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

Challenges of Urban Warfare

Aleppo in Syria. Mosul in Iraq. Marawi in the Philippines. All cities now unfortunately synonymous with the destruction of war, and its attendant miseries visited on the populations inhabiting them. A new ICRC report, based on analysis of conflicts in Syria, Iraq and Yemen, has found a casualty rate five times higher in cities compared to other conflicts. It is estimated that by 2050, more than 60% of the global population will reside in cities.

The urban landscape makes conflict more complex, and particular concerns relating to the application of international humanitarian law (IHL) in cities are examined here. Protecting civilians, and distinguishing them from combatants is fraught. The use of explosive weapons destroys infrastructure necessary for survival. Restrictions on food and basic provisions create conditions that make existence difficult, forcing populations to leave, if able. Unexploded ordinances and snipers hamper safe exit. The ensuing mass displacement adversely impacts areas receiving besieged populations, often with scarce means to accommodate them.

IHL in urban contexts 

The fundamental rules of IHL regulating the conduct of hostilities are embodied in the Geneva Conventions and the Additional Protocols, as well as customary law. The central tenets – the principles of distinction, proportionality and precaution in attacks – regulate the conduct of hostilities for the protection of civilians in all contexts. A distinction is to be made between combatants and civilians, and between military objectives and civilian objects. Any military action must be proportionate to the intended aim.

The existence of an international armed conflict (IAC) or non-international armed conflict (NIAC) requires a complex case-by-case analysis. Increasingly there are concerns regarding the classification of situations, due to the invocation of terrorism and questions concerning the applicability of IHL. Here, the classification of conflict is not addressed, but only those facets of IHL pertaining to the protection of a city and its inhabitants are highlighted.

These basic principles apply in NIAC and IAC, with some differences in the elaboration of the legal provisions. These principles are also reflected in customary law, distinct from treaty law, and applicable to both types of conflict. However, it is the application of these principles to densely populated areas that is operationally complex.

Protection of civilians

Civilians are protected from attack under IHL. As long as an individual is not a member of the armed forces or armed group, she is considered a civilian. However, the distinction between civilian and combatant is eroded in case of “direct participation in hostilities” by the former (Art. 51(3), AP I, Art. 13(3) AP II and customary law Rule 6). The ICRC Interpretive Guidance on the notion of Direct Participation in Hostilities under International Humanitarian Law delineates three cumulative criteria for acts to amount to “direct participation”: first, there must be an adverse impact on military operations or activities; second, a direct causal link between the act and the harm caused; and third, the act must be designed to cause the threshold of harm. Preparatory acts and subsequent actions are considered “direct participation”. Protection ceases during such participation, and is reinstated upon cessation. However, it may still be difficult to distinguish between direct and indirect participation. In doubt, the individual must retain protection. Continue reading

Antiquities trafficking said to fuel transnational mayhem by Daesh et al.

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Alumna Tess Davis, 2d from left, met with Georgia Law 1Ls after her lecture; from left, Hannah Williams, Ava Goble & Karen Hays. Hannah will work on cultural heritage issues this summer through a Global Externship Overseas (GEO) at the Cambodia Ministry of Culture & Fine Arts, Department of Intangible Cultural Heritage.

“As long as there have been tombs, there have been tomb raiders.”

So began the terrific talk on trafficking that IntLawGrrls contributor Tess Davis, Executive Director of the D.C.-based Antiquities Coalition, delivered to a rapt University of Georgia audience a few days ago.

Having conceded the point quoted at top, Davis stressed that today the problem is much different and much greater. On the list of lucrative transnational organized crime, she asserted, antiquities trafficking places 3d, right behind arms trafficking and drug trafficking.

The threat is not simply one of criminal behavior, she continued. Rather, Davis stressed that profits from antiquities trafficking – profits believed to be in the millions of dollars – provide revenue vital for the nonstate actor waging armed conflict in Syria and Iraq. That entity calls itself “Islamic State” and is often labeled “ISIS” or “ISIL” in the media; taking a lead from diplomats in France and, recently, the United States, Davis preferred “Daesh,” the group’s Arabic acronym, for the simple reason that “they hate to be called that.”

Initially trained as an archeologist, Davis began to focus on legal means to combat antiquities trafficking while still a student at Georgia Law. Since earning her J.D. in 2009, she’s been a leader at the Lawyers’ Committee for Cultural Heritage and in the American Society of International Law Cultural Heritage & the Arts Interest Group, a researcher at Scotland’s University of Glasgow, a member of Georgia Law’s Dean Rusk International Law Center Council, and, as the photo above demonstrates, a mentor to Georgia Law students and other young lawyers interested in working in the field. (Prior IntLawGrrls posts by and about her are available here and here.) Her efforts to help repatriate antiquities stolen from Cambodia earned multiple mentions in The New York Times.

Her talk drew links between the looting of cultural heritage during and after the 1970s Khmer Rouge reign of terror and current looting in the Middle East today. In both instances, she said, “cultural cleansing” – in the contemporary case, the destruction and thievery of monuments sacred to moderate Muslims and others – precedes and parallels efforts to erase and subjugate the humans who venerate those monuments. It’s a state of affairs documented in her Coalition’s new report, “Culture Under Threat.”

“The world failed Cambodia,”

Davis said, then expressed optimism at growing political will to do something about the Middle East. She advocated enactment of S. 1887, the Protect and Preserve International Cultural Property Act now working its way through Congress. The legislation, whose cosponsors include a Georgia U.S. Senator, David Perdue, is urgent: Davis estimated that U.S. buyers represent 43% of the current demand for looted Syrian antiquities.

(Cross-posted from Exchange of Notes blog)

A Week of Firsts at the ICC

It has been a successful week for the International Criminal Court (ICC). On Monday 21 March 2016, Trial Chamber III convicted Jean-Pierre Bemba Gombo as military commander for rape, murder, and pillaging committed by troops under his command in the Central African Republic. Two days later, on 23 March, Pre-Trial Chamber II confirmed all 70 charges against Dominic Ongwen, committing him to trial. Then, on 24 March, Pre-Trial Chamber I issued the confirmation decision in the case against Ahmed Al Faqi Al Mahdi for the destruction of cultural property in Mali. All of these cases have set important precedents: it has been a Week of Firsts for the ICC.

Two firsts in the Al Mahdi case

  • The confirmation of a charge of the war crime of intentionally directing attacks against ‘cultural property’ in Timbuktu (Mali) against Al Faqi Al Mahdi was the first such crime to be confirmed at the ICC.
  • His trial would have been the first regarding the destruction of cultural heritage. Would have been, because on 1 March, Al Mahdi indicated his wish to plead guilty. But that brings us to another first: his will be the first guilty plea at the ICC. If the Trial Chamber accepts his admission of guilt under article 65, the case will proceed to sentencing.

Three firsts in the Bemba case

  • Jean-Pierre Bemba Gombo’s conviction of rape, murder, and pillage was the first time at the ICC that an accused person was convicted of sexual violence.
  • His conviction was also the first ever in international criminal law to classify rape of men specifically as sexual violence (as opposed to other inhumane acts or torture).
  • Bemba was tried and convicted as a military commander for crimes committed by troops under his command for his failure to prevent, repress or punish their commission. Another first!

Four firsts in the Ongwen case

  • Dominic Ongwen saw 70 charges confirmed against him, including various modes of liability. It is the first time an accused faces such a high number of charges at the ICC.
  • With 19 of the 70 charges relating to sexual and gender-based violence, it is also the first time an accused faces such a broad range of sexual and gender-based violence charges. He faces several charges of rape, sexual slavery, enslavement, forced marriage, torture, outrages upon personal dignity, and forced pregnancy.
  • Ongwen will be the first person ever in international criminal law to stand trial for forced pregnancy. Although forced impregnation as a strategy in war and conflict is not new, the ICC’s Rome Statute was the first to codify it as a specific crime.
  • Ongwen is also the first person at the ICC to face charges of forced marriage. While not a specific crime under the Rome Statute, the Chamber concurred with the Office of the Prosecutor that forced marriage constitutes an “other inhumane act” as a crime against humanity. The decision explores in some detail the elements of the crime of forced marriage, which for the Chamber revolves around forcing a person to serve as an exclusive conjugal partner. Importantly, the Chamber stressed that it is not predominantly a sexual crime. His trial will undoubtedly expand upon international criminal law’s understanding of this crime.

It has certainly been an exciting week for the ICC!

“Blood Antiquities”: cultural heritage seminar in New Orleans looks at ISIS

New Orleans will be the site of what looks to be a terrific event next Thursday: “Blood Antiquities,” the Annual Cultural Heritage Seminar, on October 15, 2015. Antiquities Coalition Executive Director Tess Davis, an alumna and member of the Dean Rusk International Law Council at Georgia Law, and an IntLawGrrls contributor, sends this information:

isis-destroy-palmyra-shrineWith the rise of the Islamic State in Iraq and Syria (ISIS), the world rightfully asked how a militant faction too extreme for Al-Qaeda transformed itself into ‘the world’s richest terror group ever.’ How?
ISIS jihadists earn millions by looting the region’s archaeological sites, and then selling its ancient treasures to the highest bidder.
In the last year alone, we have lost some of the Cradle of Civilization’s most iconic masterpieces and sites, many of which had survived for millennia. This threatens us all: at this moment, ISIS is converting these “blood antiquities” into weapons and troops, which are seizing cities, slaughtering soldiers, and beheading civilians.
Join the Federal Bar Association and the Antiquities Coalition to explore this growing threat to our national security and the world’s cultural heritage. A distinguished panel of archaeologists, lawyers, journalists, and military officials will expose this illicit industry, tracing the path of looted masterpieces from the war zones of Mesopotamia to the very heights of the global market. They will also explore how United States and international law is seeking to cut off this key means of terrorist financing, including recent action by the U.S. Congress and United Nations Security Council.

Details here. (photo credit; cross-posted at Diane Marie Amann)

LA Times OpEd Distorts Both Archaeology and the Law

iStock_000003539805SmallAn op-ed on cultural patrimony laws in today’s Los Angeles Times has done a great disservice to the public by misrepresenting the purpose, history, impact, and very definition of such legislation.

In “The Archaeology Paradox: More Laws, Less Treasure,” Adam Wallwork argues that “tight restrictions on export and ownership of artifacts is leaving the world a poorer place.” Mr. Wallwork is not the first to call for a return to “the age of piracy,” in which tomb raiders could plunder archaeological sites with abandon (to borrow a phrase from Thomas Hoving, the Metropolitan Museum’s former director).  But he is the first, at least in a leading publication, to use this argument:

I surveyed 90 countries with one or more archaeological sites on UNESCO‘s World Heritage Site list, and my study shows that in most cases the number of discovered sites diminishes sharply after a country passes a cultural property law. There are 222 archaeological sites listed for those 90 countries. When you look into the history of the sites, you see that all but 21 were discovered before the passage of cultural property laws.

On average in art-rich countries, discoveries that landed on UNESCO’s list diminished by 90% after these laws were passed. To illustrate: Italy has seven archaeological sites on the World Heritage list; five were discovered before its 1909 cultural property law, but only two after.

Many variables may cause a drop-off in archaeological discoveries country by country, but statistically speaking, it’s nearly impossible that the decline shown in the data isn’t also related to the passage of cultural property laws.

This is a textbook case of mistaking correlation for causation. Yes, there are fewer archaeological discoveries in today’s world, especially of major ancient sites. However, there are fewer and fewer blank spaces on the map, too. And in fact, who can say that anyone ever “discovered” the Pyramids at Giza, the Acropolis in Athens, the Great Wall of China, or the vast majority of World Heritage nominations?

Continue reading

Go On! DC Art Law Dinner One Week from Today. Register Here!

Go On! DC Art Law Dinner One Week from Today. Register Here!

The 3rd Annual Cultural Heritage and the Arts Dinner of the American Society of International Law (ASIL) is one week from today in Washington. Tickets cost $55 and include a three-course dinner at Cedar, voted one of DC’s best restaurants by the Washingtonian. The evening will give professionals, students, and members of the public a chance to interact and discuss the field of cultural heritage law. All are welcome. Registration is due by April 4 at the link above.