What is an “attack” against cultural heritage under the law of the International Criminal Court? On September 18, the Antiquities Coalition sought to answer this question when it joined Blue Shield International and Genocide Watch in submitting an amicus curiae brief to the ICC, challenging the “narrowly restricted” nature of a recent interpretation made by Trial Chamber VI in the case of The Prosecutor v. Bosco Ntaganda.
About The Prosecutor v. Bosco Ntaganda
On July 8, 2019, Trial Chamber VI convicted Bosco Ntaganda, allegedly the former Deputy Chief of General Staff of the Patriotic Forces for the Liberation of Congo (FPLC), on 18 counts of war crimes and crimes against humanity—which, according to the Open Society Justice Initiative, was “the highest amount of charges in any case to reach the judgment stage before the court.”
According to Trial Chamber VI, Ntaganda held individual criminal responsibility for acts the FPLC militia committed between 2002 and 2003, including 13 kinds of war crimes (“murder and attempted murder; attacking civilians; rape; sexual slavery of civilians; pillaging; displacement of civilians; attacking protected objects; destroying the enemy’s property; rape and sexual slavery of child soldiers; and enlisting and conscripting child soldiers under the age of fifteen years and using them to participate actively in hostilities,” according to the Open Society Justice Initiative) and 5 counts of crimes against humanity (“murder and attempted murder; rape; sexual slavery; persecution; and forcible transfer of population,” according to the Open Society Justice Initiative).
On November 7, 2019, Ntaganda was sentenced to 30 years in prison—the longest sentence ever handed down by the ICC, according to BBC News.
About the Appeal
Some of Ntaganda’s criminal acts may have gone unaccounted for, according to the Prosecution, which addressed allegations relating to the destruction of a church and a hospital in an appeal brief submitted to the ICC on October 7, 2019.
Referencing one incident, the Prosecution argued that Trial Chamber IV had erroneously discontinued its evaluation “simply because it ‘took place sometime after the assault, and therefore not during the actual conduct of hostilities.”
The Prosecution both highlighted the Rome Statute’s special protections of cultural property and argued that an “attack” on a protected site like a church, as defined by Article 8(2)(e)(iv) of the Rome Statute, “only requires that the perpetrator directed an act of violence against a protected object, irrespective of whether this occurred in the conduct of hostilities or when the object was under the control of a party to the conflict.”
About the Amicus Curiae Brief
The Antiquities Coalition, Blue Shield International and Genocide Watch concurred in their September 18 amicus curiae brief, noting that if “attacks” were limited in definition to acts committed during the “conduct of hostilities,” then the Court would not recognize “the harm to the victims” of sites “attacked during continuous activities serving the military objectives of the attackers,” so long as those sites were located in places where the “heat of battle” had subsided.
“It would create an illogical gap in time following active combat during which cultural, medical and religious objects would lose their protection and those who destroy such objects would become immune from prosecution,” the amici wrote.
Such a loophole would be particularly illogical in that it would not only contradict “the distinct nature, object and purpose” of Article 8(2)(e)(iv), but also the interpretation of the same article by a previous Trial Chamber for Al Mahdi, which had found that “the element of ‘direct[ing] an attack’ encompasses any acts of violence against protected objects” and that there is no “distinction as to whether it was carried out in the conduct of hostilities or after the object had fallen under the control of an armed group.”
According to the amici, a failure to rectify this ruling would also make it more difficult to enforce accountability for individuals who may go on to initiate attacks on protected sites—as well as individuals who already have allegedly initiated attacks on protected sites, such as Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Alfred Yekatom and Patrice-Edouard Ngaïssona.
The Antiquities Coalition stands by the amici’s conclusion, which states that “the term ‘attack’ under Article 8(2)(e)(iv) should not be narrowly restricted only to actions committed during the “conduct of hostilities”, or heat of battle, and should instead reflect the full framework of special protections afforded to cultural property and heritage under international law.”
To read the full amicus curiae brief, click here.
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