International criminal law with regard to cultural property

Since Article 56 of the Regulations Respecting the Laws and Customs of War on Land already called for penalties for the prohibited seizure, destruction, or damaging of cultural property protected by international law, the Nuremberg and Tokyo Tribunals regarded the pillage and destruction of foreign property, including cultural objects, as a war crime. Following the Cold War, which interrupted all efforts to enforce international criminal law, these efforts continued as both the ICTY and the ICTR have convicted some defendants for the destruction of cultural property/19 The Statutes of the two ad hoc tribunals of 1993 and 1994 were able to base their provisions in this regard (Articles 3 and 4) on the fact that the Hague Convention of 1954 contains an express duty to impose sanctions (Article 28), although this duty was originally intended for states. Since then, these rules have been supplemented by the enforcement obligations in the Second Protocol to the Hague Convention.

The quasi-codified present status of international criminal law is reflected by the Rome Statute of 17 July 1998, although the agreement is involved in a continuing ratification crisis.50 Subject to prosecution under this Statute, within the context of international or non-international armed conflict, are intentional attacks against buildings the 1907 Convention. Although some states failed to accede to the Convention adopted at the Second Hague Conference, this is of no material importance here.

  • 46 For customary international law with regard to the protection of cultural objects, cf. Jean-Marie Henckaerts, Louise Doswald-Beck, Carolin Alvermann, International Committee of the Red Cross, Customary International Humanitarian Law, Cambridge, CUP, 2005, Chapter 12: Cultural Property, Rules 38-41.
  • 47 Also Art. 5 of the IX. Hague Convention concerning Bombardment by Naval Forces in Time of War.
  • 48 Property of this kind must be generally respected and may not be confiscated (Art. 46). Even prior to occupation, the destruction or seizure of enemy property is in any case prohibited, except in case of urgent military necessity (Art. 23(g)).
  • 49 For details, see Hirad Abtahi, ‘The protection of cultural property in times of armed conflict. The practice of the International Criminal Tribunal for the Former Yugoslavia’, (2001) 14 Harvard Human Rights Journal, 1; specifically, the proceedings to be mentioned are those against Kordic and Cerkez (Lasva Valley), Jokic (Dubrovnik), Martic (RSK) and Prlic et al.
  • 50 The major powers China, India, Russia, and the USA have not ratified the Statute and are not expected to do so in the foreseeable future. Those who have failed to ratify also include Turkey and nearly all states in the Arab world, the Middle and Near East, and Indochina, including Malaysia and Indonesia. The next-to-last of the 124 contracting states was Palestine, which ratified at the start of 2015 (to put pressure on Israel); El Salvador was following on 3 March 2016.

subject to special protection (which include those dedicated to art and science), or on historic monuments (Article 8(2)(b)(ix) and (e)(iv)).[1] [2] [3] [4] [5] In addition, any destruction, pillaging, or seizure of enemy property (including cultural property) is subject to prosecution unless imperatively demanded by the necessities of war (8(2)(b)(xiii) and (e)(xii)).52 The Statute does not cover damage to cultural property outside armed conflicts (e.g. internal disturbances and tensions such as riots), isolated and sporadic acts of violence or other acts of a similar nature (8(2)(f); also Article 22(2) of the Second Protocol to the Hague Convention). Moreover, if a controlling power destroys the cultural objects of an enemy group, such an act may be considered a crime against humanity (at times referred to boldly as ‘cultural genocide’).

Once again, the limited jurisdiction of the International Criminal Court (ICC) poses a serious problem when it comes to enforcing these elements. Insofar as the court has operated up to this point, it has focused above all on crimes against humanity and other war crimes. The conflicts in Syria and Iraq, in which cultural property has been violated in a high-profile fashion, are not subject to the jurisdiction of the ICC, in the absence of an assignment of jurisdiction by the UN Security Council, since neither country is a contracting state. But that is not true of Mali, where fundamentalist militias engaged in iconoclastic destruction of cultural property, above all in 2012. Headlines worldwide reported the destruction of the Islamic shrines in Timbuktu, which have been a Cultural World Heritage Site since 1988. Between May and July of 2012, apparently, at least nine mausoleums, two mosques, and two historical monuments were attacked and destroyed by members of the Islamist group Ansar Dine (and possibly also AQIM and MUJAO)” Religious and historical sites outside Timbuktu were also reported destroyed.54 Mali referred the situation to the ICC Prosecutor (Article 14 Rome Statute), which has been investigating all acts committed since January 2012. This includes intentionally directing attacks against protected objects, since such attacks may constitute war crimes^

Aside from sanctions imposed by the ICC or an ad hoc tribunal, as was created in the case of the ICTY and ICTR (followed by the IRMCT), war crimes may also be prosecuted under national criminal law (and not just if the offence occurred in the state or if the offender is a national of the state in question). We have seen that many states have imposed penalties of their own for core crimes in international criminal law. This is the case, for example, in Germany, where war crimes are included in the elements of offences in §§8ff. of the Code of Crimes against International Law (Volkerstrafgesetzbuch). This statute makes launching a military attack against objects that are protected by international humanitarian law liable to prosecution; once again, these objects include historical monuments and buildings that are devoted to religious worship, education, art, science, and charitable activities (§11(1) No. 2 of the Code). Also subject to prosecution are those who destroy, appropriate, or seize objects of an enemy party to a substantial extent in violation of international law (§9(1) of the Code). In accordance with substantive law, universal jurisdiction should exist in this regard, even if there is no point of connection to Germany (§1 of the Code). This (apparent) extension of jurisdiction is lessened on the procedural side (§153f. of the Criminal Procedure Code [Strafprozessordnung]) for as long as alleged destroyers of cultural property do not travel to Germany, they have no need to expect an investigation.

  • [1] Also prohibited in international armed conflict, subject to penalty, are all intentional attacks againstcivilian objects (Art. 8(2)(b)(ii)) and disproportionate damage to civilian objects ((b)(iv)). This also applies for violations of the Geneva Convention through the extensive destruction and appropriation ofproperty not justified by military necessity and carried out unlawfully and wantonly (Art. 8(2)(a)(iv)).
  • [2] Cf. the specification in Art. 6 of the Second Protocol to the Hague Convention (see section 15.3.1.1of this chapter).
  • [3] This also constitutes a violation of the Geneva Additional Protocol (cf. above, section 15.3.1.2 of thischapter). However, Mali did not accede to the Second Protocol to the Hague Convention of 1954 untilafter the acts in question.
  • [4] The Office of the Prosecutor of the ICC, ‘Situation in Mali, Article 53(1) Report of 16 January 2013’,pp. 24 and 31-2.
  • [5] In these terms, the acts of destruction are also considered to be a war and international crime by theUN Security Council (UNSC Res. 2056 (2012)—5 July 2012, para. 18), the African Union (AU), and theECOWAS Contact Group of Mali.
 
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