The orphaning of future generations

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Sheryn Omeri on the destruction of cultural property and the first International Criminal Court prosecution

‘By inflicting cultural damage on present generations, the enemy seeks to orphan future generations and destroy their understanding of who they are and from where they come’

(H. Abtahi, ‘The Protection of Cultural Property in Times of Armed Conflict: The Practice of the International Criminal Tribunal for the former Yugoslavia’ (2001) 14 Harvard Human Rights Journal 1).

‘…cultural property is indivisible from people’s identity and dignity, and for [that] reason…such property’s wilful destruction is usually a precursor to human tragedy’

(J. Petrovic, ‘What next for Endangered Cultural Treasures? The Timbuktu Crisis and the Responsibility to Protect’ (2013) 11 NZJPIL 381, at 382).

At 8am on 26 September 2015, Malian Islamist, Ahmad Al Faqi Al Mahdi, was delivered to the detention centre of the International Criminal Court (ICC) in The Hague after having been surrendered by authorities in Niger. His arrival in the Netherlands marked the start of the ICC’s first ever prosecution for the destruction of cultural property in its 13-year existence.

The prosecution has commenced against the background of recent international outrage at the destruction by ISIS of the ancient city of Palmyra. Having taken control of the site in May 2015, ISIS went on to destroy the Temples of Baal Shamin and Bel followed by three tower tombs dating from between AD44 and AD103. In the same period, ISIS tortured and beheaded 82-year-old Syrian antiquities scholar and Palmyra expert, Khaled Al-Asaad when he refused to reveal the location of artefacts which had been moved for safekeeping. While the destruction was purportedly carried out in order to prevent idolatry, the beheading appears to have been the result of Mr Al-Asaad frustrating the engagement of ISIS in the illicit antiquities trade – an important source of income for the organisation (M. Lostal, ‘Syria’s world cultural heritage and individual criminal responsibility’ (2015) International Review of Law 1 at 5).

ICC jurisdiction over ISIS

In summer 2014, the Office of the Prosecutor of the ICC (OTP) began to receive allegations of the commission of genocide, crimes against humanity and war crimes by ISIS, including the destruction of cultural property. In April 2014, Prosecutor, Fatou Bensouda issued a statement indicating that she was unable to bring a prosecution in respect of these allegations as Syria is not a party to the Rome Statute which establishes the ICC. As a result, the ICC does not have territorial jurisdiction over crimes committed in Syria pursuant to Art 12(2)(a) of the Statute. Article 12(2)(b) enables the ICC to exercise personal jurisdiction over alleged perpetrators if the State of which a person accused of international crimes is a national is a party to the Rome Statute. Given the number of Westerners who appear to have joined ISIS, this may yet found jurisdiction for a prosecution.

While Art 13(b) of the Rome Statute allows the ICC to exercise its jurisdiction where a situation is referred to the Prosecutor by the UN Security Council acting under Chapter VII of the UN Charter, a previous attempt to refer the Syrian civil war to the OTP was vetoed by Security Council members Russia and China.

Prosecution of Al Faqi for the destruction of cultural property is not beset by these jurisdictional difficulties.

Destruction in Mali

Mali is a party to the Rome Statute and, in July 2012, in accordance with Art 14 of the Statute, referred the situation prevailing in the north of the country since January to the Prosecutor for investigation. Specific mention was made in the referral letter to the wanton destruction of a number of mosques and mausoleums in and around Timbuktu.

On 6 April 2012, the National Movement for the Liberation of Azawad (MNLA in French), a secular organisation aiming to create an independent state of the north of Mali for its Tuareg minority, declared the independence of that region from the rest of Mali. The MNLA was joined by the Islamist-Tuareg group, Ansar Dine (Defenders of the Faith), which had ties to Al-Qaeda in the Islamic Maghreb (AQMI in French). Ansar Dine soon took over administration of the north of Mali, including, principally, Timbuktu. Al Faqi is alleged to have been a prominent member of Ansar Dine. Learned in Wahhabist scholarship, he is said to have been head of Timbuktu’s newly-formed moral police and associated with the work of its occupier-established so-called Islamic Tribunal.

Arguably Al Faqi’s most significant contribution to the oppression of the civilian population of northern Mali was his alleged participation in the destruction of 14th century mosques and mausoleums. These were constructed when Timbuktu functioned as a prominent desert trading cross-roads and centre of both Islamic and secular learning. Indeed, Timbuktu is renowned for its 16 cemeteries and mausoleums where Sufi scholars are buried and which, consequently, are of particular religious and cultural significance to locals. In 1988, UNESCO declared the mosques of Djingareyber (built in 1327), Sankore and Sidi Yahya to be ‘outstanding witnesses to the urban establishment of Timbuktu, its important role of commercial, spiritual and cultural centre on the southern trans-Saharan trading route, and its traditional characteristic construction techniques’ and included them on the World Heritage List (J. Petrovic, ibid, at 386). It is alleged that Al Faqi was responsible for the destruction of ten mosques and mausoleums on the basis that he had participated in decision-making in relation to the manner of destruction, supervised and participated in the destruction and acted as spokesman justifying the destruction to local media on site contemporaneously (Situation en République du Mali, Affaire Le Procureur c. Ahmad Al Faqi Al Mahdi, version expurgée, mandat d’arrêt à l’encontre d’Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15-1-Red, 28-09-2015, p 5).

War crime charges

Al Faqi was charged with the commission of a war crime pursuant to Art 8(2)(e)(iv) of the Rome Statute, that is, with serious violations of the laws and customs applicable in armed conflicts of non-international character, specifically: ‘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’. He was charged with all but one of the five modes of criminal responsibility set out in Art 25 of the Rome Statute, namely, individual responsibility, joint co-perpetration, facilitating, and contributing to the commission of the war crime by a group of persons acting with a common purpose.

The war crime is the corollary of the right to cultural property which forms part of the right to culture set out in Art 27 of the International Covenant on Civil and Political Rights (ICCPR) and Art 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

It has been said that where reference is made to cultural property in the same breath as reference to places where the sick and wounded are collected, as in Art 27 of the Regulations annexed to the 1907 Hague Convention Respecting the Laws and Customs of War on Land, this represents a recognition of the importance of cultural property (H. Abtahi, ibid, at 6).

The 1907 Hague Convention was succeeded by the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The latter was the first international instrument to use the expression ‘cultural property’ and to define it rather than simply list examples of such property. Arguably however, its definition of ‘cultural property’ as ‘movable or immovable property of great importance to the cultural heritage of every people’ raises the bar for establishing liability as compared to the terms of Art 8(2)(e)(iv) of the Rome Statute which does not use the expression ‘cultural property’ and requires only that the relevant buildings be ‘dedicated to religion...[or]…historic monuments’.

While a number of the mosques and mausoleums mentioned in the warrant for the arrest of Al Faqi were all but razed, the offence with which he has been charged is not ‘results-based’, that is, liability is established where ‘intentional direction of attacks’ is proved together with the status of the cultural property. This would seem to suggest that the extent of damage in fact caused is relevant only at the sentencing stage.

Prosecution without precedent

Since Al Faqi’s will be the ICC’s first prosecution for this war crime, there is no ICC jurisprudence to assist in the interpretation of its elements. However, destruction of cultural property was charged and prosecuted before the International Criminal Tribunal for the former Yugoslavia (ICTY) whose jurisprudence is persuasive before the ICC. Article 3(d) of the ICTY Statute contains a slightly narrower offence which requires at least some damage to the relevant cultural property, but also includes looting which is arguably only covered by the Rome Statute where the looting involves intentionally directing attacks. The ICTY Statute refers to: ‘Seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments, works of art and science.’

Relevantly to the Al Faqi prosecution, the ICTY case law establishes that there must be a nexus between the cultural property offence and the armed conflict which is its setting. However, in the judgment of the Trial Chamber in the case of Prosecutor v Tihomir Blaškić it was held that the accused did not need to intend active participation in the armed conflict as long as the act fitted within its geographical and temporal context (Prosecutor v Tihomir Blaškić, Trial Judgment, IT-95-14-T, para 71). If it is proved (or accepted) that Al Faqi was a member of the occupying organisation, Ansar Dine, and actively assisted in its apparent plan to impose its interpretation of sharia on the population of northern Mali, it would appear that this relatively low threshold would be met.

The Blaškić Trial Chamber also held that at the time of the acts, the sites must not have been used for military purposes or have been within the immediate vicinity of military objectives. This has been described as a general drawback given the uncertain parameters of military necessity (H. Abtahi, ibid, at 13). Article 8(2)(e)(iv) of the Rome Statute refers only to the relevant cultural property not being military objectives. It is assumed that in order for a defendant to be in a position to avail him or herself of this ‘defence’ there would need to be some evidence of a defensive military necessity to attack the cultural property in question rather than simply a strategic, offensive desire to do so. Indeed, as much is implied in the Blaškić judgment in which the Trial Chamber described evidence of an absence of any pre-existing, combat-ready military presence in the village of Ahmici where Bosnian Muslim institutions had been attacked. In view of this, the Trial Chamber held that no military objective justified the attack referred to in the indictment (Prosecutor v Tihomir Blaškić, Trial Judgment, IT-95-14-T, para. 410).

The confirmation of charges hearing in the Al Faqi case has been provisionally listed for the 18th of this month (January 2016), with the trial to follow a reasonable time thereafter. It will be interesting to see how the Trial Chamber approaches its first attempt at interpreting Art 8(2)(e)(iv) and what opportunities this may create for the prosecution of those responsible for the destruction of Palmyra and other invaluable treasures of humanity.

Sheryn would like to thank ICC Senior Trial Lawyer, Gilles Dutertre and Head of Presidency Legal and Enforcement Unit, Hirad Abtahi for inspiring this article. The views expressed by Sheryn are hers alone and do not necessarily reflect those of Mr. Dutertre, Mr. Abtahi, the OTP or any other organ of the ICC.

Contributor Sheryn Omeri, Cloisters Chambers

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Sheryn Omeri

Sheryn is an Australian-born Iranian-Kurdish barrister practising at Cloisters. Previously, Sheryn worked as a solicitor-advocate at the Aboriginal Legal Service in Sydney, appearing for Aboriginal Australians before the criminal courts of New South Wales.