In an earlier Peace Palace Library blog 'Cultucide in Timbuktu: Shari'a and War Crimes' Ingrid Kost wrote that the Islamist Group Ansar (Ed)dine (“Defenders of the Faith”) destroyed some of the age-old mausolea of Sufi Saints in Timbuktu, Mali. They consider these mausolea places of idolatry, which is forbidden in the Koran. The destruction in the fabled city follows a deepening crisis in the region since a military coup in Mali’s capital in March 2012. Separatist Tuareg rebels took advantage of the instability to proclaim northern Mali an independent state. The Ansar Dine in turn ousted the Tuareg rebels and took control of Timbuktu. On 1 July 2012 Mrs Fatou Bensouda, the newly appointed Prosecutor at the International Criminal Court in The Hague, stressed that the deliberate destruction of the mausolea may constitute a war crime under Article 8 of the Rome Statute and started an preliminary examination.  On 21 December 2012 the UN Security Council in Resolution 2085 condemned strongly all abuses of human rights in the north of Mali by armed rebels, terrorist and other extremist groups, including those involving destruction of cultural and religious sites, reiterating that some of such acts may amount to crimes under the Rome Statute and that their perpetrators must be held accountable. The Security Council approved sending an African-led intervention force to help Mali’s army reconquer the north of the country from Islamist militants. On the 11th of January France decided to intervene directly.

Crimes against cultural property

One of the major causes of destruction of cultural property (the illicit trading, stealing and looting of cultural property is not covered in this blog) over the ages has been armed conflict. According to a Justice in Conflict post there are three compelling reasons to address crimes against cultural property. The first relates to the special value that societies place in cultural property, defined under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict as moveable or immoveable goods, such as religious monuments or works of art, of significant importance to people’s “cultural heritage”. The Republic of Mali has been a State Party to the 1954 Hague Convention since 1961. In 1999 the important Second Additional Protocol to the Hague Convention was adopted which strengthens the system of protection of cultural property.

Cultural objects are intrinsic to a community’s identity and serve to provide future generations with a lasting record of the human experience. Crimes against cultural property constitute an attack against the very identity of a society and can be the first manifestation of a desire to target the group whose property is under assault. As such, protecting culture should not merely be seen as a luxury that the international community should concern itself with in times of peace, it is often a pressing human security issue in times of war, Justice in Conflict writes.

Second, it should be emphasised that the protection of cultural property has long been intertwined with the laws of war and customary norms. The norms protecting immoveable objects were first codified under the 1907 Hague Regulations. In particular, the Hague Regulations on the Laws and Customs of War on Land annexed to the Fourth Convention of 1907 contain provisions specifically aimed at the protection of cultural property (Arts. 23(g), 56). At the time the 1977 Additional Protocols to the Geneva Conventions were negotiated not many states had ratified the 1954 Convention, and therefore two provisions on the protection of cultural property during international and non-international conflicts were included (protocol I, art. 53, protocol II, art. 16). A few decades later a new impulse was given to the protection of cultural property with the creation of international criminal tribunals and courts. The 1993 Statute for the Criminal for the Former Yugoslavia and the 1998 Rome Statute for the International Criminal Court include the destruction of cultural property as a war crime. Roger O'Keefe writes in an article in the Melbourne Journal of International Law that in order to qualify as a war crime, the destruction of cultural property, as well as occurring in time of armed conflict, must have some ‘nexus’ to that conflict, in the language of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia. That is, it must be ‘closely related’ to the armed conflict, by which is meant that the existence of the conflict must, at a minimum, play ‘a substantial part in the perpetrator’s ability to commit [the crime], his decision to commit it, the manner in which it was committed or the purpose for which it was committed’.

Finally, crimes against cultural property ought to be addressed insofar as they constitute a serious violation of an individual’s right to participate in the cultural life of his or her community, enshrined under article 27 of the Universal Declaration of Human Rights and article 15 of the International Covenant of Economic, Social and Cultural Rights. 

These conventions, as well as customary international law, impose on Mali and all other nations the obligation to protect cultural heritage in times of armed conflict. However as the number of conflicts involving non-state actors is growing, the question is whether international treaties like the Hague Convention can be used to bind not only state actors, but also non-state actors. As the Mali conflict and other uprisings in North Africa show more cultural property is at risk of being destroyed if this question is not answered in an effective way.

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