1Framing

Why Framing Matters

It is not by accident that political leaders and policy makers spend a great deal of time and effort branding their policy initiatives. They understand that words and labels matter—politically, institutionally, legislatively, operationally, and legally. This is as true globally as nationally. The United Nations is regularly accused of caring more about words than deeds. In its daily work, it needs to determine whether a situation is a matter of justice or peace, of upholding international standards or preserving national sovereignty, of individual rights or collective welfare, of saving money or helping people. Whose lives or treasures are at risk, and who will benefit? The pursuit of collective goods such as the protection of cultural heritage—especially on a global scale—will necessarily raise pointed judgments about equity, burden sharing, and collective responsibility. Efforts to protect the world’s cultural heritage have already demonstrated the importance of building broad and sustainable North-South and East-West coalitions. As these efforts deepen and intensify, basic questions, such as who will save what, how, and why, will need to be addressed on a more urgent basis.

The international community—whose dimensions and composition vary with each new transnational challenge—has ample experience in redefining itself to meet new collective action dilemmas. This is becoming more difficult, however, given the rise of nativism and narrow brands of nationalism in key countries, not least the United States. Finding burden-sharing formulas was never a simple task, but now even well-established institutions—including the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the United Nations more generally—are confronting existential political challenges related to collective action dilemmas. Member States are more likely to ask what is in it for them individually, as well as collectively. Increasingly, the premium will be on what are perceived to be short-term gains rather than on long-term investments in building international norms and institutions. There may be some political space in this environment for considering relatively fresh initiatives, such as those that might be contemplated for the protection of cultural heritage, but for the foreseeable future international political trust will be in short supply and international norms and institutions will be under stress. So the framing of the task will be doubly important in an increasingly divided world in which international cooperation is regarded with suspicion by some political leaders and movements.

Framing—or more crudely, branding—is not just a matter of finding attractive words to describe unattractive policies and practices, but one of tailoring the message and the categorization in a way that appeals to particular constituencies and invokes visceral responses. The appeal may be to certain groups in certain places, not to the larger public. What may look like an unpopular pronouncement or initiative may reflect a politically astute reading of the preferences, priorities, and perceptions of critical groups and stakeholders. Linking one set of policy concerns to others that have positive or negative associations may help shape perceptions of what is being sought, why it is being pursued, and what the costs, risks, and benefits are likely to be. Historical analogies, however tenuous, may come in handy for political figures seeking to redefine the political context, the ensuing policy dialogue, and the choices that result. In a politically amorphous sphere, such as cultural heritage, tailoring the message and getting the framing right will depend critically on one’s understanding of who are the essential constituencies. Who needs to be on board to produce the kind of effective and sustained actions that are needed? Who cares enough to see this through to the end?

Less understood is that the framing of policy questions may have institutional, as well as political, consequences. Bureaucracies are not dysfunctional solely because of redundancy and turf wars—though there are plenty of those—but also because of muddled framing and flawed diagnosis of the malady being addressed. Too often, issues are given labels and assigned to particular agencies, programs, or departments before their causes, dynamics, and implications are fully assessed and analyzed. The political rationales for adopting a particular framing, as noted above, may not coincide with what is actually needed to resolve the underlying issues. There are frequently pressures to find “answers” that sound quick and cheap and safe to complex and stubborn matters, as well as incentives at all levels to declare premature victories. In the realm of world cultural heritage, we should ask, who identifies what needs protection, who sets priorities, and who assigns the tasks required to enhance protection, especially in situations of acute distress? Should cultural, legal, political, or security bodies make such determinations? If all of the above, then how could synergies and coherence among them be obtained?

Framing needs to consider not only who is willing, but who is capable. There are always volunteers willing to champion a particular policy challenge. Some may prove to be valuable advocates, yet lack the policy tools, assets, and authority to do much on an operational level. These sorts of mismatches are common when it comes to tackling global agendas. The UN General Assembly is adept at pronouncing grand goals, norms, and action plans in any number of issue areas. Those can be critical and essential functions, especially in the normative realm. But the Assembly, more than any other body, has given the UN the reputation of being much better at words than deeds. In that regard, it should be borne in mind that most of the 193 Member States are prone to seeking causes to champion. Too often, the loudest voices lack the capacity for carrying much of the implementation burden. The Assembly has critical powers in terms of authorizing the organization’s budgets, appointments, and administrative arrangements, but those are the only areas in which its decisions are binding. The United Nations Economic and Social Council (ECOSOC) has an ambiguous status under the Charter: it is named as one of the UN’s six principal organs and then cast as little more than a subsidiary body reporting to the Assembly. The Security Council has historically unprecedented enforcement powers, but over the past two decades it has been criticized by Russia, China, and some developing countries for taking on too many issues beyond traditional security concerns and for assuming normative functions better reserved for the Assembly. Regional and subregional arrangements are generally closer to the action, but their capacities vary enormously, with the weakest ones often positioned where they are needed the most. Global-regional partnerships are often essential for effective action, but building and sustaining them is never a simple matter.

Framing also invokes critical questions of law and authority. From what national legislation, international decisions, international conventions, and/or common law traditions do actors draw the authority to undertake specific measures to protect world cultural heritage? This matters because it affects political legitimacy and the possibilities for effective and sustainable action on both the national and international levels. Framing may determine the likelihood of attaining consent from national authorities, their neighbors, and other critical stakeholders, as well as the active engagement and approval of local, national, and international populations and civil society groups. It may also influence the manner in which media cover the efforts undertaken. Since non-state armed groups are responsible for many of the recent assaults on world cultural heritage, it is essential that those trying to protect it maintain and strengthen their comparative advantage in terms of legal authority and political legitimacy. As addressed below, different framings of the issues involved can affect public and governmental perceptions of both authority and legitimacy.

Alternative Frames

Those seeking to protect world cultural heritage have already adopted a number of distinct frames for defining the nature and scope of the problem. On the one hand, this disparate attention reflects the vitality of the issue. A number of institutions and individuals have been searching for ways to conceptualize the challenges involved and possible paths to meeting them. On the other hand, the variety of possible frames that have been proposed suggests that none of them has proven completely satisfactory. Each raises political and institutional hurdles that would need to be addressed and overcome. The search, therefore, continues. Its path, as suggested later in this paper, may lead to an amalgam that incorporates some of the positive attributes of each of these approaches.

The five frames, or lenses, that have already been proposed are described briefly here.

  • The legal lens. This perspective focuses on the existing legal framework related to the protection of cultural property and its illegal trafficking, as largely developed by UNESCO.
  • The accountability lens. This approach focuses on prosecuting these acts as war crimes, whether through international tribunals or complementary national legal processes (or preferably both).
  • The security lens. This lens views the destruction of cultural heritage more broadly as a threat to peace and security, for instance, by labeling such acts “cultural cleansing.” This approach was championed by Irina Bokova as director-general of UNESCO until the end of 2017.
  • The counterterrorism lens. This perspective has been adopted by the UN Security Council, whose Resolution 2347 (2017) treated this phenomenon as a manifestation of terrorism.
  • The atrocity prevention lens. Viewed through this lens, the linkages between the destruction of cultural heritage and the commission of atrocity crimes are emphasized, for example, by applying responsibility to protect (R2P) principles to these policy challenges.

These five approaches are not mutually exclusive. There could well be symbiotic elements among them. Moreover, the notion of cultural genocide shares conceptual ground—as well as political liabilities—with each of them.

The legal lens offers the path of least resistance, as it is the most firmly established of the five frames. The nine most critical legal instruments related to the protection of cultural property or to their illegal trafficking are the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict; the Hague Convention’s 1954 Protocol and 1999 Second Protocol; the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage; the 1995 International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects; the 2001 Convention on the Protection of the Underwater Cultural Heritage; the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage; and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Clearly the problem lies not in the quantity of international legal instruments. They all fall short, however, when it comes to enforcement and monitoring measures, and national implementation has been decidedly uneven. The 1999 Second Protocol was intended to provide a new system of enhanced protection for those properties deemed to be of “the greatest importance for humanity.” Yet as of late 2017, only 73 states had ratified the Protocol. Just as significantly, among the five permanent members of the Security Council, China, Russia, and the United States are not states parties.

The 1954 Hague Convention and its Protocols apply only to acts committed during armed conflict. The destruction of cultural heritage, however, is not limited to times and places of armed conflict. Non-state armed groups, which appear to have been responsible for much of the spike in attacks on cultural heritage, are obviously not parties to any of these intergovernmental instruments. The actions of these groups, especially their efforts to profit from the illicit transfer and sale of heritage objects, could be significantly affected by fuller and more consistent implementation of each of these conventions by their states parties, of course, but it is difficult to hold these groups fully accountable under conventions to which they are not parties. Having this legal foundation for efforts to protect cultural heritage is an important asset that needs to be strengthened and deepened, but clearly it has been a necessary but not sufficient condition to getting the job done. The problem has been getting worse in recent years despite the existing legal instruments and machinery.

A related but distinct lens focuses on obtaining accountability for those who lead assaults on cultural heritage. Under the Rome Statute of the International Criminal Court (ICC), “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives,” is considered a war crime. In an unprecedented step, on September 27, 2016, the ICC convicted Ahmad al-Faqi al-Mahdi of war crimes for intentionally directing attacks on nine of Timbuktu’s mausoleums and the centuries-old door of its Sidi Yahia mosque in 2012. Al-Mahdi pled guilty and was sentenced to nine years in prison. The presiding judge declared that the sentence would have “a deterrent effect on others tempted to carry out similar acts in Mali or elsewhere.”

The al-Mahdi verdict certainly was an important step for justice and accountability, as well as an affirmation of the gravity of assaults on cultural heritage under international law. The UNESCO-based legal instruments noted above have not been able to provide such direct and visible accountability. It is to be hoped that the judge was correct about the deterrent effect of the decision, though legal and political analysts have been divided about whether the advent of the ICC has deterred genocide, war crimes, and crimes against humanity in general. Though accountability is an essential way of framing the quest to protect cultural heritage, a few caveats should be borne in mind. As noted above, such assaults do not occur only in wartime. Deterrence serves the purposes of prevention, but protection is still needed when deterrence and prevention fail. The ICC faces a host of political challenges, and the world’s three largest military powers—the United States, China, and Russia—are not states parties to the Rome Statute. Neither are Iraq and Syria, places where protection has been most needed. The ICC also lacks enforcement capacity.

For those seeking a more robust international response to attacks on cultural heritage, there is a strong inclination to label such assaults a matter of international peace and security. Through the years, the tendency to adopt a security perspective has been visible on any number of issues on the UN agenda. This is understandable given the Security Council’s historically unprecedented enforcement powers and the desire to place these questions higher on the agendas of its five permanent members. So when Irina Bokova, then director-general of UNESCO, started to employ the term “cultural cleansing” in 2014 and 2015, she put it squarely in a security context. Referring to events in Iraq and Syria, she wrote in 2015, “Cultural cleansing is an attack on cultural diversity that combines the destruction of monuments and the persecution of people. In today’s new conflicts, those two dimensions cannot be separated.” She described it both as “a tactic of war, used to destabilize populations and weaken social defenses,” and as an assault on human security, since “there is no need to choose between saving lives and preserving cultural heritage: the two are inseparable.” In 2017, she told the Security Council that “defending cultural heritage is more than a cultural issue; it is a security imperative that cannot be separated from the protection of human lives.”

A security lens can bring substantive, conceptual, and political benefits to the consideration of ways to counter the destruction of the world’s cultural heritage. Indeed, as discussed in the next section, the notion of cultural genocide stresses the linkages between cultural and physical violence. The introduction of the term “cultural cleansing” was an evocative and compelling way to engage the issue, but its use appears to be fading, including by UNESCO since Bokova completed her tenure there. The phrase was not employed by her UN colleagues from New York and Vienna in the March 2017 Security Council debate on cultural heritage and terrorism, in the related Council Resolution (2347 [2017]), or by the secretary-general in his implementation report six months later. The phrase lacks a consistent definition, Member State approval, and legal authority. It appears to have been derived from the notion of ethnic cleansing, which also has not gained legal definition or authority. The evocative quality of the term “cultural cleansing,” however, has been attested by the fact that defenders of Confederate monuments in the United States have accused those who would give them less prominence of practicing cultural cleansing.

Of all the ways to frame the protection of cultural heritage, perhaps the most compelling and yet most problematic is that of putting it under a counterterrorism umbrella. This is precisely what the UN Security Council did when it addressed the question directly for the first time in March 2017 under the rubric “the destruction and trafficking of cultural heritage by terrorist groups and in situations of armed conflict.” The Council unanimously adopted Resolution 2347 (2017), with France and Italy serving as co-penholders, after considerable internal debate. The resolution “deplores and condemns the unlawful destruction of cultural heritage, inter alia destruction of religious sites and artefacts, as well as the looting and smuggling of cultural property from archaeological sites, museums, libraries, archives, and other sites, in the context of armed conflicts, notably by terrorist groups.” It notes with concern the trafficking of illicitly traded cultural property to fund terrorist activities. The resolution, however, was not taken under Chapter VII of the Charter and hence lacks its enforcement measures. Its operative paragraphs encourage, invite, call upon, and request the Member States to do various things while also stressing that Member States themselves have the “primary responsibility in protecting their cultural heritage.”

It is undoubtedly useful to have the Council consider the security ramifications of assaults on cultural heritage. This is a potentially important precedent. A reading of the explanations of the vote, however, reveals continuing fissures in how Member States view these matters, particularly along North-South lines. Bolivia noted “the special and specific importance of protecting cultural property in areas under foreign occupation,” blamed “the interventionist policies and invasions of recent years that led to the emergence and rise of terrorist groups that the international community is now facing,” and claimed that “many of the museums that now exhibit historic cultural property from other countries in their galleries, were also acquired through invasion, looting and other illegal means…. Consequently,” Bolivia stated, “we are calling for enhanced policies for the restoration and return of that property.” Egypt enumerated a series of principles and restrictions without which it could not have voted for the draft resolution. Among these were noninterference in internal affairs, state consent, restoring heritage to their original countries, “protection of cultural goods and heritage in areas under foreign occupation,” and limiting Council consideration of cultural heritage to “situations where there is a threat to international peace and security, international counter-terrorism activities or an international conflict that figures on the agenda of the Council.” Uruguay, China, and Senegal underscored the importance of respecting national ownership. Ukraine charged Russia with destroying, looting, and trafficking its cultural heritage, a claim that Russia vigorously refuted. In the deliberations over the draft, Egypt and Russia, among others, insisted on keeping the scope as narrow and as focused on terrorism as possible, while concerns about proposed safe havens in third countries led to the wording noted above regarding the primary responsibility of the state on whose territory the cultural heritage resides.

These interventions make it clear that while counterterrorism framing may get the Council’s attention, it cannot guarantee a convergence of views among its members. Every Member State professes its firm opposition to terrorism and violent extremism, but there has always been a range of views about how to go about countering it. In that regard, the Council’s reluctance to adopt Resolution 2347 (2017) under Chapter VII is worrisome. More broadly, it is not obvious that layering the politics of counterterrorism on the politics of protecting cultural heritage will always be a net plus. The record suggests that the motivating force behind Resolution 2347 (2017) was to cut off one avenue of terrorist financing, not the intrinsic value of protecting cultural heritage. Attaching the fate of a lower-profile issue, such as cultural heritage, to the ups and downs of a higher-order political and strategic concern, such as counterterrorism, seems highly risky. Violent extremists, moreover, are not the only potential threats to cultural heritage, as the actions or neglect of governments, commercial enterprises, organized crime, or other parties can also pose a threat under some circumstances.

Employing a mass atrocity lens, like the other four frames, also offers interesting possibilities. The Getty initiative has already given considerable thought to relevant lessons learned from the experience of developing the principle of the responsibility to protect. The path R2P has taken since the term was coined seventeen years ago by an independent international commission is instructive. The core thesis of the commission’s report—that there is an international and national responsibility to protect populations from existential threats—has taken root and proven to be remarkably resilient. This speaks to how valuable the innovative and timely framing of an issue can be. Yet neither the theoretical construct nor few, if any, of the commission’s recommendations have been accepted by the Member States. The 2005 World Summit endorsed a quite different version of R2P. Then, a few years later, this author, as the UN secretary-general’s first special adviser for R2P, had to design, articulate, and defend a third iteration that both reflected the intent of the World Summit and translated it into a doctrine and strategy that could be implemented in a sustainable and effective manner. It is laid out in a 2009 report of the secretary-general (drafted by this author), Implementing the Responsibility to Protect. Through annual reports by the secretary-general detailing aspects of the subject and subsequent debates and dialogues in the General Assembly, the 2009 conception of R2P has been sustained and has gained deeper ownership by the Member States despite controversies about how it has been applied in some situations, particularly Libya.

The R2P experience has illustrated the strengths and weaknesses of independent commissions. They tend to be good at launching fresh ideas and coining appealing phrases, but their products usually lack the kind of tempering and rigor that comes from being tested in intergovernmental political forums or through application in the field. Turning ideas and principles into sustainable policy and practice is never easy. It requires time, patience, determination, and the flexibility to accept the need for an iterative process in which different formulations are tested both politically and practically over time. The initial iteration is only the beginning of the process. In terms of process, then, R2P may offer a good model for the protection of cultural heritage.

Substantively, R2P offers a more mixed framework for thinking about how to protect cultural heritage. On the plus side, the notions of responsibility and protection are central to both tasks. That responsibility should be individual as well as collective, encompassing peoples, groups, civil society, and the private sector as well as governments and international institutions. Member States have been much readier to accept the preventive and assistance dimensions of R2P than those that might entail the use of force. They have resisted the initial conception of R2P in part because of the lack of specificity about what acts might trigger its application. This could be a hurdle for cultural protection as well. As this author, as UN special adviser, had to repeatedly reassure the Member States, R2P would only apply to the four crimes specified at the 2005 World Summit and to no other matters. There would be great resistance to extending R2P principles directly to the protection of cultural heritage. From the outset, R2P has confronted the same sort of collective action dilemmas that have repeatedly constrained efforts to protect cultural heritage. So while its experience is instructive, R2P cannot offer a panacea for the challenges cultural protection must overcome.

Each of these five lenses provides a piece of the puzzle in terms of finding better and more reliable ways of protecting the world’s cultural heritage. None should be discarded. This paper now turns to cultural genocide as another, complementary, way to frame the task of protecting cultural heritage.