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What is the significance of the ICC’s war crime charges of attacks on cultural property in Mali?

Ending Impunity for War Crimes on Cultural Heritage: The Mali Case

by Honorable Irina Bokova

The destruction of cultural heritage has become a tactic of war to disseminate fear and hatred in modern conflicts. Extremists have attacked institutions and professionals who support diversity, critical thinking and freedom of opinion. They have targeted schools, teachers and journalists, destroying monuments and individuals on religious and cultural grounds – all in a form of “cultural cleansing.”

In 2012, the world witnessed the tragic destruction of the mausoleums in Timbuktu – one of Africa’s spiritual and intellectual capitals in the 15th and 16th centuries – inscribed on UNESCO World Heritage Site in 1988. Timbuktu’s legendary Sufi mausoleums and shrines were methodically levelled, and the Djingareyber and Sidi Yahyia mosques were also severely damaged. Violent extremist groups also seized radio and media equipment to disseminate their propaganda and sectarian messages through loud speakers in the streets of Timbuktu.

Such attacks on cultural heritage have become a core feature of modern conflicts over the last decade. Palmyra and Aleppo in Syria, Mosul and Hatra in Iraq, have all been attacked, bombed and destroyed. These attacks should be put into perspective, as part and parcel of the same global strategy of persecution and destruction, which seeks to tear at the fabric of society, to deny human rights and to quash the rule of law.

In this context, it is critical that such destruction not go unpunished in our efforts to re-establish the rule of law and reaffirm human rights, a fundamental part of which is access to and participation in cultural life. As the destruction of our shared cultural heritage moves to the forefront of modern conflicts, the protection of such heritage – including by ending impunity for crimes related to the destruction of culture – must likewise move to the forefront of peacebuilding. All realize that “hard power” is not enough to combat extremism and sectarian ideologies – we must win the battle of ideas as well through the tools of democracy, the soft power of education and culture,  at the establishment of a just rule of law in order to prevent further radicalization.

Hatra, Iraq

The legal foundation for the protection of cultural heritage resides in several UNESCO conventions and three such treaties in particular – the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and its two (1954 and 1999) Protocols; the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; and the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (more commonly known as the World Heritage Convention) – which consider attacks on cultural heritage as attacks on our shared identity. The UNESCO Declaration on Intentional Destruction of Cultural Heritage, adopted on 17 October 2003 in the wake of the destruction of the Buddhas of Bamiyan in Afghanistan, stresses that the intentional destruction of cultural heritage is an infringement on human dignity and human rights.

Building on more than a century of law and jurisprudence in international law, there is increasing recognition of the connection between attacks against cultural heritage and the diminution of human rights and security. To combat this threat, the International Criminal Court (ICC) is becoming an indispensable actor in the preservation of cultural property in armed conflicts. Article 8 of the Rome Statute of the International Criminal Courtstates that “[i]ntentionally 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” constitutes a war crime, regardless of how the conflict is classified. This statutory provision reaffirmed the approach adopted earlier by the International Criminal Tribunal for the Former Yugoslavia, established in 1993, which in its jurisprudence addressed the protection of cultural heritage, and helped establish the principle that the intentional destruction of particularly religious buildings can be equated to cultural genocide.

It is in this context that UNESCO immediately raised the issue of the destruction of the Mausoleums in Mali to the attention of the Court. On 1 July 2012, the Prosecutor of the ICC, Ms. Fatou Bensouda, declared that the destruction of Sufi shrines in Timbuktu may constitute a war crime under the Rome Statute. Three weeks later, following Mali’s self-referral to the Court as a State Party, the Office of The Prosecutor (OTP) officially launched a preliminary examination into the violence that had engulfed the country since January 2012. The first suspect sought by the ICC for crimes committed in Mali, Mr Ahmed al-Faqi al-Mahdi, was transferred by the authorities of Mali and Niger to The Hague on 26 September 2015. Soon, evidence of Mr. al-Mahdi’s participation in the deliberate destruction of cultural heritage will be presented to ICC judges for their consideration, a major step in the pursuit of justice for these cultural atrocities.  Mr. al-Mahdi has indicated that he may plead guilty to these charges, the first time a defendant before the ICC has accepted responsibility for his actions.

This case also sets historical precedent that should encourage similar accountability efforts in other instances of cultural destruction occurring around the world. For this and other important reasons, it is vital that all aspects of al-Mahdi’s case are handled with extreme care and impartiality. Moreover, this case sends a strong message about the role of international organizations and multilateral frameworks in protecting the heritage of humanity and the values our heritage memorialises. Lastly, this case also shows that international cooperation can be an effective way to protect cultural objects and other artefacts.

It is in this spirit that UNESCO is fully cooperating with the ICC: to share expertise and information about the importance of the sites; explain why they were inscribed on the World Heritage list; and provide reasons why their deliberate destruction can be considered a war crime. While the ICC’s casework in Mali is a truly historic step forward in the fight against impunity and the restoration of a just rule of law, more needs to be done. The scale of the attacks on cultural property as seen in Iraq, Syria, and elsewhere highlight the urgency for the international community to respond in order to protect further destruction of humanity’s cultural heritage and diversity, most notably through the imposition of accountability.

As the destruction of culture is a central element of a global strategy of hatred, the rule of law must be integrated in a broad, global vision of peace. Stronger coordination among all partners working in different fields is essential in this regard, especially coordination between security, humanitarian, legal, and cultural actors. The rebuilding by UNESCO, with the help of heroic citizens and masons, of the 14 mausoleums destroyed in Mali in 2012, is a perfect example of such coordination. Another one is UNESCO’s training of the UN peacekeeping force in Mali, the MINUSMA, about the role of cultural heritage for resilience and recovery. This collaboration opens the door for the integration of heritage protection in the mandate of all peacekeeping forces. All of this is part of a global strategy to restore human dignity, self-esteem and confidence, including global campaigns to teach about cultural diversity and human rights, in order to prevent the danger of radicalization. As heritage now stands on the frontline of a new war for hearts and minds, I am convinced that heritage must be at the frontline of peacebuilding, and a central component of our response to the new conflicts of the 21st century.

Honorable Irina Bokova

Irina Bokova has been the Director-General of UNESCO since 15 November 2009. As Director-General of UNESCO, Irina Bokova is actively engaged in international efforts to advance gender equality, quality education for all, and combat terrorist financing by preventing the illicit traffic of cultural goods.

Having graduated from Moscow State Institute of International Relations, and studied at the University of Maryland (Washington) and the John F. Kennedy School of Government (Harvard University), Irina Bokova joined the United Nations Department at the Ministry of Foreign Affairs of Bulgaria in 1977. In charge of political and legal affairs at the Permanent Mission of Bulgaria to the United Nations in New York, she was also member of the Bulgarian Delegation at the United Nations conferences on the equality of women in Copenhagen (1980), Nairobi (1985) and Beijing (1995). Irina Bokova was Minister for Foreign Affairs a.i., Coordinator of Bulgaria-European Union relations and Ambassador of Bulgaria to France, Monaco and UNESCO and Personal Representative of the President of the Republic of Bulgaria to the “Organisation Internationale de la Francophonie” (OIF). As Secretary of the Council of Ministers for European Integration and as Foreign Minister a.i., Irina Bokova has always advocated for European integration. She is a founding member and Chairman of the European Policy Forum, an NGO created to promote European identity and encourage dialogue to overcome divisions in Europe. Irina Bokova is Executive Secretary of the Steering Committee of the UN Secretary-General’s Global Education First Initiative (GEFI) and co-Vice-Chair of the Broadband Commission.