Restorative Justice of Nazi Looting, Intangible Cultural Heritage Rights, and Plundering of Cultural Heritage Sites: My conversation with Nicoletta M in Avant-Gardes Dialogues  

Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated. (Art. 46)


Pillage is formally forbidden. (Art. 47)


1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land

 

K.  To make restitution of art and cultural property that remains in state-owned collections and private hands possible, countries should consider making exceptions to barriers such as regulations against deaccessioning from state collections, statutes of limitations, market overt, usucapion (mode of acquiring title to property by uninterrupted possession of it for a definite period), good faith acquisition, and export bans.


Best Practices for the Washington Conference Principles on Nazi Confiscated Art

In early 1997, the Meili affair exposed pervasive cover-up schemes by Swiss banks to conceal the laundering of Nazi-looted assets by destroying documents of confiscated and looted Holocaust-era assets. This scandal was emblematic of the lack of political will and commitment to the 20 January 1943 London Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control, which called on neutral countries not to trade in property (art included) looted by the Nazis. Seemingly, the Meili affair was the tripwire for Washington Conference On Holocaust-Era Assets that endorsed the Washington Conference Principles on Nazi Confiscated Art. Credit, however, must go to a three-day symposium in 1995. Commemorating the 50th anniversary of the end of WWII, the Bard Graduate Center for Studies in the Decorative Arts hosted a symposium organized by Elizabeth Simpson to discuss the Nazi plunder of art work, cultural property, and historic sites. Simpson, an archaeologist and professor at Bard, would exquisitely write on the substance of the symposium in The Spoils of War: World War II and Its Aftermath: The Loss, Reappearance and Recovery of Cultural Property – a highly recommended read. Continue reading “Restorative Justice of Nazi Looting, Intangible Cultural Heritage Rights, and Plundering of Cultural Heritage Sites: My conversation with Nicoletta M in Avant-Gardes Dialogues  “

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THE IILAT ETHICS SYMPOSIUM AT THE ICC: Sharing views on professional responsibilities and working through ethical dilemmas

[I]f we have to find our way over difficult seas and under murky skies without a compass or chronometer, we need not on that account allow the ship to drive at random.


A. Balfour, The Foundations of Belief, Being Notes Introductory to the Study of Theology (Longman, Green & Co., New York, 1902), p. 244.

You need to know what you don’t know, to know what you need to know.


Michael G. Karnavas, Training Aphorism

On 13-14 March 2024, I was privileged to have been invited as a panelist to an ethics symposium held at the International Criminal Court (ICC), organized by the Institute for International Legal and Advocacy Training (IILAT).

Founded in 2013 in The Hague, IILAT’s mission over the years has been “to address the growing need for courtroom advocacy training at international courts and tribunals.” Training, which might I add, is practical, relevant, and qualitatively excellent – and badly needed, considering the importance of adversarial skills required in virtually all international(ized) criminal tribunals and courts (ICTs). As for this symposium, I found it exceptionally useful and insightful. Continue reading “THE IILAT ETHICS SYMPOSIUM AT THE ICC: Sharing views on professional responsibilities and working through ethical dilemmas”

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THE DELAY IN PRONOUNCING THE AL-HASSAN TRIAL JUDGMENT – Inquiring minds want to know more!!!

Justice delayed is justice denied.


William E. Gladstone


Sunlight is said to be the best of disinfectants.


Louis Brandeis


The written decision under Article 74 of the Statute shall be delivered within 10 months from the date the closing statements end.


ICC Chambers Practice Manual, Seventh Edition (2023), para. 88.

On 6 December 2023, Trial Chamber X of the International Criminal Court (ICC) issued an order scheduling the pronouncement of its trial judgment in the Al Hassan case for 14:00 on Thursday, 18 January 2024 — over a month ago. Closing arguments had ended on 25 May 2023. With plenty of recesses during the trial proceedings, 10 months to render a decision (as required by the Chambers Practice Manual) is more than reasonable – assuming the Chamber is organized and efficient. Not being rocket science, and with plenty of best practices developed over the decades since the first ad hoc and successive international(ized) criminal tribunals and courts (ICTs) were established, drafting a judgment within this period should be no challenge. Continue reading “THE DELAY IN PRONOUNCING THE AL-HASSAN TRIAL JUDGMENT – Inquiring minds want to know more!!!”

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War Crimes and the Meaning of Genocide: A conversation with war crimes lawyer Michael Karnavas.

Michael G Karnavas spoke with The Diplomat’s Luke Hunt about the meaning of genocide and the legal precedents established in Cambodia, including the relatively new charge of aggression, which is reserved for crimes committed by those holding the highest levels of power.

Listen to the interview here.

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REALITY CHECK: Conference on special international tribunal for the crime of aggression against Ukraine exposes fatal defects

There is a difference between two competing groups as to the nature of the institution that should be set up – on the one side led by Ukraine but with strong support from Baltic countries and Poland and various other countries, a full on international criminal tribunal with exclusive competence in relation to the crime of aggression to be set up in The Hague à la Nuremberg – and on the other side the G7 led in particular (by no particular order), the UK, the US, and France who have sort of given a thumbs up to the idea but want uh an institution which is sort of more hybrid and in particular which is not going to set a clear precedent in relation to future tribunals of this kind being set up for other P5 members, their minds having been concentrated by the prospect that if you create a special criminal tribunal for one permanent member of the Security Council today why can’t you do it for another one tomorrow.


Philippe Sands at the Conference on Special Tribunal for the crime of aggression against Ukraine, London, 1 February 2024.

On 1 February 2024, the London-based independent human rights NGO Justice and Accountability for Ukraine (JAFUA) – “which seeks to establish legal channels of accountability for violations of international law in Ukraine” – hosted a conference on establishing a special international tribunal for the crime of aggression. As argued, given the International Criminal Court’s (ICC) lack of jurisdiction over the crime of aggression with respect to the Russo-Ukrainian war, resulting in a supposed impunity gap, this special tribunal would be empowered to charge only this crime. Ostensibly, it would only try three individuals – Russia’s President Vladimir Putin, Prime Minister Mikhail Mishustin, and Foreign Minister Sergey Lavrov. Other crimes that may have been committed by them could be tried by the ICC – assuming, of course, they are ever arrested. Continue reading “REALITY CHECK: Conference on special international tribunal for the crime of aggression against Ukraine exposes fatal defects”

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Cambodia Needs a Genocide Museum

Published in the Diplomat 2 February 2024

Cambodia Needs a Genocide Museum

By Michael G. Karnavas
February 03, 2024

An artistic rendering of the planned Sleuk Rith Institute, as envisioned by late architect Zaha Hadid. Credit: Image courtesy of DC-Cam

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MY TAKE ON THE ICJ’S SOUTH AFRICA v. ISRAEL ORDER

Even though I do not find it plausible that the military operation is being conducted with genocidal intent, I voted in favour of the measures indicated by the Court. To indicate those measures, it is not necessary for the Court to find that the military operation as such implicates plausible rights of Palestinians in the Gaza Strip. My decision to vote in favour of the measures indicated rests on the plausible claims by South Africa that certain statements by Israeli State officials, including members of its military, give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention (see paragraphs 50-52 of the Order).


Judge Georg Nolte, Declaration (para. 15)

The celebrated French existentialist philosopher Jean-Paul Sartre is credited with having coined the incisive aphorism “Words are loaded pistols”. Like weapons, when hitting the intended target, words have the capacity to affect opinions and behavior. And like bullets, once they leave the chamber, once uttered and heard by the intended audience, they are irretrievable. Yes, they can be retracted and repackaged and recalibrated, followed by a contrite mea culpa or transparently trite excuse, but effectively the desired effect in uttering the words in the first place remains. Ominously, when words are uttered – intentionally, recklessly, or carelessly – by high-level officials and respected members of a community and revered military officers (whether active or retired), the potential to inspire, induce, and incite to act in a desired fashioned is rather high. Unintended interpretations of words can also lead to unintended greenlighting of impermissible actions, not to mention unavoidable implied impressions generally formed from actions followed from words. Continue reading “MY TAKE ON THE ICJ’S SOUTH AFRICA v. ISRAEL ORDER”

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BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART THREE

Heritage Destruction, Human Rights and International Law, edited by Amy Strecker and Joseph Powderly, Brill 2023, 502 pages, €216

If law mirrors the general norms of society, then the increasing recognition by international law can be read as a reflection of a general public consensus that finds heritage destruction unacceptable, even if violations occur. Yet, despite the proclamation of heritage destruction in situations of conflict as an international wrong, no such assertion can be made for the equivalent in peacetime. The most developed jurisprudence on cultural heritage destruction has been made in the context of international criminal law, yet conversely it is the area with the most limited conceptualization of cultural heritage. (p. 1)     

 

In Spring 2018, an international symposium on Heritage Destruction, Human Rights and International Law was held at Leiden University, funded by Leiden Global Interactions and the Leiden-Delft-Erasmus Centre for Global Heritage and Development. The hosts, Professor Amy Strecker of Sutherland School of Law and Joseph Powderly of Leiden University, with an impressive ensemble of academics with deep knowledge and practical experience in international cultural heritage law and heritage studies, examined various branches of international law understood to relate to heritage destruction from human rights perspectives during armed conflict and in peacetime. Among the questions explored were:

      • What is the level of state responsibility regarding heritage destruction in times of conflict and in peace?
      • What are the corresponding rights relating to cultural heritage and what are the recent developments in the field?
      • What is the appropriate level for balancing heritage protection imperatives with development and investment interests such as resource extraction or infrastructural projects?
      • Does the concept of universality continue to be useful in relation to cultural heritage?

The answers to these questions and more resulting from the symposium are found in Heritage Destruction, Human Rights and International Law, edited by Strecker and Powderly.

Continue reading “BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART THREE”

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BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART TWO

 

CONFRONTING COLONIAL OBJECTS: Histories, Legalities, and Access to Culture, Carsten Stahn, Oxford University Press, 2023, 556 pages, $180

Critics of restitution have challenged the turn to cultural justice based on the argument that atonement for the past may politicize material culture, detract from the original meaning of artifacts, or sensualize looted object to the detriment of less visible items.… Some of these risks may be mitigated through the application of transitional justice principles (e.g. historical truth-seeking access to justice, recognition of the harm, memory or non-repetition) to processes of restitution and return. They are inherently reflected in some reports and principles. (pp. 417-418)

Admittedly, my personal views on the return of cultural objects reflected in Part One are rather rigid: anything inappropriately or unlawfully taken must be returned when requested. Getting to Yes (the formula for a win-win outcome explicated by Roger Fisher and William Ury in their seminal book on negotiating), however, is not easy. The disputing parties generally must agree to an acceptable historical narrative that accurately reflects the provenance (chain of custody) and biography of the disputed cultural objects before considering/agreeing to return them (a feat in itself). One of the main stumbling blocks is the absence of clarity in the law. Which law applies? How far back does today’s law apply, and if not, then what? Can the original owner’s title claim based on heritage (I am mostly thinking of communities) trump domestic acquisition laws giving lawful title to a purchaser? Are there enforceable remedies? Continue reading “BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART TWO”

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BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART ONE

 

To the living we owe respect, but to the dead we owe only the truth.


Voltaire

When it comes to confronting historical facts of how colonial objects were taken – from marbles and statutes removed from ancient temples to religious and cultural artifacts taken as war booty or unrestrained rapaciousness or trickery or coercion, to grave robbing for ‘scientific’ reasons or for (curiosity) display – reversing Voltaire’s quote seems more appropriate. The dead are owed respect; the living the truth. With the truth the dead are not just honored, but culture and heritage pass on through memory, created and sustained. But whose truth? Whose historical facts? And what of cultural heritage? One overarching question that touches on both the return of claimed cultural objects found in museums and cultural heritage is who owns cultural objects or to whom they belong? This short series will attempt to address this and other relevant questions. It will do so by reviewing two recently published books. First, my take on the return of claimed cultural objects. Continue reading “BOOK REVIEW SERIES: ON RETURNING CULTURAL OBJECTS & HERITAGE DESTRUCTION – PART ONE”

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