Guest Post: Promising Development in Protecting Cultural Heritage at the ICC

[Matt Brown is a current LLM student at Leiden University, studying Public International Law, with a specific interest in international criminal law, transitional justice and cultural heritage law. He tweets about these and other topics @_mattbrown.]

The International Criminal Court concerns itself with the ‘most serious crimes of concern to the international community.’ Often we understand this term to reflect examples such as the atrocities currently taking place in Syria, where the specific target is human and impact is measured by death toll. Last weekend’s surrender of Mr Ahmad Al Mahdi Al Faqi to the ICC however, challenges us to rethink our conception of war crimes to include the broader, but often forgotten concept of cultural destruction. It also serves as a positive example of domestic cooperation with the Court as it was Niger who transferred Mr Al Faqi to the Court.

Mr Al Faqi is suspected under Article 8 (2) (e) (iv) ‘of committing war crimes in Timbuktu between 30^th June and 10^th July 2012, through ‘intentionally directing attacks against buildings dedicated to religion and or historical monuments’. Specifically, the charges relate to the destruction of nine mausoleums and the Sidi Yahia mosque in Timbuktu and form part of the Court’s three-year interest in Mali, originating from Mali’s self-referral in 2012. To this day, UNESCO is working with other international actors and local groups to rebuild the mausoleums.

This case, although a first for the ICC, builds upon a body of law developed by the ICTY. This includes the Pavle Strugar case, where Strugar was found guilty on the basis of superior criminal responsibility for the ‘destruction of institutions dedicated to, inter alia, religion, and the arts and sciences’. International Criminal Law’s approach to cultural heritage has several drawbacks, but chiefly it suffers from a fragmentation and hierarchical approach between instances of international armed conflict, non-international armed conflict and internal disturbances. The decision therefore of the ICC to prosecute ‘cultural crimes’ could help to consolidate the principles of cultural heritage law and bring greater consistency to the protections afforded between the different forms of conflict.

It also promises to resolve a second issue, namely that the enforcement of cultural heritage protection and subsequent prosecution is too often lacking. With the destruction that ISIS continues to cause in Palmyra, it offers a promising hint that if the jurisdictional issues that currently prevent prosecuting senior ISIS leaders can be overcome, the prosecution of cultural damage will be on the agenda.

Important questions remain however about the Court’s interpretation of the regrettably narrow Article 8 provision within the Rome Statute­­, which reflects the traditional and outdated interpretation of culture as constituting solely of tangible objects. This approach finds its roots in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, which refers in Article 1 (a) to ‘movable or immovable property of great importance to the cultural heritage of every people’. This conception of culture based on the tangible nature of buildings, libraries, churches and historical sites is furthered in the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage that refers in Article 1 to monuments and architectural works of outstanding universal value. Reflecting a definition of cultural heritage heavily influenced by Western thought, steeped in the value of archeological, literary and scientific importance.

Even with the entry into force of the Convention for the Safeguarding of the Intangible Cultural Heritage, the charges reflect both a promising intention to bring the perpetrators of cultural destruction to justice, but equally illustrate the constructed nature of culture, which overlooks the intangible aspect of cultural heritage that cannot be rebuilt with simple bricks and mortar. This case will be interesting for a variety of reasons, but we can hope that it offers an opportunity to build on the Prosecutor’s acknowledgment that the charges reflect the ‘callous assault on the dignity and identity of entire populations and their religious and historic roots.’

We should consider this an important breakthrough in strengthening both the enforcement of cultural heritage law and the ICC itself. In dealing with a definition that is slowly emerging from decades of Western bias, this case offers the victims of cultural heritage destruction the chance to be heard and to push for greater recognition of the impact is has upon them as people(s). The ICC therefore has a golden opportunity to improve its reputation in Africa by listening to victims and demonstrating that international law is responsive to the voices and concerns of third-world approaches and can evolve to take account of these. The domestic co-operation between Mali, Niger and the Court to bring Mr Al Faqi to The Hague also offers great hope that the Court can work effectively with African State Parties, despite the recent problems it faced in South Africa.

This news is an exciting development in efforts to enhance protection of cultural heritage and bring the perpetrators of cultural attacks to justice. At the same time however, it throws up many more questions about the broader definition of ‘culture’, victim participation in cultural matters, and whether this could give the Court a unique opportunity to tackle an issue of growing importance in international law.