INTERNATIONAL COURTS AND CULTURAL HERITAGE: BRIDGING THE GAP.
| Author | Bernabei, Giulia |
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INTRODUCTION
The legal protection of cultural heritage lies at the intersection between general public international law, international humanitarian law (IHL) and international criminal law. It involves various types of matters, spanning, inter alia, States' responsibility, individual liability and the safeguarding of human rights.
International courts have increasingly devoted more attention to this issue over the last few decades. The case of Prosecutor v. Ahmad Al Faqi Al Mahdi (Al Mahdi) before the International Criminal Court (ICC) is just one example of such growing interest. In particular, it proves that the destruction of cultural property can be prosecuted as an autonomous international crime per se and not merely as an auxiliary crime. (1) A so-called 'criminalisation of the intentional destruction of cultural heritage' (2) is effectively taking place.
The goal of the present contribution is twofold.
First, I assess the current degree of protection given by international fora to cultural heritage. With a focus on the sentencing practices of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICC, I investigate the role these courts play--and have played--in the advancement of the safeguarding of cultural property in international criminal law.
Second, this paper determines what hermeneutic effort is required in order to bridge the gap that exists between the current legal framework and its application by international adjudicatory bodies. As will be shown, a lacuna has emerged from the different interpretations international courts have given to the norms governing this field of law. An interpretative approach will be suggested, with the objective of dispelling doubts as to when--and how--cultural property will be afforded protection by international criminal law.
This article explores the issue at hand from the perspective of international criminal law. At the outset, it grapples with the role played by international courts in the analysis of the subject--traditionally, as a war crime and, additionally, as a crime against humanity. The conclusions represent an attempt to reconcile normative theory and jurisprudential practice within the legal protection of cultural heritage: the objective is to prove what type of interpretation undergirds the best possible balance between the two poles.
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THE ROLE OF INTERNATIONAL COURTS
The practice of international criminal courts such as the ICTY and the ICC has been key for the assessment of what international crimes are and how they should be prosecuted and identified. In this section, I look at the work of the ICTY and the ICC in relation to offences against cultural heritage and I try to determine the conformity of their case law with the legal framework which embeds these crimes.
The most recent case is the Al Mahdi case before the ICC. This case is remarkable mostly because it is the first time that "the war crime of destroying cultural heritage has been the primary subject matter in a case before the ICC". (3) This has been of assistance in upgrading crimes against cultural property from their traditional second-rated nature to a primary-rated one. (4) Indeed, a general trend in the prosecution of international crimes has been to prioritise crimes against human beings rather than those against cultural property alone. (5) But the Al Mahdi case has been important in pinpointing that the protection of cultural property and that of human beings do not conflict one with another and should be equally prosecuted as international crimes. (6)
The main assumption here is that, under specific circumstances, offences against cultural property can be regarded as international crimes. The case law of the ICTY and, more recently, that of the ICC have qualified such offences predominantly as war crimes. However, if certain criteria are met, they could equally amount to crimes against humanity. Hence, I take into account the approaches of the ICTY and the ICC, unveiling their different positions with regard to various international criminal law issues.
2.1 WAR CRIMES
Of the various international criminal tribunals, the ICTY had been particularly active in addressing the intentional destruction of cultural heritage in wartime as an independent and autonomous war crime. (7) It is thanks to the ICTY that attacks on cultural heritage, its wilful eradication and deliberate demolition have begun to be conceived as part of the process of the so-called 'ethnic cleansing'. (8) And in fact Article 3(d) of the ICTY Statute (9) tackled the:
seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science as a violation of the laws and customs of war. Even though the provision did not mention explicitly cultural property as the object of the attack as such, according to the ICTY: "the enumeration of some of these violations provided in Article 3 is merely illustrative, not exhaustive". (10)
Crimes against cultural property had been qualified as 'grave crimes' by the ICTY. (11) This was so for two main reasons:
i) an attack on the cultural heritage of a people means an attack on the cultural heritage of all humankind; (12) and
ii) these crimes have a long-term impact on the specifically affected regions and on the international community as a whole since they eradicate a cultural identity which transcends the very goods destroyed. (13)
The severity of these crimes was particularly highlighted in situations where they concerned programmes of ethnic separation and discrimination. (14) It is equally relevant to stress that the intentional demolition of cultural heritage affects, at the same time, the regional values of people and communities, (15) as well as humankind as a whole. (16)
As far as the commission of war crimes is concerned, the requirement of the existence of an armed conflict (whether of international or non-international character) is not the sole criterion that must be satisfied. The act must also have a so-called 'nexus' to the conflict. (17) In the words of the ICTY:
[t]he armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. (18) As for the ICC, war crimes against cultural heritage are enshrined under Articles 8(2)(b) (ix) and 8(2)(e)(iv) of its Statute. (19) The gravity threshold is also of particular interest in so far as ICC crimes are concerned. Indeed, in order to be prosecuted by the ICC, crimes must reach a degree of seriousness which is particularly high. (20) The ICC has supported the line of a qualitative and quantitative (rather than merely quantitative) approach in the assessment of the gravity of crimes. (21)
Consistently, under international criminal law, war crimes against cultural property can be grouped in four sub-categories, as identified by Roger O'Keefe: (22)
* unlawful attacks against cultural property; (23)
* unlawful incidental damage to cultural property; (24)
* unlawful acts of hostility against cultural property other than attacks (25) and
* unlawful appropriation of cultural property. (26)
While the ICTY generally required a higher degree of detail in the assessment of the mens rea (e.g. that the author performed a wilful attack with the knowledge that the object was of a cultural nature and that the act would eventuate its destruction or damage) and of the actus reus (e.g. that the act actually caused the destruction or damage of the cultural good), the ICC provides for a more extensive safeguarding of cultural property and requires less stringent criteria for the acknowledgement of the crime (i.e., for the mental element: the mere knowledge that the property was civilian and non-military in nature and the engagement in the conduct; for the material element: the mere direction of attacks against such goods in the absence of military necessity). These conclusions have been inferred from the wording of the respective statutes (27) and from the case-law of the courts. (28)
2.2 CRIMES AGAINST HUMANITY
Nothing precludes an offence from qualifying as both a war crime and a crime against humanity. (29) If intentional and "widespread or systematic", (30) cultural destruction during an armed conflict may also amount to a crime...
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