The International Criminal Court (the “Court” or “ICC”) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: war crimes, genocide, crimes against humanity, and the crime of aggression.
The Rome Statute confers upon the Court jurisdiction over crimes against or affecting cultural heritage, complementing international law governing the protection of cultural heritage and associated human rights.
“Cultural heritage” refers not only to physical forms of heritage, such as material objects and artefacts, but also to the practices and attributes of a group or society that are inherited from past generations.
In its recently published Policy on Cultural Heritage, the ICC highlights the present threat of attacks on cultural heritage, and how it seeks charges for such crimes.
Recent examples of attacks on cultural heritage
The Policy lists recent examples of such attacks as including:
- The targeting of historical monuments in Syria and Iraq, in particular those with strong symbolic and interreligious meaning.
- Attacks directed against mausoleums of saints and mosques in Timbuktu, Mali.
- The destruction of the Assyrian capital cities of Nimrud and Nineveh.
- The destruction of the ancient city of Palmyra and its surrounding areas.
Role of the Office of the Prosecutor
The Office of the Prosecutor (the “Office”) is one of the four organs of the ICC. It is headed by the Chief Prosecutor, Karim Khan, who was elected by the Assembly of States Parties by consensus.
The Office endeavours to investigate and prosecute perpetrators of crimes against cultural heritage, provided that the jurisdictional and admissibility preconditions are met. An example of this work in action is provided in the Policy.
The Office first brought charges relating to cultural property in the Al Mahdi case in the Situation of Mali in September 2015. In September 2016, Mr Ahmad al-Faqi al Mahdi was convicted of the war crime of intentionally directing attacks against buildings dedicated to religion and historic monuments following his own admission of guilt.
Regulatory framework
While the Rome Statute is the ICC’s founding treaty, none of the crimes detailed therein explicitly refers to the destruction of cultural heritage. Nevertheless, there are several crimes that can be applied to such acts.
Where appropriate, the Court may also rely on applicable treaties and the principles and rules of international law, such as those set out in the 1954 Hague Convention.
The Court may further apply general principles of law derived from national laws or legal systems, provided that those principles are not inconsistent with the Statute, international law, or internationally recognised norms and standards.
The Statute confers upon the Court jurisdiction over various crimes against or affecting cultural heritage, where these constitute or form part of war crimes, crimes against humanity, genocide, or the crime of aggression.
War crimes
Crimes against cultural heritage are often committed in the context of armed conflict. War crimes at present may offer the most straightforward means to address intentional harm to cultural heritage. The ICC breaks down war crimes into five broad categories:
- The directing of attacks against certain protected objects. This includes buildings dedicated to religion, education, art, science, or charitable purposes, and historic monuments.
- The directing of attacks against civilian objects. This includes any tangible cultural property or heritage which does not constitute a building dedicated to the above purposes, or a historic monument.
- The destruction or seizure of property (of all kinds) belonging to certain persons. These crimes are not specific to cultural property, but instead reflect the general prohibition of destroying or appropriating any property, provided it may be considered to be protected under applicable law.
- The appropriation of property for private or personal use (pillage). Such conduct may be organised, officially authorised and sanctioned, or sporadic and/or opportunistic.
- Other crimes which may nonetheless indirectly relate to cultural heritage. This includes deportation or forcible transfer, “outrages upon personal dignity”, and sexual or gender-based crimes.
Only the first of these categories deals specifically with crimes committed against some forms of cultural property, but the provisions contained in all the categories are potentially relevant to the protection of cultural heritage more broadly, as this may form the context to the conduct in question, or may be adversely affected as a result of such conduct.
Crimes against humanity
Crimes against humanity, such as attacks on civilian populations, often have adverse effects on cultural heritage.
For the Office to charge crimes against or affecting cultural heritage as crimes against humanity, it needs to demonstrate that:
- An attack against the civilian population was committed,
- The attack was pursuant to, or in furtherance of, a State or organisational policy, and
- The attack was widespread or systematic.
The policy outlines some specific instances of crimes against humanity that may adversely impact cultural heritage including torture, persecution, and other inhumane acts. Deportation or forcible transfer and sexual or gender-based crimes are also listed, indicating the potential for overlap between war crimes and crimes against humanity.
These crimes may lower a group’s morale, change power dynamics, and weaken resistance to attempts to erode their cultural heritage.
Genocide
Crimes against or affecting cultural heritage frequently occur in connection with genocide. The specific targeting of a group’s cultural heritage may constitute evidence of the perpetrator’s intent to destroy that group. This may involve attacking buildings or persons of cultural significance. Genocide may be perpetrated by:
- Killing members of the group. The intent may be to destroy a substantial part of the group and prevent the continuance of their cultural and religious practices.
- Causing serious bodily or mental harm to members of the group. This can include war crimes or crimes against humanity such as torture, rape, sexual abuse, and deportation. These crimes may be motivated in part to offend the victim group’s cultural heritage.
- Inflicting conditions of life calculated to bring about the group’s physical destruction. Often, such measures may target persons or objects, such as traditional lands, that are also of significant cultural importance.
- Prevention of births and forcibly transferring children of the group to another group. These acts both threaten continuation of a group’s cultural heritage.
Crime of aggression
The “crime of aggression” is constituted by the participation of a sufficiently high-level State official or similar person in an “act of aggression”, which is of sufficient gravity. These crimes might be directed against, or may affect, cultural heritage. Examples include:
- Invasion, attack, occupation or annexation.
- The bombardment, or the use of any weapons against, the territory of another State.
- The use of armed forces of a State or any extension of their presence within the territory or another State in contravention or beyond the termination of their agreement.
- The action of a State in allowing its territory and placing it at the disposal of another State to be used for perpetrating an act of aggression against a third State.
- The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries which carry on an act of aggression against another State.
Preliminary examinations
The Office will conduct a preliminary examination to determine whether a situation meets the legal criteria established by the Rome Statute to proceed with an investigation. This includes analysing conduct that may amount to crimes against or affecting cultural heritage.
The Office will interact with relevant stakeholders, including victims’ legal representatives, affected communities and civil society organisations, to gather the views of victims and others who may be affected by crimes against or affecting cultural heritage.
Where relevant, the Office will engage with States and international and non-governmental organisations at an early stage to verify the information available to prevent the recurrence of such crimes.
Investigations
The Office will ensure that any collection of evidence is done with appropriate respect for local customs, culture and religion.
Often, investigations are complicated by a lack of documentation of the state of tangible cultural heritage before and after the attack. Loss of evidence may also occur due to factors such as looting and unlawful excavations.
To overcome these challenges, the Office will utilise technology such as satellite and drone imagery, 3-D mapping and modelling, geolocation data, and audio-visual material. International experts in related fields may also be brought in to help analyse the date and assist the investigation.
Prosecutions
The Office seeks to investigate and prosecute those most responsible for crimes that fall under the Court’s jurisdiction. This includes crimes specifically directed at cultural heritage, as well as offences in which crimes against or affecting cultural heritage can otherwise fulfil a necessary element or play a role.
Evidence presented may include videos and photographs, satellite imagery, 3-D imagery, and geolocation data, as collected throughout the investigation. The Office may also present the testimony of expert witnesses or victims, covering, for example, the religious or historical nature or other relevant characteristics of the affected cultural heritage.
In the determination of an appropriate sentence, the Court will consider the gravity of the crime, the extent of the damage caused, and the nature of the unlawful behaviour, amongst other factors.
Cooperation and external relations are key to ensuring successful prosecutions. The Office actively engages with:
- States.
- Early responders such as UN bodies, peacekeeping and humanitarian personnel, non-governmental organisations, and the media.
- Academic institutions and other bodies with knowledge pertinent to cultural heritage.
- International enforcement organisations such as INTERPOL, Europol and Eurojust, and national police-force units and departments specialised in preventing and investigating cultural-heritage related crimes.
The Office also signed a Letter of Intent with UNESCO in November 2017 to collaborate on the development of the Policy on Cultural Heritage, to engage in raising public awareness, and to explore synergies and other areas of cooperation.
Key takeaways
The International Criminal Court has jurisdiction over crimes against or affecting cultural heritage. These crimes may be perpetrated in connection with war crimes, genocide, crimes against humanity, and crimes of aggression.
The Court’s Office of the Prosecutor investigates and prosecutes perpetrators of crimes against cultural heritage, utilising international cooperation and partnerships to achieve meaningful results.
