The ICC OTP’s Draft Policy on Cultural Heritage: think boldly, worry about specifics later

The Office applies a holistic approach to the consideration of crimes against or affecting cultural heritage at all stages of its operations. They may constitute crimes under the Statute or otherwise be relevant, for example, in the assessment of gravity, which takes into account the scale, nature, manner of commission and impact of the crimes; in the assessment of the contextual elements of the crimes; as evidence in establishing the intent or motivation of the perpetrators; and during sentencing. The Office aims at considering the broadest scope of criminality, taking guidance from both the specific and general provisions of the Statute while recalling the principle of legality requirements. This will enable it to present the multifaceted nature and impact of crimes against or affecting criminal heritage, both tangible and intangible. (para. 30)

A policy, like a compass, helps set the course of direction. Unlike a GPS navigation system, however, a compass offers no guidance on available routes in reaching a desired destination. Neither guarantee an arrival.

So just how much stock should be given to a policy? It depends. As they say, the proof of the pudding is in the eating. Meaning, what is the genuine level of commitment in pursuing the policy, and even if the level of commitment is high, how implementable is it? Can and will the goods be delivered?

As policies go, the International Criminal Court (ICC) Office of the Prosecutor’s (OTP) Draft Policy on Cultural Heritage is well drafted. It reads well and you feel good reading it. Until you carefully scrutinize the content and wonder pragmatically about its implementation.

This draft policy is ambitious, perhaps overly so. Embracing an infectious Quixotism that is likely to add more bells and whistles recommended by some who have offered observations (kudos to the OTP for seeking comments), as opposed to trimming it to a more manageable policy (start with defining terms more concretely), dare I forecast rain on the parade.

Acknowledging that “none of the crimes explicitly refer to the destruction of cultural heritage or cultural property,” the OTP explains that it sees several crimes that can be applied while also respecting legality (if past is prologue, Prof. William Schabas1William Schabas, Al Mahdi Has Been Convicted of a Crime He Did Not Commit, 49 CASE WESTERN RESERVE J. INT’L L. 75 (2017); see also, Peta-Louise Bagott, How to Solve a Problem like Al Mahdi: Proposal for a New Crime of ‘Attacks against Cultural Heritage’, in INTERSECTIONS OF LAW AND CULTURE AT THE CRIMINAL COURT (Julie Fraser & Brianne McGonigle Leyh eds. 2020). may beg to differ). The OTP promises that when charging it will make a concerted effort to add anything and everything it can think of that directly or indirectly touches on cultural heritage as viewed by the OTP – “a broad concept which incorporates both tangible and intangible expressions of human life.” In doing so, the OTP “will seek to ensure that the necessary institutional capacity to conduct preliminary examinations, investigations and prosecutions of crimes against or affecting cultural heritage more effectively.”

These promises seem vaguely familiar. I am thinking of the promises made concerning environmental crimes, which, incidentally, was in the 2016 Policy Paper on Case Selection, where, yes, the OTP committed to “pay particular attention to attacks against cultural, religious, historical and other protected objects,” which, self-evidently, encompasses in just about every way the OTP’s view on what constitutes cultural heritage.

Theoretically, the OTP should already be doing all it claims it will do in this draft policy. So, is this policy necessary, and if so, what has taken the OTP so long to figure out that it needs a policy? Will having this policy speed up the time frame to conduct preliminary examinations (five, or six, or more years seems par for the course) just to decide whether to investigate? No, unless the in-coming Prosecutor can move things along quicker. Doubtful, but not for lack of will.

The glacial pace is more due to a lack of resources than any ingrained laid-back attitude or a disinclination to act with alacrity. And politics. Invariably, politics (institutional and personal), influence the Prosecutor’s selection and prioritization of situations/cases. Perplexedly, I have noted on several occasions, the OTP has not been shy in reaching for unripe, high, unreachable fruit, when ripe low-hanging ones are within its grasp for the plucking. Put differently, should the OTP be focused on its main course of business, or should it take an a la carte approach, looking for opportunities to make its mark on international criminal law and, as it seems, expand at every opportunity the jurisdictional reach of the ICC?

As the post is being written, there are plenty of righteous preliminary examinations that the OTP claims to be actively engaged in that have been languishing for years and will never see daylight as far as investigations go, let alone charges being issued.

Many of the observations submitted to the OTP on the draft policy offer sound and plentiful grist for the mill. So, I will refrain from going into specifics. Anyone interested should read the draft policy and then go online to have a go at the rich observations offered by NGOs, scholars, and practitioners. I mainly wish to share my impressions on reading this draft policy as reflexively I reflected on the track record of the ICC, its challenges, its limitations, its acquittals, its glacial pace, its lack of efficiency, and its budgetary constraints due, in part, to its failure to live up to its potential and the States Parties’ expectations.

So, here goes it.

I am impressed with the ambitiousness of the OTP. It is hard to think of a case that is likely to come before any of the international(ized) criminal tribunals and courts where some aspect of cultural heritage is not involved. Spelling out its policy does highlight the importance of incorporating the impact on cultural heritage inherent in certain crimes under certain circumstances, though as I’ve noted, the OTP does not need a policy to do so.

I fully support the preservation of cultural heritage and cultural property, finding it repugnant when there are senseless attacks on cultural monuments or when attacks impact the cultural fabric of a group – even when the attack is not per se directed at the “cultural heritage” but merely impacts it. But why is it that when I read and re-read this draft policy, I get this uneasy feeling – as if something is not quite right with this picture?

Perhaps I am being myopic by fixating on such pesky details as pragmatism and implementation. But as I read the draft policy, questions were jumping off the pages, such as: will the OTP deliver on this? Will the OTP be able to handle the serious cases where human lives were lost during the commission of significant crimes, and be able to make the extra efforts it claims it will make in pursing case where cultural heritage or culture property is the focus? How will it do all that it claims it will do, when thus far it has proved to be functioning well below its potential – so much so that its credibility has sunk below the low-water mark?

Reading the draft policy reminded me of some of the development project proposals I have come across over the years, where undeliverable promises are made wrapped in eloquent language intended to evoke irrational exuberance (and loosen the purse strings), when anyone who knows anything about the subject of the project, the working environment, the challenges, and so on, would see right through it for what it is: an alluring subterfuge. No, I am not suggesting that the draft policy is a subterfuge, but it sure reads like one – at least when all variables are considered.

My advice to the OTP is to have a re-think and consider recirculating the next draft. And while I am at it, my pointers for whatever they’re worth:

  • Be more concrete.
  • Define terms.
  • Spell out how with the OTP’s current budgetary constraints and staff shortages it will implement the policy.
  • Draft a few hypothetical case studies and invite comments.

Considering that there were dozens of observations submitted on the draft policy, one thing is for sure – there is no shortage of enthusiasm to assist the OTP in designing a comprehensive yet implementable policy on cultural heritage. Count me in.

Footnotes[+]

Share

Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

Leave a Reply

Your email address will not be published. Required fields are marked *