- Amar Khoday
War Crimes and Cultural Property – Recent Events at the International Criminal Court.
“We are not just talking about stones and building[s]. This is about values, identities and belonging. Destroying culture hurts societies for the long term. It deprives them of collective memory banks as well as precious social and economic assets.”
-Irina Bokova
Amidst the death and devastation that transpires during armed conflicts are the unlawful taking and destruction of property. While contrasted against the taking of life, crimes directed at property are clearly less serious. Yet this hardly means that property crimes are meaningless and should be ignored or go unpunished either. Most human societies place great value on property, whether individually or communally held. Thus the seizing and/or destruction of property carry significant meaning in most societies. Where the property in question has great cultural value, its worth is enhanced – socially, politically, economically and legally. As such, when law enforcement authorities pursue those who have destroyed cultural property, it should not come as a surprise. At the International Criminal Court, a prosecution was initiated against Ahmad al-Mahdi for the destruction of ten buildings of historical, religious and cultural value in Mali in 2012. Al-Mahdi pleaded guilty to the crimes on the 22nd of August 2016.
On the same day as al-Mahdi’s guilty plea, the Guardian published an article by one of its writers, Jonathan Jones, who asks the following: “Should acts of cultural destruction that happen during conflict be classed as war crimes?” As a writer who concerns himself with the arts, Jones’ unequivocal answer is no. For Jones, as odious as destroying art may be, it should not be viewed as a war crime. In an article entitled: “Destroying priceless art is vile and offensive – but it is not a war crime,” Jones writes:
War crime as a category must be kept distinct. It needs to be highly specific. The destruction of art is vile and offensive to many – but it is not mass murder and we should not pretend it is the same, nor that it belongs in the same court. There is potential for absurdity and moral confusion if artistic vandalism becomes a matter for The Hague.
Contrary to Jones’ narrow construction of war crimes, as apparent in the title and in the body of the article, the destruction of priceless art, as a form of property, may indeed constitute a war crime. Let us step back for a moment and recognize that the collection of norms concerning armed conflicts includes a number of rules and prohibitions that touch upon a number of concerns ranging from the treatment and protection of various classes of persons to the means and methods that belligerents employ during the course of armed conflicts. Included among these various norms is the protection of property from destruction or its seizure. Such prohibitions are subject to military necessity. This is reflected in a vast array of legal norms dating back to the 19th century and can be found on the website of the International Committee of the Red Cross.
The international protection of property extends to property or objects of cultural significance. This finds expression in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Convention defines cultural property to include:
movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above.
Prohibitions against the destruction of cultural property were incorporated into the 1977 Additional Protocols to the 1949 Geneva Conventions with respect to both armed conflicts of an international and non-international nature. Article 53 of Additional Protocol I provides, among other things, that “it is prohibited 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.” Similarly, article 16 of Additional Protocol II, which applies to armed conflicts of a non-international nature, contains analogous prohibitions.
Relevant to al-Mahdi’s prosecution at the ICC are the crimes listed in the Rome Statute. Amongst the war crimes identified in both international and non-international conflicts is the following: “Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives” (see articles 8(b)(ix) and 8(e)(iv)).
It can probably be safely assumed at this stage that there are indeed international norms against the unlawful seizing and/or destruction of property and breaches of these norms constitute war crimes. Furthermore, it can also be safely argued that such property includes cultural property.
In substantiating his point, Jones seems to argue that the goal of the Nuremberg trials respecting the surviving Nazi leadership after World War Two was solely in connection with the atrocities and murders Germany committed against civilian populations. Undoubtedly, this was indeed the focus and the International Military Tribunal (IMT) in Nuremberg (in its judgement of October 1st 1946) found the defendants guilty of war crimes. However, war crimes as defined at the time also included the seizure of property. Article 6 of the Charter of the International Military Tribunal identifies that among the war crimes that the defendants could be prosecuted for were the “plunder of public or private property” as well as the “wanton destruction of cities, towns or villages” not justified by military necessity. For instance, as with others, Alfred Rosenberg was convicted of war crimes. The IMT concluded that: “Acting under Hitler's orders of January, 1940, to set up the "Hohe Schule," [Rosenberg] organized and directed the "Einsatzstab Rosenberg," which plundered museums and libraries, confiscated art treasures and collections, and pillaged private houses.” Accordingly, the IMT punished the Nazi high command for their crimes against persons but did not neglect their seizure and destruction of property.
Jones concludes his article by writing that:
Culture can be renewed, remade, reinvented. Human life cannot. The organised torture and murder of human beings is what war crime should always, and unmistakably, mean. So while we mourn the loss of art or cultural artefacts, we need to keep a moral perspective in which the true crimes of war can be seen for what they are, and eradicated from the world.
While culture more broadly is constantly being renewed and reshaped, various works of art, historical buildings and monuments are nevertheless unique and priceless. They may outlast countless generations. Even if they can be replicated they do not hold the same historical significance as the originals. While the most serious war crimes (grave breaches) center on harms inflicted upon human beings, it is erroneous to suggest that war crimes involving property are somehow false and thus unworthy of prosecution. To echo the Convention for the Protection of Cultural Property, damage to the cultural property of any people amounts to the “damage to the cultural heritage of all [hu]mankind.”
There are additional reasons for why cultural property should be protected. Jennifer Otterson Mollick enumerates several. I shall point to one in particular. Mollick posits that the “destruction or looting of sites and objects of cultural significance, especially when intentional, can create lasting resentments and obstacles to peace.” Irina Bokova, the director-general of UNESCO, argues that warlords “target culture because it strikes to the heart and because it has powerful media value in an increasingly connected world.” Consequently, Bokova contends that culture “is not hit as collateral damage. Culture stands on the frontline of conflicts, deliberately targeted to fuel hatred and block reconciliation.” Such resentments spawned from the destruction of cultural property, can be exploited in subsequent generations to fuel further conflict and discord. The failure to address and punish the destruction and/or seizure of cultural property may inspire retaliation and the predictable downward spiral of continued conflict and tension.
The international legal system and its domestic counterparts are capable of punishing those who inflict death or physical harm directly onto other humans but they are also capable of prosecuting serious property offences, including those that have cultural relevance. We can do both.
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The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.
