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Cultural Crimes as Atrocity Crimes: Ending Impunity for Cultural Plunder and Destruction

March 11, 2019

On March 8, scholars and practitioners from around the United States and the world came together at the University of Georgia School of Law for a daylong conference on “The International Criminal Court and the Community of Nations.”

The Antiquities Coalition was a honored to participate in this event, which explored challenges now facing the ICC, as well as the role of parties, nonparty states, non-state stakeholders, and inherited communities. The seminar included presentations from leading experts, as well as panel discussions, and a video address from Fatou Bensouda, the ICC Prosecutor. It was organized by the Dean Rusk International Law Center, as well as the Georgia Journal of International and Comparative Law.

Tess Davis, Executive Director of the Antiquities Coalition, and herself a graduate of the law school, spoke about why cultural heritage should be considered a stakeholder in international criminal law and before the ICC. She noted that the Antiquities Coalition has long commended the ICC for its important work to end impunity for atrocity crimes involving cultural heritage, and has also called upon the United Nations Security Council to refer additional cases to the court, especially attacks by Daesh (ISIS) against the people of Iraq and their heritage. However, she also stressed that there is much the global community can—and should—still do to prevent, investigate, and prosecute crimes against culture.

Key takeaways included:

  • Cultural Racketeering and Destruction Is a Threat to World Heritage and Global Security: Culture has always been used as a weapon of war, but increasingly it is also being used as a criminal, insurgent, and terrorist financing tool. Daesh has made headlines for its highly developed antiquities trade, but some of the worst actors of the last century have also profited from stealing and smuggling art. This is a problem that predates, and will outlive, Daesh.
  • Plunder and Destruction Go Hand In Hand: Confusing the situation is the fact that many of the same groups that are now financing their operations through the illicit antiquities trade are also targeting cultural, historic, and religious sites for destruction. These cultural attacks may be used to intimidate—or even erase—local enemies and can also make for dangerous propaganda. Such cultural destruction can be an atrocity crime in and of itself, as well as a warning sign of impending crimes against humanity, war crimes, and genocide.
  • Cultural Racketeering and Destruction Is a Violation of International Law: Both cultural plunder and destruction, absent military necessity, are prohibited and even criminalized by the general provisions of international humanitarian law dealing with civilian property, including the law of Geneva, the law of the Hague, and customary international law. The 1954 Hague Convention and its two Protocols, the 1977 Additional Protocols to the Geneva Conventions, and the 1998 Rome Statute have reinforced these protections with specific provisions on cultural property.
  • The ICC Is Working to End Impunity for Cultural Crimes: In September 2015, the court opened its first relevant case, against Ahmad Al Faqi Al Mahdi for the intentional destruction of historic and sacred sites in Timbuktu. Al Mahdi was an active member of Ansar al-Dine, a home-grown terrorist movement with close ties to Al Qaeda in the Islamic Maghreb (AQIM). He pled guilty and became the first perpetrator convicted by the court for cultural crimes (as well as the first Islamic extremist). This case set an important precedent and is already paving the way for subsequent investigations and eventual prosecutions. Indeed, Mali has referred an associate of Al Mahdi to the court, who is now in ICC custody awaiting his confirmation of charges hearing for crimes against humanity and war crimes, including torture, rape and sexual slavery, and cultural destruction.
  • But More Needs to Be Done: Stopping the ongoing atrocity crimes against the populations of places like Libya, Syria, and Yemen—and their heritage—should always be the first priority. However, this is difficult, if not impossible, so long as hostilities continue. But, still, there is much the International community can do in the meantime. First, it can cut off cultural heritage as a source of financing for the organized criminals, armed insurgents, and violent extremists, by closing borders to undocumented antiquities. Second, it can incorporate cultural heritage protection in all peacekeeping mandates and training, as well as post-conflict planning and recovery trust funds. Third, crimes against culture should be criminally prosecuted along with other atrocity crimes, either through international tribunals or domestic prosecutions, recognizing they are first and foremost attacks against people.