(By V.S. Mani)

On February 26, 2001, Mullah Muhammad Oman issued a decree ordering destruction of all statues in Afghanisthan, including the world famous Standing Buddhas of Bamiyan (an area only recently captured by the Talibar from its opponents in the ongoing civil war), and the Taliban militia started assaulting these statues by using whatever weapons they could lay their hands on - from tanks, to rockets, to mortars, to explosives. "All we are breaking are stones", a heartless Omar is reported to have remarked.

Soon after the Mullah's decree, there was a predictably deafening international outcry and the international community appealed to the Talibar regime to see reason. The Director-General of UNESCO, the inter-governmental organisation specifically mandated to protect world cultural heritage, expressed his "feelings of consternation and powerlessness" as reports of "irreversible damage that is being done to Afghanistan's exceptional cultural heritage" started pouring in.

Situated at an important junction on the ancient Silk Route, Afghanistan in general has come to acquire a unique composite cultural heritage reflecting a history underscored by a diversity of influence of Persia, Greece, Hinduism, Buddhism and Islam. However, many of the tangible treasures of this heritage, including the Bamiyan Buddhas, have suffered the onslaughts of conflicts and disasters. The priceless collections of historical treasures at the Kabul museum came under attack in 1995 and 1996 and were subjected to theft and vandalism. The Afghan people have been rightly proud of their cultural heritage. The fact that the Afghan rulers (including Timurides) respected and protected the cultural heritage of their land for the past 1,500 years speaks volumes about their patriotism, and cultural values.

Can a ruling regime in a country vandalise and destroy so wantonly the treasures of its cultural heritage? Are these international norms against such historically irresponsible and morally reprehensible conduct of a state?

The sovereignty of a state within its teritory is no longer "exclusive and absolute". It is subject to international law. A state undertakes international obligations under treaties or under general international law. The totality of these obligations determines the permissibility or otherwise of a state action. The argument that the above cultural properties are situated within the territory of Afghanistan and belong to the state of Afghanistan is not good enough for the Taliban to escape international legal accountability. The Taliban must show that its conduct is not inconsistent with any applicable international obligations to which Afghanistan, like any other country, is subject.

There are at least three categories of international obligations, which Afghanistan must respect in this regard. They relate to (a) international humanitarian law applicable in international armed conflicts (the Afghan situation has not been an 'internal" armed conflict, pure and simple, as it has had foreign participants); (b) obligations specifically relating to protection of cultural property; and (c) obligations emanating from international human rights law.

International humanitarian law, perhaps a forerunner of the contemporary human rights law, has always sought to 'humanise' warfare by endeavouring to strike a balance between the principles of humanity and the requirements of military necessity, although the balancing act has often been left to the commander in the field to implement. Article 27 of the Hague Regulations on the Laws and Customs of War, 1907 (following a similar provision in their 1899 version), clearly obligates a party to an armed conflict to take "all necessary steps … to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments …. Provided they are not being used at the time for military purposes." It is this time-honoured provision that paved the way for the eventual adoption, at the initiative of UNESCO, of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, in 1954. All that the 1954 convention does is to elaborate the 1899-1907 Hague principle of protection of cultural property. Thus, the principle of protection of cultural property is deeply embedded in international humanitarian law, regardless of whether a state is a party to the 1954 treaty. Afghanistan's non-party status has relevance only with regard to the role of UNESCO in procedural implementation in the treaty.

The general treaty law relating to cultural property is embodied in the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972. To which Afghanistan became a party in 1979. The purpose of this treaty was to recognise that all countries have an obligation to protect the "cultural and natural heritage of outstanding univefsal value" and that to that end there was a need to evolve a cooperative international framework to make resources available to countries where the property is situated. The treaty defines "cultural heritage" in terms of "monuments", "groups of buildings", or "sites". Cultural heritage "monuments" would encompass "architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave-dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science". (Article 1: similar definitions follow in the same provision on "groups of buildings" and "sites"). Article 4 of the treaty imposes on each state party "the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage … situated on its territory".

While it is primary duty of each state party in whose territory the heritage is situated, the treaty also recognises "the duty of the international community as a whole", to cooperate and assist the former if called upon (Article 6). Thus, India was merely seeking to perform its part of the duty under the treaty, when it offered to take over the Afghan heritage treasuries and bring them to India, an offer that the Taliban rejected outright. Afghanistan has already been a recipient of international assistance in this regard.

Obligations emanating from the international human rights law are as varied as the right to culture, the right and duty to tolerance, and the right of the future generations to enjoy the cultural heritage of the past. Article 27 of the Universal Declaration of Human Rights, 1948, and Article 15 of the International Covenant on the Civil and Political Rights requires states to ensure the emjoyment by minorities of their right to culture. The UNESCO Declaration on the Responsibilities of the Present Generations towards Future Generations, 1997, expects the present generations to "take care to preserve the cultural diversity of humankind. The present generations have a responsibility to identify, protect and safeguard the tangible and intangible cultural heritage and to transmit this common heritage to future generations" (Article 7). The UNESCO Declaration on Tolerance, 1995, describes the duty to tolerance "not only a moral duty, it is also a political and legal requirement" (and defines "tolerance" as "respect, acceptance and appreciation of the rich diversity of our world's cultures, our forms of expression and ways of being human".).

How does one enforce the law against the Taliban? Here is a case of a nearly decade-long armed conflict with a mix of terrorism, both domestic and international, and international arms and drug trafficking. I, for one, would not be averse to any coercive action by the Security Council based on its assessment of the situation vide Article 39 of the U.N. Charter, provided, of course, it is all based on international consensus. I emphasize on the need for consensus, for that is perhaps the only way a U.N. action can be legitimised.

(The writer teaches International Law at the Jawaharlal Nehru University, New Delhi)