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

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. 

 

Go On! Third Annual Cultural Heritage and the Arts Law Interest Group Dinner

DCThe Cultural Heritage and the Arts Interest Group (CHAIG) of the American Society of International Law (ASIL) invites you to its third annual dinner, which will take place on April 10 in Washington, DC.

While this event is hosted by CHAIG — and scheduled to correspond with the ASIL Annual Meeting/ILA Biennial Conference — all are welcome to attend. The dinner will give professionals, students, and members of the public a chance to interact and discuss the field of cultural heritage law.

Tickets cost $55 and include a three-course dinner at Cedar, voted one of DC’s best restaurants by the Washingtonian.

Registration is required by April 7, 2014.

For more information, visit the official website.

 

U.S. v. Cambodian Sculpture: 3 Years Later

U.S. v.  Cambodian Sculpture: 3 Years Later

Exactly 3 years ago today, this thousand year old Khmer masterpiece was put on the auction block at Sotheby’s, where it was expected to fetch $3 million. It was pulled from sale when Cambodia demanded its return, citing evidence it had been looted during the country’s bloody civil war. 6 weeks later, the US government filed a civil forfeiture action, seeking to recover and repatriate the statue. This litigation made headlines around the world, and was only resolved 3 months ago, when Sotheby’s settled. To learn more about the case — U.S. v. 10th-century Cambodian Sandstone Sculpture — click the photo and visit the New York Times.

Go On! Study Art Law at the Tulane-Siena Institute

ImageThe Tulane-Siena Institute for International Law, Cultural Heritage, and the Arts is now accepting applications for its 3 week summer course in Tuscany. The program is based in historic Siena, a UNESCO World Heritage Site, and one of Italy’s most beloved tourist destinations. It runs from 3-27 June 2014, during which time students will earn five ABA credits, and have the opportunity to take the following classes:

• The International Legal Framework for the Protection of Art and Cultural Property
• From Black to Gray: The Markets in Stolen and Looted Art and Antiquities
• Beyond the Law: The Ethics of Collectors and Collections
• The Protection of Art in Times of Crisis: From War to Natural Disasters

While designed for law students, the Tulane-Siena Institute welcomes other graduate students and professionals, including practicing lawyers. Indeed attorneys may be eligible to earn six Continuing Legal Education (CLE) credits for each hour of academic credit awarded by the school. The application deadline is May 31, but apply now, as seats are limited.

To learn more and apply, visit the official website here.