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

by Matt Brown

[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 30th June and 10th 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.

http://opiniojuris.org/2015/09/30/guest-post-promising-development-in-protecting-cultural-heritage-at-the-icc/

7 Responses

  1. Thanks for an interesting post . I haven’t read yet the arrest warrant , yet , worth to note , that in a post read yesterday (” just security ” , see link at the foot ) it is mentioned there that :

    The prosecutor and the court , had another discretion , beyond cultural issue , and it is that the perpetrator , demonstrated clearly , publicly , his despise to those cultural sites , to the law , to believers anyway , by :

    Taking or filming them self ( see link ) and daring to preach publicly their justification for that destruction , and in the words well phrased by the author of the post :

    ” rendering their acts particularly notorious” .

    So , worth to check further for that discretion , I am about to read the warrant , and check further .

    Links :

    Video :

    https://www.youtube.com/watch?v=J0gss0mdZUg&list=PLr2oPGORHOEgB6wLqmxBOwaS_w8GNfqzd&index=16

    The post ( just security ) :

    https://www.justsecurity.org/26453/mali-icc-attacks-cultural-heritage/

    Thanks

  2. Hi,

    Thanks for commenting on the post. Alex raises some good points in his piece and it is definitely encouraging to see the ICC putting ‘the war crime of attacking religious and historical sites front and center as an international crime.

    The video you post also raises interesting points about the clear intent on behalf of the suspect and what this might mean for his defence. As well as whether this was a carefully targeted prosecution.

    The old quote of ‘where they burn books, they will in the end also burn people” also links in with the importance of prosecuting this mode of crime, even if it may appear initially to lack the gravity of the Court’s previous endeavours.

  3. Thank you for this prompt reaction to the news concerning the arrest and transfer of Ahmad Al Faqi Al Mahdi to the ICC in relation to war crimes against cultural heritage.

    The proceedings are indeed a development in the field as this is the first time in the history of international criminal law that a case revolves mainly around this sort of charges.

    While I agree with the comment that the definition of the war crime against cultural property in the ICC Statute may raise the issue of being outdated, I disagree with the view that the roots of Article 8(2)(e)(iv) of the Rome Statute are in the 1954 Hague Convention for the Protection of Cultural Property. The wording of such article is taken (almost verbatim) from the 1907 IV Hague Regulations on the Laws and Customs of War on Land (arts. 27 and 56). These Regulations were already considered outdated by the end of WWII and that is one the reasons why 1954 Hague Convention came into being in the first place. Also, it remains to see how this case is going to deal with the fact that Timbuktu is a listed world heritage site when Article 8(2)(e)(iv) of the Rome Statute does not require any threshold of relevance. This is an issue that the ICTY had to look at in the cases concerning the Old Town of Dubrovnik, one of them being the one mentioned in the post (Strugar).

  4. Hi Marina,

    Thanks for reading and commenting on the post.

    I will certainly look into the 1907 provisions you state and take this on board. If you have any further recommend literature on the provision, I’d be happy to read it.

    Perhaps, what I was seeking to capture was not a strict textual source for Article 8 (2) (e) (iv), but to highlight a starting point of where our problematic understanding of cultural heritage can be seen. The 1907 Regulations could well have served as a better example of this point. However, I hope that it did chart the issue that despite 60 years or development in CHL, we are still faced with many issues in defining what cultural heritage is and that hierarchies and discrepancies exist between forms of conflict and notably outside of conflict.

    Second, you raise an interesting point there and it will be one to follow. I’ll also take a look back over Strugar to see this discussion, if you happen to have a pinpoint ref. that would be great. But otherwise not to worry.

    I hope that answers, any further comments welcome!

  5. Marina and Matt :

    Interesting discussion , just let me offer you , certain interpretation I find suitable and relevant :

    It’s hard to believe that list of sites of heritage formally defined so , has of course any prevailing or exclusive force . It is rather question of evidence , or proof , or prima facie of some sort . If a cultural site ,is not listed ,and not defined by the judges , as such , thanks to common knowledge , then :

    An expert testimony is needed, for corroboration of it.

    However , the human being , must be at the center of discretion ,and not the site itself of course ( as part of list for example ) .Not only , humanitarian thinking must comply with it , but let’s have a look at article 8(2) (b) (ix) to the Rome statute :

    ” 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; ”

    We can observe quickly that: ” charitable purposes ” are identified as such among building prohibited for military targeting and attack. So , one may argue , that surly , the human purpose , is the issue , and not only cultural heritage . .

    So , human , subjective , collective , those are the tests , but :

    Not individual religion , for , individual religion , private one , can’t be recognized of course , only formal one , in national terms .

    P.S. : once shall consist of formal list ( heritage ) then ,you put rather objective criteria , not putting the human being at center , or the universal purpose of culture and religion , then : That is what the IS themselves are doing , destroying such sites , in the name of : Subjective – Objective perception of the world ( not to compare of course , but essentially , ideologically ) .

    Thanks

  6. Just a brief demonstration , why a religion , can’t be private one :

    The Israeli penal code ( 1977 ,derives from common law ) dictates so :

    ” 144C( permissible publication )

    b) Publication of quotes from religious scriptures or prayer books or
    the observance of a religious ritual shall not be deemed an
    offense under section 144B, on condition that it was not intended
    to cause racism.”

    So, The legislator, won’t consider as an offense (article 144 B:” Publication of racist incitement is prohibited “) the publication consist of quotes from religious scriptures. But , such book will have to be cognizable as collective one , if private , ad hoc ,arbitrary , individual , surly shall be considered then , as incitement !!

    Thanks

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