Written by: Regina Paulose

“Wars, confrontations and conflicts in general, between two or more opposing factions, have always represented a serious threat to the integrity of the cultural heritage located in their territories. Unfortunately, this threat most often materializes in the form of the destruction of significant amounts of cultural property (movable and immovable): monuments, religious sites, museums, libraries, archives, etc. Humanity is thus deprived of a shared and irreplaceable cultural heritage.”[1] 

Cultural property[2] has unfortunately played a part in conflict throughout history. Some notable examples include the 2001 destruction of the Bamiyan Buddha statutes[3] by the Taliban, which dated back to the pre-Islamic era of Afghanistan. The Taliban, despite international pleas to stop their atrocious behavior, stated that while they were part of the cultural heritage of Afghanistan they contradicted Islamic beliefs.[4]  The recent summer months have proven that the violence in the ongoing conflict in Syria has taken a heavy toll on the ancient cities of Aleppo[5] and Damascus.[6]  While these situations are different in terms of the conflict classification analysis involved (Syria is still considerably under debate), the situations are similar with regard to the destruction of cultural property.  Is cultural property protected under international law? Yes. There seems to be multiple conventions that discuss the protection of cultural property (both moveable and immoveable).

 “The protection of cultural property is governed by several legal instruments. In each conflict one has to see which of the instruments have been ratified to determine the level of protection cultural property should be afforded. The 1907 Hague Regulations have become part of customary law and are binding on all states. The provisions relating to cultural property, namely, Articles 23(g) and 56 are therefore applicable to all states in an international armed conflict.”[7]

Beyond the 1907 Convention there was the Hague Convention in 1954 and then the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in Armed Conflict 1999^[8] (“Second Protocol”). The Second Protocol was adopted in response to the gaps contained within the 1954 Convention. The main crux of the Hague Conventions is to prevent the destruction of cultural property and artifacts during war, including eliminating the use of cultural property as a weapon of war.[9] Beyond the treatment of cultural property in war, the Second Protocol states that Prosecution is warranted when there is a violation of the conventions. Beyond these specific conventions, crimes relating to cultural property can also be found in the ICC Rome Statute (“Statute”).

Within the Rome Statute, under war crimes provisions, crimes relating to cultural property are housed. Article 8(b)(ix), finds a “serious violation” of the Statute if the “perpetrator intentionally directs 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.” Further, under Article 8(e)(iv), a “serious violation” of the Statute occurs if “the perpetrator intentionally directs 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.” The interpretation of these elements is found in the Elements of Crimes (“Elements”). Unfortunately, the Elements do not expound further on what is already written in Article 8 (b) and (e) of the Rome Statute.  This may be because during the Rome Statute proceedings, the delegates felt that the rules regarding cultural property had been “authoritatively” restated in the Rome Statute.[10]

Some scholars argue that there is a need for an alignment between the Statute and the cultural conventions described above.[11]  This may be a premature assessment considering there are no formal cases filed in the ICC that shows how the Chamber, the OTP, or Defense teams will handle this particular issue or how the Statute will be interpreted.  In addition, a brief examination of these treaties seems to suggest that they complement each other.

Keeping in mind the purpose of the Rome Statute is to hold perpetrators of grave crimes under international law criminally responsible; the drafters of the Statute included broad language within the language of Articles 8(b) and (e). Specifically, buildings dedicated to religion, education, art, science or charitable purposes, historic monuments…appears for almost any kind of cultural property dedicated to any one (or more) of these causes which is intentionally destroyed during conflict to be prosecutable.

The ICC Prosecutor, who is still conducting a preliminary investigation of the situation in Mali, filed a 53(1) report in January of 2013. In the report she alleges that Ansar Dine intentionally directed attacks against several UNESCO World Heritage sites in Mali.[12] This case is unique (perhaps safe to assume a case of first impression) with regards to how the Chamber will interpret cultural property protections and how much evidence the OTP will have to provide in order to prove the elements of the crime. This is differentiated from the Katanga (awaiting verdict) and Chui case (acquitted on all counts), who were also charged under Article 8(b), but the cases focused on the destruction of civilian property (the burning and rampant destruction of civilian homes and religious structures).

Assuming the worst case scenario that the Rome Statute needs more gusto to its cultural property protections, the specifics found in the Hague Conventions and other customary international norms can be used by the Chamber as provided in Article 21 of the Statute (which would be apropos after looking at the Statute, the Elements, then treaties including established international principles). Further, the Chamber must construe the law as consistent with international law under Article 21.

It should be emphasized that the Hague Convention, in particular the Second Protocol, promotes state vigilance on the issue of protecting cultural property.  Given the fact that most states are keen on protecting their sovereignty this is an appropriate delegation of responsibilities. Under the Second Protocol, states are to undertake strengthening domestic legal regimes to “provide appropriate legislation to make these violations criminal offences under domestic law, to provide appropriate penalties and to establish jurisdiction over these offences, including universal jurisdiction” for the offenses.[13]

Finally, it is important to stress that international law holds the state and its actors accountable for cultural property protection during times of peace and war. While the international community can create 100 more treaties regarding the issue, the law is hollow without enforcement and acceptance among world leaders and those who have the ability to truly enforce these laws during conflict. The ICC is only one legal avenue of redress after war. The ICC should be a tool that compliments national legal systems, especially with regards to cultural property/heritage. In compliance with the Second Protocol, these kinds of cases should find safe harbor within national criminal systems.  As cultural heritage begins to expand beyond land and into the sea,[14] it is time to recognize everyone’s responsibility in preserving humanity’s unique past.