Anne Herzberg and Joshua Kern submit comments on the ICC Office of the Prosecutor’s Draft Policy on Cultural Heritage

29 April 2021

On 15 April 2021, Anne Herzberg and Joshua Kern submitted comments to the ICC’s Office of the Prosecutor’s (OTP) as part of the consultation process concerning its Draft Policy on Cultural Heritage (the “Draft Policy”). The comments were submitted further to an invitation which extended by the OTP on 23 March 2021.

Welcome transparency

The comments welcomed the spirit of transparency communicated by the OTP’s invitation, and applauded the fact that the Draft Policy provides a strong articulation of how the OTP can enhance protection for cultural heritage and hold those who are criminally responsible for crimes affecting cultural heritage accountable. The comments identified two areas of concern. First, they argued that a more pluralistic policy would be desirable. Second, they suggested that the principle of legality should inform the OTP’s approach in its assessments of applicable legal standards.

A more pluralistic policy would be desirable

With respect to the development of a pluralistic policy, the comments recalled that the attempt to deny historical roots and cultural diversity can fuel and exacerbate conflict and hamper post-conflict national reconciliation. The comments therefore suggested that, as the OTP is the prosecuting organ of an international criminal court, it should adopt an approach which avoids simple adoption or cherry picking of a party’s narrative concerning cultural heritage. This approach would be consistent with the OTP’s function (as an independent, prosecuting, organ of an international court prosecuting international crimes and looking to safeguard cultural heritage), and would safeguard it from exercising jurisdiction in such a way that may ultimately harm cultural heritage, or otherwise further conflict.

Clarity on methodology

The comments noted the absence of a methodology with respect to consideration of issues highlighted in the Draft Policy, and in particular the OTP’s own assessments of the concern of the “international community.” Greater transparency and clarity as to the criteria which are applied when such assessments are made would be desirable. This would help facilitate the growth of mutual trust between the OTP and its stakeholders. In its consultations, engagement, and collaboration with stakeholders, the OTP should seek out a diverse and pluralistic mix of scholars, NGOs, media, and other stakeholders. Without a clear methodology for their engagement, the OTP will inevitably be exposed to the risk of politicisation, even if this risk is inadvertent.

The comments therefore recommended that the OTP should produce a set of transparent guidelines for the selection of individuals and organisations from whom it receives information relating to cultural heritage in affected situations and cases to ensure that cultural sensitivities are honoured. The OTP should publicly disclose the experts, consultants, stakeholders, and NGOs that it consults during the investigatory phase(s). When relying on material originating from UNESCO or other political bodies, for example, it bears recalling the OTP’s distinct function as an independent prosecuting organ of an international criminal court, exercising judicial functions. The comments recommended that the OTP therefore develop guidelines for selecting and engaging with stakeholders to ensure cultural sensitivity; and that it take the political context into account when assessing material or instruments issued by UNESCO, UN organs, UN bodies, or other specialized agencies.

The principle of legality

With respect to the requirements of the Rome Statute and the principle of legality, the comments noted that several of the legal standards suggested in the Draft Policy either do not reflect ICC case law or assert propositions which are inconsistent with both the Court’s jurisprudence and customary international law. The OTP’s interpretation of “attacks” on cultural property was not in keeping with the Appeals Chamber’s Judgment in Ntaganda of 30 March 2021 which, it should be noted, post-dated publication of the Draft Policy and its tender for consultation on 23 March 2021. For the sake of both the consistency of the ICC’s own internal legal order, as well as to safeguard against the fragmentation of international law, the Draft Policy should be amended to as to reflect (at a minimum) the opinions and ratio of the Appeals Chamber in Ntaganda, even if they conflict with the position the OTP has adopted in earlier cases.

Avoiding Fragmentation

To avoid the risk of fragmentation, the OTP should reconsider its reliance on the value of the Al Mahdi precedent in support of a broader interpretation of ‘attacks’ on cultural property. Not only do the Appeals Chamber’s Judgment and the individual opinions expressed in Ntaganda show that the legal position is more complex, but the OTP’s reliance on the precedent established by a guilty plea also represents the potential adoption of circular reasoning. Simply because the (largely uncontested) Al Mahdi case may have established a precedent does not mean that it should be relied upon uncritically by the OTP going forward. The practice of establishing precedent through judgments resulting from guilty pleas was, as a policy matter, questionable. The policy’s analysis of the elements of crimes should strictly construe the applicable law in a manner that is consistent with the principle of legality. An excessively narrow view of the principle of military necessity risked increasing danger to both civilians and cultural property through abusive shielding practices. To that end, the comments urged the OTP to address the use of cultural property for military purposes or efforts, including shielding, in its policy, and where applicable.

The comments are available here.

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