Adjudication of attacks targeting culture: a new approach
A deliberate attack on a tangible element of a culture, such as a temple, is often also an attack on intangible elements: the religion or religious customs. Equally, the intangible can be attacked without the involvement of the tangible, for example the brutal curtailment of rights. How are these reflected in the adjudication of such attacks? PhD defence on 27 May 2021.
External PhD candidate Hirad Abtahi, Chef de Cabinet to the President of the International Criminal Court in The Hague, focusses in his PhD thesis on the following question: To what extent and in what way have international courts and tribunals investigated the causes, means and consequences of deliberate attacks on tangible and intangible elements of culture; and how can these two separate aspects be combined?
To answer this question, Abtahi first examined culture from a legal perspective. Culture can be anthropic or natural, movable or immovable, secular or religious, and tangible or intangible. Furthermore, culture is best viewed as a legacy-oriented triptych made of local, national and international panels, While each panel makes sense in isolation, they are best understood when viewed together. This approach helps to assess how both natural persons and legal entities can invoke cultural damages in judicial proceedings, whether for treaty law and international human rights violations or in cases of genocide, crimes against humanity and war crimes.
The next step in the research was a comparison between the judicial mechanisms of State responsibility and individual criminal responsibility with regard to the causes, means, and consequences of attacks aimed at culture.
In this thesis, for the first time a formal and extensive classification of the above is proposed that does away with all prevailing misconceptions that may have arisen over the years among adjudicators and academics. Although the legal areas of State responsibility and individual criminal responsibility appear to be separate, this thesis demonstrates that there are more similarities than one would expect. The researcher establishes that both forms of responsibility accept that an attack on culture can be aimed at tangible or intangible when it comes to typology and victims of damages as well as their related reparations.
In its conclusion, the thesis proposes a series of instruments with which international legislators, adjudicators and academics can better address the assessment of the causes, means and consequences of attacks on culture. Building further on this, they can extend their area of activity to include customary international law and the national practice.
Supervisor Prof.dr. C. Stahn LLM on Abtahi's research:
'Conflicts on the Balkans, Syria, Iraq and Mali have reminded us that cultural sites and artefacts are often unlawfully targeted in warfare. Hirad Abtahi has gained unique insights on these issues at the ICTY and the ICC. In his timely, comprehensive and thoroughly research study, he shows us that law is not powerless in relation to attacks on cultural heritage and treats culture as a multi-layered concept, involving local, national and international dimensions. His work deserves to be widely read and discussed.'