Will the Destruction of Cultural Heritage in Ukraine Lead to an ICC Conviction?

Emma Duggan February, 2024

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The Intentional Destruction of Cultural Property in Ukraine

As of February 16, 2024, UNESCO has verified damage to 342 of its designated sites in Ukraine.[1] The Geneva Convention and Additional Protocol II protect cultural property,[2] requiring belligerent parties to refrain from committing any acts of hostility directed against the “historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.”[3] Likewise, the 1954 Hague Convention’s Second Protocol requires that states safeguard and respect cultural property in times of conflict.[4] It is the norm for countries to refrain from destroying cultural property during war, and this norm has been reinforced by ad hoc tribunals including the International Criminal Tribunal for the former Yugoslavia and Nuremberg.[5] Despite the established norms, Russia seems determined to target Ukraine’s cultural property with no military purpose.[6] Russia is targeting cultural symbols for destruction in clear violation of international human rights and humanitarian law.[7] While it has only happened once before, the ICC convicted a mid-level member of Ansar Eddine of the war crime of “intentionally directing attacks at historic monuments and buildings dedicated to religion” in 2016.[8] Perhaps Russia’s egregious crimes against Ukraine’s cultural property will finally bring about the second ICC conviction of this war crime.

Cultural Heritage in the ICC

In 2012, following the Malian Jihadist group Ansar Dine’s instructions, Ahmad Al Faqi Al Mahdi led the group’s morality brigade (Hesbah) to destroy ten mausoleums and other significant cultural and religious sites within the historic city of Timbuktu. All the destroyed sites were UNESCO protected world heritage sites.[9] A few months later, Mali referred its cases to the ICC, and the ICC issued a warrant for Al Mahdi’s arrest in 2015. In 2016, Al Mahdi pleaded guilty to attacking protected objects under Article 8(2)(e)(iv)[10] of the Rome Statute.[11] The court relied heavily on the UNESCO designations to demonstrate that the sites qualified as “both religious buildings and historic monuments” per Article 8(2)(e)(iv) and for the gravity of their destruction.[12] Al Mahdi was initially sentenced to nine years in prison, later reduced to seven, and The Prosecutor v. Ahmad Al Faqi Al Mahdi[13] became the first ICC criminal sentencing for the international crime of destruction of cultural property.[14] However, the decision has nevertheless been criticized as a missed opportunity to expand on 8(2)(e)(iv), and the court declined to rule on more thorny issues as, here, the facts of the case were undisputed.[15]

In July 2019, the Trial Chamber of the ICC declined to find Bosco Ntaganda criminally responsible for attacks against protected objects for the destruction of a church he and his forces pillaged in the DRC in 2002, stating that the Rome Statute provision required a specific kind of “attack” that was not present in this case.[16] This problematic proximity of a “nexus” required between the war and the destruction has been a bar to the enforcement of cultural heritage destruction since the Taliban destroyed the Buddhas of Bamiyan in 2001. Some scholars argue that it is likely that the ICC stretched the Rome Statute to fill a gap in Al Mahdi rather than contracted its application in Ntaganda.[17] In the wake of Ntaganda, advocates have proposed other avenues to protect cultural heritage.[18] However, the ICC recently clarified that the Ntaganda Appeals Chamber and judgment did not overturn any of “the legal principles recognized in Al Mahdi.”[19]

A Basis for Jurisdiction

Even though neither Russia nor Ukraine is a party to the Rome Statute, in this case, the ICC would still have jurisdiction. Ukraine submitted two declarations in 2014 that accepted the ICC’s jurisdiction over war crimes, crimes against humanity, and genocide committed in its territory.[20] In March 2023, the ICC issued arrest warrants for Putin and the Russian Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova, for the unlawful deportation and transfer of children from occupied Ukraine,[21] demonstrating its willingness to exercise its Ukrainian jurisdiction despite the logistical infeasibility of actually prosecuting these individuals.[22]

While the destruction of cultural heritage is not itself its own section of the Rome Statute, the ICC acknowledges that it can be prosecuted as a war crime, crime against humanity, or genocide.[23] In 2021, the ICC Prosecutor released their Policy on Cultural Heritage, indicating that the ICC will continue to prosecute these cases and clearly define how crimes against cultural heritage fit into the Rome Statute, with Article 8 likely providing the best avenue to prosecute the intentional destruction of cultural heritage since it includes crimes against civilians and property.[24]

Potential Applications to Ukraine

Russia’s destruction of cultural property in Ukraine is extreme and intentional; the Office of the High Commissioner of Human Rights ordered the Russian Government to cease this practice and issued a Press Release citing “reports” that Russia intentionally marked civilian and cultural targets and that the attacks were not a military necessity.[25] These “reports,” if they implicate individuals, seem to offer the level of certainty that once allowed the ICC to convict Al Mahdi of the intentional destruction of cultural property.[26] Meanwhile, the ICC has already demonstrated its willingness to intervene and jurisdiction by issuing the warrants against Putin and Lvova-Belova. Similarly, the ICC, in its updated 2021 policy, seems to focus on evidence: “Wherever evidence permits, the Office will seek to include charges for crimes directed at cultural heritage, and will also seek to pursue and highlight evidence in situations affecting cultural heritage.”[27] Thus, it seems there may be evidence to charge individuals with the intentional destruction of cultural property under 8(2)(e)(iv), and if that evidence exists, the ICC will include this charge against war criminals.

Also, like in Al Mahdi, many of the destroyed sites in Ukraine have UNESCO designation.[28] In their recent policy, the ICC explained that the degree of harm and cultural significance should affect admissibility under 17(1)(d) of Article 8 of the Rome Statute,[29] so the UNESCO designations coupled with the total loss of a site should suffice.[30]

But an 8(2)(e)(iv) charge in the ICC is unlikely if the Russian invasion of Ukraine ends in an ad hoc tribunal, which may be more realistic considering the capacity of the ICC and the extent of human rights violations and war crimes in Ukraine. In its new policy, the ICC notes that its jurisdiction is complementary, gap-filling, and encourages national proceedings.[31] Therefore, should this conflict end in a tribunal like the ICTY, the tribunal itself is likely to prosecute the intentional destruction of cultural heritage, and the ICC will provide support.

Conclusion

If there are cases tried in the ICC over Russia’s invasion and occupation of Ukraine, we will almost certainly see charges brought against those who made critical decisions regarding the destruction of cultural property, the Russian equivalents of Al Mahdi. Whether the cultural heritage aspect of these decisions looks more like that in Al Mahdi or Ntaganda will likely depend on the evidence: part of what made Al Mahdi unique was the amount of evidence and admission of Al Mahdi himself.[32] If there is strong evidence of individuals intentionally destroying cultural property, we may soon see the second successful criminal conviction for the destruction of cultural heritage in the ICC.

  1. Damaged cultural sites in Ukraine verified by UNESCO, www.unesco.org/en/articles/damaged-cultural-sites-ukraine-verified-unesco (including 127 religious sites, 150 buildings of historical and/or artistic interest, 31 museums, 19 monuments, 14 libraries, and 1 archive). ↑
  2. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609 (Article 16 in Protocol II explicitly protects cultural property while Article 53 of the Geneva Convention contains a general prohibition on the destruction of any property unless it is “rendered absolutely necessary by military operations”). ↑
  3. Benjamin Charlier & Tural Mustafayev, International Humanitarian Law and the Protection of Cultural Property, in Cultural Heritage and Mass Atrocities 381, 384 (James Cuno & Thomas Weiss eds., 2022). ↑
  4. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Mar. 26, 1999, 2253 U.N.T.S. 172; 38 I.L.M. 769 (This protocol was adopted in 1999); see Charlier & Tural, supra note 2; see also Gloria Fernandez Arribas, The Narrow Protection of Cultural Properties and Historical Monuments in the Rome Statute: Filling the Gap, 21 INT’l COMM. L. REV. 129 (2019). ↑
  5. Id. at 4; Prosecuting Heritage Destruction Joseph Powderly, in Cultural Heritage and Mass Atrocities 381, 384 (James Cuno & Thomas Weiss eds., 2022). ↑
  6. “The intent by the Russians is essentially obliterating Ukrainian culture, heritage and history,” Kuijt said. “They have been targeting cultural features of society that have no military capability, no hardened infrastructures that would be used in defense”. SeeTracy DeStazio & Carrie Gates, ‘A ticking clock’: First ground-based survey of damage to Ukrainian cultural sites reveals severity, need for urgency, Notre Dame News (Dec. 13, 2023), news.nd.edu/news/a-ticking-clock-first-ground-based-survey-of-damage-to-ukrainian-cultural-sites-reveals-severity-need-for-urgency/. ↑
  7. Press Release, Office of the High Commissioner of Human Rights, Targeted destruction of Ukraine’s culture must stop: UN experts, (Feb. 22, 2023) [hereinafter Press Release]. ↑
  8. ICC-PIDS-CIS-MAL-01-09/22_Eng ↑
  9. Emma A. O’Connell, Criminal Liability for the Destruction of Cultural Property: The Prosecutor v. Bosco Ntaganda, 15 DePaul J. Soc. Just., 1, 57 (2021). See World Heritage in Danger, UNESCO, https://whc.unesco.org/en/158/ (explaining the list of World Heritage in Danger is a subset of the World Heritage List designed to bring attention and “corrective action” from the international community when World Heritage sites are at particular risk of being lost from a variety of man-made or natural forces). ↑
  10. See Arribas, supra note 3 at 136 (Articles 8(2)(b(ix) and 8(2)(e)(iv) are distinct from Articles 8(2)(b)(xiii) and 8(2)(e)(xii) in that the former require “intention” for the seizure or destruction of property). ↑
  11. See O’Connell, supra note 8 at 1; See also Case Comment, International Criminal Law – Rome Statute – International Criminal Court Imposes First Sentence for War Crime of Attacking Cultural Heritage Prosecutor v. Ahmad Al Faqi Al Mahdi”, Case No. ICC-01/12-01/15, Judgment & Sentence (Sept. 27, 2016), 130 HARV. L. REV. 1980 (2017) [hereinafter Harv. L. Rev.]. ↑
  12. Harv. L. Rev. supra note 12 at 1981. ↑
  13. Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15, Judgment and Sentence (Sept. 27, 2016) ↑
  14. See O’Connell, supra note 8 at 1. ↑
  15. Harv. L. Rev., supra note 12 at 1985. ↑
  16. See O’Connell, supra note 8 at 2; see Prosecutor v. Ntaganda, ICC-01/04-02/06, Judgment (July 8, 2019). ↑
  17. Peta-Louise Bagott, How to solve a problem like Al Mahdi: proposal for a new crime of attacks against cultural heritage, in Intersections of Law and culture at the International Criminal Court 38, page cited (Julie Fraser & Brianne McGonigle Leyh eds., 2020). ↑
  18. See Hilly Moodrick-Even Khen, A Case for Making the Prohibition on Cultural Genocide a Soft Law Norm in International Law, 30 Int’l J. on Minority & Grp. Rts. 76, add the page number cited (2023)

    (In the case of China, who is not a party to the ICC, advocates for the Ughyur people and culture are turning to soft law to try to enforce protections on cultural heritage, including treaty protections for indigenous people); See Lara Pratt, Prosecution for the Destruction of Cultural Property – Significance of the al Mahdi Trial, 18 Int’l Crim. L. Rev. 1048, add the page number cited (2018) (Ad hoc tribunals remain the preferred venue to the ICC, and the ICTY convicted two commanders as responsible, although not directly found to have ordered or participated, in the shelling of the Old Town of Dubrovnik). ↑

  19. ICC Policy, supra note 5 at 16. ↑
  20. Declaration to accept the exercise of jurisdiction by the International Criminal Court, Verkhovna Rada of Ukraine (Feb. 25, 2014) No. 61219/35-673-384; Letter to the International Criminal Court Register accepting the court’s jurisdiction since February 2014 (Sept. 8, 2015); Rashmin Sagoo & Talita Dias, The ICC response to Russia’s war gives hope for justice, Chatham House (Mar. 19, 2023), https://www.chathamhouse.org/2023/03/icc-response-russias-war-gives-hope-justice [hereinafter Chatham House]. ↑
  21. Statement by Prosecutor Karim A. A. Khan KC on the issuance of arrest warrants against President Vladimir Putin and Ms Maria Lvova-Belova (Mar. 17, 2023); See Chatham House, supra note 23. ↑
  22. Because the Rome Statute prohibits trials in absentia, it needs physical custody to prosecute someone (Article 63(1)), and they are the court is particularly unlikely to gain custody of someone like Putin, especially while he remains in power. There is also thorny issues related to diplomatic immunity for government officials. ↑
  23. See ICC Policy, supra note 5. ↑
  24. Id. at 14. ↑
  25. Press Release, supra note 8. ↑
  26. ICC Policy, supra note 5 at 20; Press Release, supra note 8. ↑
  27. ICC Policy, supra note 5 at 5. ↑
  28. Damaged cultural sites in Ukraine verified by UNESCO, supra note 1 (Russia has damaged (if not destroyed) at least 337 UNESCO designated sites as of January 2024). ↑
  29. ICC Policy, supra note 5 at 17 (The ICC also explained that it would consider the 1954 Hague Convention, Additional Protocols, and the World Heritage Convention definitions of cultural property to determine which acts of destruction are more serious and should be prosecuted). ↑
  30. The UNESCO list includes all damaged sites, but a number of cultural sites have been destroyed. Paul P. Murphy and Josh Pennington, Church in Ukrainian village of Zavorychi on fire after alleged military strike, CNN, (March 7, 2022) https://edition.cnn.com/europe/live-news/ukraine-russia-putin-news-03-07-22/h_ec7671cb56221ab27724e27bf39752fe (Historic wooden churches from UNESCO’s list have burned to the ground); See also Brigit Katz, Unesco Sounds the Alarm Over Threats to Ukrainian Cultural Heritage, Smithsonian Magazine, (March 8, 2022) https://www.smithsonianmag.com/smart-news/unesco-sounds-the-alarm-over-threats-to-ukrainian-cultural-heritage-180979686/ (A museum near Kyiv was burned by Russian forces). ↑
  31. ICC Policy, supra note 5 at 6. ↑
  32. Harv. L. Rev., supra note 12 at 1982. ↑