Tagged: non-international armed conflict

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).

Related Readings:

International Criminal Court Welcomes Palestine as a State Party

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

To follow up on an earlier post, on April 1, 2015 at a ceremony at The Hague the representatives of the International Criminal Court (ICC) welcomed Palestine as the 123rd Party to the ICC’s Rome Statute. The ICC representatives expressed hope that Palestine’s acceptance of the Rome Statute will contribute to the Statute’s goal of ending impunity for grave crimes of an international dimension.

Mindful of hotly contested issues relating to the Palestinian territory of Gaza, from which Hamas has launched attacks against Israel and in which Israel has launched attacks against Hamas, Judge Kuniko Ozaki, delivering Welcoming Ceremony remarks in the capacity of Acting President of the ICC, reminded Palestine that by becoming a State Party, it accepted the obligations (set out in Part 9 of the Rome Statute) requiring a State Party to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

The ICC Office of the Prosecutor (OTP) recently addressed issues relating to Gaza. In May 2013, the OTP opened a preliminary examination into an incident on May 31, 2010 relating to Israel’s naval blockade of Gaza. At issue was whether the OTP had sufficient basis to open a formal investigation regarding war crimes allegedly committed by members of the Israeli Defense Force (IDF) when they boarded registered vessels of ICC State Parties that were attempting to defy the blockade. After conducting a preliminary examination for approximately 17 months, on November 6, 2014 the OTP issued a report pursuant to Article 53(1) of the Rome Statute, in which it thoroughly reviewed the matter and decided not to open a formal investigation.

The OTP’s report concludes that Israel’s stated purpose for the blockade was to interdict arms shipments that it considered would be used by Hamas for attacks against Israel. In May 2010, groups opposing the blockade organized a flotilla to bring humanitarian aid to the Palestinians and also to protest and to encourage international condemnation of the blockade. Israel had offered to allow the humanitarian aid to be delivered to Palestine by other means. On May 31, 2010, IDF personnel boarded some of the vessels after providing a warning. Several passengers on board one of the vessels violently resisted the IDF, but this resistance was not of such a degree as to disqualify the resisting passengers’ status as protected persons under the Geneva Conventions. While the information available did not support several potential charges, there was a reasonable basis to believe that the IDF willfully killed ten of the 500+ passengers, caused serious injury to several others, and committed outrages upon personal dignity of others. Nevertheless, the scale of the crimes involved, given the surrounding circumstances, did not meet the gravity requirement of Articles 17(1)(d) and 53(1)(d) of the Rome Statute.

Further, Rome Statute Article 8, defining war crimes, provides somewhat different rules depending on whether the acts in question were committed in the context of an international or non-international armed conflict. Addressing this issue, the OTP report concluded that “the prevalent view within the international community is that Israel remains an occupying power in Gaza” because of several controlling measures taken by Israel – despite Israel’s withdrawal of its forces from Gaza and the dismantling of Israeli settlements there in 2005. Citing basic principles of the international law of occupation, the OTP concluded that because Israel retains the capability of exercising effective control over Gaza, hostilities between Israel and Hamas implicated an international armed conflict.

Thus, if Israel is in fact in effective control of Gaza, ICC investigation of Gaza-related violence will likely be hampered because Israel, not being a Party to the ICC Statute, has no obligation to comply with ICC investigations. On the other hand, Palestine can find support in the international law of occupation, referenced by the OTP, stating that occupation of a State over part of the territory of another State does not displace the sovereignty of the latter over the occupied territory.