Beyond War Crimes

Anne-Marie Carstens

Until recently, the two apex international tribunals—the International Court of Justice (“ICJ”) and the International Criminal Court (“ICC”)— provided only limited avenues to redress intentional attacks on cultural heritage during armed conflicts. The most unambiguous avenue to date allows for prosecuting perpetrators, commanders, and superiors in the ICC for war crimes, an umbrella term that covers a wide gamut of offenses tied to serious violations of the longstanding law of armed conflict. War crimes as the principal means of redress for cultural heritage-based violations developed in the absence of alternative avenues outside of the international criminal justice framework. The principal war crimes that respond to the destruction or conversion of cultural property, however, are property-centric and do not refer to harmed individuals or groups against whom atrocities are committed. This presumptive shoehorning of cultural heritage destruction, damage, and depredations into the war crimes category therefore hardens an artificial divide between the human-based and property-based offenses that often combine in the atrocities narrative.

Recent cases in both apex tribunals have shifted the paradigm to widen opportunities for seeking redress for cultural property destruction and spoliation. In addition to critiquing the war crimes-based approach, this Article contends that these nascent pathways help to cure a principal shortcoming of the war crimes-based approach: They connect violations involving cultural property to corresponding acts against people. The analysis also evaluates whether these new pathways for seeking redress—or even prevention—will fulfill their early promise and mark a lasting change, without compromising or eclipsing the international community’s unflinching and steadfast priority for protecting people from atrocities.