Introduction
Cultural heritage conjures a genteel world of museums, monuments, historic sites and natural wonders, objets d’art, and a rich tapestry of cultural traditions and expressions around which a robust global tourism flows. But cultural heritage simultaneously maps tectonics of difference, exposing fault lines along which occasionally erupt paroxysms of violence. Armies loot and pillage.Footnote 1 Zealots and iconoclasts ignite blazes, both literal and figurative, that consume the libraries, temples, statuary, and art of the impure, the unclean, the old, the heathen, the hated.Footnote 2 Revolutionaries cannibalise their own culture.Footnote 3 The Indigenous is sequestered, bred out of existence, exterminated. Languages are banned; books are burned; people are re-educated. And on culturally cleansed territories (of Nagorno-Karabakh, Nineveh, Nimrud, Palmyra, Mosul, Timbuktu, Homs, Sarajevo, Banja Luca, and the Bamiyan Valley) imagined new worlds rise. Heritage is situated on the front lines of world-destruction – and world-making.
Nineteenth-century depredations, including Napoleon’s rapacious looting of European cultural treasures and the destruction of significant historic and religious structures during the 1870–1 Franco-Prussian War, sparked a movement to codify rules that had hitherto existed at the national level. The resulting 1899 and 1907 Hague Conventions on the Laws and Customs of War forbade pillage (Article 28) and prohibited attacks on cultural properties (Articles 27 and, in contexts of occupation, 56). Article 56 even directed that the seizure and destruction of, and damage to, historic monuments and buildings be made the subject of legal proceedings.Footnote 4 Despite pervasively featuring in atrocity contexts (para. 2),Footnote 5 attacks on heritage have registered only a few prosecutions at the international level, notably by the International Military Tribunal at Nuremberg, the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the Extraordinary Chambers in the Courts of Cambodia (ECCC) [para. 1].Footnote 6 To fill gaps and systematise prosecutorial efforts at the international level, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) issued a Policy on Cultural Heritage in June 2021 to develop the Court’s role in redressing crimes against or affecting cultural heritage. As such, the OTP situates the Court as the inheritor of ‘a long-standing concern of the international community’ (para. 1) to protect cultural property and historic monuments in armed conflict;Footnote 7 prohibit plunder;Footnote 8 promote intercultural cooperation;Footnote 9 and prosecute offenders.
Curiously, though, none of the ICC’s governing instruments (‘the Statute, the Elements of Crimes, and the Rules’) ‘explicitly refers to the destruction of cultural heritage or cultural property in such terms’ (para. 33). The only equivalence is contained in the property-focused war crimes provisions of Article 8, which replicate Hague prohibitions. To leverage the full protective scope of the Rome Statute, the OTP adopts a human rights understanding of heritageFootnote 10 as an ensemble of ‘resources enabling the cultural identification of individuals and communities’.Footnote 11 These include tangible structures, sites, and objects, and ‘intangible expressions of human life’ (para. 3) such as ‘the practices, representations, expressions, knowledge and skills’ (para. 16), which are ‘inherited from past generations, maintained in the present, and bestowed upon future generations for benefit and continuity’ (para. 15). Understanding heritage not primarily in national patrimonial terms but as embodiments of ‘a community’s sense of identity and belonging’ (para. 15), the OTP avers, ‘more properly reflects the rich corpus of human achievement that the Statute and international law seek to protect’ (para. 14).
This article examines how the Policy reads heritage into the Statute. In the following section, I overview the Court’s limited engagement with cultural heritage. The third section interprets the Policy as structured around distinctive relationships between heritage and atrocity crimes. Article 8 war crimes provisions are related to cultural meaning and value; Article 7 crimes against humanity provisions underscore assaults on human diversity; and Article 6 genocide provisions cast attacks on heritage in an evidentiary role to ascertain genocidal intent.
The human rights approach to heritage and the work envisioned by the Policy fertilises a second, conceptual interpretation centred on constructing world society, shorthanded here as world-building. The argument is rooted in the Rome Statute’s opening preambular observation that ‘all peoples are united by common bonds, their cultures pieced together in a shared heritage, and … that this delicate mosaic may be shattered at any time’. Rhetorical flourish may conceal what is being conveyed: the world defined in cultural, not statist terms. In English School (ES) international relations theoretic terms, the OTP burnishes the Court’s credentials as an agent of humanity – that is, as an institution of world society. While the Court is an organisation of the international society of states, established and overseen by them, it is likewise grounded in and its work oriented towards upholding ‘common interests and common values’Footnote 12 of accountability, justice, human rights, and the ‘peace, security and well-being of the world’Footnote 13 shared by both states and people. The following section reads the Policy through that prism: as an exercise in world (society) building.Footnote 14 Against world-destructive acts of heritage annihilation, the OTP constructs an accountability architecture that insinuates the Court in a global heritage regime otherwise centred on UNESCO to complement and fortify pre-existing values and processes of identification, safeguarding, conservation, preservation, protection, and promotion. The Policy seeks to marshal resources, institutional power, and actors at all levels to combat impunity and the scourge of heritage destruction. As an antidote to the acidic messaging of heritage destruction as an assault on human identity and expression, the Policy rationalises responses in defence of human and cultural diversity.
The Court and cultural heritage: An overview
After marathon negotiations from 15 June to 17 July 1998 in Rome, Italy, 120 states voted to approve the Rome Statute of the International Criminal Court, while 7 countries voted against and 21 abstained. The Statute entered into force on 1 July 2002, and the Court became operational after the election of 18 judges in February 2003, and a prosecutor in April.Footnote 15 Based in The Hague, Netherlands, the ICC has, as of 3 April 2025, 125 states-parties, including 33 African, 19 Asian-Pacific, 20 Eastern European, 28 Latin American, and 25 Western European and other countries. Two states – Burundi and the Philippines – withdrew from the Court in, respectively, 2017 and 2018.
The ICC has jurisdiction over ‘the most serious crimes of concern to the international community as a whole’: war crimes, crimes against humanity, genocide, and, for the 46 states-parties which have as of 3 April 2025 ratified the relevant amendment to the Statute, aggression. Such crimes are construed to ‘deeply shock the conscience of humanity … [and] threaten the peace, security and well-being of the world’.Footnote 16
Three cases have involved crimes related to cultural heritage. Two – Al Mahdi and Al Hassan – are associated with the 2012 Islamist occupation of Timbuktu, Mali, with ICC investigations having commenced in 2013. Following the issuance of an arrest warrant in September 2015, and after being turned over to the ICC by authorities in Niger, Mr Ahmad Al Faqi Al Mahdi, head of the Hisbah or morality police, confessed to deliberately destroying or causing significant damage to nine historic mausoleums, as well as the sacred door of a mosque, several of which were listed on UNESCO’s World Heritage List and remained active sites of worship.Footnote 17 A three-day trial was held in August 2016 to develop a record of events and send ‘a strong message that the intentional targeting of cultural heritage is a serious crime … since it affects both the local community and the international community as a whole’ (para. 6).Footnote 18 His sentence of nine years was later commuted to seven.Footnote 19
Mr Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, commissaire of the Islamic police in Timbuktu, was surrendered to the ICC four days after the issuance of an arrest warrant in March 2018.Footnote 20 The trial phase opened on 14 July 2020 and concluded on 26 June 2024 with the issuance of a judgement of guilt for most of the crimes with which he was indicted. These included religious-based persecution as evidenced by the brutal suppression of intangible cultural expressions (e.g., prohibitions of traditional forms of worship, singing and dancing, observance of festivals honouring the city’s saints, and the wearing of amulets and talismans).Footnote 21 Key (anonymous) expert witnesses also testified that the destruction tangible cultural heritage (e.g. of mausoleums and shrines) disrupted practices and forms of worship, undermined the transmission of values and knowledges associated with the sites, and curtailed filial responsibilities for heritage maintenance that were uniquely associated with each site.Footnote 22 However, as the trial chamber found no convincing evidence that Mr Al Hassan ordered, directed, participated in, or otherwise contributed to the destruction of cultural property, he was acquitted on that bundle of charges. A third case, The Prosecutor v. Alfred Yekatom and Patrice-Eduoard Ngaïssona, entered the deliberation phase on 12 December 2024. The two were charged with, inter alia, intentionally directing attacks against religious buildings in the Central African Republic.Footnote 23
Reading cultural heritage into the Rome Statute
While Al Mahdi confessed, the three-day trial in August 2016 manifested the collaboration of UNESCO and the ICC to gather evidence, question witnesses, and construct a factual record of events. Several months later, and in light of an increasing number of high-profile, deliberate attacks on heritage, including those in Timbuktu, the UN Security Council unanimously adopted landmark Resolution 2347 on 24 March 2017, which, inter alia, underscored the imperative to prosecute those responsible for attacking cultural heritage. Given the success of their working relationship for and during the Al-Mahdi trial, UNESCO and the ICC concluded a Letter of Intent on 6 November 2017 to implement terms of Resolution 2347 and devise effective strategies towards that end.Footnote 24 The Policy is the product of such collaboration.
Crimes against cultural heritage are ostensibly incongruous with the body-centred nature of crimes within the Court’s jurisdiction (e.g. sexual violence, enforced starvation, deportation, torture, extermination). The case for developing the Court’s role in redressing them rests on three points: first, such crimes fracture communities by targeting ‘a particular group’s identity and practices’; second, they destroy the cultural glue that defines and binds communities; and third, they subtract from the world as a cultural space by erasing ‘entire swaths of human history, ingenuity, and artistic creation’ (para. 17). Consequently, they undermine self-determinative activity to become the kind of human one aims and wishes to be (para. 17).Footnote 25
The challenge for the OTP, then, was to adapt and apply this broad human rights understanding of heritage to the limited provisions of the Rome Statute. Paragraph one of the Policy reiterates the Statute’s preambular observation ‘that all peoples are united by common bonds, their cultures pieced together in a shared heritage’ (para. 1). Such establishes the subject and the object: not merely an international society of states, but a world society inclusive, inter alia, of individuals, their communities, and their cultural heritages. As if to underscore the need for less ad hoc, and more consistent and systematic, procedures to redress cultural heritage destruction, the second paragraph of the Policy mentions the intentional targeting of cultural, religious, and historic sites and structures across Syria and Iraq which elicited universal condemnation but, to date, no accountability.Footnote 26 The document then proceeds to assess how the Statute may be, and is, relevant to furthering the work of accountability and prosecution.
In the remainder of this section, I consider three of the four crimes under the Court’s jurisdiction: war crimes (Article 8), crimes against humanity (article 7), and genocide (article 6). I omit consideration of the crime of aggression (Article 8 bis) for the principal reason that, in three scant paragraphs, the Policy observes that aggression poses a threat to cultural heritage (para. 89); that attacks on cultural properties may be used as evidence to establish that an act of aggression has occurred (para. 90); and that aggression – ‘invasion, attack, occupation, or annexation’ (para. 91) – provides a context within which other crimes may occur (paras. 89, 91).
War crimes
The Statute contains two broad classes of war crimes with relevance to cultural heritage: violence against property (which encompass pillage, seizure, damage to or destruction of property) and outrages upon personal dignity. The former is subdivided. Two subparagraphs – Articles 8.2.b.ix on international, and 8.2.e.iv on non-international armed conflict – reproduce Hague Convention prohibitions on ‘intentionally directing attacks’ against specific properties (‘buildings dedicated to religion, education, art, science or charitable purposes, [and] historic monuments’). Cultural objects, structures, and sites which fall outside those parameters may be covered by the article’s other provisions which prohibit, inter alia, targeting, destruction, seizure, and pillage of civilian properties (para. 41). Ostensibly limited, the scope of the Statute’s provisions is quite broad for two reasons. First, the OTP adopts the 1972 World Heritage Convention’s definition of ‘historic monuments’ as including ‘architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features’ (para. 31, footnote 31). It also accepts UNESCO’s understanding of ‘cultural properties’. In light of growing state objections to the implicit brick-and-stone orientation of tangible heritage and strict UNESCO guidelines on preservation and authenticity which tended to overemphasise forms of European tangible heritage (e.g., Roman aqueducts, medieval castles and fortresses, cathedrals), the World Heritage Committee adopted a ‘Global Strategy’ in 1992 to expand the understanding of cultural properties. ‘A series of regional and subregional workshops’ was organised, and new concepts such as ‘cultural landscapes’ (to acknowledge the relationship between natural spaces and cultural meanings and practices), ‘cultural routes and itineraries such as Slave Routes’, and ‘associative sites’ and ‘commemorative sites’ emerged to capture the diversity of forms of tangible cultural heritage.Footnote 27
While the ICTY was the vanguard of prosecuting attacks on tangible cultural heritage, the OTP underscores how the Rome Statute affords protections that ‘exceed’ those ‘recognized by the ICTY’ (para. 46). First, the plain terms of Articles 8.2.b.ix and 8.2.e.iv do not require ‘proof of actual damage’ – only that an attack be directed and launched (para. 46). Second, the Court understands an attack as any act ‘directed against protected objects under the control of a party to the conflict, and not merely those under the control of the adverse party’ (para. 45).Footnote 28 Third, neither do the Statute’s provisions require that cultural properties be ‘of great importance to the cultural heritage of every people’, as stipulated by the 1954 Hague Convention, or be of ‘outstanding universal value’, as required by the 1972 World Heritage Convention (para. 44). All that is necessary is that ‘the property constituted the “cultural or spiritual heritage”’ of the community.Footnote 29
However, not all attacks constitute war crimes; thresholds must be met. The ‘degree of harm to the protected object and its cultural significance’ must be considered in assessing the gravity of the act (para. 47). While this might nullify war crimes charges for directing an attack against some properties, it allows for the possibility that even incidental or marginal damage to a significant site may qualify ‘if the perpetrator knew that this damage would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’ (para. 49). Consequently, quantitative metrics – e.g. ‘cubic metres’ of damage – are insufficient as isolated data points. They must be coupled with qualitative assessments of irreplaceability, aesthetic quality, spiritual relevance, historic significance, cultural value, and community use.Footnote 30
The OTP applies this calculus to another class of war crimes: ‘outrages upon personal dignity’ which must be ‘real and serious’ and ‘humiliating or degrading’. Outrages could entail acts which ‘impede the victim’s future ability to access their cultural heritage’, thereby disrupting transmissibility of cultural knowledges and practices [para. 60(ii)]. The trial chamber in the ICTY’s Kunarac case, for instance, found that victims of sexual and gender-based crimes were targeted precisely because of ‘their membership of a specific group with a shared cultural heritage’.Footnote 31 The outrage on dignity pertained to the resulting marginalisation of defiled women in traditional Muslim communities, and the disruption the oral transmission of cultural knowledges and expressions (para 60). The ECCC convicted Khieu Samphan and Nuon Chea in part for forcing the Cham Muslim minority ‘to eat in a manner inconsistent with their cultural dietary practices’ (OTP, Policy, fn. 71). The forcible consumption of pork was determined to constitute a form of public humiliation – and thus an outrage on dignity – before their extermination.
Both readings (of attacks on property and outrages on personal dignity) clearly depart from a monumental approach to heritage which ‘only touches upon the tangible aspects of human culture’ and thus ‘reflects only part of the protection which may be afforded by the crimes in the Statute to cultural heritage’ (para. 14). A human rights reading ties the material world to the social, as certain cultural ‘practices and attributes of a group or society’ are often associated with specific tangible cultural heritage (para. 15). To wit, expert witnesses in the Al Hassan trial detailed the disruptive effects of the destruction of shrines and mausoleums on practices and forms of worship, the transmission of mythologies and folklore, and on generationally transmitted filial responsibilities for heritage maintenance uniquely associated with each site.Footnote 32 While Al Hassan was acquitted for the war crime of destroying cultural and religious structures, the argument showcases the work performed by a human rights understanding of heritage: it foregrounds the co-constitution of human identity and the built environment. To be focused only on the destruction of a building or structure, or on violence enacted against a body, neglects inhibitive effects on cultural practices and identification processes (para. 75).Footnote 33
Yet it is not entirely clear what reading intangible cultural heritage into Article 8 accomplishes since the attack on material heritage – on the world as a built environment – is itself a crime; the effects on persons and their practices are ancillary. If an attack on a structure were committed to endanger, prohibit, or eradicate a cultural practice, or to expel a people from a territory, it might constitute evidence of persecution as a crime against humanity, not necessarily a war crime.Footnote 34 The two necessarily need to be disentangled.
On the other hand, underscoring the connections between various elements of the crimes under the Court’s jurisdiction could prove to be a sound prosecutorial strategy to demonstrate that attacks on culture are most often not incidental, but integral to military, political, and social objectives in conflict to ethnically cleanse territories of unwanted people.
Crimes against humanity
If Article 8 provides ‘the most straightforward means to address intentional harm to cultural heritage’ (para. 21), Article 7 on crimes against humanity arguably offers the Prosecutor the widest latitude to read crimes against cultural heritage into the Statute. Acts may constitute crimes against humanity insofar as they are connected to extermination (paras. 67–8; Rome Statute Article 7.1.b); deportation and forcible transfers of populations (paras. 69–70; Rome Statute Article 7.1.d); torture (para. 77; Rome Statute Article 7.1.f); sexual and gender-based crimes (para. 72; Rome Statute Article 7.1.g and 7.1.h); persecution (paras. 73–5; Rome Statute Article 7.1.h); or other inhumane acts ‘if they are similar in nature and gravity’ as other acts that constitute crimes against humanity (para. 75).
To constitute a crime against humanity, assaults on heritage must be committed as part of a widespread or systematic attack against civilians pursuant to a state or organisational policy (para. 62). As such, they may help ascertain ‘discriminatory motive’ and provide evidence of the existence of a State or organisational policy to attack civilians (para. 65) – say, as with repeated attacks on structures devoted to religion and the arts, cemeteries, historic monuments, and art installations, as well as prohibitions on language use, religious observances, and festive traditions. In its assessment of crimes against or affecting cultural heritage, the OTP averred that it ‘will take due regard of the fact that [such] crimes … often produce a multiplicity of victims, as they cause harm throughout affected communities and humanity as a whole’ (para. 66).
The claim is a curious one, as it blurs the distinction between direct and indirect harm. But that is not entirely what is at play in the Policy. Directly affected (harmed) communities include the cultural and spiritual groups and their leaders, artists, writers, and cultural heritage professionals, among others, whose cultural sites and expressions are attacked, denigrated, damaged, destroyed, curtailed, or prohibited. They are the deported and forcibly displaced, whose access to sacred and important cultural sites is imperilled – making, for instance, the performance of ‘traditional burial rituals’ impossible (para. 70). They are the spiritual leaders removed from their communities, and the families and communities which have been separated, the long-term effects of which can be ‘disastrous’ on a community’s intangible cultural heritage (para. 70). They are the victims of sexual and gender-based crimes who doubly suffer when they are marginalised by their communities. Because ‘women are [often] the oral transmitters’ of traditional cultural knowledges, traditions, and skills, sexually violative acts often ‘produce a cultural vacuum’ (para. 70).Footnote 35 They are the individuals deprived of their fundamental rights including, inter alia, rights to self-determination, education, and religion, and the prohibition of discrimination (para. 75). They are the Indigenous communities whose ‘survival and cultural heritage … are intricately linked to, and depend upon, their territory’ (para. 68, footnote 89), but whose territory has been made uninhabitable.Footnote 36
While these are some of the ‘types’ of victims most frequently referred to throughout the Policy and whose direct sufferance of harm is the root of prosecutorial efforts, humanity and the world are violated. The sense of harm the OTP evokes concerns not a distant spectator of violence – the sort of anguish one might feel watching ISIS dynamite the vestigial ruins of past civilisations. Rather, it concerns the primordial, world-destroying harm committed against the natural human condition of diversity that is embodied in cultural heritage. For this reason, the OTP characterises crimes against cultural heritage as ‘touch[ing] upon the very notion of what it means to be human’ (para. 17) – and the reason why such crimes are of concern to the international community as a whole.
Some of the more oblique examples in the Policy buttress the view. The OTP acknowledges the possibility that crimes against or affecting cultural heritage may constitute torture (para. 71), as the Court determined in the Al Mahdi case. The destruction of the shrines and mausoleums ‘caused severe mental suffering’ in the affected community given the integral nature of those structures to forms and practices of spiritual observance. To destroy them was to deny their relevance and place in a world defined by radicalism. Moreover, the systematic or widespread attacks on cultural heritage evince a discriminatory motive, which ‘may aggravate the severity of the pain or suffering inflicted’.
Similarly, in paragraph 76 the OTP observes that other crimes against or affecting cultural heritage may amount to ‘other inhumane acts’ (Rome Statute, Article 7.1.k). Here, the OTP cites the Court’s Kenyatta Confirmation determination that ‘forcible circumcision or penile amputation’ constituted inhumane acts. In context of the Policy on Cultural Heritage, it is incongruous, the effect of which is to position it (without explanation) as an instance of cultural heritage crimes. We are left to infer that deliberate and forcible penile amputations and circumcisions emasculate male leaders in traditional cultural communities and, in some cases, prevent births. Even so, it strains the imagination to understand why mutilation of the human body would not warrant its own charges stemming from the sexual violence provisions in Article 7.1.g of the Rome Statute, torture, or even genocide.
But perhaps that is precisely the point. Read as a crime against cultural heritage, the act conveys the distinctive social, not merely biological, nature of the crime. If many of the crimes within the Court’s jurisdiction concern violence enacted on the human body, the Policy on Cultural Heritage posits that assaults on heritage often have as their objective the denigration and erasure of the corporate cultural body. On this reading, crimes against cultural heritage are primarily dignitary crimes, crimes against humanity, designed to narrow the scope of permissible expressions of ‘being human’. The crime of persecution, defined as ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’ (Article 7.2.g), captures the dynamism and scope of the abridgement.
As initially appeared and defined in the Charter for the International Military Tribunal at Nuremberg, persecution applied only to political, racial, and religious groups. Further, the Charter required a nexus to another crime within the jurisdiction of the tribunal. The ICTY and ICTR likewise hinged persecution on political, racial, and religious affiliations, but detached persecution from other crimes within their jurisdiction – that is, they treated it independently of other crimes. While the Rome Statute expands the list of protected groups to include national, ethnic, cultural, gender and ‘other grounds that are universally recognized as impermissible under international law’ (Article 7.1.h), it reverts to the Nuremberg nexus requirement.
Ostensibly regressive, the Statute’s provision reflects a compromise between states that were concerned that ‘any discriminatory practice would be characterized as crimes against humanity’,Footnote 37 and others which were troubled that tethering persecution to another crime would render persecution ancillary. Against that concern, the Al Hassan Trial Chamber observed that attaching persecution to multiple other crimes ‘was intended to ensure that persecution would retain its character as a separate crime [to the degree politically allowable] and ensure it would not be merely an auxiliary offense or an aggravating factor’.Footnote 38 On this reading, persecutory campaigns are often an essential means in the commission of other crimes, and attacks on cultural heritage may serve as particularly important evidence of persecutory campaigns, since cultural groups are distinguishable in part by distinctive intergenerationally transmitted markers.Footnote 39 Yet the harm is not merely short term. To attack, destroy, or otherwise impair heritage is to disrupt cultural identification, transmission, and development processes, and thus to deny future generations the ability to be specific kinds of cultural human beings. The fundamental rights in question are, essentially, self-determinative in nature: to define, access, participate in, and develop one’s cultural identity and a community’s cultural life. They are essential rights of individual and collective expression, the denial of which ‘aims to exclude a person from society’.Footnote 40
To constitute persecution, however, deprivations must be of equal gravity and severity to other elements of a crime against humanity. Recognising that the ICTY had not previously addressed the equal gravity issue, the Dorđević Appeals Chamber determined in its judgement of 27 January 2014 that, for example,
the destruction of religious property meets the equal gravity requirement as it amounts to ‘an attack on the very religious identity of a people’ and as such manifests ‘a nearly pure expression’ of the notion of crimes against humanity, as also found by several trial chambers. Proof that a building is dedicated to religion satisfies the equal gravity requirement without requiring an assessment of the value of the specific religious property to a particular community. It is different in that respect to the destruction of private property which may not necessarily have a sufficiently severe impact to constitute a crime against humanity (para. 567).
In the end, equal gravity inextricably hinges on the ‘ultimate aim of persecution’: the ‘removal of those persons from the society in which they live alongside the perpetrators, or eventually even from humanity itself’Footnote 41 by stripping them of their rights and their place in society.
Genocide
During the drafting stages of the 1948 Genocide Convention, Raphael Lemkin found congruence between ‘barbarity’, or ‘the premeditated destruction’ of national, religious, racial, and ethnic groups, and ‘vandalism’, or ‘the destruction of works of art and culture’ which express the ‘particular genius of these collectivities’.Footnote 42 He observed that ‘a group could be annihilated if its identity, its collective memory, has been erased, even if many of its members remain alive’.Footnote 43 Genocide, in other words, had distinctive cultural dimensions. States rejected this, and cultural elements were excised from the final convention except for one oblique reference: the forcible transfer of children from one group to another. Removal of children severs the intergenerational transmission of knowledges and practices, thereby contributing to ‘the destruction of the group, whose future depended on the next generation’.Footnote 44
Given the near-categorical divorce of the crime from culture, the Policy adds nothing new to our understanding of the relationship between genocide and cultural heritage. Instead, it reiterates the point that crimes against or affecting cultural heritage may constitute evidence of an intent to destroy a racial, ethnic, national, or religious group in whole or in part (para. 78). As observed by the International Court of Justice:
‘where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of intent to physically destroy the group.’ This includes, for example, attacks on buildings that hold cultural significance for the targeted group. Violence targeting prominent individuals, who are emblematic of the overall group, or are essential to its survival, such as persons holding particular cultural importance for or leadership of the group, may constitute genocide or evidence a specific intent to destroy a substantial part of the group. (paras. 79–80)
Laudably, however, the OTP includes the ‘violent appropriation of traditional lands and forced displacement’ in its inventory of acts that may inflict ‘conditions of life calculated to bring about the group’s physical destruction’ (para. 83). The deliberate targeting of traditional lands ‘can erode and destroy a people’s cultural heritage while also being calculated to bring about its physical destruction’ (para. 83). In some instances, the route to destruction is circuitous. The arrest warrant in Al Bashir, for instance, observed that ‘displacement has weakened traditional leadership structures which were based on land rights’ (para. 83). Similarly, the Inter-American Court of Human Rights found that the destruction of Mayan ‘livestock, crops, and other elements of subsistence not only violated their right to life but also their right to ethnic or cultural identity, and the right to express and disseminate their culture’ (Plan de Sánchez Massacre case cited in para. 83).
World-building at the ICC: Implications of the Policy on Cultural Heritage
Iceland’s former National UNESCO Commission chair, Valdimar Hafstein, characterised the sprawling programme of work the concept of cultural heritage has generated as one of world-building: the summoning into being new social institutions (‘centers, councils, associations, clubs, committees, commissions, juries, [and] networks’), new displays (‘the exhibition, the spectacle, the catalog’, etc.), and ‘new functions’ (e.g. ‘attracting tourists, orchestrating difference’).Footnote 45 While not a direct progeny of heritage, the OTP insinuates the Court in this pre-existing regime by constructing an institutional apparatus to fulfill a 19th-century promise that offences against protected (cultural) properties ‘shall be made the subject of proceedings’ (Article 56 of the 1899 and 1907 Hague Conventions),Footnote 46 and 20th-century overtures to ascribe individual criminal responsibility for pillage, plunder, and deliberate attacks on cultural heritage.Footnote 47
To those ends, the Policy develops ‘the necessary institutional capacity to conduct preliminary examinations, investigations and prosecutions of crimes against or affecting cultural heritage’ (para. 12) as they are ‘relevant’ to the Court’s work (para. 18). The document offers a blueprint of interpretations (paras. 33–92), procedures (paras. 93–112, 116–36), sentencing guidelines (paras. 113–15), and directives (e.g. the OTP will apply culturally sensitive, child-sensitive, and gender-intuitive approaches in its work [paras. 25, 29], provide support to national authorities to address such crimes [para. 31], draw on applicable treaties [para. 34], and train staff [para. 32]). But the OTP likewise envisions work beyond The Hague. The Office determines that it will ‘expand its network of partners’ (para. 118); enhance ‘institutional and operational collaborative mechanisms with … INTERPOL, Europol and Eurojust’, as well as ‘national police-force units’ (para. 119); serve ‘as a reference for national jurisdictions’ (para. 124); and strengthen cooperation with academic and non-governmental institutions to ‘build networks for training and expertise-sharing’ (para. 125). However, if we focus primarily on the mechanics of institution-building, including the cultivation of denser networks across, between, and within states, we miss a second sense of world-building in the Policy: the intergenerational transmission of cultural heritage that constitutes the delicate mosaic of common bonds and cultures (para. 1).Footnote 48 There are two interrelated variants of this: one pertaining to identifying and valuing heritage, and a second pertaining to a politics of the world defined in terms of cultural heritage and diversity.
Hafstein observes that UNESCO (re)produces and disseminates narratives to ‘educate people about their identities, loyalties, and affiliations, and to encourage them to manage … heritage, to identify with it, and to take care of it’.Footnote 49 While its work supportively grafts onto existing cultural communities, UNESCO simultaneously generates new identities and significations by recasting heritage as constitutive of a world. Consequently, Hafstein ascertains that heritage work produces ‘a new collective subject – humanity’ – to which is attached ‘curatorial responsibilities’Footnote 50 reflective of ‘the civic virtues of people as good neighbors in local communities, good citizens in national communities, and good cosmopolitans in the global community of humankind’.Footnote 51 The Policy’s call for interagency cooperation and its vision that appreciably extends the Office’s external relations (paras. 116–28) are undergirded by corresponding plans to engage in public outreach, share information, and raise awareness to inculcate further understanding, appreciation, care, and protection of heritage (para. 118).
This clearly builds on a process of notionally constructing ‘heritage’. Prior to the 1899 Hague Convention, efforts to redress pillage, restitute stolen objects, and protect sites and structures in armed conflict reflected and were largely framed in a sovereigntist logic of property and ownership. If there was a ‘world’ of cultural heritage, it was explicitly national in nature: a mere aggregation of national patrimonies. The scale of destruction during two world wars shifted language and logics. Work by the League of Nations’ division on arts and letters and, later, UNESCO, were fertilised by an idea felicitously articulated in UNESCO’s 1945 constitution: ‘that since wars begin in the minds of men, it is in the minds of men that the defenses of peace must be constructed’. Promoting cultural cooperation, understanding, and dialogue, and preserving ‘the world’s inheritance of books, works of art and monuments of history’Footnote 52 were construed as ‘indispensable’ to justice, liberty, peace, and human dignity (UNESCO Constitution: Preamble).Footnote 53 Tellingly, the 1954 Hague Convention refers not to patrimony – the term does not appear in the text – but to cultural property ‘belonging to any people’ (Preamble) ‘irrespective of origin or ownership’ (Article 1) which constitutes ‘the cultural heritage of all [hu]mankind, since each people makes its contribution to the culture of the world’ (Preamble). Rhetorically, a distinctive realm was taking shape. Programmatically, the Convention paired the rhetorical construction with a demand for an international protection scheme, while also framing obligations and initiatives towards that end.Footnote 54
Thirteen years later, Malta’s ambassador to the United Nations, Arvid Pardo, deployed a similar logic which lent normative weight to the term heritage. Concerned that countries were appropriating larger swaths of territories beyond national jurisdiction (e.g. the high seas); that those with appropriate technology were reaping benefits from exploitation of the global commons; and that such resources were denigrated by pollution, Pardo called for an international regulatory system to protect and manage what he called ‘the common heritage of [hu]mankind’.Footnote 55 Also applied to the seabed, Antarctica, the moon, celestial bodies, outer space, and the geostationary orbit,Footnote 56 the common heritage concept became defined by its value commitments to intergenerational and distributive forms of justice, equity, transmissibility, and mutual enjoyment, which in turn shaped the development of regimes to operationalise key interests: peaceful use, non-appropriation, conservation and preservation, and the equitable distribution of any benefits or resources obtained through use of them.Footnote 57 In short, the non-proprietary status of these geographies constituted them as worldly spaces requiring an alternative, non-sovereigntist logic and associated practices for their management and conservation.Footnote 58
No doubt, UNESCO’s work catapulted this alternative conceptualisation forward as it began to reclassify the world’s inheritances of cultural sites, products, structures, and, eventually, expressions, skills, practices, and knowledges as constituting inventories of human history, ingenuity, and creativity. Such reclassification would find expression in some of the most vaunted and publicly familiar manifestations of UNESCO’s work: the World Heritage List established in 1978 to recognise sites of outstanding universal value; the Memory of the World Registry, created in 1995, to account for the world’s documentary heritage; and the Representative List of the Intangible Cultural Heritage of Humanity, established in 2008, to catalogue the wealth of cultural knowledges, representations, skills, and expressions. Liberated from national contexts, cultural properties and objects were enlisted in the service of world peace, focal points of interhuman and intercultural interactions.
The common heritage of humankind concept performs distinctive kinds of world-building functions that are reflected in the Policy. While the designate common may be construed as the antithesis of private ownership (e.g. areas beyond national jurisdiction), its attachment to cultural heritage might be more appropriately understood as denoting a scope of interest in the object. Yet it also does something more elemental. The language of common remaps the socio-political universe apposite to divisional frames, whether in terms of the territorial parcelling of the world into sovereign states on the one hand, or, on the other, the segmentation of humanity into races, ethnicities, nations, cultures, and religions. This is not to suggest it replaces territorial statism or myriad human identities; rather, it layers upon them a relational framework that situates distinct parts around and within a whole to which is attached distinct sets of rights and responsibilities. This is not a homogeneous universality; in the case of cultural heritage, it is a universality of being diversely, culturally human.
Taking responsibility for heritage – conserving, preserving, safeguarding, interpreting, applying, adapting, and transmitting it, and holding accountable those who seek to destroy it – finds institutionalised form in diverse programmatic initiatives and institutions. In this regard, heritage functions as a status claim and to which rights and protections – e.g. non-exploitation, enjoyment, preservation, safeguarding – are attached to ensure transmissibility to, use by, and enjoyment of future generations, and around which institutions, meanings, displays, and functions are developed. The Policy buttresses this status claim by construing attacks on cultural heritage as elements of the most serious crimes of concern to the international community.
Finally, humankind identifies the holders of claims, responsibilities, and rights. Because all humanity – past, present, and future – is implicated, Arnold boldly interprets common heritage as establishing a de facto if not de jure joint property enterprise found in many domestic legal systems. Such regimes enjoin individual owners from acting in ways that would deprive present and future others of their rights without their consent.Footnote 59 On this reading, humankind is not merely synonymous with people. Importantly, it functions as a regulatory device: a metric against which use, access to, and enjoyment are measured to ensure intergenerational transmissibility. The Policy advances this sense not merely in terms of constructing an accountability architecture; it underscores the Court’s role as an agent for humanity by acting on behalf of the victimised, prosecuting those who violate the international community’s most sacrosanct norms, and working in defence of cultural heritage.
The significance of world society building can hardly be overstated since ‘crimes committed against cultural heritage constitute, first and foremost, an attack on a particular group’s identity’ that strikes at ‘the very notion of what it means to be human’ (para. 17). This is, in essence, a crime against humanity, if not in the acute legal meaning of the term as outlined in the Statute, then as a foundational normative claim: a demotion or erasure of one’s status as human, and the denigration (if not obliteration) of a people’s cultural contributions to the world. As such, the Policy encourages us to think of world politics as having as it subject and purpose something other than the state system. Cultural heritage has spawned its own kind of political machinations: on the one side of the ledger, hate, violence, iconoclasm, and extremism which aim in varying ways towards an abridgement and cleansing of human history, expression, and identity, and, on the other, identification, safeguarding, protection, respect, and accountability which aim in varying ways towards a defence of human creativity and human being.
The broader point I raise – about the very meaning and construct of the world as a subject of serious inquiry – stems from a modest research agenda in English School (ES) theory. Conventional ES theory depicted world society as irreducibly human and irreducibly global – and therefore, despite being one of the School’s three main conceptual pillars to explain and understanding world politics, largely marginalised. Barry Buzan’s 2004 From International World Society? injected a vitality into the concept by calling on ES scholarship to abandon the ‘global scale assumption’Footnote 60 undergirding world society and to consider instead sub-global, sectoral, regional, and subregional world societies. To that end, he reimagined world society in two parts: on the one hand, interhuman societies ranging from fragmented forms (e.g. family units), through large-scale imagined communities (e.g. nations, religions) to universal identities (e.g. humanness), and, on the other, transnational societies centred on institutionalised associations of non-state agents, their interactions inter se, as well as their interactions with the society of states. His appeal has borne fruit. Scholars have since examined discrete, sectoral or thematic-based world societies centred on international criminal justice,Footnote 61 abolitionism,Footnote 62 the global economy/market,Footnote 63 cultural heritage,Footnote 64 outer space,Footnote 65 and sports.Footnote 66
Notwithstanding the fact that the Policy on Cultural Heritage is explicitly tethered to the globalist assumption Buzan eschewed, the Policy as I read it contributes something to this agenda by transposing the point of theoretical departure: instead of beginning with society, we ought to (sometimes) begin with discrete worlds and understandings of those worlds to ‘find’ the societies they spawn and hence to trace their co-constitution. Cultural, artistic, religious, and historic structures embody enduring human identities, as well as experiences, achievements, and ingenuities. Practices, expressions, knowledges, and skills likewise suture (and distinguish) cultural communities. These forms of heritage constitute the cultural architecture of the world. Each of the crimes under the Court’s jurisdiction as they relate to cultural heritage pivot on such understandings. To destroy heritage is to destroy communities and the worlds they create and inhabit. To erect world-building institutions and procedures is to orient social activity around a different kind of coherent project linking past, present, and future generations.
Conclusion
The Policy is a blueprint for world-building. First, it constructs an accountability architecture by interpreting crimes in the Statute, developing procedures to hold perpetrators accountable, and clarifying the Office’s role in redressing crimes against cultural heritage. Second, it explicitly articulates an intent to cultivate denser, more intricate institutional networks: non-governmental, intergovernmental, transnational. The OTP also envisions its work as reaching deep inside the state via connections with, inter alia, academic institutions, museums, police forces, and customs officers. Such networks aim to develop expertise to share best practices and information, but also to build awareness of the importance of heritage and inculcate identification with it and responsibility for it. Third, the Policy centres the human, as opposed to national patrimonial, element of heritage, rooting the work of protection and accountability in the identic or ontological valuation of heritage. Fourth, the Policy conceives of a nucleus or world defined in terms of cultural heritage that conjoins both human and state interests in and values of cultural expression and preservation, national patrimony, human rights, accountability, and justice, and around which social elements generate, proliferate, and revolve. The Policy represents the latest stage in the development of the heritage regime: its fortification through the systematisation and institutionalisation of responses to the ‘centuries-old practice’ of wilful attacks on heritage (para. 2). The delicate mosaic of cultural expression, creativity, and ingenuity requires multiple agents for its defense. Such is evidenced by the UN Security Council explicit request that UN Office on Drugs and Crimes (UNODOC), INTERPOL, UNESCO, and the World Customs Organization coordinate activities to combat the scourge of attacks on heritage;Footnote 67 the ICC has inserted itself as a complementary, primary agent to those ends.
Reference points for a world politics need not necessarily begin from the sovereign state, but from human beings and their constructions that outlast them. The world society concept in English School theory provides a conceptual house within which such issues – human interests and values, claims of justice, identities outside the framework of the state – reside. The Policy helps further bring such a world into focus: a cartography of cultural expression and achievement that is simultaneously the subject of world-destruction and world-building. It situates as its object and purpose not only the prosecution of perpetrators of crimes against cultural heritage, but protection of the world defined as a delicate cultural mosaic. But this world, and the social activities and institutions it spawns, is always in contestation and production. World society on this reading is as much as about the world – that which is inherited from the past, maintained in the present, and bequeathed to the future – as it is about society or the social element.
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