CYIL vol. 11 (2020)

CYIL 11 (2020) CULTURAL RIGHTS RELATED TO CULTURAL HERITAGE AND THEIR PROTECTION … and social identity of the local population, that could bring serious problems for the whole community. Considering the human rights aspects of the destruction of mausoleums in Timbuktu we have to keep the holistic approach. On one hand we have to consider the role of the structures for the local population as described, but at the same time it is necessary to remember that Timbuktu is listed as the UNESCO World heritage site. The place is recognized as truly unique thanks to its historical role as a center of culture, science and education in the region, crossroad of caravans and the ‘city of 333 saints’. 55 The mausoleums of local saints were a part of the identity for both the city and the local population and that is why their protection is so significant. As the prosecutor mentions: the destruction of mausoleums caused an intangible damage to the city inhabitants, which is harder to remedy than the tangible one. 56 The second important point which the prosecutor mentions is that “attacks on cultural property are often the precursor to the worst outrages against a population” 57 and have been becoming a weapon of war aimed to eliminate whole communities, their identity and history. Considering the context of the case, it might seem surprising that the acts of Al Mahdi were tried under the notion of war crimes. A number of scholars proposed that it would have been more appropriate to consider them crimes against humanity 58 due to the profound impact on the local population. Although both the prosecutor and the judgment make use of the human rights based wording, the final outcome drops it. This might be seen as a lost chance of the ICC to establish new grounds for prosecution of deliberate attacks against cultural property, which would be a useful precedent with regard to current attacks committed by the ISIS in Syria and northern Iraq against the local cultural heritage. After all, what matters here is the protection of population and its rights, and for such purpose the legal instruments of crimes against humanity might seem more applicable. The prosecutor in the Al Mahdi case notes, that destruction of cultural property has become a weapon of war. 59 This assessment is even more obvious in many cases from Syria and Iraq. Although the attention of the world community was more focused on the news about attacks against the world famous archaeological sites like Palmyra or Hatra, the majority of attacks was targeted against less important local monuments 60 that were important for the local population for multiple reasons. In such way, Shia mosques, mausoleums of local saints, churches, monasteries, and Yazidi temples 61 were systematically razed. Those attacks were not related to military operations and were deliberate and systematic. 62 They all shared the same 55 Timbuktu. UNESCO World heritage list. Online: https://whc.unesco.org/en/list/119/. 56 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the opening of Trial in the case against Mr Ahmad Al-Faqi Al Mahdi. 57 Ibid. 58 See e.g. article of Pierfrancesco Rossi: The Al Mahdi Trial before the International Criminal Court: Attacks on Cultural Heritage between war crimes and crimes against humanity or Helga Turku: The Destruction of Cultural Property as a Weapon of War: ISIS in Syria and Iraq. 59 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the opening of Trial in the case against Mr Ahmad Al-Faqi Al Mahdi. 60 TURKU, Helga. The Destruction of Cultural Property as a Weapon of War: ISIS in Syria and Iraq . Washington DC: Palgrave Macmillan, 2018. pp. 38-49.

61 Ibid. 62 Ibid.

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