TW: Genocide, War Crimes
Few things embody a people like their great monuments and few blows strike harder at their hearts as does the destruction of those monuments. The gutting of Notre-Dame de Paris, perhaps the icon of France, in an April 2019 fire was a gut punch to that nation and to Francophiles the world over. The inadvertent blaze illuminates the intense pathos evoked in a community by the destruction of its cultural heritage. Although there is good reason for investigating and prosecuting this destruction secondary to the humanitarian horrors of war, heritage destruction is often an integral part of bad actors’ campaigns to subjugate rival peoples. Russia’s invasion of Ukraine and Israel’s assault on Gaza offer two ongoing examples of such heritage destruction.
In an era where we recognize our individual cultures and heritage as a fundamental part of our own personhood, attempts to eliminate physical heritage can be seen as an attempt to eradicate personhood, too. In a widely publicized and controversial December 2023 filing, South Africa cited Israel’s bombing of cultural sites in Gaza as part of its genocide case in the International Court of Justice (“ICJ”). This claim built upon the work of the International Criminal Tribunal for the former Yugoslavia (“ICTY”), which never prosecuted a case solely for the destruction of cultural heritage but routinely used such allegations to buttress a charge of genocide or war crimes. In one such case, Bosnian Serb commanders shelled Bosnia’s National Library in Sarajevo despite its lack of military importance and were later convicted of war crimes by the ICTY. One scholar characterized the work of the ICTY as demonstrating that “attacks [on heritage] are rarely isolated incidents of destruction, but rather fall within a widespread pattern of related conduct that is systematically directed at the eradication of significant markers of the religious and cultural identity of a distinct group.”
Russia has, in attempts to destroy Ukrainian cultural heritage, looted dozens of museums and wrecked “hundreds of museums, libraries and monuments.” Ukraine has taken steps to mitigate this devastation; Kyiv’s Holy Dormition Cathedral was 3D-scanned from top to bottom so that it might be rebuilt in case of airstrikes, and Ukraine’s armed forces now include a special unit to research Russian attacks on Ukrainian heritage. Russia’s attacks are part of its stated goal of the “denazification” of Ukraine; according to two Ukrainian scholars, Russia’s rhetoric “renders Ukraine’s distinct cultural heritage unnecessary and unwelcome, which in turn provokes a large number of crimes against cultural heritage.” In the same vein, Israel’s Minister of Defense said his country was “fighting human animals,” while the deputy speaker of the Knesset vowed to “eras[e] the Gaza Strip from the face of the earth.”
Reasons like ‘denazification’ in Ukraine and ‘human animals’ in Palestine – this discourse mirrors Russia and Israel’s wholesale destruction of their adversaries’ cultural heritage. As the history of the ICTY demonstrates, the demolition of heritage is not divorced from a conflict’s root causes and is in fact part and parcel of them. Such attacks coincide with what South Africa’s legal team has characterized as “the language of systemic dehumanization.” In just three months, Israeli bombing razed Gaza’s Rafah Museum, the 8th century B.C. Anthedon Harbor, the third oldest church in the world, and roughly 200 other heritage sites.
However, the problem of criminal destruction of heritage is not limited to wartime or to far-flung countries. Theft and vandalism have damaged or outright destroyed upwards of 90% of Native archaeological sites in the United States. As with similar attacks on heritage internationally, the issue is not a lack of possible criminal penalties: U.S. law has made intentional damage or destruction of archaeological and historical heritage a misdemeanor dating back to the Antiquities Act of 1906. A conviction for damage or destruction—attempted or actual—of archaeological resources on public or Native lands carries a maximum $10,000 fine and up to a year of prison time. The issue is rather one of limited resources to enforce such penalties. A 2021 probe by the U.S. Government Accountability Office found insufficient funding for safekeeping measures such as fencing and surveillance as well as a lack of information on the condition of protected areas.
The International Criminal Court (“ICC”) in The Hague, which prosecutes individuals on charges of genocide, crimes against humanity, war crimes and crimes of aggression, pursued its first-ever prosecution solely for the war crime of destruction of cultural monuments in 2016. Ahmad al-Faqi al-Mahdi, a high-ranking member of a militarist Islamic group in Mali, was accused of ordering and participating in the raiding and sacking of historic mosques and mudbrick structures in Timbuktu. The raids resulted in roughly 4,000 historic manuscripts being set aflame or otherwise disappeared in the chaos. After admitting guilt and expressing remorse in court, al-Mahdi received a nine-year prison term. Explaining the ICC’s decision to prosecute al-Mahdi, the Chief Prosecutor cited the devastating effect the destruction of heritage has on a people’s identity and called such vandalism a “callous assault on the dignity and identity of entire populations and their religion and historical roots.” While the prosecution of state actors is a far more daunting and complex task than that of an individual and is handled by the ICJ rather than the ICC, al-Mahdi’s case evinces a possibility of success in such cases.
Practitioners should seek to deter the destruction of precious cultural heritage by identifying and aggressively prosecuting violations. As al-Mahdi’s example shows, even in the absence of harm done to persons themselves, there are sufficient criminal penalties under international law to successfully prosecute those who destroy human heritage for that crime alone. Leveraging criminal law in this way can help safeguard vulnerable populations and their shared cultural memory, at home and abroad. As the international community reckons with two brutal and unequal conflicts in Ukraine and Palestine, it would do well to see the destruction of cultural heritage not as a side effect, but as an integral part of their aggressors’ strategy – and to investigate and prosecute that destruction accordingly.
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