Kulturelle Rechte als Eckpfeiler internationaler Kulturbeziehungen

Throughout your career, you’ve done considerable work to establish equal regard for cultural rights in relation to other human rights — and to insist on the interdependency of these rights. How do you explain the historic, and in some environments ongoing, subordination of cultural rights?

Karima Bennoune: This was something that I struggled with throughout the six years that I was the U.N. Special Rapporteur in the field of cultural rights. I think there are several explanations. The first is that culture is very often seen as a luxury item or commodity. This perception has many implications, including that culture is one of the first areas to be impacted by austerity measures, as we saw through the COVID 19 pandemic.

The second explanation comes from a different direction. There is a great deal of nervousness on the part of some human rights advocates about the misuse of culture, including by some governments, as well as other actors, such as religious leaders. On this, I always said cultural rights must be understood as part of the universal framework, not as an override of other rights.

Part of my job as Special Rapporteur was [...] to remind states and other actors that cultural rights have been a part of human rights law from the beginning [...].

Then there are also small logistical things that do not help, not least the placement of the standards on cultural rights in international documents. In the Universal Declaration of Human Rights, cultural rights come up very late in the document, in Article 27. In the International Covenant on Economic, Social and Cultural Rights, cultural rights are guaranteed in Article 15, which is the last substantive article. What this means logistically is that the U.N. Committee on Economic, Social and Cultural Rights always comes to the issue of cultural rights on the last day of reviewing a state party report, so there is often insufficient time for discussion. I think that reflects, in part, the first problem – that culture is seen as a kind of luxury.

Part of my job as Special Rapporteur was, again and again, to remind states and other actors that cultural rights have been a part of human rights law from the beginning of contemporary human rights law with the Universal Declaration, and that they have legal obligations in this area.

Your work also grapples with the right to artistic freedom versus necessary qualifications to that freedom, as contextualized by the wider human rights framework. How do we draw these lines?

Bennoune: I think we must start with the right itself before we start talking about drawing lines. The right to freedom of artistic expression is one of the only human rights that is guaranteed in both covenants on human rights — the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

My predecessor as Special Rapporteur, Farida Shaheed, wrote a very important report back in 2013, emphasizing that artistic freedom is not a right just in a professional sense. It is a right for everyone: a right for so-called amateurs, and a right for audiences and populations who are enjoying and interacting with artistic work. It’s an integral right in and of itself — and it also facilitates meeting the goals of other human rights and advancing other human rights norms.

Consider the amazing protest songs that have come out of Iran in the last month, like Shervin Hajipur’s song Baraye, which brings together tweets from many different Iranians about why they are protesting, or the song from the “Revolutionary Girls of Bushehr”, which has a line “my hair is like a fire that burns your [mullah’s] cloak.” These are such important examples of the ways in which people are using cultural expression to call for human rights change in their country — and sometimes facing grave violations of human rights for doing so.

When we start talking about limits to artistic expression, we must always recognize that in international law you interpret a rule broadly. The rule is the guarantee of freedom of expression and artistic freedom specifically. The limits should be understood and interpreted narrowly, in the context of that broader right. Article 19 on Freedom of Expression in the International Covenant on Civil and Political Rights does allow for some very specific limitations of freedom of expression for several reasons. One is to protect the rights and freedoms of others and respect, for example, their reputations, privacy, so on. Others are more generally formulated, and it is important to look at the way these limitations have been interpreted. The U.N. Human Rights Committee has stressed that any limitations on freedom of expression must be interpreted very narrowly, under strict tests of necessity and proportionality, and cannot be used for purposes that are counter to other human rights.

What about the standoff between religious freedom and artistic freedom? You have noted in the past that there is not a right to not be offended. How do we distinguish between offence and hate speech?

Bennoune: This is a very challenging question, but I do want to start by re-emphasizing the point that there is not a human right not to be offended. We have to remember that the human intellectual tradition has advanced over centuries based on ideas being put forward that many people found offensive, for example, that the Earth is round. People have died defending ideas, which were deemed to be very offensive, and which have turned out to be true, or critically important to the advancement of our thinking.

There is not a human right not to be offended.

One of the roles that artists play is to push boundaries, challenge our thinking, and ask new and difficult questions. I have been very concerned about the number of artists who have been targeted during my time as Special Rapporteur, and since, for work deemed offensive by some, very often in the religious area. This is often associated with Muslim fundamentalist groups targeting high-profile figures like Salman Rushdie, but there are Rushdie equivalents all around the world. I think of a case I worked on involving a young singer in northern Nigeria who was charged and sentenced for blasphemy, simply for posting a song on Tik Tok — and he is himself a religious singer. Then there is the huge debate in the U.S. right now over school curricula, including campaigns to ban books, that some parents, predominantly rightwing conservative Christians, but also some others, deem to be offensive. It is a very widespread problem.

We need to be very clear about the importance of the right to ask difficult questions and to push boundaries – and also clear that this does not include the right to vilify [...].

My response to your question is that we need to be very clear about the importance of the right to ask difficult questions and to push boundaries – and also clear that this does not include the right to vilify and target specific groups of people. I think criticism of religion, of any religion, is perfectly appropriate and indeed important. I would cite on this issue the former Special Rapporteur on freedom of religion or belief, Ahmed Shaheed, who is himself a practicing Muslim from Maldives. He emphasized back in a 2021 report to the U.N. Human Rights Council that criticism of religious ideas, symbols, leaders, or practices should not be prohibited or criminally sanctioned. The current Special Rapporteur on freedom of expression, Irene Khan of Bangladesh, also recently emphasized that the right to freedom of expression does include expressions that some may regard as deeply offensive.

But we absolutely need to distinguish between that speech which may cause offence to some, and the direct targeting of a specific group of people based on their identity characteristics. This has come up again recently with the whole discussion about the artist formerly known as Kanye West and the anti-Semitic statements that he has made. What is different about that, to my mind, is that he has specifically targeted a particular group of people with hateful comments. And what makes it even worse is that he is targeting a group of people who have historically faced mass atrocities, as well as rising hate violence today.

You spoke in your keynote speech at the 2022 ICRRA conference about the growing interest in identities in the late 20th century and the opportunities, as well as potential dangers, of this development. Could you expand on that – and on how it relates, in your view, to International Cultural Relations today?

Bennoune: I want to try to be very careful in what I am saying here, because I think it is a very complicated issue. On the one hand, identity and respect for people’s diverse identities is a core part of cultural rights and especially important for those who have faced forced assimilation or marginalization. So, this development has been, in many respects, very positive. On the other hand, I think an overemphasis of a very narrow vision of identity and identity politics – without a real grounding in a concept of universality – also risks leading to more sectarianism, division, and discrimination.

In my first report to the U.N. Human Rights Council, I quoted the Senegalese philosopher, Souleymane Bachir Diagne, who warned that, in his view, democracy is threatened by the fragmentation that produces the retreat into micro-identities and the resurgence of ethnicism. I was also influenced by Elsa Stamatopoulou, a leading figure in cultural rights, who wrote some time ago that if we had convinced policymakers to "pursue the promotion and protection of cultural rights, we would have [...] gone a long way [...] towards creating [a situation in which we] would focus less on the identities that divide us and more on the many cultures we share and enjoy." 

I think that's the real challenge — to be able to adequately reference, within the human rights paradigm, both our differences and commonalities. I think we have to remember that we all belong to one of the most important identity groups, which is what the Universal Declaration of Human Rights calls “the human family.” We have to recognize the dynamic and important relationship between universality and cultural diversity.

In recent years, we’ve seen a significant upswing in ethnonationalist ideas and increasing emphases on monolithic national cultures. How can International Cultural Relations initiatives best challenge this kind of ideology, especially when those initiatives tend to operate within the framework of nation states or international organizations?

Bennoune: It is important that International Cultural Relations is not understood as the meeting of completely separate cultural monoliths that are different from each other but internally consistent. Every human culture is the product of cultural mixing, syncretism, blending, combining, merging of various cultural elements over time. These forms of cultural borrowing and cross-fertilization and hybridity of cultures are universal. I think about the words of the Palestinian cultural theorist Edward Said, who wrote that “all cultures are involved in one another; none is single and pure, all are hybrid, heterogeneous, extraordinarily differentiated, and unmonolithic”. I think always trying to portray that in work in the cultural sphere, including in the field of International Cultural Relations, is critically important.

Those ideas around hybridity and borrowing are very much at play in debates around cultural appropriation. How do you approach this issue?

Bennoune: It is such an important question. I would say that one of the things that I have stressed is that cultures do not always mix on a level playing field. There have been some awful contexts in which cultural borrowing has occurred in the past, including various forms of hegemony and colonialism, and that history needs to be surfaced, identified, and recognized.

In looking in more detail at claims about cultural appropriation, I would say that the critique is sometimes employed very legitimately to advance this work — to remind us of exploitation and accountability, and to advance cultural rights, including by defenders of the cultural rights of minorities and indigenous peoples, in particular where it concerns the commercial exploitation of their cultural achievements, the erasure of their cultural achievements, or the outright theft of those achievements. This is particularly important given the history of pillaging of artistic and cultural masterpieces from the Global South. Today, 90% of the material cultural heritage of sub-Saharan Africa is still preserved and housed outside of the African continent. I strongly support appropriate steps taken towards possible restitution or repatriation.

At the same time, I am concerned about the misuse of this concept of cultural appropriation to suggest that there are very simple, non-porous cultural borders. For example, there is this famous case of a young person in the United States who wore a Chinese qipao dress to her high-school prom and was vilified on social media for allegedly having engaged in cultural appropriation. Paradoxically, it was primarily social media users from China who came to her defense.

I think if we are telling young people that it is inherently offensive to wear the dress of other cultures, to engage in artistic borrowing and mixing and cultural exploration, then we are reifying ideas about homogenous cultural identity that are problematic. I think it is always important to be thoughtful and mindful, to give credit and recognize those who have made or created or contributed to the aspects of culture that you are seeking to enjoy and participate in, to use and display. But I would be sorry if we lost the chance for cultural experimentation and the right to enjoy and engage with the cultures of others in ways that are human rights-respecting.

You framed your keynote speech with the emergence of International Cultural Relations (ICR) since the 1980s. How is ICR distinct from traditional cultural diplomacy?

Bennoune: I think traditional cultural diplomacy was in some ways already a step forward, bringing the cultural dimension into transnational relations. But sometimes, in those classical approaches, culture was seen as a site of power, deployed by states for their own purposes. Today we often hear people referring to these kinds of cultural initiatives as examples of “soft power”.

[I urge that we systematically infuse ICR] approaches with insights from the field of human rights, including cultural rights.

These kinds of projects are very complicated. We see competing visions, competing interests, and approaches that were not committed to global equalities or rights, including cultural rights. Indeed, they sometimes operated through exploiting inequalities, consciously or unconsciously, and certainly through being silent about certain aspects of human rights that were seen as inconvenient.

Circling back now to growing accountability for cultural rights violations: you were an expert for the groundbreaking case at the ICC against Ahmad Al Faqi Al Mahdi concerning the destruction of cultural heritage in Mali. What was the significance of this case and conviction?

Bennoune: This case represents the first time that there has been a stand-alone prosecution for the international crime of destruction of cultural property. There have been other international cases where that has been one of a number of offenses, but this is the first time somebody has been prosecuted just for these offenses.

Mr. Al Mahdi was the head of the so-called “Hisbah”, or morality police, in the north of Mali when it was occupied by jihadist groups back in 2012. These occupiers carried out terrible abuses, among them sexual violence, the persecution of women, and the destruction of very important cultural sites, including mausoleums and a mosque.

I salute the vision of the former prosecutor of the International Criminal Court, the distinguished Gambian lawyer Fatou Bensouda, who understood just how important these cultural sites were to the local population and their human rights. As an expert for the ICC, I went to Mali and interviewed people about just how harmful the destructions were — to their local economy, religious beliefs and practices, their right to education and to learn their own history. I interviewed one young man whose father died in a peaceful protest trying to stop the destructions of these sites. The fact that people were willing to take such dangerous action during the jihadist occupation shows how seriously they took these destructions.

Mr. Al Mahdi confessed on video. He took responsibility for these acts. So, in some ways, this was a very easy case. He was found guilty and sentenced to nine years in prison. I think this was critically important for people in the region, but only if reparations were awarded, and I particularly was involved in the case at the reparations phase.

when people are already suffering gravely […] to then also lose their history, their cultural achievements […] it is incredibly devastating.

I was very disappointed that, at the time, some human rights groups criticized the ICC for prosecuting this case, saying there are other offenses in northern Mali that are more important. I want to be clear that I believe that violence against human beings is always worse, morally and in human rights terms. But violence against these cultural heritage sites also had a very grave impact on the human rights of human beings.

My great hope is that there will be other cases building on this precedent, looking at cultural heritage destruction in many other conflict situations, whether it’s in Ukraine, or some of the allegations that we’ve heard out of Ethiopia, or other recent conflicts. Because when people are already suffering gravely, when they are losing everything – homes, family members – to then also lose their history, their cultural achievements that have been built over centuries, it is incredibly devastating.

I think having accountability for these kinds of crimes, along with accountability for the other gross violations of human rights happening in those contexts, is a core part of achieving respect for universal human rights generally and cultural rights, in particular, as a part of that framework. So, I see the case as a very important precedent, and I hope it is just the beginning of a human rights-based cultural heritage jurisprudence.