultural heritage protection are the lack of involvement of local/grassroots communities and minority groups in decision making regarding approaches towards engagement and scope of protection to be implemented. The top-down framework is centered on the state, largely a result of the international system’s structure that prevents involvement of important voices and serves to actually stymie protection efforts before, during, and after conflict, especially because local and minority groups might be the very targets of such action.

Another important aspect to consider is the integration of cultural heritage protection norms in a meaningful and effective manner, so as to incorporate all involved players in conflicts and post-conflict settings—especially non-state actors. I know this is a tall order but the current normative system is seriously lacking avenues or instruments that do so.

Granted, we have developments in post-conflict tribunals going after non-state actors who violated cultural heritage. Yet the problem with ex-post facto tools like the International Criminal Court or the attempt to link cultural heritage destruction with crimes like genocide is that they only pursue the serious violations and, sadly as we have seen thus far with the ICC, focus on areas that are the result of extending geo-political conflicts between actors into an additional arena. Further, current international tribunals only address serious violations, when cultural heritage protection demands more focused protection given the fragile nature of items at risk and the broad impact on communities—meaning there exists a strong disconnect between the scope of damage to a place (say a local church or mosque) and the level of “damage” or hurt to the targeted group—especially in the context of sacred space.

In the conflict context, whilst I know the ICRC and regional organizations like NATO and state military forces are attempting to integrate cultural heritage protection norms into their manuals and plans of action, there still exists a strong need for engagement and involvement of all actors to the conflict, in the same manner and level as would be for combat protection. That is, while a human life of course merits protection, it is asserted that integrating cultural heritage protection norms and understanding of cultural heritage protection (why it is to be done and what benefits can derive therefrom) into discourse with non-state actors and local communities would go a long way towards adequate cultural heritage protection. Indeed, many times non-state actors are not even aware of what cultural heritage protection is nor why it might matter. For many non-state actors, of course, they are deliberately targeting sacred space, which raises the question of the long-term interests of such actors (an angle that can be explored should they really seek to establish their own form of governance) and a better understanding of their own edicts and norms regarding the sacred space of the other.

Note too that state actors heavily rely on military necessity in a manner that might allow for too broad forms of military action when more nuanced action might be best or feasible.

Of course, cultural heritage protection does and can serve a positive role as a conduit for engagement and for healing—but again, with the involvement of local actors and grassroots movements to adequately incorporate and allow for post-conflict healing to emerge.

Finally, one should consider HOW we go about integrating civil society and international organizations into CHP along with to what extent we want to do so. Civil society, for example, maintains specific goals and interests that are many times beholden to either their donors, their “home state” interests, or subject to internal politics and bickering on the ground. Thus, civil society actors might merely echo the interests of a given side rather than act for the goal of cultural heritage protection.

This is something I desire to take a deeper look at when thinking about the socialization of cultural heritage protection norms in a constructivist, global governance, type of construct.

This Thursday, along with Tufts, Oxford, and Fresno State Universities, our Center will co-sponsor a webinar on cultural heritage in law and diplomacy. In advance of that event, we are publishing here short posts by the participants, which will serve as the basis for discussion at the webinar.

In this contribution, Narine Ghazaryan (University of Nottingham) discusses the destruction of Armenian cultural sites following the Second Karabakh War last year.

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Destruction of cultural heritage is as old as the world itself. Even though it can happen without malice in some cases, more often it is a means of asserting control over a territory by erasing its history with its past civilisations or challenging the identity of its contemporary inhabitants.

The destruction of the cultural heritage of the Armenian population of Nagorno-Karabakh or Artsakh was a distinguishing feature of the so-called Second Karabakh war fought over the course of 44 days in autumn 2020. Once again, it brought attention to the matter of preservation of religious and cultural artefacts not only during an armed conflict, but also after the cessation of military hostilities. Armenians around the world watched in real time the destruction of their holy sites and cultural and historic monuments as part of a broader campaign of ridding the territories captured by Azerbaijan of its Armenian population, as well any traces of their existence, past or present. Numerous Armenian national and religious sites and monuments have been destroyed or are in danger of destruction not only through physical obliteration, but also through the material damage caused by the alteration of these sites with the aim of “de-Armenising” them. To fit the Azeri narrative, Armenian cultural heritage in Artsakh has been re-attributed to the “Caucasian Albanians” from whom the Azeri people allegedly descend, despite the fact that the Caucasian Albanians were a non-Turkic people who were culturally related to the Armenians. 

During the course of last year’s war, it became evident that the destruction of Armenian cultural heritage bore a systematic and orchestrated character. These events could not have been separated from the larger context of decades-long state-sponsored denial of the history of Armenian existence and Armenian cultural heritage in the territory of Artsakh. Numerous footages demonstrating the intentional destruction of Armenian monuments, symbols and sites of worship by Azeri soldiers were circulated widely during the armed hostilities. Among the most prominent targets were Armenian Christian sites of worship and monuments of national significance. Christian religious sites, viewed as sacred by the local population, have a particular meaning and significance for the Armenians in the context of post-Soviet national reawakening.

The targeting of the Holy Saviour Ghazanchetsos Cathedral in Shushi on 8 October 2020, a major Armenian national and religious landmark and one of the biggest Armenian churches in the world, sent a clear message to the Armenians: nothing was off-limits. The precise shelling of the Cathedral in two rounds within a course of a few hours left no doubt in the eyes of the international community that the attack was deliberate. It was a clear breach of Azerbaijan’s international obligations under the International Covenant on Economic, Social and Cultural Rights and The Convention for the Protection of Cultural Property in the Event of Armed Conflict. Following the capture of Shushi by Azerbaijan, prompt efforts were taken to erase the Cathedral’s Armenian origins through so-called “restoration” works.

The systematic destruction of Armenian cultural and religious sights did not go unnoticed by UNESCO, whose Director General proposed sending an expert mission to Nagorno-Karabakh with the purpose of establishing an “inventory of the most significant cultural assets” as a necessary step in guaranteeing the protection of the region’s heritage. To date, these calls have remained unanswered by Azerbaijan, demonstrating the limitations of international mechanisms tasked with the protection of cultural heritage.

In the absence of a peaceful resolution to the conflict and the persistent anti-Armenian rhetoric at the highest level in Azerbaijan, there is no doubt that the cultural rights of the Armenians of Artsakh cannot be guaranteed. Equally, they cannot be separated from the right of the Armenians to live in their ancestral homeland. Despite the end of last year’s military hostilities, the conflict in Nagorno-Karabakh/Artsakh remains unresolved. Although Azerbaijan claims that there is no longer a “Nagorno-Karabakh” issue, the status of the Armenian population remaining on the territories under the control of the Republic of Artsakh is yet to be determined. The physical safety of the Armenian population and their remaining cultural heritage is only guaranteed by the Russian army deployed along the periphery of the territory of Artsakh not captured by Azerbaijan as part of the tripartite agreement between Russia, Armenia and Azerbaijan concluded on 9 November 2020.

Despite a significant mistrust of the Russians among the Armenians of Artsakh, the latter have come to rely on Russian peacekeeping forces to ensure their right of access for purposes of worship to a number of holy sites close to the line of contact, such as the Amaras Monastery. Moreover, a Russian armed unit guarantees the physical safety of one of the most significant holy sites in the region, the ancient Dadivank monastery complex together with its monastic community. The Russian post stationed by the monastery was the result of Russian post-war  intervention, despite the silence of the tripartite agreement on the issue of the preservation of Armenian cultural heritage in the region. In view of the possibility of Azerbaijani objection to the Russian military presence five years after the deployment of the peacekeepers in accordance with the agreement, this and other religious sites are still in danger.

In fact, the destruction of Armenian religious and national symbols and sites has become another outstanding issue as far as the resolution of the conflict is concerned under the auspices of the OSCE Minsk Group, the main negotiating framework established in the 1990s. Azerbaijan’s open and systematic eradication of Armenian heritage remains an obstacle to achieving a peaceful solution to the conflict, as no peaceful solution is attainable as long as the Armenians of Artsakh are denied their identity and the history of their centuries-long existence in this region.