Discussion Interrupted: The Destruction and Protection of Cultural Property under International Law and Islamic Law - the Case of Prosecutor v. Al Mahdi

The cultural property becomes objects of destruction in armed conflicts, such as Syria and Iraq, which were carried out by ISIS squads (Islamic State of Iraq and Syria). For ISIS’s actions, the ICC should judge ISIS. However, new problems will arise regarding the jurisdiction of the ICC to judge ISIS. Based on the explanation of this background, the question will arise: How are humanitarian law regulations related to protecting cultural property during armed conflict? And what is the regulation of the ICC’s jurisdiction over the protection of cultural property in armed conflict by ISIS? The research in this article is normative legal research with the statue approach. According to humanitarian law, the research results show that the regulations relating to the protection of cultural property during armed conflict are contained in the 1954 Hague Convention, Additional Protocol I and Additional Protocol II of the Geneva Conventions of 1977. The destruction of cultural property carried out by ISIS is included in war crimes, one of the Rome Statute material jurisdictions. In this case, the Rome Statute applied by the ICC has juridical power to uphold justice and punish, including war crimes committed by ISIS. For the destruction of various cultural property in Iraq and Syria, ISIS can be judge by the ICC through a referral by the UN Security Council based on the provisions stipulated in the 1998 Rome Statute.

In recent years, the vulnerability of cultural property during armed conflict has been a high-profile issue of international concern. The al Mahdi prosecution at the International Criminal Court, for the destruction of sites in Timbuktu, represents an important development in the protection of cultural property. As the first international criminal law prosecution solely for cultural property crimes, it is recognition that loss of cultural heritage leads to both local and global harms and opens the door to future prosecutions. This article first briefly explains the current international law framework. It then explains the significance of the al Mahdi trial and the challenges in realising any potential benefits. The article concludes that while the trial is an important development, if this prosecution represents either the totality of international criminal law engagement in Mali or the final prosecution for the destruction of cultural property, the possible benefits will be undermined.

Since the 1990s, situations in which culturally significant heritage sites serve as symbolic targets for intentional attacks, leading to the 'destruction of enemy communities,' have frequently occurred. The International Criminal Tribunal for the former Yugoslavia (ICTY), established to prosecute serious violations of international humanitarian law within the former Yugoslav territories, addresses prominent cases of intentional attacks and destruction of cultural property during the armed conflict, specifically targeting the annihilation of ethnic identity. This article examines the implications and limitations of international legal norms regarding the protection of cultural heritage during armed conflicts, focusing on the Dubrovnik Old Town shelling incident, a representative case of cultural property destruction prosecuted by the ICTY. Firstly, the intentional destruction of cultural heritage is undeniably a significant violation of values that the international community must protect. The pursuit of individual criminal responsibility for the destruction of cultural heritage within the international criminal tribunal signifies a substantial advancement in international efforts to protect cultural heritage during armed conflicts. The negative impact of the intentional destruction of cultural property on human dignity and universal human values is undeniable. However, ensuring effective protection of cultural property in the current normative context, where attacks on cultural property for military purposes may be justified, remains challenging. Secondly, military necessity, rooted in customary international law, limits attacks on enemy forces to military objectives, focusing on the centralization of enemy forces, balancing the military necessity of concentrated attacks on enemy forces with humanitarian considerations to protect civilian objects. However, determining what qualifies as a military objective can be challenging, as it depends on the circumstances of combat and operations. Regardless of whether the principle of proportionality is applicable, evaluating the military necessity from the perspective of cultural heritage protection is crucial. ICTY recognizes that even when military necessity justifies attacks on civilian objects, the intentional destruction of cultural heritage can have a significant impact on the psychological well-being of civilians and may upset the balance with military superiority. Thus, careful consideration is necessary when assessing the military necessity in cases where the protection of cultural property, with a higher need for protection than general civilian objects, is involved. Moreover, even if a target has dual-use, being considered a military objective, evaluating proportionality in the attack is essential to prevent harm to civilians, in accordance with the principle of proportionality. In conclusion, the intentional destruction of cultural heritage should be treated as a threat to the common values of the international community, necessitating appropriate legal and policy responses in line with the actual circumstances of the armed coflict. Military commanders should not only view attacks on cultural heritage as inevitable collateral damage but also recognize the gravity of such acts as war crimes and consider them strategically within military operations.

Cultural Properties holds the rich heritage and is a matter of pride for the entire mankind and is considered as property of mankind and does not belong specifically to any religion, group or state. Despite this the cultural property has been attacked and destroyed a lot of times either deliberately or unintentionally during war. The instances of destruction of cultural property has been there in past also and such cases are still increasing. The destruction of cultural property of course creates a sense of divide among people from different communities and nations and not just make chances of compromise between communities and nations impossible but it also lead to long term discrimination and hatred.The legal system related to protection of cultural property is mostly a soft law mechanism in which the implementation body and implementation system is missing and there are many laws which show the importance of cultural property during peacetime and also during war. This paper will discuss in detail about the significance of cultural property, long term effect of destroying of cultural property, Iconoclasm, laws regulating the protection of cultural property during war and peacetime, international criminalization of wrongs against cultural property and suggestions of the authors for protection of cultural property.

Excavations in Search of Cultural Artifacts During Armed Conflict: A War Crime Under Customary International Law

This chapter is an assessment of the relevant provisions for prosecuting the destruction of cultural property in international criminal law. International criminal law distinguishes between offences that create grounds for criminal liability and defences, which rule out liability. Offences consist of a material element (actus reus) and a mental element (mens rea). The ad hoc tribunals have not developed a uniform rule applicable to all crimes under international criminal law concerning the required mens rea. Prosecuting the destruction of cultural property as a war crime is relatively unproblematic as can be deviated from the practice of the international tribunals, especially the ICTY. The prosecution of the destruction of cultural property as a crime against humanity has been a major step for the protection of cultural property during peacetime and for the development of international criminal law.Keywords:Crime against Humanity; Crimes under International Criminal Law; cultural property; Destruction; International Criminal Tribunals; Prosecution; War Crime

The destruction of cultural property is present in almost every armed conflict and the destruction of valuable cultural property occurs during peacetime as well. This chapter analyzes one example of the destruction of Buddhist institutions during the Khmer Rouge or the Communist Party of Kampuchea (CPK) regime. It descrIbes the main events in Cambodia from 1975 to 1979. The Khmer Rouge, removed the Prime Minister of the then so-called Khmer Republic, Lon Nol,2 after a five-year-long internal armed conflict from power and renamed the country Kampuchea. The most suitable provision of the ECCC Statute for the prosecution of the Khmer Rouge's destruction of cultural property during Democratic Kampuchea seems to be Article 5, which deals with crimes against humanity. It has to be hoped, though, that the ECCC Trial Chamber will decide that the nexus requirement is not in conformity with customary international law.Keywords:Cambodia; Communist Party of Kampuchea (CPK); crimes against humanity; cultural property; Democratic Kampuchea; ECCC Trial Chamber; Hague Convention; Khmer Rouge

Cultural property may be under serious threat in the event of armed conflict. In the twentieth century, there were clear developments in international law aimed at preventing and punishing war crimes against cultural property. Despite this, the destruction of cultural property during armed conflict has continued. This article questions whether the existing international law standards with regard to the protection of cultural property during armed conflict are satisfactory, and whether or not a new instrument could be valuable. Although considerable shortcomings remain, instead of pleading for a new instrument, this article advocates raising ratification rates, the enhancement of the implementation of existing instruments, and monitoring and sanctioning mechanisms.

The author stresses the importance of protecting cultural property from the effects of armed conflict as its damage or destruction destroys a community’s identity and its links with its past, present and future, as well as diminishes the cultural heritage of humankind. The author draws attention to the recent destruction of cultural property in the civil war in Syria and the activities of the so-called Islamic State (ISIL) in Iraq. This chapter analyses the provisions of the principal legal instruments dealing with the protection of cultural property in armed conflict, namely the Convention on the Protection of Cultural Property in the Event of Armed Conflict (The 1954 Hague Convention), the 1954 Protocol for the Protection of Cultural Property in the Event of Armed Conflict and the 1999 Second Protocol to The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, as well as other relevant instruments of international law. While the existing legal instruments may be adequate, the problem, as with international law generally, lies in their effective enforcement, particularly in situations of non-international armed conflict where the parties to the conflict have no regard for the dictates of international humanitarian law. But once hostilities have come to an end, it will be possible to bring offenders to justice, if necessary before the International Criminal Court. In the meantime, it is important that there should be widespread adherence to The 1954 Hague Convention and its two Protocols.

The images of the destroyed Buddha statues of Bamiyan, of the ancient city of Palmyra lying in ruins, and of destroyed World Heritage sites in Timbuktu have received much attention from the international public. At the same time, these cases also reflect a new dimension in the conduct of armed hostilities today, which is increasingly aimed at destroying cultural identities or heritage. Therefore, in addition to the issue of preserving the world's cultural heritage, especially in the context of human rights protection and international humanitarian law, the protection of cultural property is seen as an increasingly important task for the United Nations and its institutions. Pieces of Art, significant written documents, memorials, and places of worship are deliberately destroyed in conflicts by armed or terrorist groups, such as the so-called Islamic State, as they represent core elements of cultural identity. The increasing number of reports on the loss of priceless cultural assets in Syria, Iraq and Mali exemplify this. Increasingly, violent non-state actors are deliberately using the destruction of cultural property as a means of warfare and even "ethnic cleansing." For the international community, this makes the protection of cultural property in armed conflicts and in the field of restoring statehood at the same time increasingly significant. The preservation of this global human memory is one of the greatest challenges of modern social, political, and legal discourses. Although the use of the destruction of cultural property to divide societies, even to erase a collective memory or destroy social structures, has long been part of warfare, this aspect has been insufficiently considered by the media public and especially in academic discourse. With contributions by Frederik Becker, Dr. Manuel Brunner, Paul Fabel, Dr. Martin Gerner, Dario Haux, Ruth Lechner, Prof. Dr. Antionette Maget Dominicé and Vincent Widdig.

Cultural property has been destroyed, looted and trafficked throughout history, particularly during conflict situations.2 In many instances, the property that is destroyed belongs to, and / or represents, minority groups and its destruction impacts significantly on minority culture. ISIS, and related jihadist groups, have, in recent times, actively engaged in the deliberate destruction of cultural property in numerous States, including Iraq, Syria, and Mali. This has been described as ‘cultural cleansing’ by the Director-General of UNESCO,3 as jihadist groups aim to eradicate all signs of ‘other’ cultures within its newly formed State. The destruction of cultural property is now a strategy of war, with the objective being to eliminate cultural diversity and pluralism, ‘erase all sources of belonging and identity, and destroy the fabric of society.’4 The International Criminal Court (ICC) recently (2016) heard the case of Prosecutor v Al Mahdi, which focused specifically on the destruction of cultural property in Mali during a non-international armed conflict. The defendant was charged, under Article 8 of the ICC Statute, with the war crime of directing attacks against cultural property.5 Mr Al Mahdi, a member of the fundamentalist Islamic group, Ansar Dine, had been in charge of the Hisbah, the morality brigade set up in Timbuktu. One of his roles was to oversee the destruction of a number of religious monuments and mausoleums in the city...

The ongoing conflict between Ukraine and Russia has witnessed numerous war crimes, notably the destruction of cultural property belonging to Ukraine, despite international protections afforded to such sites. This paper undertakes a conceptual and juridical review of the protection of cultural property during armed conflict, specifically examining its application in the context of the Ukraine-Russia war. Employing a doctrinal research method, the study elucidates the significance of safeguarding cultural heritage, which is deemed a global inheritance. The analysis emphasizes the provisions outlined in the 1954 Hague Convention, which governs the protection of cultural property, and explores the respective responsibilities of Ukraine and Russia in addressing instances of cultural destruction. By evaluating these legal frameworks and their application, this research contributes to understanding the obligations and challenges related to preserving cultural heritage amidst contemporary armed conflicts, advocating for adherence to international norms and facilitating mechanisms for resolution and accountability.

The universal phenomenon of destruction of cultural property is particularly prevalent in territories subjected to years of armed conflicts and within nations led by repressive regimes. Societies emerging from these conflicts or tyrannies have therefore to resolve, among numerous other dilemmas, the challenge of confronting past destruction of their cultural heritage. The article addresses some of the subject's complexities: conundrums involved in the restoration of cultural property; prosecution of perpetrators; the importance of addressing the crime and its repercussions through truth commissions and reparations programmes; and the protection of cultural property in the new constitutions of two post-transitional societies – Cambodia and Afghanistan. In recognition of the diversity of post-transitional societies, the article does not attempt to propose a singular conclusion regarding the implications of the destruction of cultural property on these societies. Rather, the article raises points for consideration and presents different perspectives on the potential tensions created in that field while underscoring the importance of addressing past destruction as an integral part of the society's course to reconciliation.

The prosecution of Al Mahdi for an offense solely against cultural property is a major step in strengthening international jurisprudence on the protection of cultural property during armed conflict. The ICC’s successful prosecution and conviction of the defendant shows the importance and gravity of such attacks. The momentum to protect cultural property during armed conflict has also led to significant measures that aim to change the behavior of antiquities dealers. The creation of red lists, adoption of incentives to break trafficking rings, establishment of safe havens, and linking the trade of looted antiquities to terrorism offenses have the potential to impede the rampant theft and destruction of cultural property in Iraq, Syria, and elsewhere. This chapter reviews some of these responses and advances in the legal framework.

This chapter explains the basic provisions for the protection of cultural property in armed conflict and occupation. It first offers an overview of the history of plunder and destruction of cultural property until the time where there was a shift in attitude and this practice started to be considered unlawful. Then, it examines the legal framework currently applicable, including customary international rules enshrined in the 1907 IV Hague Regulations, the main provisions of the 1954 Hague Convention, its First Protocol, its 1999 Second Protocol, the 1977 Additional Protocols and relevant resolutions from the UN Security Council. Special emphasis is placed on individual criminal responsibility and the criminalization of offences against cultural property.KeywordsCultural Property1954 Hague ConventionArmed ConflictOccupation1999 Second ProtocolCriminalization