International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Summer 2016 Issue
 

Global Judicial PERSPECTIVe

 

The War Crime of Destroying Cultural Property

Richard J. Goldstone

By: Richard A. Goldstone, Former Justice, Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor Monitor

“The destruction of heritage is inseparable from the persecution of people. This is why we consider the protection of cultural heritage today as far more than a cultural issue. This has become a humanitarian imperative, and a security issue.”  UNESCO’s Director-General, Irina Bokova, in the Europe Lecture 2016.

The destruction of cultural property as a weapon or consequence of war is as old as war itself. The intentional destruction of such property is a form of warfare that may constitute an act of genocide and invariably accompanies ethnic cleansing. It is generally accepted that the destruction by the Nazis of Jewish cultural objects was an integral part of the genocide committed by them. The Nazi destruction of art in the western regions of the Soviet Union was accompanied with a similar intent. So, too, in the early 1990s, the destruction of mosques and other Muslim objects by the Serb and Bosnian-Serb armies in Bosnia and Herzegovina and the vicious bombing and shelling of the Croatian city of Dubrovnik. These are a few illustrations of the many cases of deliberate destruction of cultural property as a means of warfare directed at a civilian population.

When the laws of armed conflict were codified, beginning with the 1863 Leiber Code (Instructions for the Governance of the Army of the United States in Field), attempts were made to regulate conduct relating to the preservation of cultural property. Provisions may be found in a number of international conventions beginning with the Hague Conventions of 1899 and 1907. After the destruction of numerous historic monuments during the Second World War provision for their protection was included in the Geneva Conventions of 1949 and their two additional protocols of 1977. Article 85(4) of Additional Protocol I defines as a grave breach of the Geneva Conventions a wilful destruction of “clearly recognised historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement” as long as they are “not located in the immediate proximity of military objectives.”

The first international convention devoted exclusively to the protection of cultural property was the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflicts. An obligation is placed on contracting parties to safeguard and protect such property and to refrain from using it for purposes which are likely to expose it to destruction or damage. The obligation can yield only to imperative military necessity. The convention extends to architectural monuments, archaeological sites, works of art, manuscripts, books, other cultural objects and scientific collections. It has been ratified by 127 nations.

Unfortunately the destruction of cultural property has continued and was a feature of the wars in Cambodia (the destruction of Hindu temples), the Balkans (the bombing of the 16th Century Ottoman bridge at Mostar),  Afghanistan (the destruction of the sixth century Bamiyan Buddhas), Iraq (the destruction of statues from Nineveh) and Syria (the razing the Roman ruins in Palmyra). The destruction of such cultural heritage tears at the very fabric of those societies and directly violates the human dignity of the people for whom such objects are important.

Article (2)(e)(iv) of the Rome Statute for the ICC provides that war crimes include “intentionally directing 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.”

In July 2012, the government of Mali referred the situation in its country to the ICC. In 2013, the Office of the Prosecutor began investigations in Mali. On 18 September 2015, an arrest warrant was issued for Ahmed Al Faqi Al Mahdi, a leader of an Islamist armed group that in 2012 destroyed ancient mausoleums in the ancient city of Timbuktu. The website of the ICC

  

records that: “Mr Al Mahdi, born in Agoune, 100 kilometres west of Timbuktu, Mali, was an active personality in the context of the occupation of Timbuktu. He allegedly was a member of Ansar Eddine, a mainly Tuareg movement associated with Al Qaeda in the Islamic Maghreb ("AQIM"), working closely with the leaders of the two armed groups and in the context of the structures and institutions established by them. It is alleged that, until September 2012, he was the head of the "Hisbah" (body established to uphold public morals and prevent vice), set up in April 2012. He was also associated with the work of the Islamic Court of Timbuktu and participated in executing its decisions. It is alleged that he was involved in the destruction of the buildings mentioned in the charge.” One of the sites destroyed in Timbuktu was the Sidi Yahya mosque that was built in 1440. There was no military justification for such conduct.

Al-Faqi was arrested in Mali and transferred to the Court in September 2015.

On 1 March 2016, the judges of a pre-trial chamber of the ICC confirmed the charges against al-Faqi. He has since indicated that he will enter a plea of guilty at the trial that will begin on 22 August 2016. Both the prosecutor and the defense have indicated that they intend calling a small number of witnesses.

Some critics of the ICC complain that the Chief Prosecutor, Fatou Bensouda,  should not use the scarce resources of the Court to pursue crimes such as the recruiting of child soldiers in the Democratic Republic of the Congo or the destruction of cultural property in Mali whilst far more serious crimes in the same situations merit priority. I disagree. It is to the credit of the Chief Prosecutor of the ICC that these crimes have been prioritized by her office.

In the first place it is difficult to imagine more evil crimes than the conscription of child soldiers or the destruction of irreplaceable cultural property. With regard to child soldiers, it has become only too common that in some African countries, including the DRC and Uganda, children, at the tender ages of ten or eleven years, were frequently kidnapped and forced to take up arms. One of them, Dominic Ongwen, at the age of ten years, was abducted by the Lord’s Resistance Army. Thereafter he advanced and became a leader of the rebel group together with the infamous Joseph Kony. He was surrendered to the ICC at the beginning of 2015. He is facing 70 charges including the war crimes of murder, rape, sexual slavery, torture and the conscription of children under the age of 15 to participate in hostilities. Ongwen is an unusual example of being both a victim and a perpetrator. It was his victimization at the age of ten years that was a direct cause of his perpetrating the egregious crimes for which he is now standing trial.

The long and sordid history of the destruction of cultural property is the irrefutable proof of its potency and popularity as an act of war. The evil people who order it are well aware of its affect on the victims who are targeted as well as the lasting harm inflicted on those for whom such objects are revered and meaningful. It was correctly pointed out by the United Nations Special Rapporteur in the Field of Cultural Rights, Karima E. Bennoune, that it “is often part of a strategy to destroy the morale of people, terrorize them, or eradicate signs of the presence of certain cultures in a territory.” It is the human dignity of the victims that is targeted and invaded.

Recognition of the egregious nature of this kind of warfare is reflected in the attention given to it by the global community and the attempts made over the past two centuries to harness both domestic and international laws to criminalize and deter it.

It is appropriate for the Prosecutor of the first permanent international criminal court to recognize and bring to justice those alleged to have been complicit in the perpetration of these enormous affronts to the dignity and culture of so many innocent human beings.

(Editor's Note: Since the preparation of this article, an article in the September 28, 2016 edition of The New York Times contained the following: “Judges at the International Criminal Court ordered a radical Islamist on Tuesday to serve nine years in prison for his role in demolishing historic Muslim shrines in Timbuktu, Mali, in the court’s first prosecution of the destruction of cultural heritage as a war crime.”)

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