The International Criminal Court Takes on Attacks on Cultural Heritage, But is it Enough?

By Timur Tusiray*

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ICC Press Release, Sept. 30, 2015.

On September 26, 2015 Nigerian authorities surrendered Ahmad Al Faqi Al Mahdi to the International Criminal Court (“ICC” or “the Court”) pursuant to an ICC arrest warrant issued September 15, 2015, charging him with war crimes in connection to the destruction of historic and religious monuments in Mali in 2012. This is the first major case brought by the Prosecutor of the ICC, Fatou Bensouda, since her appointment to this position in 2012, and the first case brought before the ICC to focus solely on the destruction of cultural heritage as a war crime. The warrant and subsequent arrest come as positive developments in the world of cultural heritage protections. However, this case is not likely to be the “gamechanger” some may expect it to be in the future prosecution of the world’s worst cultural property offenders.

Background

The warrant alleges that Al Faqi was a brigade commander in Ansar Dine, a fundamentalist Islamist militant group with ties to al-Qaeda. The warrant also alleges that over a 10-day period in 2012 Al Faqi committed the war crime of intentionally directing attacks against buildings dedicated to religious and historical monuments. Specifically, that he was involved in the destruction of the Sidi Yahia mosque and nine mausoleums in Timbuktu. This case is the first charge resulting from Bensouda’s three year investigation into the conflict in Mali, resulting from Mali’s self referral to the Court on July 13, 2012.

However, this is not the first prosecution of cultural destruction as an international crime. In most recent times, the International Criminal Tribunal of Yugoslavia (“ICTY”) has been one of the primary contemporary international courts to have addressed charges connected to the destruction of religious and historic structures. For example, the ICTY Tadiç case was the first that found the prohibition on attacking cultural property also applied to non-international armed conflicts, while cases like Kardić & Čerkez and Jokiç have further fleshed out individual liability for cultural and religious destruction.

Timing of the Arrest

There has already been criticism of Al Faqi’s arrest, claiming that it targets a mid-level perpetrator rather than the actual leaders of these different armed groups, and more specifically, that the arrest focuses on the crime of cultural heritage destruction over other more serious allegations of murder, torture, and rape occurring during the same period of time in Mali.

Harvard law professor Alex Whiting’s recent article on JustSecurity.org, makes a persuasive case as to the likely reasons for this specific arrest. First, the destruction of cultural heritage is not only a serious crime itself, but is oftentimes linked to some of the gravest crimes perpetrated during times of armed conflict. For example, as cited by Whiting, in the ICTY Krstić Case, the Trial Chamber discussed the connection between genocide and the destruction of culture stating, “The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.” (Krstić, para. 580)

Second, this arrest may be indicative of the limitations inherent in the ICC. With the lack of funding to prosecute every alleged perpetrator, the Court must be strategic in its prosecutions. Furthermore, the jurisdictional limitations of the Court makes them reliant on the cooperation of other nations to deliver suspects for trial. In this case, after three years of investigations, this opportunity to prosecute Al Faqi may have been the best and strongest case presented to the ICC thus far, and one they could not justify refusing.

Finally, this arrest brings to the forefront of the public conscious the destruction of cultural and religious structures during armed conflict as an international crime. This is particularly relevant as the global community has become increasingly concerned and involved in preventing the loss of heritage over the past several decades. While this type of destruction is as old as humanity, over the past several years the call for action has reached a critical mass in lieu of the loss of heritage tied to the invasions of Afghanistan and Iraq, and with the current rise of ISIS and their highly publicized destruction of historic and religious sites and objects under their control.

Application to Contemporary Cultural Heritage Destruction

The case against Al Faqi likely is not the turning point against the contemporary loss of cultural heritage that some may expect it to be. The arrest warrant alleges only the war crime of attacks on cultural heritage, and does not touch upon certain crimes against humanity, such as persecution, which are oftentimes tied to heritage destruction. Furthermore, beyond the issue of the ICC’s limited funding and capacity to robustly prosecute the world’s international crimes, two immediate issues present themselves as roadblocks to the Court’s ability to tackle the loss of heritage as a war crime: (1) personal jurisdiction of the Court; and (2) the subject matter jurisdiction of the Court on war crimes, and its narrow definition of the crime of intentionally attacking protected structures (i.e. religious, historic, medical).

These difficulties can be better highlighted by using Syria as a case study. Over the last year alone ISIS has been on a relentless campaign to destroy historic and religious sites and artifacts across Syria and Iraq. In September of 2015 alone, they destroyed Roman temples in Palmyra, Syria, and they continue to be engaged in the highly industrial looting and international sale of artifacts connected to these sites. Furthermore, ISIS is not the only party active in this field, with Syrian government forces, other militia groups, as well as intervention by foreign militaries (Saudi Arabia, Turkey, the U.S. and Russia) adding to this destruction. Additionally, many of these actors in the Syrian conflict are not parties to the Rome Statute, and therefore are not subject to the jurisdiction of the Court. Among them include Syria, as well as Saudi Arabia, Turkey, the U.S. and Russia. The Rome Statute is the founding treaty of the ICC, which obligates States Parties’ to the treaty to cooperate with the Court’s activities. The ICC would, and indeed has had, significant issues with getting jurisdiction over perpetrators of international crimes in Syria. Even with personal jurisdiction, the Court may not be able to prosecute these perpetrators for war crimes based on the basic definitions of cultural crimes in the Court’s statute as discussed below.

ICC Personal Jurisdiction

Personal jurisdiction is the power of the Court to try specific individuals. Under the ICC Statute, there are three methods in which the ICC has jurisdiction over nationals of non-parties to the ICC Statute.

  1. The ICC may prosecute non-party nationals when the situation is referred to them by the UN Security Council.
  2. Non-party nationals may be prosecuted when they have committed crimes on the territory of a State Party, or of a non-State Party who has accepted the jurisdiction of the Court.
  3. The non-State Party has explicitly consented to the jurisdiction of the Court.

Last year, the UN Security Council already tried to pass a resolution to refer Syria to the ICC, but was vetoed by both Russia and China. With Russia’s recent interventions in Syria and their UN Security Council veto power, UN referral seems less and less likely. Furthermore, the foreign countries most involved in the conflict are also not parties to the Rome Statute, and have not submitted to the jurisdiction of the Court. At this point in time, the ICC could presumably prosecute nationals of State Parties fighting for the various forces on the ground in Syria (e.g. French or British ISIS fighters), but this would likely not encompass the worst of the perpetrators of these alleged international crimes. Finally, the Assad regime will never explicitly consent to the personal jurisdiction of the Court, as it would expose the leaders in the regime to liability for their well-documented crimes committed during this conflict.

ICC Subject Matter Jurisdiction on Cultural Heritage War Crimes

Even with personal jurisdiction, the subject matter jurisdiction of the ICC on war crimes likely limits the Court’s ability to prosecute the equally serious looting of these sites. Subject matter jurisdiction limits the Court’s ability to hear cases to specific international crimes. Details on the specific crimes that the ICC has the power to hear and try can be found in the Rome Statute.

Al Faqi is only being charged for the war crime offence of attacking protected sites during armed conflict. The specific article detailing this offence incorporates very generic rules, the language of which reflects the Hague Regulations of 1907, which lists specific protected properties. The article reads as:

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.

This crime would likely not apply to the widespread looting and sale of “moveable” artifacts, of which has been extremely well recorded as perpetrated by ISIS, Assad’s forces, and other rebel groups in Syria and elsewhere, because it only applies to “immovable” protected structures.

However, the Rome Statute’s war crimes section does allow for the crime of seizure or appropriation of property under Article 8(2)(a)(iv) and 8(2)(b)(xiii), as well as the offence of pillaging (Article 8(2)(b)(xvi) and 8(2)(e)(v)). That being said, only the crime of pillage could likely be used to charge acts against “moveable” property, because again the first two provisions on seizure are usually interpreted as referring to “immoveable” property.

Pillage is considered to have occurred when public or private property has been unlawfully stolen or acquired. In the context of ISIS and various rebel groups, this war crime would be the best approach to prosecute their looting and sale of objects. However, prosecuting equally as culpable members of Assad’s regime may prove more difficult, as prosecutors would have to prove that the regime unlawfully stole property owned by the regime itself. The complexities abound.

As a final note, this section only considers the complexities of charging war crimes against these alleged perpetrators. The ICC also has the option of trying the destruction and sale of cultural heritage as part of a crime against humanity, such as persecution, or even use it to prove the crime of genocide. Even so, the issues surrounding personal jurisdiction would still apply.

Conclusion

While the arrest and prosecution of Ahmad Al Faqi Al Mahdi is welcome news for those working to protect our global cultural heritage, the ICC is currently limited as a tool to prosecute some of the worst perpetrators of cultural heritage destruction in our world today. However, the Al Faqi case does allow the Court to interpret their jurisdictional mandates specifically on this topic, but only time will tell as to its true future impact.

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*About the Author: Timur Tusiray is a recent graduate of USC Gould School of Law, specializing in art and cultural heritage laws, human rights, and IP laws. He is currently an Orfalea-Brittingham Fellow at the Clinton Foundation. He may be reached at timurtusiray@gmail.com, or on twitter @TimurTusiray

Disclaimer: This article is being produced in the author’s individual capacity and does not reflect the views of his employer. This article is intended as general information, not legal advice, and is no substitute for seeking representation.

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