Killing a Culture: the Intentional Destruction of Cultural Heritage in Iraq and Syria Under International Law

• Publication year: 2016
• Citation: Vol. 45 No. 1

KILLING A CULTURE: THE INTENTIONAL DESTRUCTION OF CULTURAL HERITAGE IN IRAQ AND SYRIA UNDER INTERNATIONAL LAW

Caitlin V. Hill^*

[Page 191]

TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................193

II. THE INTENTIONAL DESTRUCTION OF CULTURAL HERITAGE BY THE ISLAMIC STATE ........................................................................195

A. Cultural Heritage Sites in Syria...............................................197
B. Cultural Heritage Sites in Iraq.................................................198

III. THE INTERNATIONAL LAW OF CULTURAL HERITAGE ....................200

A. The 1954 Hague Convention....................................................202
B. The Second Protocol................................................................204
C. The 1972 World Heritage Convention.....................................206
D. The Rome Statute of the International Criminal Court............207
E. 2003 UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage and Recent UN Resolutions...............................................................................209

IV. UNDER CURRENT INTERNATIONAL LAW, HOW COULD ISIS' CRIMES BE PROSECUTED? ...............................................................212

A. Parties to the Above Mentioned Treaties.................................212
B. Liability as a State....................................................................212
C. Individual Criminal Liability....................................................213
D. Prosecuting the Islamic State' Crimes Under Current International Law Protecting Cultural Heritage.....................214
E. Customary International Law..................................................214
F. Proposal for the New Crime of Cultural Cleansing and a Humanitarian Regime..............................................................215

[Page 192]

G. Establishing an Ad-Hoc Criminal Tribunal for Prosecution of Cultural Cleansing and other War Crimes and Crimes Against Humanity by the Islamic State in Iraq and Syria..................................................................................217

V. CONCLUSION ...................................................................................219

[Page 193]

I. INTRODUCTION

As the list of atrocities committed against cultural heritage in the Middle East by the Islamic State continues to grow, it is clear that the intention is to deprive the people of Iraq and Syria of their cultural identity and history.¹ The international community continues to condemn the actions taken by the Islamic State, but as each historical site is bulldozed or laced with explosives, the world watches helplessly.²

The Middle East is no stranger to the destruction of cultural heritage during armed conflicts. Just over a decade ago, the world watched as the Taliban destroyed the Buddhas of Bamiyan, two enormous statues of the Buddha that had been carved into the cliffs at Bamiyan during the sixth century.³ This intentional destruction of cultural heritage led the United Nations (uN) to pass a resolution in 2001 and later led to the adoption of the United Nations Educational Scientific and Cultural Organization (UNESCO) Declaration concerning the Intentional Destruction of cultural Heritage in 2003.⁴ However, no group or individual has ever been prosecuted for these crimes.⁵

In the past months, the Islamic State has released several videos documenting the destruction of ancient cultural sites in Syria and Iraq, including several UNESCO World Heritage Sites.⁶ The Director-General of UNESCO, Irina Bokova, has stated that the Islamic State's campaign of destruction amounts to "cultural cleansing" and is unprecedented in

[Page 194]

contemporary history.⁷ In May of 2015, in response to the recent bulldozing at Nimrud, the UN passed a resolution aimed at saving the cultural heritage of Iraq.⁸

The intentional destruction of cultural heritage is a war crime under international law,⁹ but there is no uniform body to prosecute these crimes.¹⁰ Could destruction of cultural heritage amount to a crime against humanity, and how would these crimes be prosecuted under international law? UNESCO has unequivocally classified these acts of destruction by the Islamic state as both war crimes and as cultural cleansing. However, cultural cleansing is not a term that arises in the international law governing cultural heritage.¹¹ In a report for the UNESCO International Conference held on December 4, 2014, cultural cleansing was defined as, "an intentional strategy that seeks to destroy cultural diversity through the deliberate targeting of individuals identified on the basis of their cultural, ethnic or religious background, combined with deliberate attacks on their places of worship, memory and learning."¹² By systematically destroying cultural heritage, the Islamic State is seeking to destroy all cultural diversity within their declared caliphate.

It is the position of this Note that individually these acts are war crimes, but collectively this systematic cultural cleansing is a crime against humanity and should be codified as such. Further, an ad-hoc tribunal should be created to prosecute these crimes. This Note will discuss the body of international law that governs the protection of cultural heritage generally and explore how these crimes might be prosecuted under the current body of international law. Net, this Note will then address the International Criminal Tribunal for the Former Yugoslavia (ITCY), proposing that a similar tribunal should be implemented for the crimes being committed in the Middle East by the Islamic State. Finally, this Note will suggest that the crime of cultural

[Page 195]

cleansing be codified as a crime against humanity, allowing for it to be prosecuted as a human rights violation.

II. THE INTENTIONAL DESTRUCTION OF CULTURAL HERITAGE BY THE ISLAMIC STATE

The Islamic State, also known as ISIS or ISIL, or by its Islamic name Da'esh, is an Islamic militant group that has gained control of large swaths of territory in Iraq and Syria and can be traced back to al Qaeda in Iraq.¹³ ISIS's goal has been to establish an independent Islamic state in the Middle East based on radical anti-Western principles.¹⁴ The Islamic State has come to be known for its extremely brutal tactics and was disavowed by al Qaeda in early 2014.¹⁵

Known for their video footage documenting the atrocities they commit, the Islamic State uses the destruction of cultural heritage as a means of cultural cleansing; literally erasing the culture and history of Iraq and Syria, considering all religious shrines and archaeological sites to be idolatrous.¹⁶ One commentator explained that by destroying idols, the Islamic State is trying to establish the legitimacy of their caliphate:

Initially . . . it seems ISIS' motive was to elevate their status amongst Muslims and other Jihadist groups by drawing a link from themselves to Muhammad. The fact that hardly any of the statues in the Mosul Museum were cultic images did not matter. Muhammad destroyed idols, so ISIS needed to find some idols to destroy in order to legitimize their claim to a caliphate as successors to Muhammad.¹⁷

[Page 196]

The Islamic State will continue to destroy cultural heritage sites as long as there is no strong deterrent to stop them, and even then, deterrence likely is not enough.¹⁸ The Iraqi Ministry of Tourism and Antiquities has said:

We have warned previously and warn now that these gangs with their sick, takfiri ideology will continue to destroy and steal [artifacts] as long as there is no strong deterrent, and we still await a strong international stand to stop the crimes of Daesh that are targeting the memory of humanity.¹⁹

Understanding the Islamic State's motivations helps shed light on why they are targeting cultural heritage sites. The Islamic State has destroyed several important cultural heritage sites in the past few years, including Palmyra, Nimrud, Khorsabad, the Mosul Museum and Library, Jonah's Tomb, and Hatra.²⁰ The 2003 UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage defines "intentional destruction" as:

an act intended to destroy in whole or in part cultural heritage, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience, in the latter case in so far as such acts are not already governed by fundamental principles of international law.²¹

The Islamic State has released several videos of their systematic destruction of cultural heritage, making it clear that the destruction is intentional as defined by the 2003 Declaration.²² Each of these sites has incredible cultural and historical significance, and their destruction constitutes a great loss to humanity.

[Page 197]

A. Cultural Heritage Sites in Syria

In August 2015, the Islamic State destroyed the nearly 2,000-year-old Temple of Baalshamin, along with several other historic structures, located at the ruins of Palmyra.²³ When the Islamic State occupied Palmyra, archaeologists and the international community immediately feared that the militant group would destroy the site.²⁴ In an attempt to locate the site's most valuable archaeological treasures, the Islamic State targeted Khaled al-Assad, head of antiquities at Palmyra.²⁵ However, al-Assad refused to direct the Islamic State to the many artifacts that had been hidden, and was publicly beheaded as a result.²⁶ Shortly thereafter, the Islamic State surrounded the temple with explosives and detonated them.²⁷ Palmyra is a World Heritage Site of great importance to the history of Syria.²⁸ UNESCO described the site as "[a]n oasis in the Syrian desert" which contained "the monumental ruins of a great city that was one of the most important cultural centres of the ancient world. From the first to the second...