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The ICC Office of the Prosecutor's Draft Policy on Cultural Heritage: Analysis and Comment

Fobbe, Sean; Koush, Alesia


Executive Summary

On 23 March 2021 the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) published a Draft Policy on Cultural Heritage dated 22 March 2021. Following its publication the OTP opened a round of external consultations and requested that comments on the policy be submitted by 16 April 2021.

We find the Draft Policy on Cultural Heritage to be, in general, an excellent document, both well-crafted in a technical legal sense and detailing a strong and reasonable strategy to prosecute crimes against cultural heritage.

In Section 2 we highlight several positive aspects of the Draft Policy on Cultural Heritage. The OTP’s cooperation with civil society, as expressed through an expert consultation in 2017, the ability to comment on the Draft Policy in the present external consultation and the strategic mention of civil society are most welcome. The explicit link between cultural heritage and human rights will be a boon to the OTP and analysts of international criminal law.

We commend that the OTP acknowledges that groups and the international community can be victims of crimes against cultural heritage. One of the Draft Policy’s greatest strengths is its holistic definition of cultural heritage, which transcends the traditional focus on physical property and is better able to capture the complexity of culture. We note with appreciation the OTP’s intent to consider the ‘broadest scope of criminality’ and its willingness to conduct a cultural analysis of all of the Rome Statute’s provisions. We support the OTP’s interpretation that war crimes do not include a ‘great importance’ criterion. We strongly encourage the OTP’s consideration of crimes against cultural heritage as possible evidence of the special intent to commit genocide.

In Section 3 we discuss several issues that we feel require further attention by the OTP. We greatly appreciate the OTP’s efforts to add linked citations to open access materials and recommend that it consider citing scholarship with Digital Object Identifiers (DOI). The ‘fundamental rights’ basis of the crime of persecution should be understood to include all human rights, if grave violations have occurred, in line with the jurisprudence of the ICTY.

We provide some additional context on heritage crimes and recommend that the OTP also investigate the illicit trade in antiquities, either as an accessory form of pillage or as a crime against humanity in its own right, with the Islamic State as an example. To assist in this effort we discuss the application of forensic traceable liquids. We further recommend consideration of jurisdiction based on the active personality principle to prosecute transnational actors. The listing system of the 1954 Hague Convention and its Protocols may prove useful in analyzing aggravating factors and command responsibility. The indictment practice of the ICTY is collected and presented for use by the OTP.

Based on Sections 2 and 3 we provide a number of recommendations in Section 4 and conclude with ideas for further reading in Section 5.


About RASHID International

RASHID International is a worldwide network of archaeologists and cultural heritage experts dedicated to safeguarding and promoting the cultural heritage of Iraq, ancient Mesopotamia. To assist our Iraqi colleagues, we collect and share information, research and expert knowledge, work to raise public awareness, and both develop and execute strategies to protect heritage sites and other cultural property through international cooperation, advocacy and technical assistance.

RASHID International is registered as a non-profit organisation in Germany and enjoys charitable tax-exempt status under German law. We are an organisation in special consultative status with the United Nations Economic and Social Council since 2019. Learn more about our work at www.rashid-international.org

All of our research is available open access here: https://zenodo.org/communities/rashid-international/


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