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Who are the Victims of Crimes Against Cultural Heritage? Oumar Ba

Human Rights Quarterly, Volume 41, Number 3, August 2019, pp. 578-595 (Article)

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HUMAN RIGHTS QUARTERLY

Human Rights Quarterly 41 (2019) 578–595 © 2019 by Johns Hopkins University Press

Who are the Victims of Crimes Against Cultural Heritage?

Oumar Ba

ABSTRACT

New actors and emerging norms are strengthening the focus on the protec- tion of cultural heritage in conflict zones and the codification of transna- tional legal processes. Following the destruction of cultural and religious sites in Timbuktu in 2012, the International Criminal Court (ICC) prompted a watershed moment in international criminal justice—the Al Mahdi trial, which represented the first ever case before an international court where the defendant was solely charged with the war crime of destruction of cultural heritage. The Al Mahdi case provided an opportunity to identify the victims of crimes of destruction of cultural heritage in international law. Beyond the local communities for whom the destroyed sites were of value, it is apparent that the “international community,” personified in this case by UNESCO emerged as an actor with legal and symbolic standing. This article charts the trajectory through which UNESCO became the rep- resentative—via bifurcation—of the international community in cases of destruction of cultural heritage.

I. INTRODUCTION

Cultural heritage and its products and processes have prompted the emer- gence of new norms and new actors in international law.1 In this global cultural landscape, social actors—including local communities, minority groups, nongovernmental organizations (NGOs), and “the international com- munity”—seek recognition, if not outright international legal status, which

Oumar Ba, Ph.D. is Assistant Professor of Political Science at Morehouse College, in Atlanta, GA. He can be reached at [email protected].

1. Francesco Francioni, Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity, 25 Mich. J. int’l l. 1209 (2004).

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makes them all active participants in the transnational law-making process. Cultural heritage is also emerging as a shared concern and interest of hu- manity, with the desire for international law to safeguard it in its material and living conditions and to protect the communities that create, perform, and maintain it.2 The anthropocentric approach to international law, how- ever, places crimes against cultural property at a position less visible than that of other crimes. From this perspective, “crimes against cultural property are addressed” only insofar as “the perpetrator’s objective [is] to harm the population [for] whom the cultural property” is valued.3 The establishment of a link between cultural property and the community is still the main fea- ture of this anthropocentric—and ethnocentric—perspective of international law.4 From this vantage point, each cultural group makes a contribution to the cultural heritage of all humankind and, as such, destruction of cultural heritage of any social group is also an attack on humankind.5 The Al Mahdi case, which is the first instance where an international court prosecuted an individual for the sole charge of destruction of cultural property, illustrates this perspective.

Although dating as early as the nineteenth century, the process of transnational legalization of cultural heritage still raises important ques- tions regarding the nature and qualification of its victims. Who qualifies as victims of destruction of cultural heritage in international law? Using the Al Mahdi case as a focal point of analysis, this article shows that two categories of victims appeared in the international criminal justice system related to crimes against cultural heritage: the communities whose cultural heritage was targeted and the international community insofar as those cultural sites were listed in the United Nations Educational, Scientific and Cultural Or- ganization (UNESCO) world heritage list. In its judgment, the ICC Chamber decided to grant a symbolic euro to “the international community, which [in this instance] is best represented by UNESCO.”6 Yet, the emergence of UNESCO as a stand-in and representative of the international community for crimes against cultural heritage is an interesting recent development that has not received much scholarly attention. This article contributes to filling this gap in the literature.

2. Id. at 1210. 3. Hirad Abtahi, The Protection of Cultural Property in Times of Armed Conflict: The Practice

of the International Criminal Tribunal for the Former Yugoslavia, 14 harv. huM. rts. J. 1, 3 (2001).

4. Id. at 3. 5. Prosecutor v. Al Mahdi, ICC-01/12-01/15-214, Brief by Karima Bennoune, 3 (27 Apr.

2017). 6. Prosecutor v. Al Mahdi, ICC-01/12-01/15, Reparations Order, ¶ 107 (17 Aug. 2017).

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II. DEFINING CULTURAL PROPERTY IN INTERNATIONAL LAW

From a human rights perspective, cultural heritage has a particular significance for individuals and their collective identity as members of a community. Cultural heritage is understood as “encompassing the resources enabling the cultural identification and development processes of individuals and groups, which they, implicitly or explicitly, wish to transmit to future generations.”7 The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict defines cultural property broadly so as to include

[M]ovable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether re- ligious 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 col- lections and important collections of books or archives or of reproductions of the property defined above.8

This definition also includes examples of buildings, “such as museums, large libraries . . . [and] centers containing a large amount of cultural property.”9 Therefore, cultural heritage is a broader category than cultural property. An attack on one cultural property is often contingent to attacks on other forms of cultural heritage, tangible or not, such as cultural practices.10

In recent international criminal law procedures, investigations and prosecutions for the destruction of cultural property in times of conflict fall under the umbrella of two categories: violations of laws and customs of war, and crimes against humanity. Following the Yugoslav wars in the 1990s, the International Criminal Tribunal for the former Yugoslavia (ICTY) was at the forefront for the prosecution of crimes on cultural property.11 Although the ICTY Statute does not explicitly use the term “cultural property,” it still provides some insight when it refers to “institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science.”12 Willful destruction of such institutions falls under the

7. Al Mahdi, Brief by Karima Bennoune, supra note 5, at 4. 8. Convention for the Protection of Cultural Property in the Event of Armed Conflict with

Regulations for the Execution of the Convention 1954, adopted 14 May 1954, UNESCO, art. 1(a) (entered into force 7 Aug. 1956).

9. Id. (b) – (c). 10. Al Mahdi, Brief by Karima Bennoune, supra note 5, at 5. 11. The ICTY’s inclusion of crimes against cultural property was a major addition in strength-

ening international instruments in protecting cultural property, identity, and history in times of armed conflict. See for instance Hirad Abtahi, The Protection of Cultural Property in Times of Armed Conflict: The Practice of the International Criminal Tribunal for the Former Yugoslavia, 14 harv. huM. rts. J., 1 (2001)

12. United Nations International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, Updated Statute of the International Criminal Tribunal for the Former Yugoslavia (Sept. 2009), art. 3(d).

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category of violations of laws and customs of war. Since 1945, on the other hand, the category of international crimes that qualify as crimes against hu- manity has had different definitions and was addressed in different ways by a range of practitioners. Historically, the elements of crimes against humanity included a nexus with armed conflict, targeting of a civilian population, state action or policy, or widespread or systematic action.13 Under current international law, the only elements required to fall under the umbrella of crimes against humanity are (a) the existence of widespread and systematic attack, and (b) against a civilian population. As Cherif Bassiouni explains:

International protection of cultural property, whether applicable to the context of armed conflict or peace, is achieved through two means. The first is criminal in nature and involves the prohibition, prosecution, and punishment of destruction of cultural property, pillage, and theft. The second is civil in nature and involves the restitution of cultural property to rightful owners who may be either states, individuals, or legal entities.14

Following in the footsteps of the ICTY, the statutes of the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the Extraordinary Chambers in the Courts of Cambodia (ECCC) all have jurisdiction over the destruction of cultural property.15 Additionally, the term “ethnic cleansing” entered the international law lexicon during the Yugoslav wars, as the process aimed at not only the physical destruction of a people, but also the erasure of their cultural symbols and memory; or as Mark Ellis puts it, “a systematic assault on the soul.”16 Similarly, UNESCO’s definition of intentional destruction of cultural heritage includes acts intended to compromise “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.”17

Indeed, destruction of cultural heritage constitutes a violation of human rights and is often coupled with other human rights violations. Therefore, adopting a human rights lens is an effective way for the ICC to assess the questions posed to the experts from the nature of the harm to the appropri- ate reparations in the case of destruction of cultural heritage in Timbuktu.18

13. Margaret McAuliffe deGuzman, The Road from Rome: The Developing Law of Crimes Against Humanity, 22 huM. rts. Q. 337 (2000).

14. M. Cherif Bassiouni, Reflections on Criminal Jurisdiction in International Protection of Cultural Property, 10 syracuse J. int’l l. & coM. 281, 285 (1983). For a historical evolu- tion of the protection of cultural property, see id. at 287-305.

15. Mark S. Ellis, The ICC’s Role in Combatting the Destruction of Cultural Heritage, 49 case W. res. J. int’l l. 23, 41 (2017).

16. Id. at 42 (examples include the attacks on the Old Town of Dubrovnik, the Mostar Bridge, and the National Library of Sarajevo).

17. The UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage, adopted 17 Oct. 2003, 32nd Sess., § II(2), UNESCO Doc. 38 C/25 (17 Oct. 2003) [hereinafter Intentional Destruction].

18. Al Mahdi, Brief by Karima Bennoune, supra note 5, at 12.

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As Patty Gerstenblith argues, a view of cultural heritage through a human rights lens allows us to measure the extent to which cultural heritage is integrated into the lives of not only “the local community that lives among the heritage, [but also] the regional and national communities, and the world community.”19 Hence, intentional destruction of cultural heritage harms all, because, as is the case in Timbuktu, the aim of the Islamists was to homogenize world views and contribute to intolerance and tensions, and deprive humanity of the rich diversity of heritage.20 From this perspective, fundamentalist groups have engaged in destruction of cultural heritage as an attempt to impose their world view and justify their actions on religious grounds. These acts of destruction are displayed and broadcast for the world to see and as Karima Bennoune states, “[t]his represents one form of cultural warfare against populations and humanity as a whole,”21 what UNESCO has termed “cultural cleansing.”22 Additionally, destruction of cultural heritage ought to be understood, according to UNESCO, as not merely a violation of international law; it also covers such acts that constitute “offence to the principles of humanity and dictates of pubic conscience.”23

III. THE ICC AND THE DESTRUCTION OF CULTURAL HERITAGE

In January 2012, a newly formed Tuareg rebel group—the National Move- ment for the Liberation of Azawad (its French acronym, MNLA)—attacked military garrisons in the Northern Malian towns of Menaka, Aguelhok, and Tessalit. These events set off a national crisis, and shortly after, the MNLA declared the independence of the Republic of Azawad, which covers two thirds of the Malian territory.24 The Islamist groups Ansar Dine, Al Qaeda in the Islamic Maghreb (AQIM), and the Movement for the Unicity and Jihad in West Africa (its French acronym MUJAO) subsequently overpowered the MNLA and took control of the Northern Mali cities of Timbuktu and Gao.25

After a French-led military operation re-established Malian authority over the region in January 2013, the government of Mali referred the situation

19. Patty Gerstenblith, The Destruction of Cultural Heritage: A Crime Against Property or a Crime Against People?, J. Marshall rev. intell. ProP. l. 336, 389 (2016).

20. Al Mahdi, Brief by Karima Bennoune, supra note 5, at 12. 21. Id. at 15. 22. Reinforcement of UNESCO’S Action for the Protection of Culture and the Promotion of

Cultural Pluralism in the Event of Armed Conflict, 38th Sess., § I(6) UNESCO Doc. 38 C/49 (2 Nov. 2015).

23. Intentional Destruction, supra note 17. 24. Id. 25. See Susanna Wing, Making Sense of Mali, Foreign aFF. (20 Jan. 2013); Alexander Thurston

& Andrew Lebovich, A Handbook on Mali’s 2012-2013 Crisis (Inst. for the Study of Islamic Thought in Afr. (ISITA)’s Working Paper Series, No. 13-001, 2013); Andy Morgan, The Causes of the Uprising in Northern Mali, think aFr. Press (06 Feb. 2012); Baz Lecocq et al., One Hippopotamus and Eight Blind Analysts: A Multivocal Analysis of the 2012 Political Crisis in the Divided Republic of Mali, 40 rev. aFr. Pol. econ. 343 (2013).

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to the ICC, invoking the Rome Statute.26 The ICC issued a warrant for the arrest of Ahmad Al Mahdi on 18 September 2015, and he was transferred to The Hague a week later. Al Mahdi pleaded guilty and was convicted of the war crime of attacking protected objects under Article 8(2)(e)(iv) of the Rome Statute, in conjunction with attacks on ten buildings “of a religious and historical character” that included mausoleums and a mosque all located in Timbuktu.27 Except for one, the buildings were UNESCO World Heritage sites. These attacks took place in Timbuktu during the jihadist takeover of the city, between 30 June 2012 and 11 July 2012, while Al Mahdi led the Hesbah, the morality police of the Ansar Dine jihadi group.28

Keeping with the anthropocentric approach to criminal law and cul- tural heritage, the ICC Chamber in the Al Mahdi case constantly referred to the importance of cultural property to humanity. The Prosecutor argued that such attacks are essentially an attack on cultural identity and on the people to which the culture belongs.29 At the Confirmation of Charges hear- ing, for instance, the Prosecutor commented that “[t]he destruction of such monuments constitutes the annihilation of structures that had survived the ravages of time and which stood as testimony to Timbuktu’s glorious past and important place in history and to its people over generations.”30 In its judgment, the Chamber adopted a similar cultural value approach by clas- sifying the status of nine of the attacked sites as UNESCO World Heritage sites. The Chamber found that destruction of such sites with World Heritage status “appear[ed] to be of particular gravity as their destruction [did] not only affect the direct victims of the crimes, namely the faithful and inhab- itants of Timbuktu, but also people throughout Mali and the international community.”31 The Chamber further recalled evidence given by the Malian expert who had testified that “destroying the mausoleums, to which the people of Timbuktu had an emotional attachment, was a war activity aimed at breaking the soul of the people of Timbuktu.”32

26. Rome Statute of the International Criminal Court, adopted 17 July 1998, art. 14, U.N. Doc. A/CONF.183/9 (1998), 2187 U.N.T.S. 90 (entered into force 1 July 2002); See also Mali referral letter to the ICC.

27. Id. art. 8(2)(b)(ix), referring to “[i]ntentionally 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.”

28. See Prosecutor v. Al Mahdi, ICC-01/12-01/15-171, Judgment and Sentence, ¶ 10 (27 Sept. 2016).

29. Mohamed Elewa Badar & Noelle Higgins, Discussion Interrupted: The Destruction and Protection of Cultural Property Under International Law and Islamic Law - The Case of Prosecutor v. Al Mahdi, 17 int’l criM. l. rev. 22. 486 (2017).

30. International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the Opening of the Confirmation of Charges Hearing in the Case against Mr. Ahmad Al-Faqi Al Mahdi, ¶ 23 (1 Mar. 2016).

31. Al Mahdi, Judgment and Sentence, supra note 28, ¶ 80 (emphasis added). 32. Id.

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It is very probable that acts of willful destruction of cultural heritage are as old as war itself. Such acts, however, have increasingly become part of waging war. Certainly their broadcast serves as a propaganda tool and as a way to shock humanity and destroy the soul of their victims.33 Statutory and treaty law stemming from the Geneva Conventions and the Nuremberg trials have provided a basis for the ICTY to build jurisprudence on the prosecution of cultural crimes in times of conflict, and the indictment of Al Mahdi at the ICC in 2015 constitutes a pivotal point in the prosecution of destruction of cultural heritage.34 The case of Al Mahdi is peculiar in the sense it was the first instance of the ICC prosecuting war crimes of destruction of cultural heritage. It was the first case before any international criminal tribunal with the sole charge of the destruction of cultural heritage. Al Mahdi was also the first Islamist to stand trial before the ICC and the first defendant to enter a guilty plea.35

IV. DESTRUCTION OF CULTURAL HERITAGE: BETWEEN WAR CRIMES AND CRIMES AGAINST HUMANITY

International crimes are often colloquially referred to as war crimes. Lawyers make distinctions between genocide, war crimes, crimes against human- ity and the crimes of aggression, which collectively make up the material jurisdiction of the ICC.36 Within atrocity crimes, the “genocide mystique” holds a unique mantra,37 with its “strange mysterious effect. For victims, it presents itself as a badge of honour (sic), the only adequate way to describe their suffering or that of their ancestors.”38 The G-word indeed has a rhetori- cal power, and international justice is unique and different because of the inescapability of its political dimensions.39 But crimes against humanity, as defined at Nuremberg, were limited to being associated with aggressive war.40 Later, international lawyers expanded crimes against humanity but left genocide alone, with its rhetorical sense.41 International crimes, as de- fined and practiced within the current international criminal justice system, focus on specific crimes and often involve different categories of victims. In

33. Ellis, supra note 15. 34. The 1954 Convention has been ratified by some 127 states and is regarded as customary

international law. 35. See Paige Casaly, Al Mahdi Before the ICC: Cultural Property and World Heritage in

International Criminal Law, 14 J. int’l criM. l. 1199 (2016). 36. WilliaM schabas, uniMaginable atrocities: Justice, Politics and rights at the War criMes tribunals

32 (2012). 37. Id. at 100-11. 38. Id. at 102. 39. Id. at 23. 40. Id. at 107. 41. Id. at 111.

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Mali, interestingly, Al Mahdi was not charged with crimes against humanity. Rather the charges focused solely on the war crimes of the destruction of the Protected Buildings.42 The Office of the Prosecutor certainly made this decision due to the evidence that it had available, the fact that Al Mahdi was already in custody when the charges were filed and that he had agreed to plead guilty. Once the Court has established Al Mahdi’s war crimes, one may ask, who are the victims of those crimes?

V. THE ICC IN TIMBUKTU: WHO ARE THE VICTIMS OF AL MAHDI’S ACTS?

The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the UN General Assembly in 2006, defines victims as:

[P]ersons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through . . . serious violations of international humani- tarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.43

The ICC Rules of Procedure and Evidence define victims as “natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court.”44 Rule 85(b) adds to the category of victims, including “organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.”45

Following these guidelines, and in the aftermath of Al Mahdi’s convic- tion for war crimes of destruction of cultural heritage, the Reparation Order, delivered by Trial Chamber VIII, identified the victims of Al Mahdi’s criminal acts—victims who deserve compensation. In fact, the Al Mahdi case is the first instance where the ICC decided on reparations for crimes related to destruction of cultural heritage. On 17 August 2017, Trial Chamber VIII found that Al Mahdi was liable for 2.7 million Euros46 for, (a) the damage

42. Prosecutor v. Al Mahdi, ICC-01/12-01/15-70-AnxA-Corr, Charge Brought by the Prosecu- tion against Ahmad Al Faqi Al Mahdi, ¶ 1 (17 Dec. 2015).

43. G.A. Res. 60/147, ¶ 8, U.N. Doc. A/RES/60/147 (2006). 44. International Criminal Court, Rules of Procedure and Evidence, 85(a) (2013). 45. Id. Rule 85(b). 46. Al Mahdi, Reparations Order, supra note 6, ¶ 134.

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caused by the attack of nine mosques and the Sidi Yahia Mosque door;47 (b) the economic loss caused to the individuals whose livelihoods depended upon the tourism and maintenance of these “Protected Buildings” and to the community of Timbuktu as a whole;48 and (c) the moral harm caused by the attacks.49 As Bennoune writes, “[t]his case offers a broad pattern of victimhood, both in terms of the number of people and the number of rights affected.”50 In accordance with the Lubanga case jurisprudence, the ICC Chamber agrees that there are both direct and indirect victims in the Mali case, ruling that the crime of Al Mahdi had an “impact on the people of Timbuktu and, more generally, on the people of Mali and the international community.”51

In the Al Mahdi reparations judgment, the court identified three groups of victims: (a) the inhabitants of Timbuktu as the direct victims, (b) the populations of Mali in general, and (c) the international community.52 The scope and nature of harm suffered by each group varies. As the Chamber states, “[i]t is self-evident that the community of Timbuktu suffered dispropor- tionately more harm as a result of the attack on the Protected Buildings.”53 It is also notable that the Chamber received reparation applications solely from the community in Timbuktu—the Malian state having not submitted an application, neither did the “international community.” Markedly, even UNESCO did not submit any reparation applications, instead asserting that “the local communities [. . .] have been the principal victims.”54 It is then remarkable that the Chamber would consider UNESCO to be a representative of the international community in this case, as “[t]he Chamber considers that addressing the harm suffered by the community of Timbuktu will also effectively address the broader harm suffered by Malians and the international community as a whole.”55

Moreover, Al Mahdi’s apology captures the different populations victim- ized by his crimes: his community in Timbuktu, his “home nation, Mali,” and the “international community.” Al Mahdi said at Court,

Ladies and gentlemen, it is with deep regret and with great pain I had to enter a guilty plea and all the charges brought against me are accurate and correct. I am really sorry. I am really remorseful and I regret all the damage that my ac-

47. Id. ¶ 1. 48. Id. ¶ 83. 49. Id. ¶ 84. 50. Al Mahdi, Brief by Karima Bennoune, supra note 5, at 25. 51. Thomas Lubanga Dyilo was a Congolese rebel leader and the first person ever to be

convicted by the ICC. He was found guilty of enlisting child soldiers and sentenced to fourteen years in prison.

52. Al Mahdi, Reparations Orders, supra note 6, ¶ 51. 53. Id. ¶ 52. 54. Id. 55. Id. ¶ 54.

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tions have caused. I regret what I have caused to my family, my community in Timbuktu, what I have caused my home nation, Mali, and I’m really remorseful about what I had caused the international community as a whole. My regret is . . . directed particularly to the generations, the ancestors of the holders of the mausoleums that I have destroyed . . . I would like to seek the pardon of the whole people of Timbuktu.56

VI. THE INTERNATIONAL COMMUNITY AS A VICTIM

A. Locating the International Community

An agreement on a set a rules, norms, principles, and laws form the basis for an international community. Therefore, a minimum required homogene- ity is needed for the international community to emerge.57 Obviously, this doesn’t mean that the rules and norms are not violated, nor the principles contested. However, the expectation, for instance, that the United Nations or the “international community” take action when faced with egregious violations, exemplifies the existence of a rule-based community. This im- plies that if an international community must exist, it requires a number of interests that are common to its members and a certain set of shared values, principles, and procedures.

In that regard, the UN Charter may be viewed as the constitution of the international community if we accept the premise that a constitution may apply to political entities beyond the nation-state.58 Although the common understanding is that where there is a state there must be a constitution, and vice-versa, it is also now clear that there is an ever-increasing institutional- ization of supra-national organizations.59 Yet, an international community cannot exist without institutions able to represent it. The UN, as the inter- national organization with the largest scope and mandate, is the primary institutional representative of the international community.60 As its Charter states, the United Nations purpose is, inter alia, to “maintain international peace and security,” to “develop friendly relations among nations,” and to “achieve international cooperation in solving international problems of an

56. Prosecutor v. Al Mahdi, ICC-01/12-01/15-T-4-Red-ENG, Transcripts of Hearing: Statement Made by Mr. Al Mahdi, (22 Aug. 2016).

57. Bardo Fassbender, The United Nations Charter as Constitution of the International Com- munity, 36 coloM. J. transnat’l l. 529, 566 (1998).

58. Id. at 529. 59. The European Union is one good example of such constitutionalization beyond the

nation-state. 60. Fassbender, supra note 57, at 567.

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economic, social, cultural, or humanitarian character.”61 The UN has an executive branch and a judicial body—the International Court of Justice (ICJ)—with a broad mandate, in addition to the General Assembly which represents its legislative body. As Antonio Cassese said, “the UN ultimately acts in the interest of and on behalf of the whole world community, of which it is the legitimate representative.”62 These days, as Bruno Simma and Andreas Paulus assert, “the [UN] Charter has almost universally been recognized as the constitutional document of the international community of states.”63 This explains why “international community” is often used interchangeably with the United Nations.64

The term “international community,” however, merits further scrutiny from a variety of “traditions of thought in international law, politics, and ethics.”65 The concept is found repetitively in UN General Assembly and Security Council resolutions and other international conferences, etc. The ICJ even made reference to “the international community,” for instance, in the US Hostages in Tehran cases.66 The Vienna Convention on the Law of Treaties defines jus cogens—peremptory norms of general international law—as norms “accepted and recognized by the international community of States as a whole.”67 As Simma and Paulus write,

The notion of “international legal community” (Vōlkerrechtsgemeinschaft) pro- ceeds from the assumption that it is international law which binds the parts together, affirming the existence of a “community of states” on the one hand and lending the necessary normative structure to this community on the other. . . . From this perspective, the community of states is viewed exclusively as a community under international law, and this legal community is made up exclusively of states. 68

61. Id. 62. antonio cassese, international laW in a divided World 159 (1986). 63. Bruno Simma & Andreas L. Paulus, The “International Community”: Facing the Challenge

of Globalization, 9 eur. J. int’l l. 266, 274 (1998). 64. The UN General Assembly for instance is in a unique position to shape common values

for international actors, by convening international conferences dealing with an array of issues and concerns to humankind. The UN also provides an institutional framework for a variety of global issues. There is also a growing number of authorizations sought from the UN Security Council where individual states may act as agents of the international community. Moreover, although “international community” is often used to describe the international system, international actors, and their relations, the concept is also frequently used to refer to “the repository of interests that transcend those of individual states ut singuli.” Id. at 268.

65. Id. 66. Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran),

1980 I.C.J. 43, ¶ 92 (24 May) (statement by the Court) [T]he Court . . . draw[s] the attention of the entire international community . . . to the irreparable harm that may be caused by events of the kind now before the Court. Such events cannot fail to undermine [a carefully constructed edifice of law], . . . the maintenance of which is vital for the security and well-being of the . . . international community.

67. Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331 (entered into force 27 Jan. 1980), reprinted in 8 I.L.M. 679 (1969).

68. Simma & Paulus, supra note 63, at 267.

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Such an exclusive view of an international community as a legal one, however, ignores “the necessity of a social consensus as a precondition for the formation of, and particularly respect for, legal rules.”69 A broader frame of analysis, as adopted by Hedley Bull for instance, identifies three tradi- tions of thought.70 The Hobbesian or “realist” tradition, which represents the world of power politics, and the Kantian or universalist perspective, which views international politics as a potential vehicle for a community of man- kind.71 Between these two positions, there is what Bull referred to as the “Grotian,” or internationalist position. From this perspective, international society is composed of states, where cooperation between them is possible and encouraged to realize common values and interests.72

The notion of international community also serves within international politics as a murky concept upon which one can lay blame for moral and political failures, such as the response to the Rwanda genocide for instance. During his visit to Rwanda in 1998, President Clinton said that the “inter- national community, together with nations in Africa, must bear its share of responsibility for this tragedy, as well.”73 This is a not so subtle way to avoid taking responsibility for US actions while also recognizing the failures of the United Nations in the face of what Clinton called “the most intensive slaugh- ter in this blood-filled century we are about to leave.”74 In May 1994, UN Secretary General Boutros-Ghali called the ongoing slaughter in Rwanda a “genocide” and condemned states for refusing to send troops there.75 He said,

It is a failure not only for the United Nations; it is a failure for the international community. And all of us are responsible for this failure. Not only the great powers but the African powers, the nongovernmental organizations, all the international community. It is a genocide which has been committed. More than 200,000 people have been killed and the international community is still discussing what ought to be done.76

By invoking the international community, Boutros-Ghali, Bill Clinton and later Kofi Annan too, deflect from their personal responsibility and engage in an attempt of “democratizing the blame.”77 The term “international com- munity,” then, serves as a foggy institution that shoulders the blame for not acting to stop the Rwandan genocide and other atrocities. Beyond being the culprit or villain in failing to stop or properly respond to atrocity crimes,

69. Id. at 267-68. 70. hedley bull, the anarchical society: a study oF order in World Politics 23 (3d ed., 2002). 71. Id. 72. Id. 73. James Bennet, Clinton in Africa: The Overview; Clinton Declares U.S., with the World,

Failed Rwandans, n.y. tiMes (26 Mar. 1998). 74. Id. 75. Paul Lewis, Boutros-Ghali Angrily Condemns All Sides for Not Saving Rwanda, n.y.

tiMes (26 May 1994). 76. Id. 77. Michael barnett, eyeWitness to a genocide: the united nations and rWanda 154 (2002).

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the international community is also often times described as a victim of those crimes.

B. The International Community as a Victim

The ICC stresses the importance of cultural heritage to individual groups and to the international community. The Chamber states that “[c]ultural heritage is important not only in itself, but also in relation to its human dimension. Cultural property also allows a group to distinguish and identify itself be- fore the world community.”78 In relation to world heritage, however, the Chamber affirms that “[w]orld cultural heritage is a most important category. Greater interest vested in an object by the international community reflects a higher cultural significance and a higher degree of international attention and concern.”79 This also implies that the international community—mainly UNESCO in this instance—decides which artifacts are of higher importance and deserve more attention and concern.

At the Al Mahdi trial, the inclusion of the “international community” in the list of victims is meant, as the Chamber argues, to stress “the specific nature of the crime for which Mr. Al Mahdi was convicted. The destruction of cultural heritage erases part of the heritage of all humankind.”80 How- ever, after emphasizing the importance of the international community in the crimes committed by Al Mahdi, the Chamber curiously states that ad- dressing the harms caused to the Timbuktu community would adequately address any broader harm to the Malian and international community.81 This certainly denotes that, from the Chamber’s viewpoint, although the Timbuktu community, the Malian state and the international community have all been victimized, the Timbuktu victims can represent both the Malian state and the international community. The Chamber subsequently limited its analysis only to the first group of victims. However, as Sophie Starrenburg notes, “[o]ne wonders why—if this is what the Chamber wished to achieve in the first place—it found it necessary to jump through the hoop of identifying the international community as a victim.”82 One can only infer from this ruling that the Court did not want to engage in a discussion on how the Malian population at large and the international community were victimized by the destruction of cultural heritage in Timbuktu, and how to rationalize the reparation adjudicated to these two groups.

78. Al Mahdi, Reparations Order, supra note 6, ¶ 16. 79. Id. ¶ 17. 80. Id. ¶ 53. 81. Id. ¶ 54. 82. Sophie Starrenburg, Who is the Victim of Cultural Heritage Destruction? The Reparations

Order in the Case of the Prosecutor v Ahmad Al Faqi Al Mahdi, eJil: talk! ¶ 4 (25 Aug. 2017).

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C. UNESCO as the Representative of the International Community

In matters of international crimes against cultural heritage, UNESCO personi- fies the international community. It is evident that UNESCO is representative of the interests of the international community in the way in which the ICC issued its judgment and reparation order in the Al Mahdi case. In its submis- sion, UNESCO informed the Chamber that it had spent “2.53 million euro in rebuilding Timbuktu’s mausoleums and rehabilitating the mosques and libraries of manuscripts.”83 Interestingly, in accordance with the ICC Rules of Procedure and Evidence, the Court ordered that the Malian State and UNESCO each be awarded a symbolic amount of one euro for the harm suffered respectively by the Malian state and the international communi- ty.84 This act brings into question whether UNESCO can in fact qualify as victim in the Al Mahdi case since no one would argue that the monuments belonged to the organization. Therefore, UNESCO is included as a victim only through bifurcation, as a representative of the international community, which arguably, is victimized by the destruction. Indeed, nine out of the ten sites destroyed in Timbuktu were registered on the World Heritage list. Their status as World Heritage sites certainly played a role in why they were targeted for destruction in the first place.85 The World Heritage status of these monuments, according to the Chamber, reflects “higher cultural significance and a higher degree of international attention and concern.”86 The jihadist leaders that overtook Timbuktu in 2012 explained the destruction of the sites on religious grounds. Although obviously their high symbolic value as UNESCO World Heritage sites also explains why they were targeted, know- ing that countless other cultural and religious edifices in Northern Mali were not attacked. One of the Islamist leaders said, “[n]ot a single mausoleum will remain in Timbuktu, Allah doesn’t like it. . . . We are in the process of smashing all the hidden mausoleums in the area.”87 Ould Hamaha, another leader of Ansar Dine, explained the reasons for the destruction of the Sufi shrines as follows:

It’s forbidden by Islam to pray on tombs and ask for blessings. . . . We will not let the younger generation believe in shrines as God, regardless of what the U.N., UNESCO, International Criminal Court or ECOWAS . . . have to say. We do not recognize these organizations. The only thing we recognize is the court of God, Shari‘a.88

83. Prosecutor v. Al Mahdi, ICC-01/12-01/15-194, UNESCO Amicus Curiae Observations, ¶ 12 (2 Dec. 2016).

84. ICC, Rules of Procedure and Evidence, supra note 44. 85. See Casaly, supra note 35. 86. Al Mahdi, Reparations Order, supra note 6, ¶ 17. 87. Mali Fighters Destroy More Timbuktu Tombs, al Jazeera ¶ 2 (23 Dec. 2012). 88. Julius Cavendish, Destroying Timbuktu: The Jihadist Who Inspires the Demolition of the

Shrines, tiMe ¶ 3 (10 July 2012) (emphasis added).

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The symbolic value of Timbuktu and its edifices and their UNESCO World Heritage listing is therefore apparent to the jihadists. The destruction of the Bamyan Buddahs was an act of defiance towards the United Nations and the international community in response to the 1999 and 2000 sanc- tions against the Taliban government because of their link to international terrorism.89 The UNESCO secretary general, his envoy in Kabul, and the UN Secretary General all appealed to the Taliban to not proceed with the planned destruction of the statues. However, UNESCO has proven to be ineffective at protecting artifacts against willful destruction in times of conflict.90

Adding cultural sites to the World Heritage List subsequently raises their profile and make them potential targets for various perpetrators, which is just one of the many pitfalls of UNESCO listings. As Starrenburg argues, the listing process at UNESCO is also highly “politicised and biased towards particular forms of heritage.”91 This means that inclusion in the UNESCO World Heritage List is by no means indicative of the most important cul- tural sites around the world.92 Furthermore, beyond the symbolic value of the Al Mahdi arrest, trial in The Hague, and the outcry of the international community, complex political and philosophical questions remain.93 For instance, crimes against cultural heritage have a long history in Mali, and elsewhere, ranging from looting of archaeological sites to the illicit art mar- ket.94 Destruction or looting of cultural heritage—even when classified as World Heritage—in and of itself does not necessarily warrant global outcry or ICC intervention. Therefore, the international attention garnered by the destruction of the Protected Buildings in Timbuktu must be viewed in the context of transnational jihadism and the global war on terror.95

89. Francesco Francioni & Frederico Lenzerini, The Destruction of the Buddhas of Bamiyan and International Law, 14 eur. J. int’l l. 619 (2003); see also Patty Gerstenblith, From Bamiyan to Baghdad: Warfare and the Preservation of Cultural Heritage at the Beginning of the 21st Century, 37 geo. J. int’l l. 245 (2005).

90. Sigrid Van der Auwera, UNESCO and the Protection of Cultural Property During Armed Conflict, 19 int’l J. cultural Pol’y, 1 (2013).

91. Starrenburg, supra note 82. 92. There is a North-South imbalance in the Heritage list. For instance, countries such as

Rwanda and Liberia have no site listed. The listing process is expensive and requires management and resources that many poor countries often lack. Moreover, states use the listing for their own interests, such as international prestige, tourism, political motives, etc. Additionally, the listing can have negative repercussions on the local populations. See Chloé Maurel, Whose World Heritage? The Problem with UNESCO’s Famous List, eQual tiMes (20 July 2017).

93. Charlotte Joy, The Mali Cultural Destruction Trial at the ICC Poses a Moral Dilemma, aPollo (6 Sept. 2016).

94. Malian history is indeed fraught with movements of jihad and counter-jihads that have led to many instances of destruction and rebuilding of mosques. The fabled mosque of Djenné is one of many examples. See charlotte Joy, the Politics oF heritage ManageMent in Mali: FroM unesco to dJenné (2012). See also Joy, The Mali Cultural Destruction, supra note 93, ¶ 5.

95. It is important to note, regarding Salafism in Mali, that Reformists or Salafists are a minority among Malians despite the international attention that they have garnered

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VII. THE LOCAL (AND NATIONAL) COMMUNITY AS VICTIMS

It is clear that those most affected by the destruction of the Protected Build- ings were the inhabitants of Timbuktu. The ICC Chamber notes “that the loss of the Protected Buildings affected the entire community of Timbuktu,”96 adding that UNESCO and other stakeholders rebuilt or restored each of the monuments.97 The Chamber also noted that the protected buildings belonged to the entire community and their loss was felt by the entire community of Timbuktu. Therefore, the Chamber conceded that collective reparations were the most appropriate modality.98 To be sure, the nine mausoleums and the Sidi Yahya mosque that were attacked had much relevance to the local, national, regional, and international cultural heritage. As Bennoune writes, “this cultural heritage has particular value for the people of Timbuktu, and significance for all the people of Mali, as well as for people throughout the entire region and around the world.”99 Timbuktu residents told the ICC- appointed cultural experts, “[w]e cannot live without the saints”; “our spirits are [in the mausoleums]”; “[o]ur existence and all that we have in this life is due to the mausoleums.”100 Not only places of prayer but also of pilgrim- age, the mausoleums were visited by populations—both Muslims and non- Muslims—from faraway places, which also benefitted the city of Timbuktu and the region in terms of tourism—religious or otherwise—and commerce. Pilgrims would come to say prayers and take sand from the mausoleums for gifts and donations. It is important to note though that while these saints are venerated, they are not worshipped. As a Timbuktu resident said, “[t]hese are places of solace.”101 Al Mahdi was convicted for his involvement in the destruction of the Sidi Yahya mosque door for instance, a door believed to not have been opened for 500 years and that custom dictated was to remain closed until the Last Judgment day. Al Mahdi said to journalists while the door was being destroyed,

What you see here is one of the ways of eradicating superstition, heresy and all things or subterfuge which can lead to idolatry . . . . We fear that these myths will invade the beliefs of people and the ignorant who, because of their ignorance and their distance from religion, will think that is the truth.102

recently. One must also make the distinction between the Salafists that were engaged in the jihadism in the North and the Reformists/Salafis at large, many of whom have not espoused violent Islamist politics. See Alex Thurston, Towards an “Islamic Republic of Mali?”, 37 Fletcher ForuM oF World aFF. 45 (2013), for the history of Islamist and reformist movements in Mali.

96. Al Mahdi, Reparations Order, supra note 6, ¶ 62. 97. Al Mahdi, UNESCO Amicus Curiae Observations, supra note 83, ¶¶ 11-12. 98. Al Mahdi, Reparations Order, supra note 6, ¶ 67. 99. Al Mahdi, Brief by Karima Bennoune, supra note 5, at 18. 100. Id. at 19. 101. Id. at 21. 102. Al Mahdi, Judgement and Sentence, supra note 28, ¶ 38.

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One victim stated, “[m]y faith is shattered. My family fled [.] [. . .] I lost everything and all my faith.”103

Once the ICC Chamber determined the categories of victims of Al Mahdi’s war crimes of destruction of cultural heritage, the next step was to decide whether and how reparations were to be allocated.104 The Court made a determination regarding both individual and collective reparations—indi- vidual reparations were for those whose livelihood directly depended upon the protected buildings, or who suffered mental pain from the destruction of their ancestors’ burial grounds. The rest of the reparations were collec- tive in nature. However, given that the edifices that were destroyed have already been restored by UNESCO, the court believed that the collective reparations should focus on ensuring that such destruction is not repeated. The court decided on other symbolic reparations as well, such as ordering that the Registry “produce an excerpt of the video of Mr. Al Mahdi’s apol- ogy and post it on the Court’s website with the corresponding transcript translated into the primary languages spoken in Timbuktu.”105 The Chamber also suggested symbolic measures, such as a “memorial, commemoration or forgiveness ceremony.”106

Victims were also asking for compensations for the economic effects of the destruction of their livelihood.107 The guardians of the mausoleums, the maçons, tasked with maintaining them and people whose business could not exist without the Protected Buildings, explained that their livelihood depended directly on the sites. Others noted that loss of tourism and eco- nomic activity harmed their livelihood. However, “the Chamber award[ed] individual reparations for consequential economic loss only to those whose livelihoods exclusively depended upon the Protected Buildings.”108

VIII. CONCLUSION

The Al Mahdi case represents a watershed moment in international crimi- nal justice, as the first ever case before an international court wherein the defendant was solely charged with the crime of destruction of cultural heri- tage. Although destruction of cultural heritage during conflict is not a new phenomenon, it has attracted increased attention and outcry in the past few decades as fundamentalists groups have repeatedly taken advantage of the mass media to increase the shock value of these acts. Given the symbolic

103. Al Mahdi, Reparations Order, supra note 6, ¶ 85. 104. Id. ¶ 135–48 105. Id. ¶ 71. 106. Id. ¶ 90. 107. Id. ¶ 73. 108. Id. ¶ 81.

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value that Timbuktu represents in the global imagination in addition to the World Heritage site status of the monuments that were targeted for destruction in 2012, the ICC became the focal point on how the international community was to address such willful destruction of cultural heritage as war crimes.

This raises questions as to who the victims of destruction of cultural heritage actually are. The judgment and reparation order in the Al Mahdi case identifies three groups of victims: the residents of Timbuktu, the Ma- lian state, and the international community, represented by UNESCO. Yet, UNESCO is a victim in this case only through bifurcation, as a representative of the international community, due to the higher cultural significance of the sites and the higher degree of international attention and concern. The destruction or looting of cultural heritage however, even when classified as world heritage, in and of itself does not necessarily warrant global outcry or ICC intervention. Therefore, the international attention garnered by the destruction of cultural heritage in Timbuktu must be viewed in the context of transnational jihadism and the global war on terror.