The International Criminal Court may be on the verge of dramatically increasing the profile of cultural heritage crimes. Perhaps even ushering in a new era of thinking about international criminal law’s role in the destruction of cultural heritage.
This potential shift comes with the announcement that the ICC will prosecute Ahmad al Mahdi Al Faqi for alleged war crimes violations in intentionally directing attacks against religious and historical monuments in Timbuktu. The offense alleged, in Article 8 (2)(e)(iv), charges him with war crimes. Specifically, he is charged with directing attacks against mausoleums and the Sidi Yahia mosque in the city. ICC prosecutor Fatou Bensouda said in a statement:
The people of Mali deserve justice for the attacks against their cities, their beliefs and their communities. Let there be no mistake: the charges we have brought against Ahmad Al Faqi Al Mahdi involve most serious crimes; they are about the destruction of irreplaceable historic monuments, and they are about a callous assault on the dignity and identity of entire populations, and their religious and historical roots. The inhabitants of Northern Mali, the main victims of these attacks, deserve to see justice done.
Matt Brown, writing at Opinio Juris argues the decision by the ICC prosecutor should be seen as a watershed moment:
This news is an exciting development in efforts to enhance protection of cultural heritage and bring the perpetrators of cultural attacks to justice. At the same time however, it throws up many more questions about the broader definition of ‘culture’, victim participation in cultural matters, and whether this could give the Court a unique opportunity to tackle an issue of growing importance in international law.
The Journal of Near Eastern Archaeology has a special issue covering the “Cultural Heritage in the Middle East”. There are ten contributions covering Iraq, Syria, Egypt, Libya, and Afghanistan. All of the contributions are available on JSTOR. From the contents:
I’ve posted on SSRN a short paper discussing the Menil Foundation’s stewardship of the Lysi Frescoes. Given how much art is in jeopardy in the middle-East at the moment, it may be worth revisiting the Menil Foundation’s courageous decision to purchase, restore, and return these frescoes. It highlights that permanent acquisition is not the only way for museums to acquire new material.
The return of works of art by museums to nations of origin has generated considerable scholarly response, yet there has been little engagement with the potential role museums could have as responsible stewards for works of art that are at risk. One important example can be seen in the actions of the Menil Foundation. The Menil, with the permission of the Church of Cyprus, conserved a series of frescoes and created a purpose-built gallery on the Menil campus in Houston to safely house them. It was a novel solution to the problems caused by the situation in Cyprus. Acquiring and saving these thirteenth century frescoes gives an important template for the rescue and conservation of works of art that are at risk, but also exposes similarly-situated actors to the moral dilemma of purchasing looted art with the consent of the original owner.
The Rescue, Stewardship, and Return of the Lysi Frescoes by the Menil Foundation (September 10, 2015). 22 International Journal of Cultural Property 1, 1-14 (2015). Available at SSRN: http://ssrn.com/abstract=2661091
CBS News has some terrific first-hand reporting of antiquities smuggling from Apamea to Istanbul in a video report. Nothing here comes as much of a surprise sadly, but it confirms what we all suspect has been happening. A Roman mosaic, and various other portable objects, including some Roman glass (some of which the report points out may have been fakes).
The protection of cultural heritage is a fundamental public interest,closely connected to fundamental human rights and deemed to be among the best guarantees of international peace and security. Economic globalization has spurred a more intense dialogue and interaction among nations, potentially promoting cultural diversity. However, this phenomenon may also jeopardize cultural heritage. Foreign direct investments in the extraction of natural resources have the ultimate capacity to change cultural landscapes and erase memories. Foreign investment in cultural industries can induce cultural homogenization. However, international investment law constitutes a legally binding and highly effective regime that requires that states promote and facilitate foreign direct investment. Does the existing legal framework adequately protect cultural heritage vis-à-vis economic globalization? This Article investigates the distinct interplay between the promotion of foreign direct investment and the protection of cultural heritage in international law, addressing the question of whether a lex administrativa culturalis, or cultural administrative law, has emerged. In particular, this Article questions whether international investment law and arbitration can be a tool for enforcing international cultural law and whether arbitral tribunals can promote good and effective cultural governance.