Prosecuting Cultural Property Crimes in Iraq

By Ralby, Ian M. | Georgetown Journal of International Law, Fall 2005 | Go to article overview

Prosecuting Cultural Property Crimes in Iraq


Ralby, Ian M., Georgetown Journal of International Law


TABLE OF CONTENTS

INTRODUCTION
I.   CRIMES OF THE HUSSEIN REGIME
     A. Foundation of the Regime
     B. Violations of International Law Under the Baath Regime
II.  THE CREATION Or THE IST
     A. The IST as Part of the Growing Tradition of International
        Criminal Justice
     B. Crimes Outside the IST's Jurisdiction
        1. Foreign Culpability
        2. Iraqi Non-Baathist Culpability
     C. Absence of Cultural Property from the IST Statute
III. CULTURAL PROPERTY CRIMES IN THE ICTY, ICTR, SCSL, AND
     OTHER TRIBUNALS
     A. The ICTY, ICTR, and SCSL Statutes
     B. Cultural Property in Other Tribunals
     CONCLUSION 8c RECOMMENDATIONS

INTRODUCTION

On December 10, 2003, the Statute for the Iraqi Special Tribunal (IST) was signed into law, establishing a court that in the coming months and years will try former Iraqi President Saddam Hussein and his top lieutenants for crimes committed by the Baath Party regime between July 17, 1968 and May 1, 2003. (1) The crimes for which the defendants will be indicted fall into three main categories: war crimes, crimes against humanity, and genocide. Nowhere in the IST Statute, however, is there a provision that specifically indicates whether defendants may also be charged for cultural property crimes. (2) It is well documented that the Baathist government violated international conventions geared toward the protection of cultural heritage, (3) yet there is no guarantee, or even indication, that the IST defendants will be charged with such violations.

While the IST Statute contains a number of different provisions that could be used indirectly to hold defendants criminally liable for cultural property crimes, this Note argues that such violations of both customary international law and international treaty law should be treated with greater seriousness. It therefore recommends that the new Iraqi government demonstrate its commitment to the rule of law by amending article 12 of the Iraqi Special Tribunal Statute to include a provision that expressly criminalizes violations of international cultural property law. It further recommends that future international tribunals follow the Iraqi government's lead.

As the world community becomes more competent at policing gross human rights violations, the emotional and psychological impact of international lawlessness needs to be addressed with greater focus. Cultural property crimes are being taken more seriously in international conventions, yet the symbolic importance of those crimes is underestimated in post-conflict judicial proceedings. In countries that have experienced the collapse of a government--whether by popular revolt, internal conflict, or external force--healing the wounds from the collapse, and building a sense of trust and unified identity are often crucial to success in the transition to stability. Physical objects and intangible factors--language and religious ceremonies, for example--that symbolize cultural heritage are often icons around which people may rally in asserting their identity. Such instances of governmental, societal, and economic collapse frequently coincide with the most egregious cultural property violations. Punishing cultural property offenders, therefore, is a necessary component of post-conflict reconstruction as it helps establish recognition for the legitimacy and sanctity of cultural identity, which in turn can aid in re-establishing a stable society.

Since the fall of the Soviet Union in the early 1990s, the primary focus of U.S. foreign policy has been the Middle East. While the Israeli-Palestinian conflict continues to be a major destabilizing force, no country has received more attention than Iraq, and no leader has been more vilified than Saddam Hussein. Placed in power by the United States and made rich by extensive oil reserves, Hussein's Baath Party controlled Iraq from 1968 to 2003. That rule was characterized by suppression of the religious majority, various instances of attempted genocide against ethnic minorities, acts of international aggression, and numerous other violations of human rights and international law. …

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