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BIICL comments on Draft Policy on cultural heritage of the Office of the Prosecutor of the ICC

Comments Submitted on the Draft Policy on Cultural Heritage of the Office of the Prosecutor of the International Criminal Court

On 16 April 2021, a diverse group of experts, including practicing attorneys, law professors and scholars, archaeologists, and other professionals with extensive expertise and experience in cultural heritage law, ICL and IHL submitted comments to the ICC Office of the Prosecutor's Draft Policy on Cultural Heritage. 

In summary, the Comments emphasized the importance of the OTP's Draft Policy on Cultural Heritage given the lack of global consensus around priorities, practices, and policies for investigating and prosecuting cultural heritage crimes. The Comment addressed the scope of the Draft Policy and called on the OTP to provide concrete examples within its Policy that demonstrate the broad nature of cultural heritage and crimes that may target it, and better illustrate the full scope of the global problem. They supported the OTP taking a comprehensive and expansive view of the terms 'cultural heritage' and 'cultural property', including natural and intangible heritage, but noted that the Draft Policy's current definition may unintentionally exclude certain types of cultural heritage.

Regarding the Court's Regulatory Framework, the Comments urged the OTP to make full use of applicable treaties, the principles and rules of international law, and jurisprudence concerning cultural heritage and property. The Comments provided notes on the OTP's approach to natural heritage, and sought further guidance on military necessity and proportionality and their relation to cultural value for both selection and prosecution of crimes. The Comments also encourage consideration of wider international law sources on the crime of pillage and its serious consequences, and urged that the OTP look to ways to prosecute pillage through other provisions of the Rome Statute, especially when it may rise to an attack or act of hostility.

The Comments noted that the Draft Policy lacked discussion on the OTP's position on reparations for crimes against and affecting cultural heritage and property, and asked for clarification on a number of issues that are particularly critical to successful case selection, investigations, and prosecutions, including the mens rea requirement; the OTP's assessment of the factors determining gravity; and how the court aims to collect, preserve, and maintain the chain of custody for evidence used in trials, as well as ensure the integrity, quality, comprehensiveness, and relevance of the evidence itself.

The Comments were prepared and submitted by the following individuals:

  • Helena Arose, Project Director, The Antiquities Coalition
  • Alessandro Chechi, Senior Researcher, University of Geneva
  • Emma Cunliffe, Secretariat, Blue Shield International
  • Brian Daniels,Vice President for Cultural Heritage, Archaeological Institute of America
  • Tess Davis, Executive Director, The Antiquities Coalition
  • Haydee Dijkstal, Barrister, 33 Bedford Row
  • Kristin Hausler, Dorset Senior Fellow, Centre Director, British Institute of International and Comparative Law
  • Yasaman Nabati Mazloumi, Secretariat, Blue Shield International
  • James Reap, Professor, University of Georgia
  • Marc-AndrĂ© Renold, Professor and Director of the Art-Law Centre (CDA), University of Geneva
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