Cultural heritage has long been targeted during conflict. This includes the destruction of the famous Bamiyan Buddhas by the Taliban in Afghanistan and Russia's attempts to erase the Ukrainian language in areas of the country it has occupied since 2014.
Author
Sherine Al Shallah
Doctoral Researcher, Refugee Cultural Heritage and Connected Rights Protection | Affiliate, Kaldor Centre for International Refugee Law | Associate, Australian Human Rights Institute, UNSW Sydney
Cultural heritage loss has been extensively documented in the long-running Israeli-Palestinian conflict, too. Since the current war broke out in October 2023, at least 144 prominent historical monuments and cultural sites have been destroyed in Gaza, such as churches, mosques and the ancient city of Anthedon.
This cultural heritage loss can have implications on the continuity of Gazan Palestinians as a national group due to the erasure of their collective identity and memory.
The Rome Statute specifically protects cultural property from attacks during war. This includes sites dedicated to religion, education, art, science or charitable purposes, as well as historical monuments. Unlawful attacks on civilian objects that may constitute cultural property are also protected.
The International Criminal Court has used this statute to prosecute individuals for war crimes too. In 2016, the court found Ahmad al-Faqi al-Mahdi guilty of intentionally directing attacks against religious and historic buildings in Timbuktu, Mali. He was sentenced to nine years in prison.
But when it comes to protection for refugees on the basis of cultural heritage - and taking into account cultural heritage loss specifically - there are very few pathways available.
What is refugee cultural heritage and why is it important?
Cultural heritage plays a significant role in shaping identity. It includes our traditions and practices, as well as physical heritage sites and objects, and people's relationships with them.
For refugees, cultural heritage can include both the heritage of their home countries, as well as that of other countries where they have lived in exile. This means that if a Rohingya refugee from Myanmar spends time in a camp in Bangladesh, their heritage would incorporate influences from both places, in addition to the refugee experience itself.
Respecting "exile heritage" in asylum claims allows refugees the "right to exit" - or distance themselves from - the heritage of their home countries if they no longer agree with its values.
Refugee status is determined by states that are party to the 1951 Refugee Convention based on five grounds of persecution: race, religion, nationality, membership of a particular social group and/or political opinion. These five grounds are all interlinked with cultural heritage. Yet cultural heritage alone is rarely relied upon to assess evidence of persecution.
Until this year, for instance, the United Kingdom had been one of 12 countries not to have ratified the 2003 UNESCO Convention on Intangible Cultural Heritage. The convention aims to recognise and safeguard a wide variety of cultural practices and traditions for people around the world.
And scholars believe this may have played a role in a well-known asylum case in Scotland.
In the early 2000s, members of a minority Somali clan known as the Bajuni applied for asylum in Glasgow, claiming persecution from the Somali government.
The asylum seekers did not have documentation to support their claim that they belonged to the clan that had been persecuted. So, the UK government administered linguistic and cultural tests to assess whether they were, in fact, members of the clan.
Many failed the linguistic tests because they had lived in exile in refugee camps where they learned to speak other languages, in addition to the English they learned in the UK. As a result, they were denied asylum and forced to live in prolonged limbo, seeking protection from other countries or a return to Somalia.
Scholars who studied the case said the UK's absence from the UN convention established
a precedent in which other state actors (that is, immigration authorities) are emboldened to advance scepticism over matters involving intangible cultural heritage.
Members of the Bajuni community later launched a campaign to highlight the importance of recognising refugee cultural heritage more broadly in asylum claims to include "exile heritage" and to integrate the evolution of cultural heritage in these assessments.
After many years of debate, the UK finally ratified the convention in early June.
How should Australia's policy respond to this?
When the Australian government assesses refugee claims, it requires applicants to recount experiences of persecution on the five grounds of race, religion, nationality, membership of a particular social group and political opinion.
This should be broadened to specifically include cultural heritage. For asylum seekers from Ukraine or Gaza, for example, the government should assess claimants' language skills, cultural connections to their home countries and experiences in exile, in conjunction with the five grounds of persecution.
Recognising a refugee's cultural heritage both in their home country and after they've fled is essential. It humanises refugees and provides them with a better opportunity for protection.
Though asylum seekers are often persecuted as members of a group, their claims are assessed as individuals. By ignoring the cultural heritage of people claiming refugee status, we are suppressing their identities.
Sherine Al Shallah is a recipient of the University Postgraduate Award. She is affiliated with the Kaldor Centre for International Refugee Law and the Australian Human Rights Institute.
