By Jack Mitchell*
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| The Temple of Bel, Palmyra, was destroyed in 2015 by the Islamic State.Photo: Wikimedia Commons/Bernard Gagnon |
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In 2012, at the
UNESCO World Heritage site in Timbuktu, Mali, Ahmad Al Faqi Al Mahdi destroyed
historic mausoleums, manuscripts, and even a mosque. Al Mahdi belonged to the
Al-Qaeda-linked group, Ansar Dine. His subsequent conviction by the International Criminal Court
(ICC) last year was covered in the mainstream press and art world publications as a “landmark” case, the first time the
destruction of “cultural heritage” was prosecuted as a war crime in the ICC. In
prosecuting and convicting Al Mahdi, however, the ICC did not create a new war
crime for destroying “cultural heritage.” Rather, it invoked part of Article 8
of the Rome Statute that it had never used before. Under
Article 8(2)(e)(iv) of the Rome Statute, intentionally “directing attacks
against buildings dedicated to religion, education, art, science or charitable
purposes, historic monuments, hospitals and places where the sick are wounded
and collected, provided they are not military objectives” is a war crime.
The Al Mahdi
case was so lurid because it fit a grisly pattern of World Heritage and other
significant cultural sites targeted by Islamist extremists, including the
Islamic State of Iraq and the Levant (ISIL). ISIL has destroyed numerous
historic sites in Syria and Iraq, including ancient Assyrian sites. When it
obliterated the Temple of Bel and other ancient features in Palmyra in 2015,
for example, the loss was as devastating as the 2001 Taliban bombing in Afghanistan of the Buddhas of
Bamiyan. So far, though, Al Mahdi’s
conviction remains a significant but isolated precedent. The destruction of the Bamiyan Buddhas was
never subject to prosecution in the ICC because the Rome Statute had not yet
entered into force. The perpetrators of
cultural heritage destruction in Syria also might elude prosecution in the ICC
because Syria, like the United States, is not a party to the ICC, meaning that
an ICC investigation and prosecution would require an unlikely referral from the UN Security Council.
But it’s not
just terrorist groups. States and non-state actors have participated in recent
cultural heritage destruction. According to Matthew Barber, former director of
Yazda, ISIL’s campaign to exterminate the Yazidis went forward because KDP forces decided not to defend them. Similarly, the US has
been mute as its ally Saudi Arabia bombs the UNESCO-listed Old City of Sana’a in Yemen.
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First,
principles about the law of cultural heritage are surprisingly unsettled. What
is the difference between “cultural heritage” and the older term, “cultural
property?” If cultural heritage is the more encompassing concept, what should
its boundaries be? Second, how do we assess the gravity of cultural heritage destruction?
International
criminal law would do well to focus on cultural property destruction as
a war crime—as opposed to language and oral history, for example—because deeper
efforts at “cultural cleansing” would possibly fit better under the umbrella of
crimes against humanity.
Two key factors
concerning when cultural property destruction
should be prosecuted are
military necessity and gravity of the crime. Military necessity, although the doctrine is
controversial, is a kind of “affirmative defense” to cultural property
destruction because an opponent’s use of cultural property or its status as a military
objective can be used as
justification for its destruction. This doctrine has sparked promising efforts
to improve militaries’ awareness about where cultural property is located such
as ICOM’s Red List and archeological inventories used to create “no-strike lists.”
The gravity of the crime question depends
upon our purpose. Should cultural heritage law protect people or things? A
“people” approach emphasizes what cultural property means to distinct groups of
people. A “things” approach emphasizes its supposed intrinsic worth. Both
approaches are flawed. The first might have to credit nationalistic myths. The
second might entail using market value or the fallible judgment of UNESCO as a
proxy for actual value. My trite but sincere belief is that international
criminal law can adopt a flexible standard that recognizes that gravity is
established for targeted, damaged, or destroyed cultural property both when it
is especially meaningful to specific cultures and when it has internationally
recognized importance.
*Jack Mitchell is a student
at Georgetown University Law Center in the class of 2019. This blog post is the
winner of the International Cultural Heritage Law Blog Post Competition that
was co-sponsored by the American Society of International Law, the Georgetown
Journal of International Law, the Lawyers’ Committee for Cultural Heritage
Preservation, and the Georgetown Art Law Association.
