CYIL vol. 11 (2020)

IVAN RYŠKA CYIL 11 (2020) Strictly speaking, the ICL documents never mention the term ‘cultural rights’. 27 Does it mean they do not protect the values related to cultural rights? The answer is clearly no. Neither does ICL mention civil or political rights, but there is no doubt that ICL protects the values connected to them. 28 All this confusion is caused by the different wording and approaches used by the human rights treaties and the ICL documents. Unlike the human rights treaties, ICL defines crimes, not rights. We can assume that there is protection of the same set of values, however from a different point of view. 29 Protection of rights through ICL is indirect – ICL tries to prevent and punish the crimes that violate given rights, without mentioning the rights explicitly. For a better understanding of this approach, we will focus on the elements of crimes. 30 From the definitions of crimes, it is clear that violation of a certain cultural right is already part of an existing crime. ICL does not use the holistic attitude, which means that the only protected cultural rights are those, which have a legal base in an existing definition of a crime. 31 Such assumption of protection of cultural rights under the already defined crimes might look like a purely theoretical concept. At the time the relevant ICL documents were created, the notion of cultural rights used to be more narrow, and it is disputable if there was any such intent of the authors of the documents. To provide some pieces of evidence, we will focus on the relevant judicial decisions of international criminal tribunals that deal with cases related to potential human rights violations. The purpose is to show that despite the lack of definition in the relevant ICL documents, tribunals reflect the existence and presence of cultural rights in their decisions and often use human rights based wording in their judgments. Cultural Rights in the Al Mahdi case The first case we will examine to demonstrate the presence of cultural rights elements in the decision of the ICC is the Al Mahdi case . This case was tried before the International Criminal Court (ICC) in 2016 and caused a huge public reaction. On one hand it has been celebrated as the very first case where a defendant was charged solely with crimes committed against cultural property, but on the other hand, it has been also criticized for many shortcomings. To provide contextual background, we will review the basic facts related to the case. In January 2012 an armed conflict of non-international character took place in the territory of Mali. 32 In the context of the conflict, armed violence broke out in the north of the country, and several militant groups took over the territory. In April 2012, after the retreat of Malian army, Islamist groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (AQIM) took control over the city of Timbuktu. 33 Since then until January 2013, Ansar Dine and AQIM imposed 27 See e.g. Rome Statute of International Criminal Court or Statute of International Criminal Tribunal for the former Yugoslavia. 28 SCHMID, Evelyne. Taking economic, social and cultural rights seriously in International Criminal Law . Cambridge: Cambridge University Press, 2015. p. 22-40. 29 Ibid. 30 Ibid. p. 41-73. 31 Ibid. 32 Situation in Mali. International Criminal Court. 16 January 2013. Para. 25-29. 33 Summary of the Judgment and Sentence in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi . International Criminal Court. Para. 14.

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