Conflict can have devastating effects on the places most important to us. As another case goes before the ICC, we can see how international law is evolving to protect them.
In the face of the human tragedy that is war, the question is often asked, “why protect monuments when people are dying?” A former UNESCO official, Lyndel Prott, provided a straightforward reason: the people who are being killed are imploring us, “please protect our monuments.”
Recognition of the significance of cultural and religious monuments and sites for people has been reflected in the first multilateral efforts to codify and humanise the laws of war since the nineteenth century. This recognition has been reiterated after successive armed conflicts in the intervening century. It is reinforced by a growing commitment to hold perpetrators of this damage and destruction accountable for war crimes, crimes against humanity, and genocide before national and international courts.
The International Criminal Court handed down its first Judgment, Sentencing Order, and Reparation Order for war crimes against cultural property in 2016 and 2017 for the damage and destruction of the World Heritage-listed site of Timbuktu, Mali. The definition of war crime related to cultural and religious sites under the Rome Statute would have been familiar to the drafters of the Lieber Code ‒ used during the US Civil War ‒ and to Czar Nicholas II, who proposed the Regulations adopted during the Second and Fourth Hague Conferences. Australian military manuals during WWI, found in the Australian War Memorial archives, also reproduce these prohibitions on attacks against cultural and religious sites. The International Military Tribunal in Nuremberg in 1946 found that the Hague Regulations were customary international law and binding on all states.
The prohibition against seizure, destruction, or wilful damage to institutions dedicated to religion, charity, education, arts, and science and to historic monuments in these early instruments has been elaborated upon in general and specialist international humanitarian law treaties since. The Hague Convention for the Protection of Cultural Property during Armed Conflict of 1954 and both its 1954 First Protocol and 1999 Second Protocol cover obligations on preparedness prior to war (e.g., the training of military personnel, marking of significant sites), during the conflict (e.g., cooperating with local cultural officials), and upon its conclusion (e.g., the return of cultural objects removed for safekeeping). “Obligations” relates not only to parties to the conflict but extend to states parties generally, in respect of cooperation in investigations and prosecutions. Referencing the 1954 Hague Convention, the Additional Protocols to the Geneva Conventions of 1977 reaffirm these prohibitions and protections. Importantly, as most armed conflicts are internal, Geneva law and the 1954 Hague framework cover both international and non-international armed conflicts.
The significance of cultural property in armed conflicts has engaged the UN Security Council. Its intervention was precipitated by the deliberate destruction of World Heritage sites for propaganda and recruitment on social media and illicit traffic of archaeological materials to fuel the war effort in Syria and Iraq. In a series of resolutions culminating in its first resolution dedicated to cultural heritage, the Security Council recognised that cultural destruction was a threat to peace and security. The obligations in Resolution 2347 of 2017 relating to suppression of illicit traffic in cultural objects and cooperation in investigations and prosecutions cover all UN member states.
The depth and consistency of the commitment to prohibiting ‒ or at least tempering ‒ attacks on cultural property during armed conflict is captured by the requirement to prosecute violations. The early Hague Regulations state that violations will be “subject to legal proceedings.” The constitutive statutes of war crimes and international criminal tribunals in the decades that have followed including the statute of the permanent International Criminal Court are a realisation of this commitment.
The ICC Trial Chamber’s 2016 judgment made clear that the attacks against cultural property attract international sanction when perpetrated against monuments and sites of universal importance to all humanity. Yet, often, attacks are directed against objects and sites because of their religious and cultural significance to a particular group. This discriminatory element of the damage and destruction of cultural property defines the international crimes of persecution and genocide. These crimes attract an altogether distinct opprobrium.
The second case arising from the attacks on cultural and religious sites in Timbuktu, this time on the count of the crime against humanity, is currently being prosecuted before the ICC. The link between such attacks and crimes against humanity was driven by efforts to hold perpetrators to account after WWI, in response to acts perpetrated against minorities during the collapse of the Ottoman Empire, and after WWII, in response to acts against inhabitants in Axis-occupied territories. The ICC Office of the Prosecutor’s Policy on Cultural Heritage issued in 2021 outlines how attacks on cultural property can support various crimes against humanity under the Rome Statute.
Unlike war crimes, crimes against humanity do not have to arise in respect of an armed conflict, and they can be related to attacks by a state against its own inhabitants. They are defined by attacks on civilians, in furtherance of a state or organisational policy, and which are widespread or systematic. The International Criminal Tribunal for the former Yugoslavia (ICTY) elaborated on each of these elements of the crime against humanity when delivering its judgments on the crime against humanity of persecution. Persecution is distinguishable from other crimes against humanity because of its specific discriminatory intent against a group on political, racial, national, ethnic, cultural, religious, gender, or other grounds. Acts against cultural property have been used to establish the conduct and specific intent of the crime of persecution before various international criminal tribunal before and since, including the current case before the ICC.
Attacks on cultural property are used to establish the specific intent – “to destroy, in whole or in part, a national, ethnical, racial or religious group” – of the international crime of genocide. Prosecuted as an extension of crimes against humanity under the Charter of the Nuremberg Tribunal, genocide has a lengthy and complex history as it relates to cultural property. During the drafting of the Genocide Convention in the 1940s, Raphael Lemkin – the jurist who had coined the term “genocide” – unsuccessfully campaigned for the inclusion of attacks on cultural and religious sites in the list of acts constituting this international crime. His research during the 1930s and 1940s into historical examples, including the experience of First Nations in Tasmania following colonisation, showed that attacks against sites of cultural and religious significance to a targeted group were an early warning of genocidal programs. Their inclusion on the list of acts constituting genocide was imperative to prevent this international crime. However, the definition of the crime of genocide in the Genocide Convention does not include it in the list of acts.
The ICTY and International Court of Justice confirmed that attacks on cultural property go to the specific intent of the crime of genocide, only. Genocide captures most fully why attacks against cultural and religious significant monuments and sites as central to attackers and victims, alike. It is viewed as part of a deliberate campaign of eradicating the physical presence and memory of the group from that place, from that territory.
For this reason, the International Criminal Court’s mandate to issue reparations orders is crucial post conflict. It is also crucial where cultural heritage is proving central to reversing or at least ameliorating the effects of these international crimes on its victims.
Ana Filipa Vrdoljak is UNESCO Chair in International Law and Cultural Heritage and Professor, Faculty of Law, University of Technology Sydney.
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