Tagged: cultural heritage

Case Selection and Prioritization at the ICC

To maintain transparency of the proceedings of the Prosecutor’s Office, Fatou Bensouda, announced the issuance of a Policy Paper on Case Selection and Prioritisation (in English and French). As mentioned in the policy paper, the resources available to the Office do not allow it to look into every possible alleged case or situation and as such, the OPT must prioritize while continue to carry out its mandate and ensure that the “exercise of [prosecutorial] discretion in all instances is guided by sound, fair, and transparent principles and criteria.”  The purpose of this paper is to set out “considerations which guide the exercise of prosecutorial discretion in the selection and prioritisation of cases for investigation and prosecution.” Aside from the Security Council and State Party referrals, the Prosecutor may initiate investigation proprio motu in accordance with Art. 15.

This paper is intended to be an internal document without giving rise to legal rights, and thus is subject to revisions. It explains the distinction between situations and cases. It highlights the importance of preliminary examinations in deciding whether to open an official investigation. It identifies the “gravity” element, as defined in Art. 17(1)(d) of the Rome Statute, as one of the predominant case selection criteria. It reaffirms the importance of the Court’s cooperation with national jurisdictions in carrying out the principles articulated in the Preamble of the Rome Statute, especially in situations when cases are not selected for investigation or prosecution by the OTP.

Under the complementary criminal justice system, as defined in Art. 17 of the Rome Statute, the Office further states that it will “encourage genuine national proceedings  … and seek to cooperate and provide assistance to States, upon request, with respect to conduct [constituting] crime under national law, such as the illegal exploitation of natural resources, arms trafficking, human trafficking, terrorism, financial crimes, land grabbing or destruction of environment.” This adds to the Office’s commitments one protecting environment by ensuring that the destruction to natural environment does not go unpunished.

Among the many criteria to be considered when selecting cases for investigation by the Office are the already mentioned gravity in order to focus on the “most serious crimes within a given situation that are of concern to the international community as a whole”; the degree of responsibility of alleged perpetrators to ensure that “charges are brought against those persons who appear to be the most responsible for the identified crimes”; and the charges where the Office states to focus on “crimes that have been traditionally under-prosecuted, such as crimes against or affecting children, … rape and other sexual and gender-based crimes, … and attacks against cultural, religious, historical, and other protected objects as well as against humanitarian and peacekeeping personnel.”

ICC Confirms War Crimes Charges for Intentional Destruction of Cultural and Religious Buildings

In a recent decision by the ICC’s Pre-Trial Chamber I on March 24, 2016, the Court confirmed charges for war crimes for intentionally directing attacks against religious and cultural buildings under Art. 8(2)(e)(iv) in the case of the Prosecutor v. Ahmad Al Faqi Al Mahdi. The defendant is alleged to have committed war crimes in Timbuktu, Mali, between around June 30, 2012 through around July 11, 2012. Already in a press release dated September 26, 2015, the ICC Prosecutor Fatou Bensouda stated that that

Intentional attacks against historic monuments and buildings dedicated to religion are grave crimes. […] No longer should such reprehensible conduct go unpunished. […] Such attacks affect humanity as a whole. We must stand up to the destruction and defacing of our common heritage.

The ICC’s Rome Statute Article 8(2)(e)(iv) defines war crimes as

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely any of the following acts: (iv) Intentionally directing attacks against building dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; […].

The Pre-Trial Chamber I found sufficient evidence to establish substantial grounds to believe that Ahmad Al Faqi Al Mahdi committed the crimes with which he is charged and reasoned, in paragraphs 40-44 of its decision on confirmation of charges, that it is not disputed that the targeted buildings/structures were “dedicated to religion and constituted historic monuments because of their origins and significance, and that none of them constituted a military objective” and that these buildings were “specifically identified, chosen, and targeted by the perpetrators as objects of their attack, precisely in light and because of their religious and historical character.” The Court further reasoned that the article’s prohibition “attaches to the attack per se” regardless of whether the building/structure was or was not destroyed and concluded that the “attacks” within the meaning of the statute also include acts “which did not bring about a complete destruction” of the targeted building or structure.

This reasoning is a step in the right direction when a Court of international stature recognizes the importance of cultural, historical, religious, and national heritage as embodied in buildings and structures and articulates that even a partial destruction will not go unpunished. The Court appears to focus on the reasons that the objects were targeted for their religious and historical importance within the surrounding society, the fact that they did not constitute military objectives, and that their destruction (even partial) was considered very serious by the local populations rather than the level or the intended level of destruction. As such, it would reason that even vandalizing, defacing, or otherwise damaging a building or structure might fall within the statute according to the Court’s interpretation of Art. 8(2)(e)(iv).

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