Featured Image: International Criminal Court, The Hague, The Netherlands.
Taken by author on site, 2/1/17

On January 4^th, President Trump tweeted that if Iran were to retaliate in response to the recent American elimination of Revolutionary Guard General Qassem Soleimani, over 50 Iranian cultural sites would be targeted.[1] The prospective destruction of cultural history would be far more destructive than the attacks that caused them, as cultural sites represent invaluable symbols of our collective history. Cultural sites are not meant to be military targets; they are, rather, supposed to continually educate us about a human past that grows further by the day. Cultural sites are, further, recognized as important to us and are protected under international law.

If American forces were to target Iranian cultural sites, or any cultural site anywhere for that matter, they would be committing war crimes.

A great deal of my first master’s thesis focused on the successes and failures of international criminal law (ICL) and their impact on deterring further crimes prosecutable in international criminal institutions. To boil down a few central points of the thesis, the current iteration of ICL leaves much room for growth, but there have been noted successes in prosecuting war criminals on a variety of counts. Just a few years ago, the International Criminal Court (ICC) successfully convicted an individual on charges of destruction of cultural sites in Mali.

That individual’s name is Ahmed Al-Faqi Al-Mahdi. He was an officer in an Islamist militia operating in Mali that targeted sites in the ancient city of Timbuktu. Mali referred the situation taking place within its borders to the International Criminal Court, and an indictment and arrest warrant was handed down on Al-Mahdi on September 18, 2015.[2] Following his arrest in Niger, Al-Mahdi was taken to The Hague, where he was put on trial for destruction of cultural property, specifically under Article 8(2) of the Rome Statute, a section of the ICC’s governing document that outlines war crimes.[3] He was found guilty of destruction of cultural property and sentenced to 9 years imprisonment.[4]

Long enshrined in international law (much of the Rome Statute is based on previous Geneva Conventions), targeting cultural heritage is not simply just a war crime. It is prosecutable.

Now, neither Iran nor the United States are ratifiers of the Rome Statute and thus neither of the two are members of the ICC. As such, unless Iran grants it, the ICC would not have nominal jurisdiction over any crimes enumerated in the Rome Statute, including the destruction of cultural sites. This, though is not the point. This should go without saying, but a lack of jurisdiction over war crimes does not under any circumstance make war crimes acceptable.

There is also much more to worry about if the U.S. targets Iranian cultural sites. For one, it would be in violation of American law (see: Title 18 U.S. Code § 2441), which also outlines a commitment to stand against war crimes as well as harsh penalties for those who commit war crimes.[5] Additionally, consider the far-reaching consequences of this course of action.

If the U.S. targets Iranian cultural sites, three consequences are all but certain:

1. The cycle of escalation will continue; an attack on cultural sites on Iranian soil is more than a provocation. As it represents an attack a non-military target within Iran, it could very well be labeled an act of war. At that point, further escalation and retaliations would be likely.
2. The Iranian government would use any attacks on Iranian soil—especially those that would amount to war crimes as defined by international law—to paint the United States as a regime that commits war crimes. This would feed anger and patriotism within Iran and dramatically increase already hostile public opinion of the United States there.
3. It would paint the United States in a horrible light. How could the United States ever bill itself as a global protector of peace and an enemy of war if it openly commits recognized war crimes? The U.S. would find itself bombarded with almost universal condemnation for its state-sponsored war crimes.

If attacks against cultural sites did escalate into a wider conflict, it is likely that the United States will have a far more difficult time building a coalition to join its side compared to when it triggered Article 5 of NATO (the attack on one as an attack on all clause) when it began the War on Terror. After all, would traditional allies of the U.S.—states that also stand for international law—condone the commission of war crimes by joining the committing party in further hostilities?

…

The President has since softened his tone on the threats against Iranian cultural sites in the days since the he made his initial threats.[6] In his remarks to reporters, though, he belittled the idea of refraining from using cultural sites as military targets, though, saying:

“They are allowed to kill our people. They are allowed to maim our people, they’re allowed to blow up everything that we have and there’s nothing to stop them. We are, according to various laws, supposed to be very careful with their cultural heritage. And you know what if that’s what the law is, I like to obey the law.”[7]

Donald J. Trump, Twitter, 1/7/20 from Axios: Trump walks back targeting cultural sites: “I like to obey the law”, by Zachary Basu.

This is not the way the United States, a model of the rule of law and the “shining city on a hill,” is supposed to conduct itself. To threaten to commit war crimes and even to imply that it would not be that bad if one were to do it, simply does not reflect the United States in a good image.

The quagmire that we find ourselves in in the Middle East and especially most recently in Iran is, of course, difficult. In the wake of this most recent escalation, the U.S. has run into further issues as it pertains to remaining in Iraq. Iran retaliated to the killing of Soleimani and, thankfully, there were no casualties.

The way forward out of this mess, as it is with any tough issue in international affairs, is through efficient and effective diplomacy. Only through diplomacy, dialogue, and a shared commitment to peace, prosperity, and progress can we work through this most recent crisis and break the cycle of escalation and conflict.

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[1] Donald J. Trump, “Donald J. Trump on Twitter: ‘….Targeted 52 Iranian Sites (Representing the 52 American Hostages Taken by Iran Many Years Ago)…’ / Twitter,” Twitter, January 4, 2020, https://twitter.com/realDonaldTrump/status/1213593975732527112.

[2] International Criminal Court, “Al Mahdi Case,” International Criminal Court, n.d., https://www.icc-cpi.int/CaseInformationSheets/Al-MahdiEng.pdf.

[3] Ibid; International Criminal Court, “The Rome Statute of the International Criminal Court” (International Criminal Court, 2011), https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf.

[4] International Criminal Court, “Al Mahdi Case,” International Criminal Court, n.d., https://www.icc-cpi.int/CaseInformationSheets/Al-MahdiEng.pdf.

[5] “18 U.S. Code § 2441 – War Crimes”, https://www.law.cornell.edu/uscode/text/18/2441.

[6] Quint Forgey, “‘I like to Obey the Law’: Trump Backs off Threat to Target Iranian Cultural Sites,” POLITICO, January 7, 2020, https://www.politico.com/news/2020/01/07/pompeo-us-abide-laws-of-war-targeting-cultural-sites-095525.

[7] Zachary Basu, “Trump Walks Back Targeting Cultural Sites: ‘I like to Obey the Law’ – Axios,” January 7, 2020, https://www.axios.com/trump-cultural-sites-war-crime-laws-7731da30-e4cc-4981-9cc8-5b6214cd7378.html.