Document Type

Article

Publication Date

2021

Abstract

In recent years, armed conflicts around the world have occasioned widespread destruction of cultural heritage sites. From the demolition of Palmyra in the Syrian Arab Republic to the destruction of Sufri Shrines in Mali, the intentional despoliation of these important cultural heritage sites is not only an uncontroverted violation of international law but a form of cultural genocide. The destruction of cultural heritage profoundly impacts citizenry on a local, national, and global level. Cultural heritage is an expression of fundamental and universally recognized human rights, including rights to freedom of expression, freedom of thought, freedom of conscience and religion, and freedom of culture. Despite the importance of this expression, suing the perpetrators of these wanton attacks in U.S. courts is extraordinarily difficult, if not impossible. While many plaintiffs have successfully stated a claim under the Alien Tort Statute for violation of the law of nations, involving personal injury or death suffered by a foreign plaintiff, the destruction of property has consistently failed to meet the stringent legal thresholds imposed by the United States Supreme Court.

This Article reviews the evolving law pertaining to the Alien Tort Statute (“ATS”) and the challenges posed by its application to torts against cultural heritage. In light of recent precedent, this paper sets forth a bold proposal: Under existing international law, the destruction of cultural heritage should qualify as a violation of a norm of the law of nations and thus fall under the penumbra of the Alien Tort Statute. A discussion of the value of cultural heritage is particularly important as the United States grapples with the divisive conversation over the destruction of confederate monuments. Although the concept of invoking “universal jurisdiction” is controversial in principle and practice, this avenue is necessary to effectively redress the harms to individuals and cultural groups caused by the destruction of heritage sites and in doing so holds accountable those who commit these crimes against humanity.

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