ICC: The Office of the Prosecutor publishes Draft Policy on Cultural Heritage for consultation

Heritage Stewardship

ICC: The Office of the Prosecutor publishes Draft Policy on Cultural Heritage for consultation
Press Release : 23 March 2021
Today, 23 March 2021, the Office of the Prosecutor of the International Criminal Court (“ICC” or the “Court”), published a draft Policy on Cultural Heritage for consultation and comments by States Parties to the Rome Statute, civil society, and the wider community of stakeholders.

The development of this Policy is in line with the Office of the Prosecutor’s Strategic Plan to pay particular attention to crimes against and affecting cultural heritage and the commitment of the Office to systematically investigate and prosecute such crimes. “Cultural heritage is the embodiment of the continuity of the human story, a celebration of identity, our commonality and the richness of our diversity. We all have a duty to protect cultural heritage,” stated Prosecutor Fatou Bensouda in contextualising this policy initiative. The draft Policy on Cultural Heritage is the manifestation of these commitments within the framework of the Rome Statute.

The Office therefore welcomes and encourages comments on the draft Policy. Comments can be sent to: OTPLegalAdvisorySection@icc-cpi.int, by Friday, 16 April 2021, midnight (CET). All input received by this deadline will be carefully considered in the internal review and revision process.

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Draft Policy on Cultural Heritage
The Office of the Prosecutor – International Criminal Court (ICC)
22 March 2021 :: 43 pages
PDF: https://www.icc-cpi.int/itemsDocuments/2021-03-22-otp-draft-policy-cultural-heritage-eng.pdf
Executive Summary [excerpts]
2. The concern for the protection of cultural heritage expressed in these and other international instruments has proven well-founded: crimes against and affecting cultural heritage are a pervasive feature of the atrocities within the Court’s jurisdiction. Wilful attacks on cultural heritage constitute a centuries-old practice that remains a feature of modern conflict. Recent examples include: the targeting of historical monuments in Syria and Iraq, in particular those with strong symbolic and inter-religious meaning; attacks directed against Mausoleums of saints and Mosques of Timbuktu in Mali, and the destruction at the alleged hands of the Da’esh (ISIS) of two cultural sites on the United Nations Educational, Scientific and Cultural Organization (“UNESCO”)’s tentative list (the Assyrian capital cities of Nimrud and Nineveh), drew global attention to cultural heritage crimes.7 Additionally, the destruction of the ancient Roman city of Palmyra, and its surrounding areas bore all hallmarks of repugnancy to the human conscience…

5. The Office seeks to address alleged crimes against or affecting cultural heritage in all stages of its work: preliminary examination, investigation, prosecution, and—when so invited—reparations. Wherever evidence permits, the Office will seek to include charges for crimes directed at cultural heritage, and will seek also to pursue and highlight evidence in situations affecting cultural heritage…

15. Specifically in this context, the Office broadly construes the term ‘cultural heritage’, to extend beyond cultural property and incorporate both a products and processes. It denotes a community’s sense of identity and belonging, and involves cultural resources, in both their tangible and intangible forms. Cultural heritage refers not only to physical forms of heritage, such as material objects and artefacts (including digital artefacts), but also to the practices and attributes of a group or society, that are inherited from past generations, maintained in the present, and bestowed upon future generations for benefit and continuity.

16. In particular, therefore, the Office will understand cultural heritage potentially to include monuments (such as architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings, and other combinations of features of cultural value); buildings or groups of buildings (which, because of their architecture, homogeneity or place in the landscape, are of cultural value); sites (human works), moveable objects (such as works of art, sculpture, collections, or other moveable property of cultural value), intangible cultural heritage (such as the practices, representations, expressions, knowledge, and skills that communities, groups, and in some cases individuals, recognise as part of their cultural heritage, together with the instruments, objects, artefacts, and cultural spaces associated therewith); and natural heritage (natural sites of cultural value, including certain landscapes or physical, biological, or geological formations).

17. The Office further views cultural heritage as the bedrock of cultural identity and endorses the understanding that crimes committed against cultural heritage constitute, first and foremost, an attack on a particular group’s identity and practices, but in addition, an attack on an essential interest of all humankind and the entire international community.8 Crimes against or affecting cultural heritage often touch upon the very notion of what it means to be human, sometimes eroding entire swaths of human history, ingenuity, and artistic creation.

18…The Office emphasises that it can only address harm to cultural heritage insofar as it constitutes or is relevant to crimes within the Court’s jurisdiction, notwithstanding other existing international obligations related to cultural heritage.

Objectives of the Policy
19. This Policy is intended to enhance the protection of cultural heritage by the Office, both through its publication and implementation in the Office’s activities, and, as appropriate, by raising awareness on these issues with external partners, and by fully exercising its centrality to the community of practice dedicated to the protection of cultural heritage. Furthermore, the Office stresses that the Court’s activities concerning cultural heritage must be exercised in a manner that comports with international law, human rights law and which is in conformity with article 21, including paragraph (3), of the Statute specifically.

20. The main objectives of this Policy are to:
(i) provide clarity and guidance to OTP staff in the application and interpretation of the Statute and the Rules of Procedure and Evidence (“RPE” or “Rules”), at all stages of the Office’s work, in order to effectively investigate and prosecute crimes against or affecting cultural heritage;
(ii) help strengthen the protection and the prevention of harm to cultural heritage;
(iii) promote the work of, and to support partners, including States, with the view to creating networks and synergies to coordinate efforts to protect cultural heritage, and to prevent and prosecute related crimes globally;
(iv) contribute, through its implementation, to the ongoing development of international jurisprudence regarding crimes against or affecting cultural heritage; and
(v) raise awareness regarding the importance of the protection of cultural heritage, including to support genuine national proceedings….