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. Continue reading

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More Than Fair: GQUAL Campaign Mobilizes Law to Change Picture of International Justice

Globally, women occupy only 33% of the 599 seats found on the 91 adjudicatory bodies of international law. But when one excludes the committees and working groups on the rights of women and children, that number drops to 24% of the remaining 533 seats. Only one woman sits on each of the Inter-American Court of Human Rights, the appellate body of the World Trade Organization, and the Committee on the Rights of Persons with Disabilities. The paucity of women on international bodies reveals a gross imbalance of power that tips against a community that makes up roughly half the world’s population.

During the first week of October, ambassadors, legal experts, practitioners, and activists from around the world gathered in The Hague to strategize changing this male-dominated picture of international justice during the GQUAL Campaign’s international conference marking its second anniversary. The Action Plan adopted at the conference begins with an important reminder that achieving gender equality on international bodies is not solely a policy of fairness and institutional legitimacy but an action mandated by law. Together with the International Human Rights Law Clinic at UC Berkeley School of Law, GQUAL released at the conference a working paper that identifies the international legal basis for the Campaign’s aim of realizing gender parity.

States establish the nominating and voting procedures that apply to any particular international body, making them ultimately responsible for this state of affairs. Though political will is needed to remedy the stark and pervasive gender imbalance on international bodies, reform should be guided by international law and State practice, both of which support the fair representation of women in global governance.

The positive obligation to eliminate sex-based discrimination is deeply rooted and widely reflected in international human rights law. Numerous instruments, most notably the Convention on the Elimination of all Forms of Discrimination Against Women, not only prohibit States from adopting discriminatory laws but also require that States work to dismantle obstacles that result in discriminatory outcomes for women. The working paper looks beyond CEDAW for additional support to further strengthen the legal foundation of the GQUAL Campaign.

We identified several human rights treaties and policy statements that embody the non-discrimination principle and which enumerate three international human rights norms that require gender equality within different contexts relevant to the GQUAL Campaign—the right of access to decision-making within public bodies; the right of access to equal opportunity in employment; and the right of access to justice. In short, women on equal terms with men, are entitled to shape our governments, to employment that reflects our capabilities, and to the protection, recognition, and advancement of international law. Continue reading