The Prosecutor v. Ahmad Al Faqi Al Mahdi: Cultural Property and World Heritage in International ...

35 Pages·2016·0.41 MB·English

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The Prosecutor v. Ahmad Al Faqi Al Mahdi: Cultural Property and World Heritage in
International Criminal Law

TABLE OF CONTENTS
I. INTRODUCTION……………………...……………………………………………2
II. UNIVERSALISM AND CULTURAL RELATIVISM IN INTERNATIONAL
CRIMINAL LAW……………………………………………………………………3
III. PERMANENT INTERNATIONAL CULTURAL HERITAGE
PROTECTIONS…………………………………………………………………......5
a. 1907 Hague Convention (IV) Concerning the Laws and Customs of War on
Land…………………………………………………………………………….…5
b. 1954 Hague Convention for the Protection of Cultural Property in Armed
Conflict…………………………………………………………………………….6
c. Second Protocol to the 1954 Hague Convention for the Protection of Cultural
Property in Armed Conflict…………………………….………………………….8
d. Protocol I to the 1949 Geneva Conventions……………………………………..10
e. Protocol II to the 1949 Geneva Conventions…………………………………….11
f. 1972 World Heritage Convention………………………………………………..12
g. The Rome Statute………………………………………………………………...14
IV. CULTURAL HERITAGE IN INTERNATIONAL CRIMINAL LAW………..17
a. Strugar and Jokić……………………………………………………………...…18
b. Prlić et al…………………………………………………………………………20
V. THE PROSECUTOR V. AHMAD AL FAQI AL MAHDI………………...……23
VI. ANALYSIS…………………………………………………………...……………..27
VII. CONCLUSION……………………………………………...……………………...34
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I. INTRODUCTION
In a time when the brutal destruction of cultural heritage is being wielded as a powerful
weapon by groups like ISIS against communities around the world, the protection of cultural
heritage in the international context has become more crucial than ever. Accordingly, the Al
Mahdi case1 currently before the ICC marks the first time that war crimes for the destruction of
cultural heritage have been the main charge in an international criminal case.
This marks a promising and timely development in the protection of cultural heritage in the
international criminal context. Although charges for the destruction of cultural heritage have
been brought in other international criminal cases, they have always been auxiliary to other
charges for more “serious” crimes. In bringing this case, however, the ICC Prosecutor
emphasized the importance of the charges against Al Mahdi:
Let us be clear: what is at stake is not just walls and stones. The destroyed mausoleums were
important, from a religious point of view, from an historical point of view, and from an
identity point of view.2

But the question arises: important from whose perspective? Such cultural sites could be
deemed important from a universal perspective as part of the “world cultural heritage” common
to all of humanity, or its importance could be established relative to a certain community or
population to whose identity the cultural site is crucial. In this paper I argue that, in determining
whether future cases based on the war crime of destruction of cultural property should be

1 Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15 ICC [hereinafter Al Mahdi].
2 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the opening of the
confirmation of charges hearing in the case against Mr Ahmad Al-Faqi Al Mahdi, INTERNATIONAL CRIMINAL
COURT, OFFICE OF THE PROSECUTOR (March 1, 2016), available at https://www.icc-
cpi.int/Pages/item.aspx?name=otp-stat-01-03-16 (last visited May 15, 2016) [hereinafter Statement].
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brought before the ICC, the Prosecutor and Chambers should utilize a relativist approach to
identifying the gravity of the destruction in question.
I begin in Part II by summarizing the debate between universalism and cultural relativism
and its application to war crimes in the international criminal law context. I then identify existing
international protections for cultural heritage and define the scope of cultural heritage in the
international sphere. In Part IV I provide a brief summary of the most significant international
criminal cases concerning cultural heritage destruction to date. In Part V, I explore the approach
taken by the Prosecutor in the Al Mahdi case, with particular attention to her justifications for the
charges. Finally, in Part VI I analyze the possibility of future cases on the destruction of cultural
heritage in the context of admissibility at the ICC, and argue for a relativist approach to
determining the “gravity threshold” for admissibility in such cases.

II. UNIVERSALISM AND CULTURAL RELATIVISM IN INTERNATIONAL
CRIMINAL LAW
The debate between universalism and cultural relativism has played a major role in the
development of international criminal law. This debate, often grounded in the language and
context of international human rights, occurs along a spectrum, with one end being represented
by those who believe that one possesses human rights simply because one is a human being
(regardless of location, culture, or background), and the other extreme by those who argue that
human rights vary depending on the culture to which an individual belongs.3 In other words, this
debate examines the merits of approaching international legal issues from the perspective of

3 Ida L. Bostian, Cultural Relativism in International War Crimes Prosecutions: The International Criminal
Tribunal for Rwanda, 12:1 ILSA J. Int'l & Comp. L. 1 (2005), at 4.
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humanity as a whole, versus approaching the issue from a more localized, culturally-based
approach.
In the international criminal context, this issue often arises regarding the establishment,
operation and legitimacy of international criminal tribunals, and the role that cultural differences
should or will play in this process.4 However, it should also play a crucial role in the definition of
crimes under the jurisdiction of such tribunals, and how we interpret those definitions. It is
generally accepted by both universalists and cultural relativists that there are certain crimes, such
as slavery or genocide, which are universal and which found the basis for international criminal
law.5 However, as one author notes, “the specifics of what acts are universally prohibited, and
when they are prohibited, are seldom articulated.”6 The elements of these crimes that are
articulated in the statutes or treaties defining international criminal jurisdiction are often very
vague and subjective. The jurisprudence of various international criminal courts and tribunals
fails to clarify such elements, as each successive court tends to redefine crimes with new
elements or slight variations and apply these definitions in inconsistent or varying ways.7
We therefore must decide how to determine what acts and circumstances fulfill the elements
of a certain crime, and how such circumstances should be evaluated by a prosecutor in deciding
to bring a case or by a court in deciding its admissibility. For example, we are provided little
guidance as to what exactly justifies a charge of the war crime of directing attacks against
buildings dedicated to religion and historic monuments which are not military objectives.
Prosecutors enjoy significant prosecutorial discretion in determining whether to bring a case, and
therefore have the ability to interpret such provisions as they see fit. Judges, however, are also

4 Bostian, supra note 3.
5 Bostian, supra note 3, at 6-7.
6 Bostian, supra note 3, at 7.
7 Id.
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under the obligation to interpret such provisions in determining whether a certain case meets the
admissibility requirements of the Court.
This is where the universalism versus cultural relativism debate comes into play. Should the
courts and prosecutors analyze the circumstances of a case from a universalist perspective,
looking at its effect or significance for humanity as a whole? Or should they approach the issue
through a relativist perspective, focusing on the importance or impact of the circumstances of the
case on the immediate victims and their local communities?

III. PERMANENT INTERNATIONAL CULTURAL HERITAGE PROTECTIONS
The various international legal protections afforded to cultural heritage form the foundation
for cultural heritage protection in the international criminal law sphere. Although these
protections occur in different subject areas, they work together and influence each other to create
a dynamic if incomplete system for the international protection of cultural heritage.

a. 1907 Hague Convention (IV) Concerning the Laws and Customs of War on Land
The 1907 Regulations concerning the Laws and Customs of War on Land, an Annex to the
1907 Convention (IV) Respecting the Laws and Customs of War on Land, 8 contain several
provisions that protect cultural heritage during warfare. Article 27 of the Regulations, which
relates to active hostilities, requires that “[i]n sieges and bombardments all necessary steps … be

8 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land (The Hague, 18 October 1907), 187 CTS 227; 1 Bevans 631, entered into force
26 January 1910 [hereinafter 1907 Hague Convention IV].
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taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable
purposes, historic monuments, hospitals, and places where the sick and wounded are collected,
provided they are not being used at the time for military purposes.”9 Article 56, which applies to
military authority over territory of a hostile state, specifies that “[t]he property of municipalities,
that of institutions dedicated to religion, charity and education, the arts and sciences, even when
State property, shall be treated as private property” and that “[a]ll seizure of, destruction or
wilful damage done to institutions of this character, historic monuments, works of art and
science, is forbidden, and should be made the subject of legal proceedings.”10
Although the Convention has only thirty eight State Parties, in 1946 the Nuremberg Tribunal
stated that “by 1939 … [the] rules laid down in the Convention were recognised by all civilised
nations, and were regarded as being declaratory of the laws and customs of war.”11 These
provisions were therefore binding on all nations, as they embodied customary international law.
These protections do not appear to be limited to such buildings or monuments which have a
cultural, religious, or historical importance to humanity as a whole; it simply protects any
historic monuments and buildings which are “dedicated to” religion, art or science.

b. 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict
Another protection for cultural heritage in wartime is the 1954 Hague Convention for the
Protection of Cultural Property in Armed Conflict, which was promulgated under the auspices of

9 1907 Hague Convention IV, supra note 8.
10 Id.
11 Judgement: The Law Relating to War Crimes and Crimes Against Humanity, THE INTERNATIONAL MILITARY
TRIBUNAL FOR GERMANY (Nuremberg, 30 September 1946), available at http://avalon.law.yale.edu/imt/judlawre.asp
(last visited May 16, 2016).
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the United Nations Educational, Scientific and Cultural Organization (UNESCO) in response to
the devastating destruction of cultural heritage that took place during World War II.12 The
Convention has been widely ratified, with 127 State Parties to date.13
Although the Convention’s preamble specifies that it was guided by the principles of the
1907 Hague Convention,14 it seems to take a more universalist approach, protecting “movable or
immovable property of great importance to the cultural heritage of every people” [emphasis
added] including monuments of architecture, art or history, archaeological sites, works of art,
manuscripts, books and other objects of artistic, historical or archaeological interest, as well as
scientific collections of all kinds.15 The Convention’s preamble, however, equivocates this view,
specifying that “damage to cultural property belonging to any people whatsoever means damage
to the cultural heritage of all mankind, since each people makes its contribution to the culture of
the world” [emphasis added].16
Ultimately the Convention requires the “safeguarding of and respect for” such cultural
property by State Parties, including by parties to a non-international armed conflict within the
territory of a State Party.17 This entails both refraining from using such property or its immediate
surroundings for purposes that are likely to expose it to destruction or damage during armed
conflict, and refraining from acts of hostility directed against such property that do not constitute

12 Convention for the Protection of Cultural Property in Armed Conflict (The Hague, 14 May 1954), 249 UNTS 240,
entered into force 7 August 1956 [hereinafter Cultural Property Convention].
13 Legal Instruments: Convention for the Protection of Cultural Property in the Event of Armed Conflict with
Regulations for the Execution of the Convention. The Hague, 14 May 1954, UNITED NATIONS EDUCATIONAL,
SCIENTIFIC, AND CULTURAL ORGANIZATION (UNESCO), available at
http://www.unesco.org/eri/la/convention.asp?KO=13637&language=E&order=alpha (last visited May 16, 2016).
14 Cultural Property Convention, supra note 12, at Preamble.
15 Cultural Property Convention, supra note 12, at Art. 1; see also Convention for the Protection of Cultural
Property in the Event of Armed Conflict, American Society of International Law, ELECTRONIC INFORMATION
SYSTEM FOR INTERNATIONAL LAW (2013), available at
http://www.eisil.org/index.php?t=link_details&id=568&cat=876 (last visited May 16, 2016).
16 Cultural Property Convention, supra note 12, at Preamble.
17 Cultural Property Convention, supra note 12, at Art. 19.
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military objectives.18 It also mandates the marking of such property with special insignia,
although such marking is not required for the protection of the property under the Convention to
take effect.

c. Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property
in Armed Conflict
The Second Protocol, which has sixty eight State Parties, was added to the Convention in
1999 to enhance the protections afforded to cultural property during international and non-
international armed conflicts. It established a new system in which cultural property “of the
greatest importance for humanity” can be placed under “enhanced protection,” as long as it is
adequately protected by domestic law and not used for military purposes.19 The granting of
“enhanced protection” to cultural property is made by the Committee for the Protection of
Cultural Property in the Event of Armed Conflict, an intergovernmental committee established
by Article 24 of the Second Protocol. The Committee is comprised of twelve State Parties,
whose representatives should be qualified in the fields of cultural heritage, defense or
international law.20 This approach endorses a universalist point of view by asserting that cultural
property with importance to humanity as a whole deserves greater protection than cultural
property with a more localized significance.

18 Cultural Property Convention, supra note 12, at Art. 4.
19 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed
Conflict (The Hague, 26 March 1999), entered into force 9 March 2004 [hereinafter Second Hague Protocol], at Art.
10.
20 Second Hague Protocol, supra note 19, at Art. 24.
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The Second Protocol also defines the conditions in which individual criminal responsibility
should attach to the lack of respect for cultural property during armed conflict. Article 15 of the
Protocol specifies five “serious violations” which State Parties undertake to criminalize, establish
jurisdiction over, and provide appropriate penalties for through domestic legislation. These
violations are as follows:
(a) making cultural property under enhanced protection the object of attack;
(b) using cultural property under enhanced protection or its immediate surroundings in
support of military action;
(c) extensive destruction or appropriation of cultural property protected under the
Convention and this Protocol;
(d) making cultural property protected under the Convention and this Protocol the object of
attack;
(e) theft, pillage or misappropriation of, or acts of vandalism directed against cultural
property protected under the Convention.21

The Protocol establishes universal jurisdiction amongst its State Parties for the first three of
the five serious violations—Article 15, section 1, subparagraphs (a) through (c)—by requiring
each State Party to establish jurisdiction over alleged offenders of these subparagraphs who are
present in its territory.22 The Convention’s structure of criminal responsibility clearly gives
elevated importance to the “enhanced protection” category of cultural property discussed above,
as it requires universal jurisdiction for attacks on or military use of any such property.
The “serious violations” requiring universal jurisdiction, however, are not limited to the
“enhanced protection” sphere. The third universal jurisdiction category applies to “extensive
destruction or appropriation of cultural property protected under the Convention,” even if such

21 Second Hague Protocol, supra note 19, at Art. 15.
22 Second Hague Protocol, supra note 19, at Art. 16(1)(c).
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property is not recognized as being “of the greatest importance for humanity.”23 In this way, the
Protocol’s criminal responsibility structure allows for a more relativist approach, recognizing
that the extensiveness of destruction can also warrant the imposition of the most serious category
of individual criminal responsibility due to its impact on the local community, as opposed to the
destroyed property’s significance to the global population as a whole.

d. Protocol I to the 1949 Geneva Conventions
The First Protocol to the 1949 Geneva Conventions, adopted in 1977, reaffirms and further
develops the cultural property protections regarding the conduct of hostilities that were
articulated in the 1907 Hague Convention. Article 53 of the First Protocol states that, without
prejudice to the provisions of the 1954 Hague Convention and “other relevant instruments,” it is
prohibited to:
(a) to commit any acts of hostility directed against the historic monuments, works of art
or places of worship which constitute the cultural or spiritual heritage of peoples;
(b) to use such objects in support of the military effort; or
(c) to make such objects the object of reprisals.24

This Protocol’s definition of protected cultural objects and places of worship is rather vague,
specifying only that they must “constitute the cultural or spiritual heritage of peoples.” This may
open the door for a more relativist approach to enforcement based on the importance of the sites
or objects to the local people who identify with them instead of their importance to the world’s

23 Second Hague Protocol, supra note 19, at Art. 15(1)(c).
24 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts (Protocol I) (Geneva, 8 June 1977), 1125 UNTS 3, entered into force 7 December
1978 [hereinafter Geneva Protocol I], at Art. 53.