Working together with the Antiquities Coalition and Genocide Watch, Blue Shield International presented an Amicus Curiae brief to the International Criminal Court (ICC) in support of the Prosecutor, in The Prosecutor v. Bosco Ntaganda, a case regarding the situation in the Democratic Republic of Congo.
An amicus curiae brief is a brief submitted by an individual or organization that is not a party to a case but who assists a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision on whether to consider an amicus brief lies within the discretion of the court.
The 1998 Rome Statute of the ICC lays out, amongst other things, the definition of war crimes that the ICC can prosecute. Specific to cultural heritage, it prohibits “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments [and] hospitals”. Article 8(2)(b)(ix)in international conflict, and Article 8(2)(e)(iv) in non-international armed conflict.
In this case, the team argue that the definition of “attack” as it applies to this prohibition should not be narrowly interpreted to refer only to the heat of battle, but should recognize the continuous nature and duration of acts of violence carried out in continuing pursuit of an overall military objective and should reflect the full framework of special protections afforded to cultural property and heritage under international law. The brief cites examples of previous interpretations in legal cases, such as the ICC prosecution of Al-Mahdi for the destruction of cultural heritage in Timbuktu, and legal precedent in other international law, including the 1907 Hague Conventions, the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, and the 2003 UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage.
‘To limit protection [of cultural property] … would represent a significant step backward in an otherwise consistent evolution toward greater protection for cultural property in different circumstances, such as the inclusion of conflicts not of an international character in the 1954 Hague Convention…. [Al Mahdi Trial Chamber] found that “the element of ‘direct[ing] an attack’ encompasses any acts of violence against protected objects” and that there is no “distinction as to whether it was carried out in the conduct of hostilities or after the object had fallen under the control of an armed group.” “
The ICC will consider whether to follow the independent expert opinions offered; their decision will contribute to precedent set in how attacks against historic buildings are dealt with under international law in future.
Professor Gerstenblith is a distinguished research professor of law at DePaul University and director of its Center for Art, Museum & Cultural Heritage Law. She is an officer of the U.S. Committee of the Blue Shield, and the Chair of the Blue Shield International Illicit Trafficking Working Group.
The Antiquities Coalition is a non-partisan, not-for-profit NGO that brings together a diverse group of experts dedicated to fighting illicit trafficking of cultural heritage. Working across the sectors of policy, economics, academia, and business, they work to develop innovative solutions to combat cultural racketeering, championing better law and policy, fostering diplomatic cooperation, and advancing proven solutions to fight cultural racketeering with public and private partners worldwide.
Genocide Watch exists to predict, prevent, stop, and punish genocide and other forms of mass murder. They seek to raise awareness and influence public policy concerning potential and actual genocide. Their purpose is to build an international movement to prevent and stop genocide.