How Can Cultural Heritage Threatened by Globalization and Environmental Destruction be Protected? Looking to the Crimes Against Humanity of Deportation or Forcible Transfer as a Potential Legal Remedy.

Executive Summary

With the first prosecutions of the war crime of destruction of cultural heritage before the International Criminal Court in the cases against Ahmad Al Faqi Al Mahdi and Ag Abdoul Aziz Al Hassan, it has been demonstrated that acts which destroy cultural heritage are amongst the crimes grave enough to be addressed by the Court as judicable crimes within its jurisdiction. These proceedings have emphasized the international importance of protecting cultural heritage, not just as acts against important objects and buildings, but as crimes against groups of victims, and even humankind. Reports indicate that the destruction of cultural heritage is often caused by activities associated with globalization, but which are outside of the context of an armed conflict recognized under international law. This dynamic makes it clear that the war crime of attacks against cultural heritage under Article 8(2)(b)(ix) and 8(2)(e)(iv) of the Rome Statute, which requires that the crime is committed during an armed conflict, is inapplicable to situations where cultural heritage is destroyed by way of activities such as large-scale development projects and exploitation of natural resources, leading to environmental damage and abusive land acquisitions.

This paper addresses the fact that the crimes within the ICC’s jurisdiction only provide a remedy for actions against cultural heritage perpetrated during conflict or war. As this reality leaves a gap in recourse for victims harmed outside a recognized armed conflict, this paper raises the possible applicability of other crimes within the Rome Statute, which might provide victims an alternative avenue of seeking accountability.

Activities of globalization directly affect the rights of communities—and disproportionately indigenous peoples—to practice their culture and interact with their heritage on the affected land, which is often integrally tied to a group’s culture. Therefore, this paper explores the link between environmental crimes, the destruction of cultural heritage, and the crimes against humanity of deportation and forcible transfer before the ICC. Through this link, this paper recommends that the crime against humanity of deportation and forcible transfer be explored and utilized, both by the Office of the Prosecutor and by victims who can raise their harm before the Court, to protect cultural heritage by prosecuting instances where activities associated with globalization occurring outside an identified armed conflict, as defined under international law, force people from their lands and destroy the land and environment, which are integral to their cultural heritage.

Introduction

The destruction of cultural heritage is often associated with war and armed conflict, but it is becoming increasingly clear that a major threat to culture and cultural heritage comes from the activities of humans and their consequences, occurring outside an armed conflict. This is particularly true for the destruction and loss of cultural heritage caused by commercial and industrial development projects and the extraction of natural resources.^[1] As a result of these activities associated with globalization, experts have warned that environmental destruction and climate change have become major threats to the sustainability of many communities’ cultures.^[2]

Particularly troubling is the extent to which environmental destruction and land-grabs, stemming from the development and exploitation of the land, directly affect the rights of these communities to live and practice their cultural heritage on the affected land when local populations, and disproportionately indigenous peoples, are displaced from their ancestral territories.

The first prosecutions of the war crime of destruction of cultural heritage before the International Criminal Court (ICC) raised the question of whether the Court could provide a legal remedy and achieve accountability for acts of cultural heritage destruction. With the cases against Ahmad Al Faqi Al Mahdi and Ag Abdoul Aziz Al Hassan, the Court has confirmed that acts which destroy cultural heritage are amongst the crimes grave enough to be admissible to the Court’s jurisdiction. Its decisions have emphasized the international importance of protecting cultural heritage to preserve the history and significance associated with objects and buildings, but also to ensure the ability of all people to practice and participate in the culture and pass it to future generations. It would, therefore, seem that the application of international criminal law before the ICC, and the crime of destruction of cultural heritage, specifically, might provide a clear legal remedy for holding those most responsible to account for their activities, which extinguish entire communities’ access to their cultural heritage.

However, given that the Rome Statute only enumerates the crime of destruction of cultural heritage as a war crime, under Article 8(2)(b)(ix) and 8(2)(e)(iv), these provisions fail to sufficiently address the fact that cultural heritage is often destroyed through commercial development ventures or government actions committed outside of a recognized armed conflict. Indeed, the severe effects of damage to the environment—which this paper submits can, consequently, have a detrimental impact on the cultural heritage of groups and communities—led an independent expert panel in June 2021 to address the Rome Statute’s failure to provide a crime for addressing such actions by proposing a definition for the crime of ‘ecocide,’ which the panel suggested should be added to the Statute by amendment.^[3]

Destruction in the Absence of an Armed Conflict: Cultural Heritage and Ancestral Land Loss from Development Projects and Environmental Damage

In the context of war or armed conflict, an examination of the development of measures to ensure the protection of cultural heritage began with a focus on acts against property, and destruction or damage occurring. Instances often cited include the destruction of the Buddhas of Bamiyan in Afghanistan by the Taliban or the shelling of Stari Most in Mostar during the Bosnian War.^[4] Much of this focus can be attributed to the historical development of legal protections for cultural property, which appeared as a response to major armed conflicts in the 19th and 20th centuries^[5] and only progressively developed over time from its initial “protection[s] of state sovereignty over the property that was at stake”^[6] towards wider protections, whereby the object of protection explicitly covers and considers the heritage of the protected cultural property.^[7] Notable to cases of environmental crimes harming various aspects of a group’s cultural heritage is the further expansion of international protections from physical properties, which speak to the heritage of the cultural property, to broader protections over the “practices, representations, expressions, knowledge, skills—as well as the instruments, objects, artefacts and cultural spaces” that constitute intangible cultural heritage.^[8]

However, development of these legal protections has progressively responded to reports which highlight that cultural heritage is not only vulnerable during times of war, but equally at risk at times when an armed conflict, as defined under international law, is not present. For example, the World Heritage Convention in 1972 was motivated by the risk associated with the construction of the Aswan High Dam on the Nile to the “ancient Nubian monuments in the rock temples of Abu Simbel in Egypt”,^[9] The 1968 UNESCO Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works specifically regulated activities outside an armed conflict that would affect culture, such as construction for pipelines and electricity lines.^[10] UNESCO has recognized that “[c]limate change is today amongst the greatest threats to culture and cultural heritage, both tangible and intangible.”^[11]

Importantly, these activities display a common thread, in regards to the individuals and communities who call the affected land home and to whom the land is inseparable from their history and culture. In many cases, development projects, natural resource extraction and environmental damage force indigenous communities from the land on which their cultural heritage is significant. Their loss can become two-fold, whereby the culture tied to the land is destroyed by the industrial activity or environmental consequence, and their eviction from ancestral lands deprives these communities of not only tangible cultural heritage, such as religious or cultural buildings or sites, but also of their intangible heritage, such as religious rituals or cultural traditions, which is inseparable from the land, and impossible to practice and pass-on, absent the property that gives their culture meaning

A wide scope of reported incidents demonstrates how development projects and exaction of natural resources come hand-in-hand with land acquisition and environmental damage; both of which displace the local, and most often indigenous, population and jeopardize their relationship with their cultural heritage.

For industrial and commercial development projects, this is demonstrated in Nepal, where a project to expand roads on the ancestral lands of the Newa people led to governmental eviction from ancestral lands and subsequent destruction of cultural and religious sites on these lands.^[12] Similarly, in the Maldives, it is estimated that 80% of “historical and archaeological sites have already been destroyed for the construction of resorts and development projects.”^[13]

The construction of the Three Gorges Dam in the southwestern province of Sichuan, China is a clear illustration of a large-scale development project that not only displaced the local population but also caused the loss of both tangible and intangible cultural heritage. Its construction is reported to have resulted in a staggering number of displaced people—a number exceeding 1 million people—in what has been called “the largest peacetime evacuation in history, amounting to the greatest displacement challenge ever caused by a development project,” due to flooding of thousands of cities and villages.^[14] Importantly, the project impacted significant cultural heritage of the local population, including “the loss of many archaeological and cultural sites” of historical significance, such as “ancient buildings, stone sculptures, bridges, and cliff paths” and “habitation settlements and historical cemetery complexes.”^[15] The Ilısu dam on the Tigris River in South-East Turkey caused similar harm. The displacement of Kurdish communities from villages which were flooded by the dam’s construction affected cultural sites, including the historical bazaar in Hasankeyf, which is noted as meeting 9 of the 10 criteria necessary to be listed as a UNESCO World Heritage site.^[16]

The extraction of natural resources has been shown to similarly displace indigenous communities and lead to the destruction or inaccessibility of their heritage. For example, mining and industrial construction in the Jharkhand province of India resulted in the acquisition from the Santhal Adivasi people of land that is critical to practicing their egalitarian culture.^[17] In Kenya, the combination of deforestation and land allocation policies has threatened the cultural heritage of the Kikuyu people around Mount Kenya, which has cultural symbolism and religious significance, and is home to lakes and trees considered sacred.^[18] Most recently, iron ore company Rio Tinto destroyed two ancient and sacred Aboriginal caves at Juukan Gorge in Western Australia, which were of cultural importance to the Puutu Kunti Kurrama and Pinikura people.^[19] The caves, which were also recognized as containing evidence of human habitation 46,000 years ago, were destroyed to expand the company’s mine in the area.^[20] The mining blasts led to condemnation from Corporate Human Rights Benchmark and the World Benchmarking Alliance for the “destruction of invaluable cultural heritage at Juukan Gorge” causing “severe adverse impact on cultural rights.”^[21]

Importantly, these activities result in environmental and climate consequences, which similarly affect indigenous communities and, ultimately, their cultural heritage. A clear example comes from Brazil, where the situation of a number of indigenous groups, including the Tenetehara, the Pyhcop Catiji, the Ka’apor people of Maranhão, and the Mura Tribe highlights how commercial activities, such as deforestation, can lead to environmental damage, which together causes the displacement in the Maldives, it is estimated that 80% of "historical and archaeological sites have already been destroyed for the construction of resorts and development projects."of local communities and destruction of their cultural heritage.^[22] Reports set out how deforestation of the rainforest in the Amazon has led to severe drought, which bring fires during the dry season.^[23] [HD7] For these groups, displacement from their lands, which are of cultural significance, not only results in the loss of their ancestral territory but also in their inability to interact with their culture, where “songs, dances, and ceremonies are about nature and their place in it, now and in the afterlife.”^[24] An individual from the Iracadju Ka’apor community emphasized the importance of the forest on these lands to their cultural heritage and identity stating that “The forest is our home; it heals our soul. Without it, we are nothing.”^[25]

The inapplicability of the Rome Statute’s crimes of destruction of cultural heritage

When seeking a remedy under international law for the harm caused and deprivation of rights, the International Criminal Court comes to mind, due to recent actions by the ICC Prosecution signaling an increased commitment to addressing the crime of destruction or damage to cultural heritage. It raises the question of whether instances of destruction due to development projects, natural resource extraction, or environmental damage could be addressed by the Court.

The cases against two Malian individuals, Ahmad Al Faqi Al Mahdi and Ag Abdoul Aziz Al Hassan,^[26] signified the Prosecutor’s willingness to pursue individuals most responsible for “intentionally directing attacks against” cultural heritage, particularly “historical monuments” and “buildings dedicated to religion, education, art, science or charitable purpose.”^[27] As the court permanently established to ensure that the “most serious crimes of concern to the international community as a whole [do] not go unpunished,”^[28] the prosecutions of Al Mahdi and Al Hassan sent a message on the importance of accountability for the destruction of culture, not just as acts against important objects, buildings or land, but as crimes affecting the rights of victims and humankind, as a whole.^[29]

In addition, the fact that Al Mahdi was charged solely with the war crime of destruction of cultural heritage for his responsibility in the destruction of mausoleums and a mosque in Mali as an alleged member of the militant group Ansar Eddine, demonstrates that acts which damage or destroy cultural heritage are amongst the crimes sufficiently grave to be found admissible to the Court’s jurisdiction, and are serious enough to stand alone on an indictment.^[30]

However, it must be recognized that the Court has limitations over its ability to prosecute instances of destruction of cultural heritage not occurring during an armed conflict, as was the case for the culture in issue in the Al Mahdi and Al Hassan cases. As the crimes enumerated within the Rome Statute pertaining to the destruction of cultural heritage under Articles 8(2)(b)(ix) and 8(2)(e)(iv) are war crimes, which must be committed within the context of an armed conflict, there is no specific crime within the jurisdiction of the Court addressing attacks against cultural heritage committed in the absence of an armed conflict, as defined under international law. Although instances of destruction caused outside an armed conflict by globalization activities and the resulting effects of environmental change might result in similar harm to the groups and communities affected, these acts cannot be equally prosecuted at the Court, due to the unavailability of a specific crime applicable to cultural heritage destruction outside of an armed conflict.

In the face of this reality, the question remains as to whether international criminal law, particularly before the International Criminal Court, provides any remedy for achieving justice and accountability for the loss of culture and cultural heritage caused by human activities outside an armed conflict. For this reason, this paper recommends that the crime against humanity of deportation and forcible transfer is utilized in instances where groups and communities are forced from their lands as a result of coercive acts and activities against the land and resources integral to their cultural heritage.

Linking culture and the land

In response to this shortcoming within the Rome Statute, it is suggested above that other crimes could be pursued, which might not directly relate to individual criminal responsibility for the destruction of cultural heritage, but which are similarly linked to the situations of destruction and loss set out above. In particular, the fundamental link between the cultural heritage lost and the land affected provides a means for pursuing the crime against humanity of deportation or forcible transfer of a population in accordance with Article 7(1)(d) of the Rome Statute.

The interconnectivity between culture, the environment, and land is recognized in international law. International instruments which set out the right “to take part in cultural life”, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR),^[31] also mandate that States take steps “to achieve the full realization of this right,” including measures for conservation efforts to preserve culture.^[32] Addressing this link in the reverse, the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment defines the ‘environment’ as including “property which forms part of the cultural heritage.”^[33]

Importantly, commentary from the Committee on Economic, Social and Cultural Rights squarely acknowledges the link between culture and ancestral land and the risk that globalization possesses to the effective and genuine realization of this right. The Committee emphasized that, in order to protect cultural heritage, States must pay “[p]articular attention…to the adverse consequences of globalization, undue privatization of goods and services, and deregulation on the right to participate in cultural life,” as well as “illegal or unjust exploitation of their lands, territories and resources by State entities or private or transnational enterprises and corporations.”^[34]

The Inter-American human rights system has acknowledged this interplay in interpreting the rights set out under the American Convention on Human Rights such that the right to property is recognized as ‘singularly important’ as a “fundamental basis for the development of indigenous communities’ culture, spiritual life, integrity and economic survival.”^[35] In practice, the Inter-American Court has equally recognized this connection; finding that indigenous peoples’ rights to territorial land encompasses “the collective right to survival as an organized people, with control over their habitat as a necessary condition for reproduction of their culture” and “[p]roperty of the land ensures that the members of the indigenous communities preserve their cultural heritage.”^[36]

This link allows for recognition that the harm suffered by victims whose culture or cultural heritage has been lost equally relates to the ancestral land taken, and allows for the focus of criminal proceedings to be on the forcible movement of people away from the land on which their culture was based. Importantly, in 2015 the Prosecution stated that it “will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”^[37] This announcement not only affirms the Prosecution’s commitment to pursue cases against the very criminal activity which has resulted in the destruction of the local population’s culture, but indicates that the Prosecution is willing to proceed with charging crimes for acts which facilitated the harm done.

Applying the crime against humanity of deportation and forcible transfer

When exploring the applicability of the crime against humanity of deportation and forcible transfer to cases whereby communities are forced from the land due to globalization activities which damage and destroy the land and resources integral to their culture, it must be decided whether the elements of the crimes can be made out. The below sets out the elements of the crime required and relevant case law to consider when it is asserted that the environmental impact of industrial and commercial activities are the root of the crime.

To start, as a crime against humanity within the Rome Statute,^[38] ‘deportation or forcible transfer of population’ is committed when there is “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.”^[39]

The Court’s jurisprudence has clarified that deportation and forcible transfer are separate crimes, whereby “the displacement of persons lawfully residing in an area to another State amounts to deportation, whereas such displacement to a location within the borders of a State must be characterised as forcible transfer.”^[40]

For many instances of displacement due to acts such as industrial and commercial development and land acquisition, the displacement of local populations is within the borders of a single State, making the crime against humanity of forcible transfer most suitable. However, the crime against humanity of deportation may become relevant in such instances as the deforestation and resulting fires in the Amazon, which are reported to affect indigenous communities in the rainforest territories of South America. This includes not only Brazil but also Colombia, Peru, Bolivia, Ecuador, Venezuela, and Paraguay, where fires have presented the risk of pushing these groups across borders and “compelling them to seek refuge in regions that do not correspond to their traditional territories.”^[41]

The traditional and ancestral nature of the land of indigenous groups further speaks to the elemental requirement within the crimes against humanity of deportation and forcible transfer for displaced persons to have been ‘lawfully present’ in the area from which they were displaced. The finding that this element of the crime “should not be equated with the requirement of lawful residence”,^[42] along with international instruments which support the principle of ‘free, prior and informed consent’ and the right to self-determination,^[43] could potentially assist in instances where contemporaneous tenancy and ownership of the land are at issue.

ICC case law indicates that instances of displacement caused by acts relating to industrial development, natural resource extraction, land-grabs or environmental damage fall squarely within the element of the crime requiring that those deported or forcibly transferred were done so “by expulsion or other coercive acts.”^[44] In the Kenya Situation, it was determined that both deportation and forcible transfer are “open conduct crime[s]” whereby “the perpetrator may commit several different conducts which can amount to ‘expulsion or other coercive acts’ so as to force the victim to leave the area where he or she is lawfully present.”^[45] The act of “destruction of property” was recognized, among other coercive acts, in the Kenya Situation as “result[ing] in coercing” a local community’s displacement.^[46] Further jurisprudence from proceedings regarding the Court’s jurisdiction over alleged crimes in Myanmar and Bangladesh, addressed the “different conducts” which constitute coercive acts as including “deprivation of fundamental rights, killing, sexual violence, torture, enforced disappearance, destruction and looting.”^[47] The fact that coercive acts can not only be identified as the destruction of property, but also the deprivation of fundamental rights, demonstrates the applicability of situations where a group is deprived of their rights of access and ownership over property and the ability to practice their culture by successive acts of illegal acquisition, destruction of cultural property or environmental damage of the land.

These coercive acts must be “without grounds permitted under international law.”^[48] In this regard, the lawfulness of the activity has been found to be informative.^[49] This highlights that cases where the local population is displaced and deprived of their cultural heritage must involve illegal activity such as the illegal acquisition of land, the development of land which violates law and regulations on the consent of the local population, environmental impact which violates environmental regulations, or where the human rights of the local population are violated.

Likewise, the contextual elements of a crime against humanity under Article 7 of the Rome Statute must be present, such that the crimes against humanity of deportation or forcible transfer were “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”^[50] For many instances where indigenous and local populations are forced from their ancestral lands, and away from their cultural heritage and the ability to practice their culture, the industrial or commercial activity which causes the group’s displacement does not represent a single incident but successive coercive acts, which compel the local population’s movement. For example, illegal deforestation in South America is so widespread that it has affected around 350 indigenous communities across seven States in the region,^[51] and the Three Gorges Dam in China displaced over a million people from cities and villages.^[52]

Last, knowledge of the attack on the civilian population is demonstrated by the awareness of commercial and industrial actors, and government authorities, of the harm caused to the local community by these activities. Here, the international standards of ‘free, prior and informed consent’ (FPIC), which require that groups and communities affected by industrial and commercial projects must be consulted and included in the decision-making process to ensure that their rights to the land and to self-determination are protected, are again key.^[53] The process of FPIC raises the likelihood that organizations and companies leading developmental projects are aware of any objections from local communities and would, therefore, be moving forward with knowledge of the harm their actions may cause.

For example, reports indicate that mining company, Rio Tinto, was aware of the Puutu Kunti Kurrama and Pinikura peoples’ objection to plans for destroying the Juukan Gorge caves in Western Australia and knew the cultural significance of the caves to these groups before the company proceeded with their destruction.^[54] Similarly, reports indicate that the ancestral lands of the indigenous Adivasi communities of Jharkhand province in India were acquired for mining activities and the construction of a power plant, despite pleas to the mining company and government authorities for meaningful consultations and legal challenges raising opposition.^[55]

Based on the applicability of each of the elements of the crimes against humanity of deportation and forcible transfer, it is suggested that the crime could be applied in many instances where the cultural heritage of indigenous and local populations is destroyed, or access to culture is denied, by activities associated with globalization, such as large-scale development projects, natural resource extraction, and environmental damage which force these communities from their ancestral lands.

Conclusion

Recent steps before the International Criminal Court to prioritize cases of destruction of cultural heritage, including the Prosecutor’s expressed commitment for considering crimes committed “by means of, or that result in,…the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land,”^[56] emphasizes the possibility of seeking accountability before the ICC against those most responsible for depriving groups of the culture and land from which their identity derives. With the absence of a specific crime within the Rome Statute to address the destruction of cultural heritage occurring outside a recognized armed conflict, using the crime against humanity of deportation or forcible transfer, provides an opportunity to seek justice for the loss of cultural heritage by prosecuting the forcible displacement of communities from the land associated with their culture through coercive acts associated with globalization projects and environmental damage. The applicability of the crime against humanity of deportation or forcible transfer evidences the important link between cultural heritage and the land from which that culture deprives it significance and demonstrates how rights to property are inseparable from the right to culture and self-determination.

Recommendation

In confronting the fact that the Rome Statute does not enumerate a crime against the destruction or damage of cultural heritage when committed outside an armed conflict, as identified under international law, including as a result of activities of globalization, which harm the environment, this paper aims to propose and recommend an alternative remedy for victims or victims’ advocates to seek justice before the Court. This paper recommends that, in cases where industrial projects or natural resource extraction causes harm or destruction to land integral to the culture of those living on it and, in turn, forces these communities from the land, the crime against humanity of deportation or forcible transfer could be explored as a potential avenue for accountability.