Cultural Heritage Protection as Environmental Protection

Posted by on April 27, 2017

by Joel Richert*

For the first time, the International Criminal Court (ICC) has prosecuted the destruction of cultural heritage. [1] In 2012, the Ansar Eddine, an Al-Qaeda in the Islamic Maghreb associated militant group based in Northern Mali, captured the city of Timbuktu and imposed strict Islamic law on a previously moderate society. [2] Ahmad Al Faqi Al Mahdi, then head of the Hisbah, a religious police force tasked with “[upholding] virtue and [preventing] vice,” [3] destroyed seven Sufi mausoleums and the door of the Sidi Yahia mosque, all of which were historical religious monuments and designated UNESCO World Heritage sites. [4]

Mr. Al Mahdi’s trial opened on August 22, 2016, at The Hague. [5] Not only was this the first international trial for the destruction of historical and religious monuments, but was also the first ICC case where the defendant made an admission of guilt. [6] In the trial records, a witness for the prosecution testified, “when it came to the destruction of the Timbuktu mausoleums, this was indeed . . . an activity of war to psychologically kill the people of Timbuktu, destroying the property or building for which they had an effective attachment.” [7] These buildings were “specifically identified, chosen and targeted by the perpetrators as objects of their attack, precisely in light and because of their religious and historical character.” [8] The court sentenced Mr. Al Mahdi to nine years’ imprisonment. [9]

Although this is the first ICC case focused on the destruction of cultural heritage, there is United Nations (UN) precedent for holding perpetrators accountable for such crimes. [10] The International Criminal Tribunal for the Former Yugoslavia (ICTY) established through its 1993 Statute of the Tribunal that the wanton destruction of cultural heritage during conflict constitutes a war crime. [11] In 2005, the ICTY sentenced Pavel Strugar, a former Lieutenant-General of the then Yugoslav Peoples’ Army, to eight years’ imprisonment for the shelling of the historic Old Town of Dubrovnik. [12] The court successfully charged Mr. Strugar for the destruction of cultural property and “devastation not justified by military necessity.” [13]

In light of the continuing conflict and destruction of cultural heritage in Syria, holding perpetrators of such destruction accountable is essential to ending impunity. [14] The Ancient City of Aleppo, designated a UNESCO World Heritage site since 1993, has been on the List of World Heritage in Danger since 2013 (its status was confirmed by the 40th Session of the World Heritage Committee this past July). [15] Due to ongoing conflict, five sites in Libya were also added to the List of World Heritage in Danger this past summer. [16] Irina Bokova, UNESCO Director-General, has publically condemned the destruction of cultural heritage and has “[called] on all parties to refrain from targeting as well as from using cultural property for military purposes.” [17]

Cultural heritage sites across Africa and Asia (and even within the United States), in addition to the constant threats of climate change, desertification, and urban expansion, [18] continue to be targets of religious hostility, iconoclasm, and looting. [19] In September, responding to the continuing destruction of cultural property, UN Secretary-General Ban Ki-moon stressed: “Throughout history, the enemies of human dignity have targeted symbols of knowledge, freedom of thought and freedom of expression. These are attacks on our universal values.” [20] Such tactics, he reiterated, are war crimes. [21]

ICC President, Judge Silvia Fernández de Guermendi, hailed the outcome of Mr. Al Mahdi’s trial as “important in demonstrating that attacks on cultural heritage in conflict can be effectively investigated and prosecuted through judicial mechanisms.” [22] But truly effective deterrence requires establishing “a pattern of accountability, to make it clear to all potential perpetrators that there will be consequences for their actions.” [23] Beyond limited national cultural property laws, however, such accountability remains nascent

Cultural heritage is woven into both the natural and human environment. And similar to environmental destruction, cultural destruction most often affects marginalized persons who have limited ability to prevent looting and damage. [24] This deliberate destruction is not just destruction of tangible property but is a war tactic intended to harm “a person’s deepest inner self.” [25] Dr. Derek Fincham, Associate Professor of law at South Texas College of Law, writes that the cultural heritage movement lacks “an animating theoretical architecture.” [26] He seeks to give voice to disenfranchisement through cultural destruction using the language of environmental justice. [27] Conceptualizing environmental injustice as cultural injustice, allows us to begin viewing the destruction of cultural heritage not simply as a war crime, but a crime against humanity.


The views and opinions expressed in this blog post are those of the authors and do not necessarily reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

*Joel Richert is a Junior Editor on MJEAL. He can be reached at rjoel@umich.edu.

[1] Protecting Cultural Heritage From Combatants Promotes Human Rights and Universal Values, U.N. News Centre (Sep. 22, 2016), http://www.un.org/apps/news/story.asp?NewsID=55050#.WCdpYTumrgW.

[2] Ansar Dine–Mali, Terrorism Research & Analysis Consortium, http://www.trackingterrorism.org/group/ansar-dine (last visited Nov. 12, 2016).

[3] International Criminal Court, Questions And Answers On The Al Mahdi Trial, ICC-01/12-01/15 (last updated Aug. 17, 2016), https://www.icc-cpi.int/iccdocs/PIDS/AlMahdiQA17August2016_Eng.pdf.

[4] Id.

[5] International Criminal Court, Al Mahdi Case: Accused Makes An Admission Of Guilt At Trial Opening, ICC-CPI-20160822-PR1236 (Aug. 22, 2016), https://www.icc-cpi.int/pages/item.aspx?name=pr1236.

[6] Id.

[7] Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Trial Hearing, 89:21-23 (Aug. 23, 2016), https://www.icc-cpi.int/Transcripts/CR2016_05772.PDF.

[8] Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Decision on the confirmation of charges against Ahmad Al Faqi Al Mahdi, ¶ 42 (March 24, 2016), https://www.icc-cpi.int/CourtRecords/CR2016_02424.PDF.

[9] Marlise Simons, Prison Sentence Over Smashing Of Shrines In Timbuktu: 9 Years, N.Y. Times, Sep. 28, 2016, at A.4.

[10] Id.

[11] International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 3 (2009).

[12] Press Realse, U.N. International Criminal Tribunal for the Former Yugoslavia, Judgment in the Case the Prosecutor v. Pavle Strugar: Pavel Strugar sentenced to eight years’ imprisonment (Jan. 31, 2005), http://www.icty.org/en/press/judgement-case-prosecutor-v-pavle-strugar-pavle-strugar-sentenced-eight-years’-imprisonment.

[13] Id.

[14] Protecting Cultural Heritage From Combatants Promotes Human Rights And Universal Values, U.N. News Centre (Sep. 22, 2016).

[15] UNESCO Deplores Damage To Aleppo National Museum; Warns Five Heritage Sites In Libya Are In Danger, U.N. News Centre (July 14, 2016) http://www.un.org/apps/news/story.asp?NewsID=54458#.WJDXkjt0zgU.

[16] Id.

[17] Id.

[18] World Heritage List, Timbuktu, United Nations Educational, Scientific and Cultural Organization, http://whc.unesco.org/en/list/119 (last visited Nov. 12, 2016).

[19] Saifur Rashid, Religious, Cultural Heritage And ‘Iconoclasm’ In Asia, The Financial Express (Aug. 8, 2015), http://print.thefinancialexpress-bd.com/2015/08/08/103111.

[20] Protecting Cultural Heritage From Combatants Promotes Human Rights And Universal Values, U.N. News Centre (Sep. 22, 2016).

[21] Id.

[22] Judge Silvia Fernández de Guermendi, Remarks at the Europe Lecture 2016, 4 (June 13, 2016), https://www.icc-cpi.int/itemsDocuments/160613-Remarks-of-ICC-President-at-Europe-Lecture-2016.pdf.

[23] Id. at 5.

[24] Derek Fincham, Justice And The Cultural Heritage Movement: Using Environmental Justice To Appraise Art And Antiquities Disputes, 20 Va. J. Soc. Pol’y & L. 43, 44 (2012).

[25] Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Trial Hearing, 90:1-2 (Aug. 23, 2016), https://www.icc-cpi.int/Transcripts/CR2016_05772.PDF.

[26] Fincham, supra note 24, at 44.

[27] Id. at 45.

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