ICC prosecution targets destruction of ancient religious sites

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The International Criminal Court (ICC) recently launched a unique prosecution for destruction of historical artifacts.[1] In one sense, it is the first of its kind, representing uncharted territory for an organization that has used its resources mainly to target the most heinous of war crimes, such as genocide or the use of child soldiers.[2] The case comes at a significant time[3], as ISIS has consistently been in the news for the past year for either destroying or selling priceless historical artifacts in the Middle Eastern areas it has occupied.[4]

The man on trial is Ahmad al-Faqi al-Mahdi, a leader of Ansar Dine, a Qaeda-affiliated organization in Mali.[5] He allegedly planned and helped oversee the bulldozing of nine tombs and a mosque at a U.N. World Heritage Site that had been actively preserved since the Middle Ages.[6] Mali requested help from the ICC in prosecuting those responsible.[7] The trial is scheduled to begin in January 2016.[8]

Of all the war crimes that extremist Islamist groups have committed, the destruction of historical artifacts may seem an odd target for the ICC’s limited resources.[9] It is likely that the ICC is trying not only to protect these historical sites, but also to protect attacked nations' cultural identities. Since the 18th century, Islamist groups have carried out "cultural cleansing" when invading new territories.[10] The Islamic State’s recent destruction of the ancient city of Hatra was "a direct attack against the history of Islamic Arab cities [that] confirms the role of destruction of heritage in the propaganda of extremists groups."[11] Perhaps the best-known instance in modern history, at least before Timbuktu, was the Taliban’s destruction of two gigantic, pre-Islamic Buddhas in central Afghanistan in March 2001.[12]

Destruction of cultural property was once considered a legitimate aspect of war, at least until the Renaissance.[13] Under the Rome Statute, which created the ICC, the definition of war crimes includes "[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments . . . provided they are not military objectives."[14] These terms are taken almost exactly from other conventions on the law of war, such as the 1907 Hague Convention and 1949 Geneva Convention.[15] The Nuremburg Trials included the first international enforcement of any protection of cultural property.[16] The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its 1999 Second Protocol expanded the scope of protection of cultural property.[17] However, most scholars agree that the protection of cultural property is not yet customary international law; that is, it has not become such an "established state practice" that it can apply to any countries the way a formal, written treaty can apply to a signatory country.[18] This is significant because most of ISIS's destruction has taken place in Syria and Iraq, neither of which is a signatory to the Rome Statute, and therefore the ICC does not have jurisdiction over them, unless either country requests help from the ICC, like Mali did, or unless the United Nations Security Council refers the situation to the ICC.[19]

There is criticism that the Rome Statute does not do enough to protect cultural property.[20] An exception to its protection allows attacks on cultural property for "military necessity."[21] Also, the Statute affords cultural property the same level of protection as civilian property with specialized purposes, such as hospitals and churches; scholars argue that cultural property should have heightened protections that are constant.[22] One such scholar argues, "[c]ultural property, on the other hand, should be protected regardless of transient factors such as the presence of people within its borders or their need for a particular service."[23] In addition, the main provision of the Statute only protects buildings, and arguably not what is within them.[24] Other provisions prohibiting attacks on civilian objects that are not military objectives may be used to this end, but they give historical artifacts no more protection than any other civilian object.[25]

Hopefully, the case against al-Mahdi is ICC’s first step toward giving teeth to these provisions. Such attacks “affect humanity as a whole. We must stand up to the destruction and defacing of our common heritage."[26]

[1] Impunity for war crimes against cultural heritage must stop, U.N. Educational, Scientific and Cultural Organization (Sept. 26, 2015), http://whc.unesco.org/en/news/1361 [http://perma.cc/YE2Z-RBHA] (“This is the first such case and it breaks new ground for the protection of humanity's shared cultural heritage and values.”) ; see also Radina Gigova & Ben Brumfield, A First: Man Faces War Crimes Charges for Destroying Timbuktu Monuments, CNN (Sept. 28, 2015, 2:02 AM), http://www.cnn.com/2015/09/28/europe/war-crime-vandals-timbuktu-icc [http://perma.cc/E5T8-QMRM].

[2] See Alex Whiting, The First Case for the ICC Prosecutor: Attacks on Cultural Heritage,Just Security (Sept. 29, 2015, 9:24 AM), https://www.justsecurity.org/26453/mali-icc-attacks-cultural-heritage [https://perma.cc/838U-RYCY].

[3] See id.

[4] See Zack Beauchamp, Why ISIS is Destroying Syrian and Iraqi Heritage Sites, Vox (Aug. 19, 2015), http://www.vox.com/2015/3/11/8184207/islamist-monuments; see alsoJethro Mullen, Yousuf Basil & Schams Elwazer, ISIS Reported to Have Blown Up Ancient Temple in Palmyra, CNN (Aug. 24, 2015, 9:50 PM), http://www.cnn.com/2015/08/24/middleeast/syria-isis-palmyra-ruins-temple [http://perma.cc/TM3W-NUVH] (reporting that ISIS blew up a 2,000-year-old temple in Palymyra, Syria); see also Jaime Fuller, ‘ISIS’ vs. ‘ISIL’ vs. ‘Islamic State’: The Political Importance of a Much-debated Acronym, Wash. Post (Jan. 20, 2015), https://www.washingtonpost.com/news/the-fix/wp/2015/01/20/isis-vs-isil-vs-islamic-state-the-political-importance-of-a-much-debated-acronym-2 [https://perma.cc/5XDU-Q86L?type=source] (explaining use of acronyms “ISIS” (“Islamic State of Iraq and Syria”) and “ISIL” (“Islamic State of Iraq and Syria”).

[5] See Whiting, supra note 2. Al-Mahdi is also known as “Abou Tourab”. Gigova & Brumfield, supra note 1.

[6] Drew Hinshaw, Islamist Faces Trial for Destruction of World Heritage Monuments in Timbuktu, Wall St. J. (Sept. 30, 2015, 2:59 PM), http://www.wsj.com/articles/islamist-stands-trial-for-destruction-of-world-heritage-monuments-1443625012.

[7] Marlise Simons, Global Court Takes Up Case of Cultural Crimes in Mali, N.Y. Times (Sept. 30, 2015), http://www.nytimes.com/2015/10/01/world/africa/global-court-takes-up-case-of-cultural-crimes-in-mali.html.

[8] David Smith, Alleged Militant Appears at The Hague Charged with Cultural Destruction in Mali, Guardian (Sept. 30, 2015, 11:29 PM), http://www.theguardian.com/law/2015/sep/30/ahmad-al-faqi-al-mahdi-the-hague-international-criminal-court-mali-timbuktu [http://perma.cc/J3G3-PXJX].

[9] See Whiting, supra note 2 (arguing that, because the ICC has only the resources to prosecute a few cases, it chooses its cases strategically, often focusing on a particular type of crime to draw attention to it).

[10] Press Release, U.N. Educational, Scientific and Cultural Organization (July 3, 2015) (quoting joint statement of Irina Bokova, Director-General of UNESCO, and Abdulaziz Othman Altwaijri, Director-General of the U.N. Islamic Educational, Scientific, and Cultural Organization (Morocco), available at http://www.unesco.org/new/en/unesco/about-us/who-we-are/director-general/singleview-dg/news/destruction_of_hatra_marks_a_turning_point_in_the_cultural_cleansing_underway_in_iraq_say_heads_of_unesco_and_isesco [http://perma.cc/RQQ4-6N88].

[11] See Beauchamp, supra note 4.

[12] Steven Davy, They were destroyed by the Taliban. But now the giant Buddha statues of Bamiyan have returned with 3-D light projection, Pub. Radio Int’l, June 11, 2015, http://www.pri.org/stories/2015-06-11/they-were-destroyed-taliban-now-giant-buddha-statues-bamiyan-have-returned-3-d [http://perma.cc/XR6U-X42D].

[13] See Yaron Gottlieb, Criminalizing Destruction of Cultural Property: A Proposal for Defining New Crimes under the Rome Statute of the ICC, 23 Penn St. Int'l L. Rev. 857, 859 (2005).

[14] The Rome Statute of the International Criminal Court, art. 8(2)(b)(ix), July 17, 1998, 2187 U.N.T.S. 38544 (entered into force July 1, 2002) [hereinafter “Rome Statute”], available at http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf [https://perma.cc/9F49-QPQW]. At least two other provisions could also be construed to protect cultural property; see Rome Statute art. 8(2)(a)(iv) & art. 8(2)(b)(ii).

[15] Gottlieb, supra note 13, at 865.

[16] See id. at 860.

[17] See id. at 869.

[18] See id. at 869; see also Cornell University Wex Legal Definition, "customary international law," https://www.law.cornell.edu/wex/customary_international_law [https://perma.cc/3S55-JASQ] (defining customary international law).

[19] See State Parties to the Rome Statute, ICC, http://www.icc-cpi.int/en_menus/asp/states%20parties/asian%20states/Pages/asian%20states.aspx [https://perma.cc/X7L8-J75D]; see also Rome Statute, arts. 12–13 (setting out the geographical jurisdiction of the ICC).

[20] See generally Gottlieb, supra note 13 (arguing that Rome statute is insufficient to fully protect cultural property because cultural property is afforded no more protection than other civilian property).

[21] See Rome Statute art. 8(2)(a)(iv) & art. 8(2)(b)(xiii).

[22] See Gottlieb, supra note 13, at 865.

[23] See id. at 865–66.

[24] See Rome Statute art. 8(2)(a)(iv) & art. 8(2)(b)(ii).

[25] See Gottlieb, supra note 13, at 865 (asserting that this flaw stems from Rome Statute’s primary purpose of drawing distinction between civilian objects and military objectives in order to protect civilians in war).

[26] Gigova & Brumfield, supra note 1 (quoting Fatou Bensouda, ICC Chief Prosecutor).

Posted by Kathryn J. Hesman on Tue. October 13, 2015 2:01 PM
Categories: Africa, Insurgency, International Criminal Court, Iraq, Islamic State, Syria, Terrorism, UNESCO, United Nations

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