International Crimes Against Cultural Heritage: The ICC's Mali Judgment

On Thursday 6 October 2016, the AHR Centre held a seminar, co-hosted with the Australian Red Cross, on the recent International Criminal Court (ICC) decision in the Al Mahdi Case. The case has signaled some important firsts for the court, including the first time the war crime of destruction of cultural heritage (including nine mausoleums and a mosque in Timbuktu – most listed on the World Heritage list), was heard in the ICC, and the first time the court considered a guilty plea.

Dr. Lucas Lixinski, senior lecturer at UNSW Law, opened the discussion, looking at how the case has raised the profile of UNESCO’s cultural heritage work, particularly given its extensive involvement in gathering evidence for the ICC process. It also triggered UNESCO to seek greater coordination among its regimes. The decision introduced new ways of thinking about and valuing cultural heritage, translating it into something of interest not only to States, but also to individuals and communities. In supporting this, Lucas quoted Prosecutor Fatou Bensouda, who described the destruction of cultural heritage as ‘a deep attack on the identity of a population, their memory and their future’. Lucas suggested that in the future, this may encourage a more community-centred ethos when approaching issues of cultural heritage protection.

Following from this, Tara Gutman, Legal Advisor in the International Humanitarian Law Department at the Australian Red Cross, looked at the case from an International Humanitarian Law (IHL) perspective. The 1949 Geneva Conventions and Additional Protocols that set out “the laws of war”, protect not only people who become caught up in conflict, but also civilian property which includes cultural property. The paramount legal instrument is the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict which prohibits the deliberate destruction of monuments, sites and objects of cultural significance. These obligations date back to the Hague Regulations of 1899 and 1907.

Tara noted that, particularly at the stage of post-conflict reconciliation, the scars of war are more strongly felt if irreplaceable items of cultural heritage have been destroyed. Australian Red Cross has welcomed the trial as the first time that the ICC has centred a case on crimes against cultural property; prosecutions are critical to having the legal protections better understood and implemented..  Red Cross is working on strengthening the international framework for protection of cultural property, including by engaging with the Australian government and arts community to explore the adoption the two Optional Protocols (1954 and 1999) to the Convention for the Protection of Cultural Property in the Event Of Armed Conflict (1954). 

Sarah Williams, Associate Professor at UNSW Law, concluded the discussion with a look at the International Criminal Law implications of the case. While the charge against Mr. Al Mahdi has been criticised as too narrow, Sarah described it as a focused and deliberate charging strategy, bringing attention to the significance of a previously neglected crime. Sarah discussed how the destruction of cultural heritage can be a precursor to other crimes, including genocide; a link that was made explicit by drawn by Fatou Bensouda during the trial.

The Trial Chamber stressed that the destruction of cultural heritage was a serious war crime. However, the Trial Chamber sentenced Al Mahdi to the minimum of nine years, with no appeal - pursuant to the terms of the plea agreement (which contemplated a range of 9-11 years) and suggested a hierarchy, whereby crimes against cultural property are considered less significant than crimes against the person. While this aspect of the decision is unfortunate, the case nevertheless provided a valuable template for future ICC decisions involving admissions of guilt, including the weight given by the Trial Chamber to the admission of guilt and Al Mahdi’s cooperation as mitigating factors.

Now that there is a conviction, the case will move to the reparations phase. This will present the first opportunity for the ICC – or any international tribunal – to consider reparations for the destruction of cultural heritage. However, throughout the panel’s discussion, the idea of  “how do we replace the irreplaceable” was apparent, and the issue of whether reparations can account for both the physical loss of cultural property as well as the intangible, emotional and cultural loss suffered by the community. Lucas noted that the “conservation paradigm”, means that once matters of cultural significance have been destroyed or damaged, their value is often seen as diminished. This way of thinking does not necessarily resonate with the individuals affected, particularly in Mali where, as Tara observed, the local community still visit and treat the site at Timbuktu as sacred, despite the destruction. 

 

With thanks to Jess Clarke, AHRCentre intern for semester 2, 2016, for writing this article. Read more about our internships here.

Photo, left to right: Lucas Lixinski, Tara Gutman and Sarah Williams.