The legal framework for destruction of cultural heritage in Timbuktu during 2012-2013: A War-crime? (5/7)

Nanette Askholm BulowArticle, Report1 Comment

Ansar Dine. Photo credit: Magharebia

Both of the cases in Timbuktu involve the destruction of tangible cultural heritage. The intention to destroy these bodies is set within the context of conflict and may be interpreted in relation to it or as a result of it. The events therefore may be considered within such international frameworks:

 

The Hague Convection for the Protection of Cultural Property in the Event of Armed Conflict of 1954 was established after the destructions of World War II. It was intended to provide a protective measure against the destruction of cultural heritage in the case of future conflicts, and as recognition of the value of cultural property. This convention thus establishes the destruction of cultural property as a war crime which may be dealt with accordingly. The 1954 Hague convention may be perceived in connection to the development of international humanitarian law of the time, and particularly so in relation to the 1949 Geneva Convention.

 

In connection to the threat to cultural heritage in Mali during the conflict in 2012-2013, the additional Protocol II, article 16 from 1977 may be of relevance. This section of the convention is concerned with the protection of cultural objects, historic monuments and places of worship within non-international military conflicts, a protocol of which Mali has been a member-state since 1982. (Geneva Convention 1949 (Protocol II, 1977)) This might be applicable as the shrines destroyed by Ansar Dine were not only of value as cultural heritage, but as a part of continuous religious practice, as places of worship for the Sufi population in Mali. According to the 1954 Hague convention on the Protection of Cultural Property in the Event of Armed Conflict, (1954 Hague Convention) Chapter 1, article 1(a.) such cultural property is defined as “movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;” Such a definition may clearly encompass both the shrines of Timbuktu as well as the manuscripts in its libraries. Article 4(1)(ibid) obliges its state parties to respect and protect such cultural property, and refrain from causing it damage or danger at any point. Even though Article 18 states that the Convention may be applicable in times of international conflict between state-parties, Article 19(ibid) states in the event of a conflict of non-international character, the state party is however still obliged to obtain to respect cultural property as according to Article 4. However, according to Article 28 (ibid.), the measures the state oblige themselves to undertake, is limited to “…within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions…”(ibid) The Second Protocol, added in 1999, however strengthens the possibility of identifying violations of the Convention and possibilities of imposing legislative measures accordingly. Mali was however signatory of the Second Protocol for the Convention before on 15/11 2012, only a few months after the attack on the shrines in Timbuktu after having applied to do so under Article 44, relating to the allowed entry in the situation of emergency (1954 Hague Convention). This choice in timing may hardly be considered a coincidence, and may be interpreted as a reaction to the destructions and the statements by Ansar Dine of disregard the international community and opinion, and of the need of the Malian state for support of the international community. Article 15 of the Second Protocol of the 1954 Hague Convention provides a more detailed definition for violations of the convention. Further, Article 16 obliges the state party to impose sufficient jurisdiction, while Article 17 oblige the state party to appropriately prosecute any offenders of Article 15. Article 19 further oblige state parties to provide mutual legal assistance in case of violations of the Convention if deemed necessary. (Ibid.)

 

A third international consideration regarding the destruction of cultural heritage in a context of conflict is the Rome Statute by The International Criminal Court (ICC) in Hague. The statute was adopted in 1998, and went into force on the 01/07-2002. Mali signed it in 1998, and ratified it in 2000. In the heat of the conflict in Mali on the 1st of July 2012, Fatou Bensouda, the newly appointed chief prosecutor for the ICC, announced that destruction of the Sufi shrines would be considered a war crime under the Rome Statute. This may be considered the case given that Article 8(2)(e)(iv) (Rome Statute of the International Criminal Court, 1998), states that a war crime is committed in case of “Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments…” On the 13th of July, Mali following referred itself to the court, allowing for the beginning of a preliminary investigation by the Office of the Prosecutor (OTP) into the matter, which lead to a formal investigation from 16th of January 2013. (CICC, N.D.)  On the 18th of September 2015, Ahmad Al Faqi Al Mahdi was arrested on the grounds of being suspected of having caused damage to 9 of the shrines and the Sidi Yahia mosque of Timbuktu, which classifies as war crimes. A provisional hearing had been scheduled for 18th of January 2016. Such prosecution of the violation of cultural heritage is unprecedented, and the case may assist in broadening the arena for further legal action against damage or destruction upon cultural heritage, perceived in light of a general tendency of non-compliance in the matter. This development in attitude has further been interpreted as being related to destruction of cultural heritage in Syria and Iraq under the Islamic State (IS).


 

Bibliography
Forrest, Craig, 2010:
International Law and the Protection of Cultural Heritage’, Routledge
International Criminal Court (CCI), 2003:
State Parties to the Rome Statute : Mali, available at (http://www.icc-cpi.int/en_menus/asp/states%20parties/african%20states/Pages/mali.aspx) [last accessed 11 October 2015]
International Criminal Court (CCI), 2015:
‘Situation in the Republic of Mali: The Prosecutor v. Ahmad Al Faqi Al Mahdi’, Case Information Sheet, ICC-01/12-01/15, last updated on 6 October 2015, available at: (http://www.icc-cpi.int/iccdocs/PIDS/publications/AlMahdiEng.pdf) (last accessed 13 October 2015)
Lostal, Marina, 2015:
‘The first of its kind: the ICC opens a case against Ahmad Al Faqi Al Mahdi for the destruction of cultural heritage in Mali’, Global Policy Forum (GPF), 2 October 2015, available at (https://www.globalpolicy.org/home/163-general/52814-icc-opens-a-case-for-the-destruction-of-cultural-heritage-in-mali.html) (last accessed 13 October 2015)
All research published through this series of blog-posts was originally presented as post-graduate work at University College of London, Institute of Archaeology
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Nanette Askholm Bulow

Nanette Askholm Bulow

Nanette is currently completing an MSc in Global Governance at Birkbeck University in London and is in the midst of moving back to Copenhagen, her bicycle and dark winter nights. She has previously finished an MA in Archaeology from UCL with emphasis on modern engagement with cultural heritage and has done field work in Jordan and Sudan.

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