https://orcid.org/0000-0003-2567-0118
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ABSTRACT
Armed conflict has traditionally seen the targeting and destruction of cultural property and heritage from antiquity to modern conflicts in Syria. Despite the cultural connection between such objects and traditions with people, international law has concentrated on its preservation, prosecution and punishment, rather than reparations for the loss or damage. This article highlights the growing jurisprudence and state practice which suggests a need to rethink this traditional approach and develop a framework for ensuring reparations for damage and destruction caused to cultural property and heritage. This is not only to undo the harm as far as possible, but to ensure the legacy of such culture for future generations. We take a socio-legal approach to these issues drawing from our backgrounds in transitional justice, archaeology and law, to suggest a thicker and contextually relevant approach to reparations, appreciating the reproduction or rehabilitation of culture carries its own meaning and post-conflict societies often convey the violence of the past into the meta-conflict in law and politics of the present. That said, we argue that reparations can play an important role, drawing from human rights law and heritage studies, to remedy the loss to cultural heritage that can more effectively benefit such victims.
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No potential conflict of interest was reported by the authors.
Notes
1. Such as the German army’s sack of the Belgium city of Leuven in WWI.
2. For instance, looting by Soviets of German cultural property as ‘reparations’ for items the Nazis looted earlier in the war in Eastern Europe. See Gattini (Citation1996).
3. Prosecutor v. Jokić, IT-01-42/1-S, Sentencing Judgment, 18 March 2004, para.52.
4. Convention (II) with Respect to the Laws and Customs of War on Land and its annexe: Regulations concerning the Laws and Customs of War on Land. The Hague, 29 July 1899; and Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863, Articles 34-36.
5. Articles 3 and 56, Convention (IV) respecting the Laws and Customs of War on Land and its annexe: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907.
6. Draft convention on the crime of genocide, Economic and Social Council, 26 June 1947, E/447, p49.
7. Preamble, para.3. Article 28 also provides general prosecution provisions for state parties to implement in their national criminal frameworks. The 2003 Convention for the Safeguarding of the Intangible Cultural Heritage focuses more on protection and preservation of intangible heritage.
8. Article 3 prohibits the use of cultural property as war reparations under the First Protocol to the Convention for the Protection of Cultural Property in the Event of Armed conflict 1954.
9. Factory at Chorzow, PCIJ Decision on Jurisdiction Judgment No. 8 of 26 July 1927, p21. See also Article 31, Articles of State Responsibility, ILC.
10. For instance ICOMOS’s ‘Post-Trauma Reconstruction Colloquium’ (Paris, 4 March 2016) and COE’s report ‘Cultural heritage in crisis and post-crisis situations’ (Doc. 13,758, 18 April 2015).
11. Blake v Guatemala, Reparations, Series C No. 48 (IACtHR, 22 January 1999), para. 31; and Papamichalopoulos and Others v Greece, para. 34.
12. Germany v Poland, The Factory at Chorzow (Claim for Indemnity) (The Merits), Permanent Court of International Justice, File E. c. XIII, Docket XIV:I Judgment No. 13, 13 September 1928, para.125.
13. UN Doc.E/CN.4/Sub.2/1982/2/Add.1, Annexe VI and Vrdoljak (Citation2008).
14. Article 8(2)(b)(ix) and Article 8(2)(e)(iv); Blaškić, Trial Judgment, IT-95-14-T, 3 March 2000, para.227, and Karadžić, IT-95-5/18-T, 24 March 2016, para.531; and Krstić, IT-98-33-T 2 August 2001, para.580. See Gerstenblith (Citation2016).
16. They provide ‘disruptions of culture’: Al Mahdi para.85.
17. Al Mahdi para.85-86.
18. Submissions of the Legal Representative of Victims on the principles and forms of the right to reparation, ICC-01/12-01/15-190, 2 January 2017, para.76-77.
19. Malian Ministry of Culture, «Projet de discours de Monsieur le Ministre de la Culture à l’occasion de l’ouverture de la journée de solidarité pour le Mali », MLI-OTP-0004-0292, p. 0294 (unofficial internal translation), cited by OTP in ICC-01/12-01/15-139-Red, para.19.
20. Aloeboetoe and others v Suriname, Judgment of 10 September 1993 (Reparations and Costs), para.48.
21. Al Mahdi, para.106.
22. Al Mahdi para.52. No reparation applications were made on behalf of UNESCO, who viewed the local community as the primary victims.
23. Al Mahdi, para.55.
24. Al Mahdi, para.89-90.
25. The Islamic Community in Bosnia and Herzegovina v The Republika Srpska, Decision on the admissibility and merits, Human Rights Chamber of Bosnia and Herzegovina, Case No. CH/96/29, 11 June 1999, para.125-131.
26. 2005 UN Basic Principles.
27. Articles 245-247. Similar provisions on restitution were made for non-Turkish victims forcibly driven from the homes in the Treaty of Sevres, Article 144.
28. Article 144(3).
29. The Islamic Community, Case no. CH/96/29, pp.209-213; Islamic Community in Bosnia and Herzegovina (Mrkonjić Grad) v Republika Srpska, Case no. CH/01/7701, 22 December 2003, para.165-166.
30. See The Islamic Community in Bosnia and Herzegovina v. The Republika Srpska, Decision on admissibility and merits, Case no. CH/98/1062, 9 November 2000, para.117-123.
31. The ‘Warsaw Recommendation on Recovery and Reconstruction of Cultural Heritage’ was developed in May 2018 at a conference held organised by the UNESCO World Heritage Committee.
32. Al Mahdi, para.83.
33. Plan de Sánchez massacre, para.110; Members of the village of Chichupac and neighbouring communities of the Municipality of Rabinal v. Guatemala, Preliminary Objections, Merits, Reparations and Costs. Judgment of 30 November 2016. Series C No. 328, para.319; and South African Truth and Reconciliation Commission Report Vol. 5, p175.
34. Croatia v Serbia, ICJ, Croatia memorial, Volume 1, 1 March 2001, para.8.81.
35. Final Award – Eritrea’s Damages Claims, Eritrea-Ethiopia Claims Commission, 17 August 2009, para.221-223.
36. Final Award – Ethiopia’s Damages Claims, 17 August 2009, para.383-386.
37. Selimović and Others v. Republika Srpska, Decision on Admissibility and Merits, CH/01/8365 (HRC BiH), 7 March 2003, para.217.
38. Kichwa Indigenous People of Sarayaku v. Ecuador. Merits and reparations. Judgment of 27 June 2012. Series C No. 245, para.323.
39. Islamic Community in Bosnia and Herzegovina (Mrkonjić Grad) v Republika Srpska, Case no. CH/01/7701, 22 December 2003, para.174.
40. Al Mahdi, Decision on the Updated Implementation Plan from the Trust Fund for Victims, ICC-01/12-01/15-324-Red, 4 March 2019, para.31.
41. Final Award Ethiopia’s Damages Claims, Volume XXVI pp. 631-770, 17 August 2009, para.461; Compensation for Business Losses Resulting from Iraq’s Unlawful Invasion and Occupation of Kuwait, United Nations Compensation Commission, UN Doc S/AC.26/1992/15, para.5.
42. Sarayaku, para.316-217.
43. Al Mahdi reparations order, para.81.
44. Al Mahdi ibid., para.73 and 81.
45. Al Mahdi, para.83.
46. Moiwana Community, para.214-215; and Sarayaku, para.317.
47. Principle 22, United Nations (Citation2005); 19 Tradesmen v Colombia, paras 272–273; Myrna Mack-Chang v Peru, para. 286.
48. Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded 9 July 1986 between the two states and which related to the problems arising from the Rainbow Warrior affair, 30 April 1990, UNRIAA, vol. XX, 215–284, pp. 267–273; Corfu Channel case; see ILC Commentary on RSIWA (A/56/10), 2001, p. 105; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Reports 3, para.75. See also Article 37(2)-(3), Articles on State Responsibility.
49. Article 144(2). See Vrdoljak (Citation2011), p21.
50. The Islamic Community in Bosnia and Herzegovina v The Republika Srpska, Case no. CH/99/2177, 11 February 2000; also Dževad Mahmutović v The Republika Srpska, Case no. CH/98/892, 8 October 1999.
51. Plan de Sanchez, para.104.
52. Al Mahdi para.66 and 114.
53. Moiwana Community, para.212.
54. Deadly attack targets UN mission in Timbuktu, Mali, BBC News, 14 August 2017.
55. Al Mahdi, ICC-01/12-01/15-236, para.147.
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Notes on contributors
Luke Moffett
Luke Moffett is a senior lecturer, School of Law, Queen's University Belfast.
Dacia Viejo Rose
Dacia Viejo Rose is a Lecturer in Heritage and the Politics of the Past, Department of Archaeology, Cambridge.
Robin Hickey
Robin Hickey is a professor in the School of Law, Queen's University Belfast.