Post I : The Protection of Cultural Heritage : An Obligation

By Audrey Weiss and Fiana Gantheret

Looting and destruction of one people’s cultural identity has been the norm in wars since the dawn of civilisation. For all that, the development of the international legal framework, in close collaboration with regional organisations – see the adoption in 2017 of the European Council Convention on Offenses relating to Cultural Properties -, as well as of international justice up until the Al-Mahdi case at the International Criminal Court (ICC), reminds us of the increased importance given to the protection of cultural artefacts over the past century, for they constitute the heritage of humanity.

As a sign of this increasing emergency in protecting cultural heritage from attacks in times of conflict, Fatou Bensouda, Prosecutor of the ICC, and Irina Bokova, Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO) signed, on November 6, 2017, a Letter of Intent, formalizing and further strengthening their collaboration in this matter. Cultural heritage is highlighted in the Letter as a “celebration of our commonality and the richness of our diversity”, and Prosecutor Bensouda noticed that destruction of cultural property has devastating impacts on dignity and further human rights, including freedom of thought, conscience and religion, the right to education and even economic rights and she therefore underlined the necessity to address these crimes through the law. A Letter of Intent solidifying the existing relationship between UNESCO and the ICC and responding to a “humanitarian and security imperative”, stated Ms Bokova.

Creating Rights will offer a series of blogposts over the next few weeks with the aim to give an overview of the international legal framework ensuring the protection of cultural artefacts and sites through States obligations (post I), a reflexion on the protection of cultural heritage as a cultural right (post II), and a description of the stakes at play within the criminalisation of the destruction of cultural properties, as envisioned by the international justice system. In this last post, an overview of the Al-Mahdi case at the ICC as well as the reparation system of the Court applied in the particular contexts where a conviction has been issued in relation to attacks against buildings dedicated to art and historic monuments will also be given (post III). Finally, the question of the reconstruction and its importance for the conflict-affected communities will be studied in a final post (post IV).

Post I : The Protection of Cultural Heritage : An Obligation

In this first blog post on cultural heritage, Creating Rights will set out the important work that has been done over the years by the international community, through several conventions drafted with the purpose to respond to the destruction of cultural heritage. They thereby developped the nature and dimension of the notion of cultural heritage to include in its definition intangible artefacts, as well as the strong link existing between the cultural productions of men and their right to enjoy it.

The destructions caused by World War II led not only to the creation of UNESCO, on November 16, 1945, but also to cooperation within the international community and a will to elaborate multilateral treaties in order to preserve cultural properties, for the benefit of present as well as future generations. By doing so, the international community expanded on the possibilities contained in this seemingly simple word, « heritage » : something which is passed down.

According to the UNESCO, cultural heritage isthe legacy of physical artefacts and intangible attributes of a group or society that are inherited from past generations, maintained in the present and bestowed for the benefit of future generations. Cultural heritage includes tangible culture (such as buildings, monuments, landscapes, books, works of art, and artifacts), intangible culture (such as folklore, traditions, language, and knowledge), and natural heritage (including culturally significant landscapes, and biodiversity).”

The Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted in The Hague in 1954 (the 1954 Hague Convention), is the first international treaty formulating rules to protect cultural heritage during armed conflicts. It regulates the conduct of nations during war and military occupation in order to guarantee the protection of cultural sites, monuments and repositories, including museums, libraries and archives. This Convention is the oldest international agreement to address exclusively cultural heritage preservation. It is interesting to note the references made in the Preamble of the Convention to “people” and not “States”, as a way to underline the interconnection between all human beings through cultural heritage :

Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”.

As analysed by Francesco Francioni in the European Journal of International Law, these statements justify the general obligation of the States to respect – namely to abstain from « acts of willful destruction and damage » – cultural heritage of significant importance in the event of armed conflict. Each individual being the carrier of the cultural heritage of humanity, attacks on cultural sites in one country is made equivalent to destroying the cultural heritage of humanity as a whole.

A First Protocol to the 1954 Hague Convention has been drafted and opened to ratification the same year. It provides specific guidelines for the import and export of cultural property from an occupied territory during armed conflict, and the return of such objects when held in protective custody abroad. In 1999, the Second Protocol to the 1954 Hague Convention was adopted, and entered into force in March 2004. The Second Protocol supplements the 1954 Hague Convention by taking into account developments in warfare since the post-World War II period, especially the type of ethnic conflict that erupted in the former Yugoslavia. As noted by Tonka Kostadinova, “(b)elligerents in the Yugoslav wars sought to justify their own existence and to (re)define territories by demolishing or suppressing the identity of ‘the other’”. The Second Protocol was designed to address the intentional destruction of cultural heritage. It strengthens several provisions of the 1954 Hague Convention concerning the safeguarding of and the respect for cultural property and conduct during hostilities. The Second Protocol also creates a differentiation in gravity for offences against cultural property by referring to two types of offences. Those committed against property under enhanced protection entail more serious consequences.

The UNESCO General Conference also adopted a Declaration concerning the Intentional Destruction of Cultural Heritage, later on, in 2003. This time, the Declaration applies in the context of armed conflict, occupation and in time of peace, but does not create legal obligations upon States.

Another important convention in favour of cultural heritage protection, and the valorization of its relationship to the human life, is the Convention concerning the Protection of the World Cultural and Natural Heritage that was adopted in Paris on November 16, 1972. It contains the innovative concept of “world heritage”, dedicated to cultural and natural properties of outstanding universal value.

A last example of a treaty framing the protection of cultural heritage (a comprehensive list of treaties can be found here, as well as on the Peace Palace Library website, which offers a very interesting research guide to the topic of cultural heritage), is the Convention for the Safeguarding of Intangible Cultural Heritage, signed in 2003 in Paris, concerning peacetime. The safeguarding of “living cultures” has emerged in the past decade as one of the new dimensions of cultural heritage law, since the notion of “cultural heritage of all mankind” has been criticized for being conceived only under its intangible aspect (buildings, monuments, paintings etc), in accordance with the western conception of cultural heritage. Therefore, claims, coming especially from Latin America, have emerged from ethnic minorities and indigenous people for international law to conceive cultural heritage also in its immaterial expression (i.e. traditional cultures, folklores) that involves the heritage of communities unrepresented by a State. The Convention for the Safeguarding of Intangible Cultural Heritage is the first binding instrument to extend the scope of international protection from intangible cultural property to oral and immaterial heritage. The Convention highlights the link between protection of cultural heritage and human rights, in particular with the collective dimension of the right to access, perform and maintain a group’s culture and the right to choose a cultural identity.

Through the development of the international legal framework, the link between cultural heritage and human identities, traditions, and history, became stronger. Cultural artefacts represent the expressions of human creativity and skills. The destruction of items forming our cultural heritage hence infringes upon several rights universally recognized, such as “the right to freedom of thought and religion, the right to freedom of expression, including the right to learning about your history and the history of others”, as underscored by Karima Bennoune, the UN Special Rapporteur in the field of cultural rights, in a discussion organised in October 2016 by the United Nations and gathering experts with a view to explore the relationship between cultural heritage and human rights. This question will be the topic of the next blog post of the series concerning cultural heritage on Creating Rights‘ website.

Featured image visible here and here. Monuments, Fine Arts, and Archives (MFAA) Officer James Rorimer supervises U.S. soldiers recovering looted paintings from Neuschwanstein Castle in Germany during World War II. The provision in the 1954 Hague Convention to have trained military personnel within a nation’s armed forces was inspired by the successful example of the MFAA. (U.S. National Archives and Records Administration).

Ahmad Al Faqi Al Mahdi pleads guilty – Trial is held this week

by Fiana Gantheret

As mentioned here on Creating Rights, on 1st March 2016, the Pre-Trial Chamber I of the International Criminal Court held the confirmation of charges hearing in the case The Prosecutor v. Ahmad Al Faqi Al Mahdi. On 24 March 2016, it issued its Decision on the confirmation of charges against Ahmad Al Faqi Al Mahdi, in which it confirmed the war crime charge regarding the destruction of historical and religious monuments in Timbuktu (Mali). The Pre-Trial Chamber found that the evidence presented by the Prosecutor is sufficient to establish substantial grounds to believe that Mr Al Mahdi is criminally responsible, pursuant to article 25(3)(a) (perpetration and co-perpetration); article 25(3)(b) (soliciting, inducing); article 25(3) (c) (aiding, abetting or otherwise assisting) or article 25(3) (d) (contributing in any other way) of the Rome Statute, for the commission of a war crime regarding intentionally directing attacks against the following buildings:

1) the mausoleum Sidi Mahamoud Ben Omar Mohamed Aquit, 2) the mausoleum Sheikh Mohamed Mahmoud Al Arawani, 3) the mausoleum Sheikh Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir, 4) the mausoleum Alpha Moya, 5) the mausoleum Sheikh Sidi Ahmed Ben Amar Arragadi, 6) the mausoleum Sheikh Muhammad El Mikki, 7) the mausoleum Sheikh Abdoul Kassim Attouaty, 8) the mausoleum Ahmed Fulane, 9) the mausoleum Bahaber Babadié, and 10) Sidi Yahia mosque (the door).*

The confirmed charge concerns a crime allegedly committed in Timbuktu between around 30 June 2012 and around 11 July 2012. From January 2012, a non-international armed conflict broke out in the territory of Mali, and led to different armed groups taking control of the north of the country. It is alleged that Mr Al Mahdi, born in Agoune, 100 kilometres west of Timbuktu, Mali, was an active personality in the context of the occupation of Timbuktu. He allegedly was a member of Ansar Eddine, a mainly Tuareg movement associated with Al Qaeda in the Islamic Maghreb (“AQIM”), working closely with the leaders of the two armed groups that took control of Timbuktu, Ansar Dine and AQIM. During the ten months occupation period, the two groups imposed their will in Timbuktu through a local government, which included an Islamic tribunal, a morality brigade (Hisbah), and an Islamic police force. It is alleged that, until September 2012, he was the head of the Hisbah. In addition to his role as head of the Hisbah, It is alleged that Al Mahdi was very active in other structures such as the Islamic Tribunal, and oversaw the execution of its decisions. It is alleged that he was involved in the destruction of the buildings mentioned in the charge, as it was decided by the leaders of Ansar Dine and AQIM.

The Chamber also indicated that these buildings were cherished by the community, were used for religious practices, constituted an important part of the historical heritage of Timbuktu, and embodied the identity of the city, known as the “Pearl of the Desert” and the “City of 333 Saints”. As such, they did not constitute military objectives. They were specifically identified, chosen and targeted precisely in light and because of their religious and historical character. As a consequence of the attack, they were either completely destroyed or severely damaged.

Al Mahdi pleaded guilty this morning, as announced at the confirmation of charges hearing of 1 March 2016.The Trial will be held before Trial Chamber VIII, composed of Judge Raul C. Pangalangan (Presiding Judge), Judge Antoine Kesia-Mbe Mindua, and Judge Bertram Schmitt. The international Judges put questions to the accused, as foreseen in the Rome Statute, concerning the voluntary aspect of his admission of guilt, his awareness of the charges brought against him and of the possible sentence that might be decided.

Al Mahdi then made a short statement, in which he apologized to the ancestors that built the monuments and promised the people of Timbuktu that he will never engage in such acts ever again. He reminded them to he was a son of Mali that had lost his way and that he was part of the “social fabrique” of Timbuktu in that he also contributed to the life of the country. He stated that he had been influenced by groups, and warned the Muslims of the world that they should stay away from such acts from which no good can come for humanity.

As explained on the ICC website, the Office of the Prosecutor will have three hours to present its case and a maximum of nine hours for the examination of its three witnesses who are staff members or experts. The Legal Representative of victims will then have one hour to present their views and concerns, and the Defence will have a one hour and a half to present submissions.

This morning, the Prosecutor Fatou Bensouda addressed the attack on the identity of the people of Mali that was carried out through the destruction of the buildings. She defined these mausoleums as physical embodiment of Mali’s historical development. She also insisted on the significance of these attacks for the entire humankind, and the necessity of fighting against the revisionist goal of these attacks. The restructuration of the cultural heritage and the recognition of the crime of their destruction will help the reconciliation process taking place in the post-conflict phase. Finally, she emphasized that historical, religious and cultural heritage is no luxury and is necessary to the development of humanity.

You can follow the proceedings here.

* With regard the names of the religious and cultural sites, I will be grateful if anyone has information regarding the accuracy of their spelling. 


Impunity through the eyes of Bradley McCallum at the Robert Blumenthal gallery in New York

by Fiana Gantheret

The work of Brooklyn based artist Bradley McCallum is in David Ebony’s Top Ten New York Gallery Shows this Winter. More specifically, his series of painted portraits, part of the Weights and Measures project, is. More specifically, international justice is.

Until March 5th, the Robert Blumenthal Gallery shows – together with six paintings of the Protest series – Bradley McCallum’s collection of oil paintings based on photographs of defendants being tried before various international criminal tribunals. This series aims at exploring the well-known public images of individuals such as Radovan Karadzic and Charles Taylor sitting before their judges as well as their reversed versions like negative film of photographs. In so doing, Bradley McCallum delves into less explored aspects of the fight against impunity such as the loss of a man’s freedom or the humane dimensions of trying mass criminals…

Weights and Measures1

Weights and Measures 2

Triptych and ‘reversal’ triptych of Slobodan Milošević, Thomas Lubanga, and Charles Taylor. Photographs of the painted portraits can be seen here.

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Brad impunity

Bradley McCallum’s endeavor to help create a dialogue and raise awareness on international justice has already been described here on Creating Rights in the context of his one year residency with the Coalition for the International Criminal Court started in 2014.

Weights and Measures will concern other series of portraiture, namely photographs and audio recording that explore issues of international justice and accountability by poetically reflecting its various actors. Weights and Measures will begin an international tour in April, 2016 and will include exhibitions in The Hague, Netherlands, Limerick, Ireland, communities in the Democratic Republic of the Congo and Uganda, Johannesburg and Cape Town, South Africa, and Beijing, China before returning to the United States.

As explained on our Projects page, Creating Rights is actively supporting Bradley McCallum’s Weights and Measures project by being a partner in the Hague, the city of international justice.

The Art of International Justice: The CICC Arts Initiative to End Impunity

by Fiana Gantheret

A Spanish version of this post is available on the CICC Global Justice blog

How is it possible for art to capture and represent the nature of large-scale massacres ? the desolation of ravaged countries ? the end of a man’s impunity as well as the end of his freedom ? testimonies on unforgettable and intolerable events ? the attempts to establish the truth ? the ever unanswered questions of victims ?…

In other words, is it possible for art to encapsulate the various aspects of the vast issue that is the accountability of men for large-scale crimes? By making these aspects visible, can art participate in raising awareness about the role and processes of international justice ?

That is apparently the belief of William R. Pace, Convenor of the Coalition for the International Criminal Court (CICC), an international non-governmental organisation advocating to strengthen international cooperation with the International Criminal Court (ICC). Indeed, the CICC launched an Arts Initiative last April aimed at enriching the dialogue on global justice. The Coalition’s Arts Initiative to End Impunity was inaugurated with the screening of The Enclave, an audio, video and photo installation on the conflict in the Democratic Republic of Congo by the artist Richard Mosse.

[vimeo 67115692 w=500 h=281]

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