Making the Case for Protecting Cultural Heritage under the Alien Tort Statute

On July 29, 1990, Moses Thomas, then-commander of the Special Anti-Terrorist Unit of the Armed Forces of Liberia, ordered his troops to massacre nearly 600 unarmed men, women, and children taking refuge in St. Peter’s Lutheran Church from the country’s civil war. For nearly three decades, Thomas and his forces evaded accountability despite the massacre being one of the most horrific attacks on civilians in the country’s history.

Twenty-eight years later, on February 12, 2018, the Center for Justice and Accountability (CJA) filed a case in U.S. federal court on behalf of four Liberian citizens who survived the church massacre by hiding under church pews and dead bodies while their loved ones were murdered around them.

In the suit, the survivors alleged several claims for war crimes and crimes against humanity under the Alien Tort Statute (ATS), which confers jurisdiction to U.S. federal courts over claims of international law violations brought by non-nationals. In one claim, the plaintiffs allege that Moses Thomas had committed a war crime by intentionally directing attacks against a building dedicated to religion. CJA’s case against Thomas marks the first time such a claim has been brought under the ATS.

The intentional attacking or destruction of religious property—a form of cultural heritage—is as much a human rights violation as the physical destruction of a people. Nonetheless, this form of violence is on the rise throughout the world, occurring both in times of armed conflict and peace, systematically and sporadically.

In the last decade alone, Sufi religious and historic sites have been destroyed and graves desecrated in Libya; cultural and religious sites, artifacts, and manuscripts have been destroyed during the occupation of northern Mali; temples, monasteries, shrines, and millenniums-old sites, such as Palmyra, have been destroyed in the Syrian Arab Republic; Coptic churches and monasteries in Egypt, Jewish sites in Tunisia, and hundreds of shrines belonging to the Sufi sect of Islam across Northern Africa have all been targeted and destroyed. This list of incidents—incidents that have had a profound effect on cultural and religious communities globally—is in no way exhaustive.

Such deliberate destruction of cultural heritage violates numerous human rights, including the right to freedom of thought, conscience, and religion, and the freedom to take part in cultural life. Intentionally attacking cultural and religious property also is in violation of international humanitarian law—though the targeted nature of recent attacks shows, in many instances, that what once were protected structures during armed conflict have now become strategic military targets. Such acts of destruction additionally violate many States’ treaty obligations under several binding international legal documents.

Despite the extensive legal framework aimed at protecting such cultural and religious property, accountability for their destruction is slow or wholly unpursued. CJA’s case may thus lay the groundwork for one viable avenue to change this tide. The question, however, is whether the claim alleged by CJA for the destruction of religious property meets the legal thresholds for cognizability under the ATS established by the U.S. Supreme Court.

After decades of fairly unrestricted ATS litigation, the Supreme Court—for fear of judicial overstepping—clarified that violations of international law brought under the ATS must meet a certain threshold of universality and specificity. Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004). The Supreme Court additionally held that a claim brought under the ATS for a violation that occurred extraterritorially must at least “touch and concern” the U.S. “with sufficient force to displace the presumption against extraterritorial application.” Kiobel. Rio Tinto PLC v. Sarei, 569 U.S. 108, 124 (2013).

Given the legal framework constructed by international human rights law, international humanitarian law, and international criminal law, a federal court will likely find that the norm prohibiting the intentional attacking or destruction of cultural or religious property meets the Sosa standard of universality and specificity (but see dicta in Jesner complicating this standard). However, whether CJA’s case will withstand Kiobel’s “touch and concern” standard remains unclear. CJA argues that this case profoundly impacts the U.S. for several reasons—including the perpetrator’s current residence in Pennsylvania; the U.S.’s deep involvement in Liberia’s civil wars and the country’s development more broadly; and the U.S. government’s role in ultimately resolving the first civil war. The sufficiency of these impacts to overcome Kiobel remains to be seen.

Nevertheless, this case remains significant. The International Criminal Court, in its judgement for Prosecutor v. Al Mahdi, acknowledged that attacking cultural and religious property is one of “the most serious crimes of concern to the international community” for which accountability is necessary. See Prosecutor v. Al Mahdi, Case NO. ICC-01/12-01/15, Judgment and Sentence, ¶ 72 (Sept. 27, 2016). Despite the ICC’s Al Mahdi case, however, perpetrators of the destruction of cultural heritage continue to enjoy widespread impunity. Thus, CJA’s suit against Thomas is an important reminder that we have the ability—within bounds—to domesticate international law under the ATS to open the door for reparations in the face of slow-moving accountability or worse, flagrant impunity, in other jurisdictions.

It is undeniable that prosecutions for wartime abuses such as the St. Peter’s Lutheran Church massacre must additionally occur within the domestic courts of Liberia so that survivors may more easily access proceedings, as CJA’s legal fellow Alexandra Insinga discusses here. Yet the continuing impunity to atrocities committed during Liberia’s civil war, as with numerous other armed conflicts, should signal to advocates that accountability under the Alien Tort Statute should not be altogether disregarded, even in light of recent Supreme Court decisions  narrowing its scope (see, e.g. Jesner).

As Brian Daniels, director of research at the Penn Cultural Heritage Center, wrote, mass killing and cultural destruction “are simply two different stages in the same violent process of ethnic cleansing and genocide.” If we are to take a holistic approach to preserving human life, we must work diligently towards the protection of cultural rights by pursuing all available avenues of justice.

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