The Destruction of Cultural Property in Timbuktu: Challenging the ICC War Crime Paradigm

Higgins, Noelle and Badar, Mohamed (2017) The Destruction of Cultural Property in Timbuktu: Challenging the ICC War Crime Paradigm. Europa Ethnica, 74 (3/4). pp. 99-105. ISSN 0014-2492

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Abstract

Cultural property has been destroyed, looted and trafficked throughout history, particularly during conflict situations. In many instances, the property that is destroyed belongs to, and / or represents, minority groups and its destruction impacts significantly on minority culture. ISIS, and related jihadist groups, have, in recent times, actively engaged in the deliberate destruction of cultural property in numerous States, including Iraq, Syria, and Mali. This has been described as ‘cultural cleansing’ by the Director-General of UNESCO, as jihadist groups aim to eradicate all signs of ‘other’ cultures within its newly formed State. The destruction of cultural property is now a strategy of war, with the objective being to eliminate cultural diversity and pluralism, ‘erase all sources of belonging and identity, and destroy the fabric of society.’ The International Criminal Court (ICC) recently (2016) heard the case of Prosecutor v Al Mahdi, which focused specifically on the destruction of cultural property in Mali during a non-international armed conflict. The defendant was charged, under Article 8 of the ICC Statute, with the war crime of directing attacks against cultural property. Mr Al Mahdi, a member of the fundamentalist Islamic group, Ansar Dine, had been in charge of the Hisbah, the morality brigade set up in Timbuktu. One of his roles was to oversee the destruction of a number of religious monuments and mausoleums in the city. The decision to attack these sites was made by the Ansar Dine leadership, as a result of their Wahabi interpretation of the Islamic concept of ziyara, or ‘visitation’. They believed that the visitation and veneration of burial monuments, which was a common practice among the local minority Sufi Muslim population, was idolatrous and, therefore, contravened Islam. The rationale behind Mr Al Mahdi’s and Ansar Dine’s actions in attacking these sites was to halt the religious practices of the local religious minority population of Timbuktu and destroy their culture and history because it differed from its own.
The ICC has jurisdiction over war crimes, crimes against humanity, genocide and aggression. However, destruction of cultural property falls only within the remit of war crimes under the Statute. A question that arises from the recent spate of destruction of cultural property is, does the war crime of directing attacks against cultural property adequately represent the impugned behaviour?

Prior to the enactment of the ICC Statute, the protection of cultural property was included in a number of international legal instruments, as well as in customary law, and had also been analysed before international criminal tribunals. Despite the many legal sources which seek to regulate attacks on cultural property, there have been divergent approaches to how cultural property should be dealt with under the legal framework. Some international instruments seek to proscribe attacks on cultural property because such property constitutes civilian property, while other instruments highlight the need to protect cultural property as a result of its importance to humanity. The former approach does not include any consideration of the value of property destroyed to a particular culture or minority group, but rather focuses explicitly on the characterisation of the property as civilian or military, and classifies such attacks as war crimes. However, cultural property is not attacked just because of its status as civilian property; rather it is generally attacked as it is symbolic of, or represents, a particular group or culture, as is clearly illustrated in the actions of groups such as ISIS and Ansar Dine. This article submits that a better characterisation of such behaviour would be a crime against humanity, as this would encompass the motivations of the attacks, as an act of persecution against the civilian population, and the impact on the victims. Section 2 of the article sets out the history of the legal framework on the protection of cultural property, prior to the adoption of the Rome Statute. Section 3 then focuses on the legal framework concerning the destruction of cultural property at the ICC and analyses the case of Al Mahdi, and Section 4 looks at the cultural renaissance currently occurring in Mali.

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