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Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
*Fahim Abrar Abid
A. Introduction
Cultural heritage is the reflection of a nation’s or community’s sheer identity, inherited from their predecessors. It can be a collection of sites or traditions that bring together all the values of different cultures around the globe. Crimes affecting such cultural heritage, whether tangible or intangible, are a direct threat to a group of people’s emotions, sentiments and dignity. In addition, cultural heritage upholds self-determination and is recognized as closely connected with peace.
Intentionally directing attacks on such a significant aspect of humankind means an attack on the existence of people, resulting in long-lasting horror of trauma, as evident from the ancient history of the blazing of the Temple of Artemis in 365 BCE, to in the comparatively recent attacks in Mali, Iraq, Syria, Libya and Afghanistan. Hence, to protect humanity from a degrading act like the destruction of cultural heritage, international law has given it an introspective emphasis from time to time–particularly under international criminal law (ICL) from the Nuremberg Charter to the ICTY Statute, ECCC Law and most prominently in the Rome Statute. The ICL framework to protect cultural heritage has been evolving in a significant way, as evidenced by the conventions and landmark case law, but it is somewhat falling short of protecting cultural heritage as a whole, and more needs to be done to ensure better protection.
To critically examine the issue, this article will first lay the foundation by providing an account of the importance of cultural heritage for humankind (connecting with section A) vis-à-vis the ICL framework protecting cultural heritage in section B. Then, in section C, this article will briefly explain the conceptual framework of constituting the crime of “destruction of cultural heritage” under ICL. Finally, this article will conclude in section D by highlighting the (in)effectiveness of the legal development around cultural heritage relative to its importance on the basis of the international instruments, case law and scholarship discussed in section A, B and C.
B. Importance of Cultural Heritage and International Criminal Law
Cultural heritage is not only the materialistic value of an object but “the meaning attributed to it” by any individual as well as relevant communities. The traditional motivation for attacking cultural heritage, to destroy the opponent’s morale as a tool for undermining their identity and legacy, ipso facto, reflects the importance of cultural heritage in individuals’ lives. Moreover, the preservation of cultural heritage is considered inter alia a determining factor as well as a resource for sustainable development by the United Nations Educational, Scientific and Cultural Organization (UNESCO).
Nevertheless, this article attempts to capture the importance of cultural heritage through the lens of legal development over the years. Firstly, the aspiration of ICL was founded on the recognition “that all peoples are united by common bonds, their cultures pieced together in a shared heritage and concern that this delicate mosaic may be shattered at any time”, as stated in the preamble of the Rome Statute and scholarships. Secondly, the Rome Statute, which is the core international legislation concerning the ICL, expressly recognized “destruction of cultural heritage” as a crime. However, since not all the crimes committed during a war qualify as a war crime, not all the attacks directed against cultural heritage are protected by ICL. Nonetheless, the Rome Statute has broadened (perhaps upheld) the scope of protecting cultural heritage by including religious, educational, scientific, hospital and charitable purpose buildings in addition to artefacts and historical monuments in both articles 8(2)(b)(ix) and 8(2)(e)(iv), covering international and non-international armed conflicts, respectively.
Through practice over the years, the protection of cultural heritage has gained the status of an erga omnes obligation because directing an attack on any cultural heritage is an attack on the entire international community, and all State parties have a responsibility to protect cultural heritage. Due to the erga omnes obligation status, all states have a legal interest in its protection and have standing to bring cases against violation states. Furthermore, the unanimously adopted Security Council Resolution 2347 has also reemphasized the State’s primary responsibility to protect cultural heritage.
The importance of cultural heritage is also reflected in scholarly discussion as well as legal precedents that provide an interpretation that the destruction of cultural heritage not only is a war crime but also can constitute a ‘crime against humanity’ when the destruction took place as part of a widespread attack. While the International Court of Justice (ICJ) decided on the Genocide Convention case that the destruction of cultural property cannot be considered a genocidal act, the ICJ held in the Krstic case that such biological destruction can be considered as “evidence of an intent” to physically destroy a group.
Finally, the importance of cultural heritage has been observed in the judgements of the ICC, ICTY and International Military Tribunal (Nuremberg Tribunal), mostly as part of broader armed conflict. However, the most prominent is the Al Mahdi case, which is the sole case that has the destruction of cultural heritage as the principal charge. The perpetrator was found guilty of destroying mausoleums in Timbuktu, Mali and was sentenced to 9 years. Also, the ICC recently prosecuted Al Hassan, who was initially inter alia charged with the destruction of cultural heritage, although the final sentence does not include this charge. Concerning ICTY, the landmark cases are Strugar, Blaškić, Kordić and Jokić, which prosecuted perpetrators for illegally destroying and looting cultural heritage. Lastly, the landmark Rosenberg case from the Nuremberg Tribunal can also be considered as involving the destruction of cultural property since it includes the systematic looting of the museums, palaces and libraries in the occupied territories of the U.S.S.R.
C. Conceptual Framework
Although the Rome Statute came into force only in 2002, the legal framework protecting cultural heritage has constantly developed since the 1899 and 1907 Hague Conventions that urged the protection of religious, educational, scientific, hospital and charitable institutions “as far as possible.” However, the scars of World War II inter alia widespread destruction of cultural heritage exposed the need for a more robust framework, so the 1954 Hague Convention was adopted, including provisions for sanctioning violations of the convention. Later developments were the 1977 Additional Protocol I and Additional Protocol II of the Geneva Convention 1949, expanding the protection of cultural heritage in international and non-international armed conflict. Along with these key ICL developments, significant contributions from the UNESCO Conventions and ICTY practice emphasizing the protection of cultural heritage as a customary international law have ultimately shaped the present-day Rome Statute framework.
To delve into the importance of cultural heritage in international law, it is essential to understand how and when an act constitutes “destruction to cultural heritage” under international criminal law. Destruction of cultural heritage has precisely been classified as a “war crime” under the Rome Statute. The first and foremost criterion for an act to be considered “destruction to cultural heritage” is thus to meet the threshold circumstances of a war crime, which needs to be during the existence of an armed conflict, either international or non-international character. Secondly and most importantly, there must be a “closely related” “nexus” between the direction of the attack on cultural heritage and the existing armed conflict as established in the case laws of the International Criminal Tribunal for Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR).
A classic example would be the illegal destruction of the Bamiyan Buddhas by the Taliban in Afghanistan, which did not constitute a war crime because it was not done as part of the conflict going on in the country back then. Nevertheless, it is also important to note that if the illegal destruction of cultural heritage took place as part of a “military objective,” it would not constitute a war crime ipso facto. The term ‘military objective’ is defined in Art. 52(2) of 1977 Additional Protocol I, as ‘objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’ This is a customary rule of international humanitarian law and its distinguishment in the context of cultural heritage was further clarified by the ICTY in Kordic and Cerkez (para 92), upholding customary rule 9, that historical monuments, places of worship and cultural property are prima facie civilian objects, as long as they don’t serve the military purposes.
In addition, the contemporary development of international law is another vital determining factor of the crime of “destruction of cultural heritage.” For example, the bombing of the Temple of the Tooth (a world heritage site) by Tamils in Sri Lanka during their civil war could have been qualified as a war crime had today’s customary international law been the same back then. Lastly, the Rome Statute does not have jurisdiction over any such act like the Sri Lankan example (1998) that took place before 2002. Similarly, the Rome Statute cannot enforce its jurisdiction over the states who are not party to the Statute.
D. Conclusion and Looking Ahead
Despite the broadening scope and all these existing mechanisms, the world is witnessing the destruction of cultural heritage in Palestine, Ukraine and Sudan. These incidents expose the ineffectiveness of the current ICL framework derived from the politics of law, the lack of willingness of the State to refer such cases, and, to some extent, the principle of complementarity. As 3 of the ‘P-5’ States are not parties to the Rome Statute, they do not fully acknowledge inter alia the obligation, under the ICL framework, to protect and not destroy cultural heritage, which reflects human identity, dignity and self-determination. Therefore, the international community must strengthen its commitment to protecting cultural heritage by enhancing international cooperation, ensuring the political will to enforce ICL, and possibly revisiting the principle of complementarity to allow for more robust international intervention when national jurisdictions fail to act.
*Fahim Abrar Abid is an Erasmus Mundus Scholar of International Law of Global Security, Peace and Development with a specialisation in Human Rights at the University of Glasgow, Institut Barcelona d’Estudis Internacionals and University Tartu. He is also the Coordinator (Head) of Bangladesh Campaign at Global Human Rights Defence—a UN ECOSOC NGO.
