Heritage in war: international criminal responsibility for the destruction of cultural heritage in armed conflict

In armed conflict the destruction of cultural heritage has the potential to cast a shadow long after the fighting has ceased. Nonetheless, the Statute of the International Criminal Court (ICC) has been criticised for failing to incorporate the same protections for cultural heritage as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, significantly limiting the scope for prosecution for acts of cultural destruction. Furthermore, prosecutions for destruction of cultural heritage within the narrow range the Statute allows, such as in the Al Mahdi case, which saw the first successful war crimes prosecution by the ICC for attacks on cultural property, remain contentious as well as few and far between.

In light of the publication of the 2021 Policy on Cultural Heritage published by the ICC’s Office of the Prosecutor, and the wider debate on how destruction of cultural heritage in times of war ought to be treated by international criminal law, this chapter aims to provide an overview of the current law in relation to international criminal responsibility for destruction of cultural heritage in time of war under the ICC’s Statute. It argues that the current legal approach is outdated and seeks to make recommendations for how future developments might best achieve the aim of punishing those most responsible for such crimes.

This chapter therefore concludes that whilst recent years have seen positive developments in relation to the protection of cultural heritage generally, and at the ICC in particular, there remains much to be done to increase the scope and effectiveness of these protections. With significant change unlikely to originate from the ICC itself, it is suggested that the interested parties, academic and individual states have a core role to play in developing the law in this field and ensuring those who commit crimes against cultural heritage are held to account.