About the author(s):
Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.
In May 2012, UNESCO’s Assistant Director-General for Africa travelled to Bamako to meet with government representatives about steps that might be taken to protect Mali’s cultural heritage. Already then the ancient city of Timbuktu was under the control of Islamic rebels who were threatening to destroy the city’s ancient heritage. Together, the government and UNESCO agreed that Mali should finalise its accession to the 1999 Second Protocol of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (Second Protocol). This would enable it to submit requests for the ancient sites of Timbuktu to be given ‘enhanced protection’ under the additional protocol. They also agreed that the government of Mali would request that the two World Heritage sites of Timbuktu and the tomb of Askia be inscribed onto the list of World Heritage in Danger by the World Heritage Committee.
On July 2nd 2012, Ansar Dine confirmed that they had ‘nearly finished’ destroying all mausoleums in Timbuktu, which were not accordance with Sharia law. According to the Ansar Dine spokesperson, Sharia does not allow the building of tombs higher than 15 centimetres high. Armed with pick axes, shovels, guns and landmines, the militants set about destroying the ancient tombs and mosques for which Timbuktu is famous, some of which have been designated world heritage sites by UNESCO. According to news reports, local residents cried as members of Ansar Dine broke down the door of the Sidi Yahya mosque which has been sealed for centuries. Not since the destruction of the buddhas by Taliban fighters at Bamiyan in March 2001 have we seen such wanton and deliberate destruction of ancient religious artifacts.
Against this background, one wonders why still today – 5th July 2012 – the government of Mali has apparently still not acceded to the Second Protocol? On the 3rd July, UNESCO announced that the Malian government had taken measures to accede to the protocol – but why the delay? Accession to the protocol is a straight-forward procedure that is completed by depositing an instrument of accession with the Director-General of UNESCO. Usually there is a three month delay between a State’s accession and the protocol’s entry into force but recognising that in instances of armed conflict the need for accession may be urgent, the Second Protocol provides a special expedited procedure of accession which dispenses with this time gap. In the light of this provision, it seems incomprehensible that Mali has still not acceded to the protocol in the intervening five weeks since the UNESCO visit.
Since they took over swathes of territory in the North of Mali, Ansar Dine rebels have demonstrated a single objective of imposing Sharia law upon country. Wherever they – and the other Islamist groups to which they are allied – have taken control, they have forcefully imposed a strict version of Sharia law upon the local population. Against this background, it seems unlikely that the accesion to a distant protocol in Paris would have stopped them in their mission to destroy the ancient religious sites. That being said, the signing of the Second Protocol by the Malian government back in May would have sent a strong message to the international community that it was doing everything within its power to protect its ancient sites. It would have also sent a strong message to Ansar Dine that its destruction of the shrines and mosques constitute international crimes. But what else can Mali’s accession to the Second Protocol do to protect the shrines and mosques at Timbuktu?
Applicable law:
Mali has already acceded to the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict (the 1954 Convention on the Protection of Cultural Property). The 1954 Convention on the Protection of Cultural Property includes in its definition of cultural property “movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art of history, whether religious or securlar”. There is no doubt that this definition would include the ancient shrines and temples in Timbuktu.
Article 19 of the 1954 Convention on the Protection of Cultural Property makes clear that the Convention applies to armed conflicts not of an international character occurring within the territory of one of the High Contracting Parties. It also makes clear that in the event of a non-international armed conflict, each party will be bound to apply as a minimum the provisions of the Convention which relate to respect for cultural property.
The provisions relating to the ‘respect for cultural property’ are set out in Article 4 of the 1954 Convention. Reading Article 4 together with Article 19, it is clear that all parties to the Malian conflict are under a general obligation to ‘respect cultural property’ by ‘refraining from any use of the property and its immediate surroundings… for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property’. Article 4(2) states that these obligations can only be waived in instances where ‘military necessity’ requires such a waiver. Article 4(3) also makes clear that the parties to a non-international armed conflict shall undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property’.
Article 28 of the 1954 Convention requires High Contracting Parties to take – within the framework of their ordinary criminal jurisdiction – all the necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the present Convention.
Mali is also a party to Additional Protocol II of the 1949 Geneva Conventions which prohibits any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military effort. On the basis that Ansar Dine, its allied Islamic groups and the National Movement for the Liberation of Azawad (MNLA) hold a portion of Northern Mali equivalent to the size of France, there is a strong argument that Additional Protocol II applies to the conflict in the country.
Mali is also a party to the Rome Statute of the International Criminal Court which designates the intentional direction of attacks against buildings dedicated to religion or historical monuments in the context of a non-international conflict a ‘war crime’, provided that such buildings or monuments are not military objectives. On 2 July 2012, the Fatou Bensouda, the Prosecutor of the International Criminal Court made a statement to AFP that the acts of Ansar Dine were war crimes. She said: “Deliberate attacks against undefended civilian buildings which are not military objectives is a war crime. This includes attacks against historical monuments, as well as destruction of buildings dedicated to religion. My message to those involved in these criminal acts is clear ‘Stop the destruction of the religious buildings now. This is a war crime which my office has authority to fully investigate”.
Together these provisions leave no doubt that the acts of Ansar Dine constitute both a serious violation of international humanitarian law and a war crime. What extra protection for the shrines and mosques at Timbuktu might have been achieved if Mali had also acceded to the Second Protocol of the 1954 Convention on Cultural Property?
What extra protection for the shrines and mosques at Timbuktu might have been achieved if Mali had also acceded to the second additional protocol of the 1954 Convention on Cultural Property?
One of the advantages of the Second Protocol is that it significantly strengthens the 1954 Convention’s provisions on criminal sanctions. Article 28 of the 1954 Convention requires States “to take, within the framework of their ordinary jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the [….] Convention”. The fact that Article 28 does not list the violations that require criminal sanction has detracted from the strength and utility of the provision.
Article 15 of the Additional Protocol seeks to remedy this weakness by explicitly detailing the serious violations of the 1954 Convention and Protocol as follows:-
(a) making cultural property under enhanced protection the object of attack;
(b) using cultural property under enhanced protection or its immediate surroundings in support of military action;
(c) extensive destruction or appropriation of cultural property protected under the 1954 Convention and the 2nd Protocol;
(d) making cultural property protected under the 1954 Convention and the 2nd Protocol the object of attack; and
(e) theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention.
The Second Protocol also places a strong obligation upon all States parties to adopt whatever legislative measures are necessary to establish jurisdiction over the offences in Article 15. Article 16, 17 and 18 of the Additional Protocol place an obligation on the State Parties to prosecute or extradite individuals suspected of the offences listed at (a)-(c) above, irrespective of their nationality and no matter which State the offence has been committed.
By explicitly setting out this regime of universal jurisdiction for the most serious offences against cultural property, the Second Protocol creates an important secondary level of protection which is additional to that of the Rome Statute.
But it is noteworthy that the prohibited acts listed in Article 15 of the Second Protocol are listed as violations not only of the Second Protocol, but also of the Convention. This makes clear that the Second Protocol should not be seen as creating the criminal offences listed in Article 15, as much as detailing offences that already exist as a result of the 1954 Convention. This is important because it means that the fact that Mali has not yet signed the Second Protocol will not stop neighbouring States who have signed the Second Protocol prosecuting members of Ansar Dine who have committed the serious violations of the Convention listed in Article 15(a)-(c).
Mali’s apparently impending accession to the second additional protocol to the 1954 Convention is clearly too late to stop the acts of destruction which were committed by Ansar Dine last weekend. Despite this, its accession to the protocol is still imperative and should be completed as soon as possible. In particular, it will also confer protection on the shrines and mosques of Timbuktu in the event of future military action taking place in their vicinity.
Since the MNLA and Islamic militants took over the north of the country in March/ April 2012, the Malian government has been slow to launch a military response. It is now reported however that a 3,300 strong ECOWAS force is ready to enter the country and assist the government re-take control of thenorthern provinces. If this happens, it can be expected that the town of Timbuktu will become a centre of major fighting between the government/ECOWAS forces and the Islamists that currently control it.
A major advantage of the Second Protocol to the 1954 Convention over the Convention itself is that it contains much clearer provisions on the circumstances in which cultural property can be made the subject of attack. The 1954 Convention states simply that the protection of cultural property can be waived “where military necessity imperatively requires such a waiver”. The generality and vague permissiveness of this provision has been perceived to be a serious weakness of the Convention (Jean Marie Henckaerts, IRRC, No. 835).
The Second Protocol to the 1954 Convention seeks to remedy this vagueness by setting out detailed rules on the circumstances in which the protection of cultural property can be waived. It achieves this by clarifying that an act of hostility can only be directed against cultural property in circumstances of “imperative military necessity” which it states can only exist, when and for as long as, (i) the cultural property has, by its function, been made into a military objective; and (ii) there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective. It also specifies that no party can use cultural property in a manner which may expose it to destruction or damage on the basis of ‘imperative military necessity’ unless there is no other way in which a similar military advantage can be gained.
The Protocol also specifies that any decision to invoke imperative military necessity to (a) either direct an attack against cultural property or (b) use cultural property in such a way that it might become a military objective, should wherever possible, only be taken by an officer commanding a force the equivalent of a battalion in size or larger. The Protocol also specifies that wherever possible an effective advance warning should be given.
The Second Protocol also contains detailed obligations relating to precautions in attack that do not exist in the 1954 Convention. Article 7 of the Second Protocol requires parties to an armed conflict to do everything feasible to verify that the objectives to be attacked are not cultural property and take all feasible precautions in the choice of ‘means and methods’ of attack with a view to avoiding, and in any event minimizing, incidental damage to cultural property protected by the Convention.
The parties are also obliged to refrain from launching an attack which is expected to cause incidental damage to cultural property which would be excessive in relation to the concrete and direct military advantage anticipated and to cancel or suspend an attack if it becomes clear that the objective is cultural property which is protected by the Convention or the attack would cause incidental damage to cultural property protected by the Convention which would be excessive in relation to the concrete and direct military advantage anticipated. The Second Protocol also requires the parties to the conflict to avoid locating military objectives near cultural property.
Enhanced protection regime
Another distinct advantage of the Second Protocol is that it introduces an ‘enhanced protection’ regime for ‘cultural heritage of the greatest importance for humanity’. The press release that UNESCO released after its meeting with the Malian government in May stated that UNESCO had urged the government ofMalito apply for its ancient sites to be covered by this ‘enhanced protection’.
With regard to the destruction of the tombs and shrines of Timbuktu, it would not have made any differences to the severity of the criminal sanction available if the sites of Timbuktu had been accorded ‘enhanced protection’ or not. The fact that the government of Mali has not yet signed the Second Protocol does not detract from the fact that the acts of Ansar Dine are crimes which can be prosecuted in third States which have signed the Second Protocol. Article 15(1)(c) of the second Additional Protocol also makes clear that ‘extensive destruction’ of any cultural property (i.e. not just cultural property which has been accorded ‘enhanced protection’) is a serious violation of the Convention that is subject to the aut dedere aut judicare principle by third States (see also Articles 16, 17 and 18).
However, the real benefit of a site of cultural heritage being granted ‘enhanced protection’ is that it confers it with extra protection from military attack. It does this by making clear that the holder of cultural property has no right – in any circumstances – to use the property in such a way as to make it a military objective. It also specifies that an attack on cultural property or the use of cultural property (or its immediate surroundings) in such a manner to make it a military objective constitutes a serious violation of the Convention and the Second Protocol that can be prosecuted by third States. The Second Protocol does not prevent a party attacking cultural property with ‘enhanced protection’ status in instances where it has become a military objective by the other party’s use.
In short, there are many important provisions in the Second Protocol which may offer protection to the damaged religious sites at Timbuktu and the other religious tombs and mosques throughout the country. Mali should not hesitate further in its accession to the Second Protocol and when it enters into force, should immediately set out seeking ‘enhanced protection’ for the sites of ‘the greatest importance for humanity’.