Statement by Ms. Karima Bennoune, Special Rapporteur in the field of cultural rights, at the 31st session of the Human Rights Council

10 March 2016

Honourable Chair, Excellencies, Distinguished Delegates, Ladies and Gentlemen;

As this is my first appearance before the Council, please allow me to thank you for entrusting me with this important mandate, a responsibility I take seriously. By way of introduction, let me say that I am proud to be the daughter of parents from two different countries, from Algeria and the United States of America, and so I am from the large family of people in the world who come from mixed cultural backgrounds. My grandfather on the Algerian side, Lakhdar Bennoune, was a peasant leader who died – as did so many - defeating colonialism. This family history explains why I became a human rights lawyer, because I was raised to believe that such sacrifices to advance the cause of human freedom have left us all with responsibilities to carry forward that struggle.

Today it is my honor to present to you my first report as Special Rapporteur. The report is introductory as I took up my mandate on November 1, 2015. The first part revisits the mapping of the cultural rights framework by my distinguished predecessor Farida Shaheed, reiterating key commitments and assessing emerging developments. The second part introduces my first thematic focus: the intentional destruction of cultural heritage as a violation of human rights. I now present my preliminary findings and I will further develop this topic in my report to the General Assembly this fall. Let me briefly address each part of the current report in turn, beginning with the re-mapping of cultural rights.

As the council has regularly reiterated, “cultural rights are an integral part of human rights, which are universal, indivisible, interrelated and interdependent.” In recent years, in part due to the efforts of my predecessor, cultural rights have gained in legitimacy. However, much remains to be done to fulfil the Council’s vision. In my work as Special Rapporteur, I hope to continue demonstrating that cultural rights are key to the overall implementation of universal human rights and a crucial part of responses to many current challenges, from poverty to extremism.

One of my main goals is to promote the enjoyment of cultural rights without any discrimination, and I have been particularly disturbed by recent political discourses of exclusion, sometimes directed at entire religious or other groups. I also note that the relationship between individuals and groups in the field of cultural rights needs further exploration, as does the terminology used to refer to the latter. In the report, I explore the question of what we mean exactly when we refer to “communities,” without defining the term. I commit to being thoughtful about the use and implications of such concepts, being mindful that while the recognition of difference is important in the field of human rights, so is the recognition of commonality. We must not forget that one of the most important groups to which we all belong is what the Universal Declaration of Human Rights calls “the human family”.

In the report, I underscore that I am unequivocally committed to the principles of the universality of human rights and of cultural diversity and to recognizing and reinforcing the organic relationship between these two commitments. I recall that cultural rights are not tantamount to cultural relativism. They do not justify discrimination or violence. They are firmly embedded in the universal human rights framework.

Methodologically, the report expresses my commitment to cooperation with all of you - States and other stakeholders, including non-governmental organizations. As mandated by the Council, I plan to consult with other relevant human rights bodies and mechanisms, in particular UNESCO.

This brings me to the second part of my report:

Mr. President,

Along with so many others around the world, I have been appalled by recent events in which cultural heritage has been intentionally targeted and destroyed in both conflict and non-conflict situations. In light of these events, I decided to address intentional destruction of cultural heritage as an urgent priority. In the future, I also hope to explore other forms of destruction, such as that in the name of development.

Cultural heritage is significant in the present, both as a message from the past and as a pathway to the future. Viewed from a human rights perspective, it is important not only in itself, but also in relation to its human dimension. While specific aspects of heritage may have particular resonance for and connections to particular human groups, all of humanity has a link to such objects, which represent the “cultural heritage of all [hu]mankind.”

The first mandate holder established how the right of access to and enjoyment of cultural heritage forms part of international human rights law, finding its legal basis, inter alia in the right to take part in cultural life. Cultural heritage is a fundamental resource for other human rights also, in particular the rights to freedom of expression, freedom of conscience and religion, as well as the economic rights of the many people who earn a living through tourism related to such heritage, and the right to development.

In its General Comment No. 21, the Committee on Economic, Social and Cultural Rights recalled that article 15 of the International Covenant on Economic, Social and Cultural Rights includes the obligation to respect and protect cultural heritage. Numerous other international instruments including many developed through UNESCO also protect heritage.

A special protection regime governs its protection in times of conflict. The core standards include the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (the 1954 Hague Convention) and the two protocols thereto. However, I note with concern that many States, including members of this Council, have not adhered to these standards, in particular the Second Protocol, which only has 68 parties. Moreover, some experts suggest that States parties may not have enacted adequate implementing legislation or fulfilled their obligations. I note that many provisions of The Hague Convention rise to the level of customary international law, binding both States not party to the Convention as well as non-State actors. I concur that “the prohibition of acts of deliberate destruction of cultural heritage of major value for humanity” rises to the level of customary international law.
           
In the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage adopted in 2003, the international community reaffirms its commitment to fight against the intentional destruction of cultural heritage in any form so that it may be transmitted to the succeeding generations. I stress the importance of this Declaration and call for its full implementation.

In addition to tackling the role of States, attention must also be paid to the robust use of international standards– and developing other strategies – for holding non-State actors to account and preventing their engaging in destruction.
           
Individual criminal responsibility arises from serious offences against cultural heritage, which can rise to the level of war crimes or to crimes against humanity, and may also be evidence of intent to destroy a group within the meaning of the genocide convention. I have been closely watching developments in the current groundbreaking case in the International Criminal Court regarding cultural heritage destruction in Mali. While I do not wish to prejudge the outcome of this case, I hope to see other similar prosecutions in the future.

Mr. President,

Attacks on cultural heritage deeply affect local populations. Recent events that have been publicized in mass media are just a few examples and reports are forthcoming from a number of regions of the world of a similar pattern of attacks by States and non-State actors.

Unfortunately, there is a long human history of such acts in all regions of the world, whether in wars, revolutions or waves of repression. However, in the early twenty-first century, a new wave of deliberate destruction is being recorded and displayed for the world to see, the impact magnified by widespread distribution of the images. Such acts are often openly proclaimed and justified by their perpetrators. In many cases, such acts represent a form of cultural warfare being used against populations, and humanity as a whole, and one which I condemn in the strongest possible terms. This is an urgent challenge to cultural rights which requires rapid and thoughtful response by the UN human rights system.

In responding to intentional destruction of cultural heritage, it is critical to employ a human rights approach: there are many human rights implications, yet the question is largely not being addressed by the international community as a question of human rights generally, or of cultural rights in particular. This must change. I aim to contribute toward the development of such an approach, stressing, again and again, that it is impossible to separate a people’s cultural heritage from the people itself and their rights.

A human rights perspective on the protection of cultural heritage must emphasize the human rights of cultural first responders – those on the frontlines in the struggle to protect it such as archaeologists, archivists, museum curators, guards and others. As we have seen so tragically this last year, these guardians of heritage and cultural rights often put their safety and even their lives on the line to carry out this work. States must respect their rights and ensure their safety and security, but also provide them, including through international cooperation, with the conditions necessary to complete their work, including all needed material and technical assistance. Everyone has a duty to respect the rights of cultural heritage professionals and anyone alleged to have harmed them must be brought to justice in accordance with international standards.

Acts of deliberate destruction are often accompanied by other grave assaults on human dignity and human rights. As such, they have to be addressed in the context of holistic strategies for the promotion of human rights, and peacebuilding. We must care about the destruction of heritage in conjunction with our grave concern for the destruction of the lives of populations in its vicinity. To do otherwise is both immoral and counterproductive.

In a poem entitled “The smothered murmurs of history”, poet Saleh Baddiari, himself a refugee from extremist violence in the 1990s, expressed the anguish many have felt after recent acts of cultural demolition produced what he called “ruins upon ruins.” He gave voice to the fear that, if unchecked, there will be more destruction to come:

The people of the new millennium are determined to reduce their ruins to the dust of ruins…
Palmyra collapses on its own rubble.
Petra will follow, along with Nineveh and Nippur.
Alexandria and Heliopolis, blindfolded, await their turn to return to dust ¹.

Distinguished colleagues, I believe it is up to us all to work together to make sure that what this poet feared does not come to pass – anywhere.

If there is one take away from my presentation to you today it is this: cultural heritage is also a human rights issue to which we must take a human rights approach. To that end, I made many recommendations in the report to which I hope governments and civil society will give close consideration. Efforts to stop intentional destruction of cultural heritage need to be holistic, encompassing all regions, contemplating both prevention and punishment, targeting acts by State and non-State actors, in conflict and non-conflict situations. We must respond urgently, but also take the long view. These are critical issues in Paris at UNESCO, in The Hague but also here in Geneva at the Council. Cultural heritage does not live in any one place alone.

As the human rights advocate Gita Sahgal pointed out, heritage is humanity. It is a record of the genius of human beings, that which we leave behind for the next generations to mark our path through this world, and quite simply irreplaceable even in a digital world.

Mr. President,

Let me now turn to the presentation of the report of my predecessor, Farida Shaheed, relating to her visit to Botswana from 14 to 26 November 2014. Ms. Shaheed has asked me to thank the Government for its invitation and cooperation, and for the detailed comments and commitments in response to her report. She conveyed the following insights. 

Botswana must be commended for its achievements in the area of development and poverty reduction. Still, people are not always ready to follow the Government-proposed development model, and seek alternatives enabling them to better reconcile economic development and the preservation of their specific world views.

Despite efforts from the Government, the legacy of prioritization of Tswana interests and culture over marginalized tribes persists in the social and political dynamics of Botswana. A second phase of nation-building is needed, that equally recognises the various groups and the diverse ways in which they relate to their environment. Botswana can address these challenges by relying on its strong tradition of consultation, democratic debate and freedom of expression.

More specifically, while reforms have been adopted to ensure better representation of the diversity of its population in political and judicial institutions, the Government should continue efforts to ensure that historically underrepresented groups are effectively represented in the Ntlo ya Dikgosi (House of Chiefs). In addition, policies and legislative steps that enable minority groups to learn and be taught in their mother tongue as well as the official State languages have long been awaited. Finally, while the Government strives to protect its rich biodiversity and to ensure the economic transition of local groups through their participation in tourism activities, more efforts should be made to take cultural rights into consideration in designing these policies.

Farida Shaheed visited Botswana just after the Okavango Delta had been listed as the 1000th World Heritage Site on the UNESCO List. The Government consulted broadly in the process leading to the listing, and recognized the cultural heritage as well as user access rights of the San people in the Delta. The Government is encouraged to continue implementing the UNESCO recommendations in this regard, in particular to respect and integrate the views of local inhabitants into the management, planning and implementation of decisions, and to ensure that they have access to benefits derived from tourism. The Special Rapporteur also recommended that the Government engage with the San of the Central Kalahari Game Reserve, so as to reach agreements fully respecting the cultural rights of the San people.

In closing, let me say that I have learned in my first few months as Special Rapporteur, that this job is by its nature intensely collaborative. I look forward to working with all of you to implement the tasks before me. Let us come together to defend cultural rights. Thank you for your kind attention.

Note:

1. Salah El Khalfa Beddiari, forthcoming in Les murmures étouffés de l’Histoire (Éditions Beroaf, 2016) (translated by the Special Rapporteur with permission of the poet).