Art has suffered during war for centuries. From the earliest recorded plunder of art in war, in the twelfth century BCE when the Stele of Hammurabi was taken by the conquering Elamites from Babylon to their city Susa (in modern-day Iran), through to the devastation being wrought in Iraq and Syria even as this chapter is being written, art suffers during armed conflict for a very wide variety of reasons. Inevitably and unavoidably, property of every kind and type is destroyed, damaged, displaced, lost and stolen during war. Art is no different.
But art has other dimensions, it fulfils other functions, apart from and separate from simply being an ordinary possession or item of property. These additional functions explain why art and cultural heritage so often suffers far more than would otherwise be explicable or predictable in the chaos and random destruction of war. The reasons include:
These same functions of art, and the reasons why art and cultural heritage attracts particular attention, often leading to damage, destruction and displacement during armed conflicts, also both explain why the international community has striven to provide protection to art during war, and give pointers as to what can be done, in advance of an armed conflict and during such a conflict, to protect vulnerable art.
This chapter looks at how current international law seeks to prevent crimes against art during wartime, what that means for the owners or custodians of art in conflict zones, and what can be done by them, both before a conflict and during one, to lessen or avoid the destruction or displacement of art.
The current international convention that seeks to lessen the impact of war on art is the Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954, (known as the Hague Convention), together with its 1954 and 1999 Protocols.1
The essence of the guiding intent of the Convention is found in the preamble: ‘Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind.’ Under the Convention, states should take protective measures to safeguard art and cultural heritage within their territories prior to a conflict. They must, during a conflict governed by the Convention, refrain from attacking cultural property or from using cultural property in such a way so as to expose it to damage (unless in either case military necessity imperatively requires it). States must maintain the good discipline of combatants, prevent and punish looting, theft and destruction of cultural property, and must not seize or use another State’s cultural property or exact reprisals against it.
Article 1 of the Convention defines ‘cultural property’:
(a) 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;
(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a).
This broad definition (many constituent parts of which can be traced back, sometimes centuries, to antecedents of the Convention, and in particular to the Lieber Code of 1863 (discussed elsewhere in this volume2), the Washington Pact of 1935, and the Hague Conventions of 1899 and 1907) covers most, if not all physical or tangible art and cultural property and institutions – but not, it must be said, intangible cultural heritage such as languages, customs and the like. In addition, the natural environment is not included, so natural sites or locations of significant environmental, conservation, botanical or aesthetic value are excluded.
Article 3 of the Convention imposes a proactive duty on states to protect their own cultural property:
The High Contracting Parties undertake to prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate.
As will immediately be seen, this is vague and uncertain both as to what should be done (essentially leaving it up to individual states to decide), and omitting to specify any substantive consequences arising from a failure to take such steps. It places on the relevant state the obligation to foresee what might occur and take required steps, and does not address the situation that arises when a state has lost de facto control of part of its territory not to another state, but to a non-state actor.
The primary protective obligations imposed on states are found in Article 4:
In broad summary, then, the main obligations imposed on states during armed conflicts are:
The Convention anticipates the registration of known refuges for movable items in ‘centers containing monuments and other immovable property of very great importance’, and creates a blue and white emblem – a blue square surmounted by a blue triangle against a white background – that is to be used to mark immovable cultural property, cultural property being transported, improvised refuges, and related personnel.
The Convention created a separate category of cultural property placed under ‘special protection’. In reality, the effect of this was negligible. The process required was cumbersome and in practice the extra protection afforded was minimal. This category of protection was replaced in the 1999 Second Protocol with ‘enhanced protection’.
The First Protocol to the Convention, also agreed in 1954, applies to movable art and cultural heritage, and was explicitly aimed at avoiding the kind of mass art theft undertaken by the Nazis during the Second World War. Put briefly, an occupying power must prevent any removal of art and cultural property from an occupied territory, and return any such property removed from an occupied territory during the conflict for safekeeping, after the conflict has ended. These obligations have, for the most part, been observed more in the breach than in the observance, and they do not create private law rights enforceable by individual citizens of any state.
In 1999, the supplementary Second Protocol was created, following both the Yugoslav Civil War and the First Gulf War. The most notable feature of the Second Protocol was to more clearly define ‘military necessity’ as only applying when:
The Second Protocol also requires states to create and prosecute criminal offences, within their own legal systems, of attacks against protected cultural property, using protected cultural property for military purposes, and theft or vandalism of protected cultural property.
The swift development in recent decades of asymmetrical warfare has thrown into stark relief the limitations of the Convention and its Protocols, especially when the limited range of conflicts and participants to which it applies is highlighted. In effect, the Convention, even as supplemented by the Protocols, was designed to meet the needs of art and cultural heritage protection in the event of a ‘traditional’ armed conflict between sovereign states, occurring within territorial limits, and largely comprising land or air battles over known or recognised territory each with a functioning sovereign constitutional system.
By its terms, the Convention applies to:
Clearly, and obviously, the Convention applies to a declared war between sovereign nation-states and to a civil war between entities, each asserting a claim to governmental status, within a state.
Beyond these immediately recognisable conflicts, the 1999 Protocol aimed to extend or clarify the application of the Convention, so as to include ‘an armed conflict not of an international character, occurring within the territory of one of the Parties’, but explicitly to exclude ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’.
Thus a sliding scale of armed conflicts is created, and the positioning of any given conflict on that sliding scale is an uncertain and often difficult exercise. When an ‘internal disturbance’ becomes a qualifying armed conflict is unclear: most likely, an armed conflict will fall into the ambit of the convention:
Although decided in the context of the Hague Convention’s predecessor, the 1907 Hague Convention, the post-Second World War Nuremberg War Crimes trials provide a useful case study illustrating the application of similar principles.
The Nuremberg Trials, established by the London Charter of 1945, dealt with charges against Alfred Rosenberg, Nazi ideologue and Hitler’s leading art thief, together with many other defendants. Rosenberg was tried in the first and most famous trial held at Nuremberg, the Trial of the Major War Criminals before the International Military Tribunal, along with Hermann Goering, Rudolf Hess, Joachim von Ribbentrop and others, including Martin Bormann, who was tried in absentia. The court consisted of judges from Great Britain, the United States, France and Russia.
Rosenberg was charged, amongst other things, with war crimes including a charge of ‘Plunder of Public and Private Property’. The indictment alleged:
8. In further development of their plan of criminal exploitation, they destroyed industrial cities, cultural monuments, scientific institutions, and property of all types in the occupied territories to eliminate the possibility of competition with Germany.
Private collections of great value were stolen. In this way Raphaels, Vermeers, Van Dycks, and works of Rubens, Holbein, Rembrandt, Watteau, Boucher disappeared. Germany compelled France to deliver up ‘The Mystic Lamb’ by Van Eyck, which Belgium had entrusted to her.’3
A number of the prosecutors relied expressly on Article 56 of the Hague Convention 1907 during the presentation of the prosecution case. As Wayne Sandholtz has commented:
In sum, the American, French, and Soviet prosecutors all devoted substantial attention to Nazi crimes against cultural property. The plundering and destruction of museums, collections, libraries, and archives was, according to the accusers at Nuremberg, part of the Nazi plan to enhance the superiority of Germany by diminishing, if not annihilating, the cultural heritage of its victims. It was also, the Allied counsel argued, a punishable violation of the Hague Convention.4
In its main judgment, dealing with general matters, the tribunal discussed Rosenberg’s activities, and rejected the notion that art was taken into ‘protective custody’ so as to ‘safeguard’ it:
The defendant Rosenberg was designated by Hitler on the 29th January 1940, Head of the Centre for National Socialist Ideological and Educational Research, and thereafter the organisation known as the ‘Einsatzstab Rosenberg’ conducted its operations on a very great scale. Originally designed for the establishment of a research library, it developed into a project for the seizure of cultural treasures. On the 1st March, 1942, Hitler issued a further decree, authorising Rosenberg to search libraries, lodges and cultural establishments, to seize material from these establishments, as well as culture treasures owned by Jews. Similar directions were given where the ownership could not be clearly established. The decree directed the cooperation of the Wehrmacht High Command, and indicated that Rosenberg’s activities in the West were to be conducted in his capacity as Reichsleiter, and in the East in his capacity as Reichsminister. Thereafter, Rosenberg’s activities were extended to the occupied countries. The report of Robert Scholz, Chief of the Special Staff for Pictorial Art, stated:
‘During the period from March, 1941, to July, 1944, the special staff for Pictorial Art brought into the Reich 29 large shipments, including 137 freight cars with 4,174 cases of art works.’
The report of Scholz refers to 25 portfolios of pictures of the most valuable works of the art collection seized in the West, which portfolios were presented to the Fuehrer. Thirty-nine volumes, prepared by the Einsatzstab, contained photographs of paintings, textiles, furniture, candelabra and numerous other objects of art, and illustrated the value and magnitude of the collection which had been made. In many of the occupied countries private collections were robbed, libraries were plundered, and private houses were pillaged.
[…]
With regard to the suggestion that the purpose of the seizure of art treasures was protective and meant for their preservation, it is necessary to say a few words. On the 1st December, 1939, Himmler, as the Reich Commissioner for the ‘strengthening of Germanism’, issued a decree to the regional officers of the secret police in the annexed eastern territories, and to the commanders of the security service in Radom, Warsaw and Lublin. This decree contained administrative directions for carrying out the art seizure programme, and in Clause 1 it is stated:
‘To strengthen Germanism in the defence of the Reich, all articles mentioned in Section 2 of this decree are hereby confiscated. … They are confiscated for the benefit of the German Reich, and are at the disposal of the Reich Commissioner for the strengthening of Germanism.’
The intention to enrich Germany by the seizures, rather than to protect the seized objects, is indicated in an undated report by Dr. Hans Posse, director of the Dresden State Picture Gallery:
‘I was able to gain some knowledge on the public and private collections, as well as clerical property, in Cracow and Warsaw. It is true that we cannot hope too much to enrich ourselves from the acquisition of great art works of paintings and sculptures, with the exception of the Veit-Stoss altar, and the plates of Hans von Kulnback [sic] in the Church of Maria in Cracow … and several other works from the national museum in Warsaw.’
The tribunal’s judgment dealing specifically with Rosenberg is relatively brief, and the short section concerned with art crime bears recording in full:
War Crimes and Crimes against Humanity
Rosenberg is responsible for a system of organised plunder of both public and private property throughout the invaded countries of Europe. Acting under Hitler’s orders of January, 1940, to set up the ‘Hohe Schule,’ he organised and directed the ‘Einsatzstab Rosenberg,’ which plundered museums and libraries, confiscated art treasures and collections and pillaged private houses. His own reports show the extent of the confiscations. […] As of 14th July, 1944, more than 21,903 art objects, including famous paintings and museum pieces, had been seized by the Einsatzstab in the West.
Rosenberg was convicted, and executed following the tribunal’s verdict.
Prior to the Second World War, the Netherlands had presented a draft of what was to become the 1954 Hague Convention to other governments in 1939, but the intervention of the war meant that that work went no further. During the war years, representatives of the allied governments met in what was called the Conference of Allied Ministers of Education, from April 1942 onwards. In 1944 this group established a committee (the Vaucher Commission) to begin gathering information on cultural losses, and also proposed the creation of what went on to become, in November 1946, UNESCO.5
After the war the Netherlands picked up the issue again, and in 1948 a further draft was presented to UNESCO. Italy oversaw additional work on the treaty, incorporating the results of a study commissioned by UNESCO’s General Conference, and in 1950 presented a further draft treaty.
Parallel to this work, the principles underlying the Nuremberg Tribunal’s jurisdiction were, following a request by the UN’s General Assembly,6 drafted by the International Law Commission, and submitted to the General Assembly. These included the principle that an individual is responsible for crimes against international law, and that such crimes include ‘plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity’.7
Following UNESCO’s 1950 General Conference, a Committee of Government Experts oversaw further drafting, and presented the final draft of the Convention to an intergovernmental conference held at The Hague’s Peace Palace from 21 April to 14 May 1954. By the Final Act of that conference, attended by representatives from 56 states, the main Convention, Regulations, a Protocol, and three resolutions were adopted.8
As at the time of writing, some 126 States are Parties to the Convention, with lesser numbers having become Parties to or ratified the Protocols. A notable omission from the list of states who are Parties is the United Kingdom, although recent statements from the UK’s Conservative government indicate that it will soon ratify the Convention. Many states have yet to accede to or ratify either or both of the Protocols.
A difficult and uncertain issue is whether the Convention applies directly to ‘non-state actors’ – a somewhat flexible description intended to encompass active and organised participants in armed conflicts who are not formal nation-states. The term relevantly includes structured terrorist, insurgent and fundamentalist militias, and large-scale criminal groups.
In very general terms, public international legal instruments, such as the Hague Convention, do not bind non-state actors, the international law of treaties instead mandating only that nation-states, or in some instances identified international institutions or other entities, are bound by such conventions. International treaties can bind non-state parties, but only if the contracting parties intended that they so apply, and the third party itself accepts the obligations and rights created under the treaty in question. Whilst the former condition might arguably be met by the Hague Convention, the nature of non-state entities, such as terrorist groups or fundamentalist insurgents, engaged in fluid and changing armed conflicts will in practice make it very difficult if not impossible to conclude that they have agreed to be so bound.
But the central protections as set out in the Convention, and in particular the protective provisions of Article 4, are now part of customary international law (as shown, for example, in the approach to the 2003 Iraq war by the United States military, where the United States largely even if not uniformly conducted itself in accordance with the Convention even though, at that time, the United States was not a Party to the Convention). Thus, even if the Convention is not of itself directly applicable, a failure to observe, or a breach of, the standards encapsulated in the Convention will constitute an actionable breach of customary international law.
The Hague Convention is now over 50 years old. As drafted, the Convention has no enforcement process, and in a practical sense, the sanctions for non-compliance are minimal.
Although the 1999 Protocol was intended to strengthen individual criminal responsibility for crimes committed against art and cultural heritage during war, under both it and the Convention proper, enforcement is largely left to individual states, and premised on the basis that those states will act within the framework of their own domestic legal systems and institutions. In reality the scheme of the protective obligations, and the included ‘military necessity’ exemption, means that combatant states and groups can act without immediate or effective constraint during an armed conflict.
Although the definition of cultural property is broad and inclusive, the surrounding obligations to protect and respect such property are of uncertain ambit.
Lastly, although the central protective obligations are part of customary international law, the non-applicability of the Convention directly to combatant non-state actors, despite the prima facie applicability to non-international armed conflicts and in an era of asymmetrical and non-traditional conflicts, narrows the Convention’s contemporary and direct relevance to efforts to protect cultural property.
Some of the weaknesses identified briefly above were addressed, or at least recognised, in the creation of, and in the judgments of, the International Criminal Tribunal for the former Yugoslavia (ICTY).
Dubrovnik, the ‘Pearl of the Adriatic’, is a walled city on the Adriatic coast in what is now Croatia. Perhaps founded by Greek sailors, or alternatively in the mid-seventh century, it was besieged by the Saracens in 866–7, until relieved by the Byzantines. Its fortunes waxed and waned whilst under the control of, variously, the Byzantine Empire, Venice, the Hungarian-Croatian Empire, or as an independent city-state. By late medieval times it was a well-established Adriatic port. In the twelfth century, according to local legend, Richard the Lionheart was shipwrecked off Dubrovnik, and was so enamoured of the city that he funded the building of its cathedral.
From the thirteenth century onwards it was an important maritime power in the Adriatic, and from the fifteenth to the eighteenth centuries it was Venice’s chief rival. Its city walls date from the fifteenth and sixteenth centuries. In 1808 it came under French rule (Napoleon built the imposing Fort Imperial overlooking the town), but after the 1815 Congress of Vienna it was annexed by Austria, as part of the Austro-Hungarian Empire. After the Second World War it became part of Yugoslavia. In 1979 it was listed by UNESCO as a World Heritage Site. In 1991, 50,000 people lived within the city, predominately Croatian, but with small minorities of Serbs and Muslims.
On 25 June 1991 Croatia seceded from federal Yugoslavia, and it declared independence on 8 October of the same year. At the same time, the Second Operational Group of the Yugoslav People’s Army (JNA), under the command of Lieutenant General Pavle Strugar,9 began a military campaign against the Dubrovnik region of Croatia. The city was encircled, and mortar and sniper fire directed at its historic core. On 23 October the Old City was hit for the first time. In early November, attacks intensified, and an ultimatum demanding the city’s surrender was issued. The commander of the JNA naval forces was Vice-Admiral Miodrag Jokić. He initially announced, following the rejection of the ultimatum, that he would spare the Old City, but nevertheless attacks continued. By the end of November, every vessel in the harbour had been destroyed by wire-guided missiles.
On 6 December, the Old City itself was bombarded, and 13 civilians died. The destruction wrought in the Old City was of no military significance to the wider conflict, and in the end, the siege itself was unsuccessful and the city never surrendered.
The ICTY was created by United Nations Security Council Resolution 827 on 25 May 1993, to try individuals for alleged war crimes arising out of the Yugoslavian conflict. The tribunal’s jurisdiction, as set out in its Statute, includes jurisdiction over war crimes against cultural property, in Article 3(d):
The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
[…]
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science.
For their parts in the bombardment of Dubrovnik, Miodrag Jokić and Pavle Strugar were indicted by the ICTY in 2001. The indictment against Admiral Jokić alleged both a breach of Article 3(d), and that he knew that a number of the buildings in the Old City were marked pursuant to the 1954 Hague Convention.
Jokić voluntarily surrendered for the tribunal on 12 November 2001. Initially, he pleaded not guilty, but in August 2003 he entered guilty pleas to six counts, including the Article 3(d) count. Jokić’s individual criminal liability arose because he was in command of the bombarding naval forces, and he knew:
of the unlawful shelling from the early hours of the morning of 6 December 1991 and failed to take the necessary and reasonable measures to prevent, mitigate, stop or punish those under his command directly responsible for the shelling [despite the existence of a JNA Standing Order to spare the Old City10].11
In its sentencing judgment the tribunal recorded, after discussing both the 1907 and the 1954 Hague Conventions, and the UNESCO World Heritage Convention:
The whole of the Old Town of Dubrovnik was considered, at the time of the events contained in the Indictment, an especially important part of the world cultural heritage. It was, among other things, an outstanding architectural ensemble illustrating a significant stage in human history. The shelling attack on the Old Town was an attack not only against the history and heritage of the region, but also against the cultural heritage of humankind. Moreover, the Old Town was a ‘living city’ […] and the existence of its population was intimately intertwined with its ancient heritage. Residential buildings within the city also formed part of the World Cultural Heritage site, and were thus protected.
On 18 March 2004 he was sentenced to seven years’ imprisonment.
Pavle Strugar did not plead guilty. His trial, on an indictment containing the same six counts as charged against Jokić, occupied 100 sitting days, commencing on 16 December 2003 and concluding after closing arguments on 9 September 2004. By an extremely detailed 231-page judgment delivered on 31 January 2005 he was convicted, and the convictions were confirmed on appeal on 17 July 2008.
Evidence was given at trial as to the extent of the destruction or damage to buildings, to the effect:
An analysis conducted by the Institute for the Protection of Cultural Monuments, in conjunction with UNESCO, found that, of the 824 buildings in the Old Town, 563 (or 68.33 per cent) had been hit by projectiles in 1991 and 1992. Six buildings were completely destroyed by fire. In 1993, the Institute for the Rehabilitation of Dubrovnik, in conjunction with UNESCO, estimated the total cost for restoring public and private buildings; religious buildings; streets, squares, and fountains; and ramparts, gates, and bridges at 9,657,578 US dollars.
Strugar was found guilty on two out of the six counts, including the Article 3(d) count. The tribunal found that the bombardment commenced on 6 December at around 5.50 a.m., with intense shelling of the Old City occurring between about 9.00 a.m. or 9.30 a.m. through to about 11.00 a.m. A short-lived lull followed, but shelling continued through to about 3.00 p.m., ceasing substantially a little after 4.30 p.m., thus constituting a total bombardment of ten-and-a-half hours. A number of protests were made to JNA commanders by the Croatian ministerial delegation, the European Community Monitoring Mission (ECMM), and civil authorities within Dubrovnik. In particular, the ECMM protest, delivered in Belgrade to the Serbian Federal Secretary of Defence General Veljko Kadijević, caused General Strugar and Admiral Jokić to communicate by telephone at around 7.00 a.m. that day (although what passed between them was strongly contested), and a partial ceasefire, which in the event was ineffective, was ordered by Strugar at 11.15 a.m. In the afternoon Strugar and Jokić flew to Belgrade to meet General Kadijević, and by the time they returned to Dubrovnik at around 5.30 p.m., the JNA was in ‘damage control mode’.
With respect to the Article 3(d) count, the tribunal found, in summary:
The Old Town of Dubrovnik in its entirety was entered onto the World Heritage List in 1979, so that every building of the Old Town, including its walls, can be properly characterised as cultural property. It was also established that there were no military objectives in the immediate vicinity of the 52 buildings and structures destroyed or damaged on 6 December 1991, or in the Old Town, or in its immediate vicinity, so that the destruction or damage of property in the Old Town on 6 December 1991 was not justified by military necessity.12
Given the absence of any timely order to desist, and the absence of an effective enquiry into the bombardment, and punishment of the culpable officers after the event, personal criminal liability pursuant to Article 7(3) was established. Pavle Strugar was sentenced to eight years’ imprisonment.
These and other cases decided by the Tribunal, but in particular the Strugar trial and verdict, are watershed moments in the history of the protection of cultural heritage during armed conflict. They embody individual criminal responsibility for such attacks, and delineate carefully the nature of the command structure and the degree of personal knowledge, plus importantly the obligation to order cessation of such attacks in light of fast-moving battlefield developments, which can give rise to such liability on the part of high-level military commanders. The detailed timeline, as relied upon by the Tribunal in the Strugar case, highlights the importance of the evidential reconstruction of day-to-day, and indeed minute-to-minute, events as they unfold.
The Rome Statute, the founding instrument and source of the International Criminal Court’s independent international criminal jurisdiction, further addressed some of the weaknesses of the Hague Convention. Located in The Hague, the International Criminal Court (ICC) is an independent, treaty-based, permanent international institution. It was created by the adoption by treaty of the Rome Statute in 1998, which came into force in 2002 after ratification by 60 nations. Presently some 123 countries have joined the treaty.
As set out in the curiously poetic preamble of the Rome Statute, the ICC’s guiding principle is that ‘all peoples are united by common bonds, their cultures pieced together in a shared heritage’, and the Statute gives the court jurisdiction over ‘the most serious crimes of concern to the international community as a whole’.13
Under the Statute, the ICC has jurisdiction over war crimes committed in both international and non-international conflicts, including ‘Intentionally 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’. Noteworthy in passing is the somewhat striking similarity of wording between this, and Francis Lieber’s 1863 Code. We have made some progress, but not perhaps as much as we might have. And until very recently, this part of the ICC’s jurisdiction had languished without practical effect.
At the end of September 2015, West African authorities surrendered Ahmad Al Faqi Al Mahdi, an ethnic Tuareg from Agoune, 100 kilometres (60 miles) west of Timbuktu, to the ICC. On 30 September 2015 he made his initial appearance before the court, charged with having committed, individually and jointly with others, or facilitated or otherwise contributed to, war crimes by intentionally directing attacks against nine named mausoleums and one mosque in Timbuktu, in June/July 2012.
By way of background, in 2012 the Ansar Dine, an Islamic extremist militia group seeking to impose strict Sharia law and create an Islamic theocracy in Mali, attacked northern Mali, including the fabled city of Timbuktu. From the thirteenth to the early seventeenth centuries Timbuktu had prospered as the hub of ancient trade routes in Africa and developed an extraordinarily rich cultural landscape. Included in that landscape were numerous Sufi shrines and mausoleums, which in 2012 the Ansar Dine attacked, vandalised and plundered.
The situation in Mali was referred to the ICC by the government of Mali in July 2012, and in mid-January 2013, the court’s prosecutor began an investigation into alleged war crimes within the court’s jurisdiction, committed in Mali after early 2012.
The statement issued by the ICC’s prosecutor at the time of Ahmad Al Faqi Al Mahdi’s surrender and appearance before the court emphasised the fundamental principle that culture is a mirror of humanity, so that cultural heritage is humankind’s common heritage, and acknowledged this prosecution to be the first alleging ‘the destruction of buildings dedicated to religion and historical monuments’. At the time of writing, the confirmation hearing, when the evidence will be assessed to see if there is sufficient to put the defendant on trial, is scheduled for January 2016.
What might be hoped to come from this trial and, it is hoped, other cultural heritage war crimes trials before the ICC still to occur, is:
There will inevitably be a wide and unpredictable range of situations that an armed conflict might present to a museum director, curator, collector or other owner of art, when vulnerable art is or may be threatened, directly or indirectly, by an armed conflict. So, when making decisions about what needs to be done, inevitably much if not all will depend on a considered and thoughtful analysis of the individual circumstances. This is particularly so in situations involving non-state actors, as discussed above, as their involvement and their actions can and most likely will be unpredictable, and unlikely to be conducive to previously established and relatively predictable forms of communication, governance and response.
But some general suggestions can be offered, informed by both the international legal context and the case studies referred to above. A list such as this must inevitably be non-exhaustive, and can only properly be used as a starting point for individual and informed consideration in light of contemporary and likely circumstances, and in light of the time, resources and personnel available in those circumstances.
With these caveats in mind, it is suggested that governments, civilian and military authorities, cultural institutions, museums and galleries, and individuals who have responsibility for their collections in times of threatened or actual armed conflict, need as far as possible to consider and appropriately take some or all of the following actions before, during and after an armed conflict:
Arthur Tompkins is a District Court Judge based in Wellington, New Zealand. He teaches the ‘Art in War’ component course at the Association for Research into Crimes against Art’s annual Postgraduate Certificate Programme in Art Crime and Heritage Protection Studies, in Umbria, Italy.