The Icc's Role in Combatting the Destruction of Cultural Heritage

By Ellis, Mark S. | Case Western Reserve Journal of International Law, Spring 2017 | Go to article overview

The Icc's Role in Combatting the Destruction of Cultural Heritage


Ellis, Mark S., Case Western Reserve Journal of International Law


CONTENTS I. INTRODUCTION II. LEGAL FRAMEWORK AND CASE SIGNIFICANCE       A. The Reason for the 1954 Convention          1. Relevant Provisions of the 1954 Convention          2. Second Protocol to the 1954 Convention (1999)       B. The Rome Statute of the ICC III. THE ROLE OF THE ICTY       A. ICTY Jurisprudence          1. Gravity of the Crime(s)          2. Establishing Individual Criminal Responsibility and Other             Requirements for Prosecution          3. Actus Reus and Mens Rea       B. ICTY and Crimes Against Humanity IV. POLITICAL WILL AND THE DUTY TO PROTECT       A. The Emergency Safeguarding of the Syrian Cultural Heritage          Project       B. Iraq Heritage Management Project V. CONCLUSION 

Cultural destruction is a systematic assault on the spirit and soul of a people. The [International Criminal] Court must prosecute; there should be no impunity for these types of crimes. (1)

I. INTRODUCTION

The willful destruction of cultural property is in no sense a modern phenomenon. Increasingly, however, this centuries-old practice has become as much an instrument as a consequence of war, and is now classified an international crime. (2) While prosecutions are recent, (3) statutory and treaty law dating to the Geneva Convention and Nuremberg Trials provide important jurisprudence regarding crimes of cultural destruction, (4) and the International Criminal Tribunal for the former Yugoslavia (ICTY) has been particularly active in pursuing accountability. (5)

Ahmad Al Faqi Al Mahdi's indictment by the International Criminal Court (ICC), on September 18, 2015, on charges of destroying cultural heritage sites in Timbuktu, (6) underscored the legal connection between the destruction of property and the attempt to erase history and memory.

The case of Prosecutor v. Ahmad Al Faqi Al Mahdi (7) is noteworthy for several reasons. First, Al Mahdi is the first member of an Islamist armed group to appear before the ICC. (8) Second, it is the first ICC case in which the defendant made an admission of guilt. (9) Third, it is the only instance to date in which the war crime of destroying cultural heritage has been the primary subject matter in a case before the ICC. (10)

The case has attracted criticism from those who believe that property crimes are secondary to crimes such as rape, torture and murder. (11) Indeed, even the ICTY, which has been assiduous in its rulings concerning cultural treasures, (12) has tended to prioritize other "more serious" crimes rather than focus on cultural property cases alone. (13)

However, the case's firm grounding in international law, and the clear connection between a category of cultural-property crimes and attempts at cultural erasure, challenges the notion that these are second-rate crimes. The case reinforces the legal principle that attacks on culture, like attacks against people, constitute war crimes subject to international criminal prosecution. The Al Mahdi case will be significant in determining how the international community should best deal with such abhorrent attacks in the future.

On July 18, 2012, the Malian Government referred the case to the ICC. (14) In July 2012, the Office of the Prosecutor (OTP) started a preliminary examination to decide whether it was reasonable to launch a formal investigation. (15)

On the basis of the preliminary investigation, the Prosecutor declared there was a reasonable basis to consider that international crimes were committed including: (1) murder (constituting a war crime under article 8(2)(c)(i)); (2) mutilation, cruel treatment and torture (article 8(2)(c)(i)); (3) intentionally directing attacks against protected objects (article 8(2)(e)(iv)); (4) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court (article 8(2)(c)(iv)); (5) pillaging (article 8(2)(e)(v)), and (6) rape (article 8(2)(e)(vi)). …

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