• Dr. Berenika Drazewska

Book Symposium - Legalized Identities

Re-imagining Transitional Justice through the Lens of Cultural Heritage Law

Lucas Lixinski’s Legalized Identities: Cultural Heritage Law and the Shaping of Transitional Justice (CUP, 2021) makes an important contribution to the scholarly literature on how law can be used in the context of transition after armed conflicts, atrocities, and dictatorship to ensure non-repetition and social reconciliation, approaching the issue from a fresh and interdisciplinary perspective. Bold, imaginative and presented with the author’s usual flair and writing skill, this work takes the topic on addressing difficult pasts in transition beyond the strictures of traditional legal mechanisms of transitional justice (TJ) and provides a nuanced and engaging analysis of expansive and creative uses of heritage law as a conduit for the fulfilment of TJ goals. Aside from the intellectual rigor and the clear flow of the arguments, the interdisciplinary approach is the book’s strongest suit and it has certainly allowed for a creative and original engagement with the topic. Given the ever-expanding scope and, at the same time, increased specialization of broadly comprehended heritage studies, it is rare for a legal scholar to engage across these specialized fields with such depth and dedication. Proficiency in critical heritage studies allows Lixinski to, on the one hand, focus on heritage in a sense that is broader than traditionally assumed within cultural heritage law (but which may thus fit better with the demands of TJ), and on the other hand, distance himself from the constraints of both the Authorized Heritage Discourse as defined by Smith (2006), and what he refers to as the Conservation Paradigm, i.e., heritage law’s insistence at preserving heritage at all cost, also against the will of those most affected by it, and whose identity it shapes.

The central claim is born out of a dissatisfaction with the “investigate-prosecute-punish” triad as the legal paradigm of choice in dealing with difficult pasts. This book, thus, sets about exploring the broader potential of heritage as a conduit for TJ; the argument is that TJ could certainly maximize the fulfillment of its aims of peace and reconciliation through channeling the potential of cultural heritage law in areas of identity and memory-shaping to a much larger extent than it does so now. This could help shift the focus from individualist to community-oriented approaches, but also accommodate subaltern, as opposed to mainstream voices (including those of racial minorities, victims of ethnic cleansing, and many others), as well as afford sufficient flexibility to address a broad range of transitional contexts. The argument is carefully supported with case studies ranging from traditional lieux de mémoire such as Hiroshima and Auschwitz, to Confederate monuments, to human remains located underwater (the bodies of the fallen ANZAC soldiers located aboard ships and aircraft downed or sunk during WW I), supplemented by a multitude of diverse and engaging examples of the use of heritage in transitional contexts all over the world. Lixinski argues that an integration of heritage ranging from songs and theatre to local justice mechanisms to re-define and shape TJ mechanisms could embody a much-needed turn to a pragmatic (rather than principled) and contextualized approach to dealing with difficult pasts. The question that remains, however, is whom we could trust to get this right – UNESCO “managers”? politicians? The communities themselves? It seems that each of them may often want to bring their own aims and assumptions to the table, and in an area already fraught with risks and uncertainties that might not necessarily serve to promote the goals of TJ, as the example of memory laws shows.

There is certainly room for a more engaged and informed dialogue between TJ and international cultural heritage law, as well as for a more integrated approach to dealing with difficult pasts, also in view of, as Lixinski himself notes, UNESCO and TJ’s shared promise to build sustainable peace. As the author correctly observes, the interest of the 1954 Hague Convention is primarily limited to the temporalities of armed conflict and occupation, with the exception of the somewhat timid call on states to prosecute and sanction violations of that convention in Article 28. However, the Convention was not born into a vacuum: it stems from, and expands upon, international humanitarian law (IHL). The Regulations annexed to the 1899 and 1907 Hague Conventions stipulate that destruction or willful damage to cultural property should be made the subject of legal proceedings in Article 56, the only article to expressly refer to accountability for its breach in those treaties. But more broadly, the primary (though sometimes forgotten) aim of IHL was to ensure that the effects of hostilities would not impede the transition to sustainable peace. In that sense, it is certainly possible (and even, in my view, necessary) to argue against the proposition that the legal framework protecting cultural heritage during armed conflicts, the axis of which is the Hague Convention, loses all relevance during transitional periods which follow armed conflicts. One oft-cited example is MINUSMA (Multidimensional Integrated Stabilization Mission in Mali, meant to induce peace and stability against the backdrop of the non-international conflict in Mali) whose mandate contained an express requirement to protect cultural and historical sites in Mali from attack (UN Security Council Resolution 2100 (2013)). But, still with regard to the transition in Mali, I believe that it was the concern for the aftermath of hostilities which led the International Criminal Court (ICC) to make certain bold choices in handling its first case involving attacks against cultural heritage – the case against Ahmad Al Faqi Al Mahdi for attacks against nine mausoleums and a mosque door of great cultural significance, most of which were World Heritage sites, in Timbuktu following its conquest by armed groups (Ansar Dine and Al-Qaeda in the Islamic Maghreb).

Remarkably, the destruction of the mausoleums in Timbuktu, distant as it was (both temporally and geographically) from any battlefield and carried out in fulfillment of an administrative decision and with the use of builder’s tools rather than weapons, was still qualified as a traditional “conduct-of-hostilities” crime as per Article 8(2)(e)(iv) of the ICC Statute. This Article criminalizes intentionally directing attacks against ‘buildings dedicated to religion, education, art, science or charitable purposes, [and] historic monuments’, provided they are not military objectives. While the choice of Article 8(2)(e)(iv) in the Al Mahdi case earned the ICC some criticism for overstretching the concept of attack in light of IHL (Schabas 2017; O’Keefe 2017) and of the nexus with an armed conflict as a general requirement allowing it to pursue a war crimes count (Schabas 2017), the Court has reiterated in other recent and ongoing cases that the crime of attacking cultural objects does not necessarily have to be committed during the actual conduct of hostilities. Without a doubt, the defendant knew that the attacks on the mausoleums, which held great significance for the inhabitants of Timbuktu, would hinder peace and reconciliation – in fact, Mr. Al Mahdi had initially cautioned against destroying the mausoleums precisely so that the militants who had assumed roles in the governance of Timbuktu could maintain good relations with the population (Al Mahdi judgment, para 89). Concern for the rebuilding of the society and of lasting peace may also explain the Court’s emphatic finding on discriminatory intent behind the attacks on the mausoleums which, but for affecting the gravity of the crime (Al Mahdi judgment, para 81), might otherwise seem superfluous in a war crime trial under Article 8(2)(e)(iv) of the ICC Statute (Elements of Crimes, 36). It seems that the Court was well aware that doing something so deliberate and cruel as the destruction of the mausoleums was bound to have a long-term impact, which, if unaddressed, might greatly jeopardize the quest for reconciliation and mending of the social fabric during transition, as further confirmed by the reparations order in the Al Mahdi case issued by the Court in 2017. Of late, legal and interdisciplinary scholarship has shown significant interest in the interplay between heritage and reconciliation in the context of TJ, inter alia through contributions mapping out the role of the commitment to lasting peace across the international legal framework protecting heritage (Vrdoljak 2020); addressing reparations for destruction and damage of cultural property (Moffett, Viejo Rose and Hickey, 2020), and the engagement of truth commissions with cultural rights violations (Luoma 2021), as well as exploring modalities of restitution of heritage at the intersection of law and technology (Sarr and Savoy 2018, Pavis and Wallace 2019). These remarks are certainly not meant to take away from Lixinski’s main argument, but rather to highlight the growing awareness of the need for a re-orientation of TJ toward a greater engagement with international cultural heritage law; one which would transcend the anti-impunity focus. In that sense, it may be said that the “ships in the night” that, as Lixinski observes, TJ and cultural heritage law are most of the time, might in fact be starting to communicate effectively and in a number of ways, which makes his contribution to the debate even more essential and timely.

Dr. Berenika Drazewska

Dorset Researcher in Public International Law at BIICL

Author of a monograph on military necessity and destruction of

cultural heritage during armed conflicts (Brill, forthcoming 2021)




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