The decision by the International Court of Justice (ICJ) that Myanmar should take all measures available to prevent acts of genocide against the persecuted Rohingya minority is truly ground-breaking. The case shows how small states can play an important role in upholding international law and holding other states accountable. 

The Gambia, acting with the support of the Organization of Islamic Cooperation, skilfully used Article IX of the Genocide Convention, which allows for a state party to the convention to pursue cases against another state party where it is felt there has been a dispute regarding the ‘interpretation, application or fulfilment’ of the convention.

Seventeen states have entered reservations against this specific provision but Myanmar is not one of them. It was on this basis that The Gambia was able to take its case to the ICJ. This exciting development expands the possibilities of international accountability at the state-to-state level.

But it should be noted that the current ruling is focused on provisional measures – the central case could still take years to conclude. There is still a long road ahead on the court determining whether the Myanmar authorities committed acts of genocide.

And, while the decision was unanimous and binding, the ICJ cannot enforce its ruling. Myanmar has shown itself resistant to international criticism and there is a real risk they will fail to comply.

One way forward, should Myanmar not respect the ruling, is that the UN Security Council could agree a resolution to compel action. However, it seems unlikely that China would ever vote for such a resolution, given its strong stance on non-intervention and its economic interests in the country. 

Violations against cultural property – such as archaeological treasures, artworks, museums or historical sites – can be no less detrimental to the survival of a nation than the physical persecution of its people. These assaults on heritage ensure the hegemony of some nations and distort the imprint of other nations in world history, sometimes to the point of eradication.

As contemporary armed conflicts in Syria, Ukraine and Yemen demonstrate, cultural property violations are not only a matter of the colonial past; they continue to be perpetrated, often in new, intricate ways.

Understandably, from a moral perspective, it is more often the suffering of persons, rather than any kind of ‘cultural’ destruction, that receives the most attention from humanitarian aid providers, the media or the courts. Indeed, the extent of the damage caused by an assault on cultural property is not always immediately evident, but the result can be a threat to the survival of a people. This is strikingly exemplified by what is currently happening in Crimea.

Ukraine’s Crimean peninsula has been occupied by Russia since February 2014, meaning that, under international law, the two states have been involved in an international armed conflict for the last six years.

While much attention has been paid to the alleged war crimes perpetrated by the occupying power, reports by international organizations and the International Criminal Court (ICC) have been less vocal on the issue of cultural property in Crimea. Where they do raise it, they tend to confine their findings to the issue of misappropriation.

However, as part of its larger policy of the annexation and Russification of the peninsula and its history, Russia has gone far beyond misappropriation.

Crimean artefacts have been transferred to Russia – without security justification or Ukrainian authorization as required by the international law of occupation – to be showcased at exhibitions celebrating Russia’s own cultural heritage. In 2016, the Tretyakov Gallery in Moscow staged its record-breaking Aivazovsky exhibition, which included 38 artworks from the Aivazovsky Museum in the Crimean town of Feodosia.

Other ‘cultural’ violations in the region include numerous unsanctioned archaeological excavations, whose findings are often unlawfully exported to Russia or end up on the black market.

There is also the example of Russia’s plan to establish a museum of Christianity in Ukraine’s UNESCO World Heritage site, the Ancient City of Tauric Chersonese. This is an indication of Russia’s policy of asserting itself as a bastion of Orthodox Christianity and culture in the Slavic world, with Crimea as one of the centres.

The harmful effects of Russia’s destructive cultural property policy can be seen in the situation of the Crimean Tatars, Ukraine’s indigenous Muslim people. Already depleted by a Stalin-ordered deportation in 1944 and previously repressed by the Russian Empire, the Crimean Tatars are now facing the destruction of much of the remainder of their heritage.

For example, Muslim burial grounds have been demolished to build the Tavrida Highway, which leads to the newly built Kerch Bridge connecting the peninsula to Russia.

The destructive reconstruction of the 16th-century Bakhchysarai Palace – the only remaining complete architectural ensemble of the indigenous people, included in the UNESCO World Heritage Tentative List – is another example of how the very identity of the Crimean Tatars is being threatened. This reconstruction is being conducted by a team with no experience of cultural sites, in a manner that erodes its authenticity and historical value – which is precisely as Russia intends.

There is a solid body of international and domestic law covering Russia’s treatment of Crimea’s cultural property.

Under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict – ratified by both Ukraine and Russia – the occupying power must facilitate the safeguarding efforts of the national authorities in occupied territories. States parties must prevent any vandalism or misappropriation of cultural property, and, according to the first protocol of the convention, the occupying power is required to prevent any export of artefacts from the occupied territory.

The 1907 Hague Regulations and the 1949 Fourth Geneva Convention confirm that the authentic domestic legislation continues to apply in occupied territories. This leaves Russia with no excuse for non-compliance with Ukraine’s cultural property laws and imposing its own rules unless absolutely necessary.

Besides, both Ukrainian and Russian criminal codes penalise pillage in occupied territory, as well as unsanctioned archaeological excavations. As an occupying power, Russia must not just abstain from such wrongdoings in Crimea, but also duly investigate and prosecute the alleged misconduct.

The clarity of the international legal situation demonstrates that no exhibitions in continental Russia and no archaeological excavations which are not sanctioned by Ukraine can be justified. Likewise, any renovation or use of cultural sites, especially those on permanent or tentative UNESCO lists, must only be conducted pursuant to consultancy with and approval of the Ukrainian authorities.

But the resonance of the Crimean case goes beyond law and touches on issues of the very survival of a people. The Soviet deportation of the Crimean Tatars in 1944 did not only result in the deaths of individuals. Their footprints in Crimea have been gradually erased by baseless treason charges, the long exile of the indigenous community from their native lands and ongoing persecution.

First the Soviet Union and now Russia have targeted the Crimean Tatars’ cultural heritage to undermine their significance in the general historical narrative, making attempts to preserve or celebrate this culture seem futile. Russia is thus imposing its own historical and political hegemony at the expense of the Crimean Tatar and Ukrainian layers of Crimean history.

As exemplified by occupied Crimea, the manipulation and exploitation of cultural heritage can serve an occupying power’s wider policies of appropriating history and asserting its own dominance. Domestic cultural property proceedings are challenging due to the lack of access to the occupied territory, but they should still be pursued.

More effort is needed in the following areas: case prioritization; informing the documenters of alleged violations about the spectrum of cultural property crimes; developing domestic investigative and prosecutorial capacity, including by involving foreign expert consultancy; more proactively seeking bilateral and multilateral cooperation in art crime cases; liaising with auction houses (to track down objects originating from war-affected areas) and museums (to prevent the exhibition of the artefacts from occupied territories).

When possible, cultural property crimes should also be reported to the ICC.

Additionally, more international – public, policy, media and jurisprudential – attention to such violations is needed. Societies, courts and policymakers should have a clearer awareness that assaults against cultural heritage constitute a creeping encroachment on a people’s identity, endangering its very survival.

Russia annexed Ukraine’s Crimean peninsula in 2014. Despite Russia’s interpretation of its rights to the peninsula, international law and the international community, including the UN General Assembly and the Parliamentary Assembly of the Council of Europe, regard Crimea as occupied and do not recognize any changes to its status. Against this backdrop, Ukraine has attempted to hold Russia accountable for the annexation through the international courts. 

The panellists assess the effectiveness of Ukraine’s reliance on lawfare as a means of holding Russia accountable for its alleged wrongs. What is the role of the International Criminal Court in addressing alleged war crimes and crimes against humanity perpetrated by Russia in the occupied peninsula? Were lengthy International Court of Justice proceedings, for example on the narrow issue of alleged racial discrimination in Crimea, worth launching? What further institutional and legislative reforms are needed to support justice and reconciliation in war-affected Ukraine? And what does this all mean for the situation on the ground?

The UK will host the 26th Conference of the Parties (COP26) in November 2020 in Glasgow. In the run up, Chatham House is organizing a monthly briefing series targeted to:

• The diplomatic service based in London, in particular, staff of the London embassies who are reporting on climate change issues.
• Senior UK government civil servants, officials and politicians engaged in climate change.
• Academics, experts, business representatives and NGOs.

The first briefing in the series focuses on the results from COP25 held in Madrid in December 2019 and what this means for 2020.

This briefings series offer an opportunity to discuss, in an informal setting, the most pressing and complex climate issues of the day with UK and international government officials and experts.

In December 2019, the EU launched the European Green Deal, a comprehensive policy package which aims to make the continent carbon-neutral by 2050. It contains a wide range of legal and policy measures including support for restoring ecosystems and biodiversity, low-carbon mobility, and sustainable food systems and healthy diets.

Even though the UK has now left the EU, and the UK government has made clear that there will be no regulatory alignment and no rule-taking from the EU, this will affect Britain’s markets, trade negotiations and stance in global climate action.

The UK has essentially three choices in how to react. First, non-alignment, with low ambition for domestic climate and environmental policies and product standards; second, so-called dynamic alignment, which means non-regression on existing environmental regulations, with domestic UK policies mirroring those of the EU in the future; third, non-alignment but higher ambition, with a domestic policy agenda to emerge as global leader on climate and green industrial development.

What would be the consequences of each of these three options?  

Non-alignment

There is concern that the UK might be going down this route, swapping an established set of stringent EU environmental protections for a new set of deliberately loose regulations. For instance, standards on air pollution have been watered down in the new UK Environment Bill.

As part of the European Green Deal, a carbon border adjustment tax to prevent ‘carbon leakage’  – companies relocating to countries with laxer climate policy outside the EU to avoid higher costs, with the result of increasing overall emissions  – was also announced. The EU has already threatened to potentially apply this mechanism against the UK as part of its policy to ensure a ‘level playing field’ in trade between the two.

Non-alignment on European carbon taxation and border adjustment would help to facilitate a quick trade deal with the US but it would clearly make it more difficult for UK businesses to sell into the EU market.

Furthermore, the UK’s and the EU’s climate security concerns and interests continue to be closely tied together. Ignoring European climate policy developments might jeopardize the UK’s long-term climate security.

Dynamic alignment and mirroring future standards

This would be beneficial to the future industrial competitiveness of the UK’s manufacturing sector.

The European Green Deal is more than a set of ambitious environmental policies. It also includes comprehensive plans for industrial policies, digitalization, financing mechanisms and investment programmes.

A new Circular Economy Action Plan to be published in March 2020 (a leaked draft version is available) will introduce a set of new targets and regulations on a range of products. The aim is that ‘by 2030, only safer, circular and sustainable products should be placed on the EU market’.

We can expect to see new eco-design requirements for information and communication technologies, and a revision of laws on hazardous substances in electrical and electronic equipment. The European Green Deal also aims to boost trade in secondary raw materials with regional initiatives aimed at ‘harmonizing national end-of-waste and by-product criteria’. Those could be a first step towards EU-wide criteria.

Furthermore, the European Strategy for Data will facilitate the development of a ‘single market for data’ and develop electronic product passports which can improve the availability of information of products sold in the EU to tackle false green claims.

The UK would benefit from mirroring these industrial policies domestically to achieve equivalence of standards. This could facilitate a closer partnership and would potentially also offer chances to UK businesses in the green technology sector to benefit not only in terms of EU market access, but also from the European Green Deal investment plan – a €1 trillion opportunity.

Higher ambition: aiming for global leadership

This gives the UK the unique opportunity to become a frontrunner. There are many challenges to implementing the European Green Deal, such as member states with little interest in green issues, which the UK can avoid.

The new UK Environment Bill is the first example of a policy departure from EU regulations. While there are some elements that point to a loosening of standard, in statements accompanying the bill, the Department for Environment, Food and Rural Affairs has insisted that the UK will not be bound by future EU green rules and even ‘go beyond the EU’s level of ambition’ on the environment.

For example, the bill introduces new charges for single-use plastic items to minimize their use and incentivize reusable alternatives. Plus, the UK aims to exceed the EU’s level of ambition to create global action by introducing powers to stop the exports of plastic waste to developing countries.

Taking a global leadership role on climate would also benefit the UK's climate diplomacy to make this year’s COP 26 (jointly hosted with Italy) in Glasgow a success. The European Green Deal agenda sets a new benchmark for climate action and shows global leadership. If the UK also wants to be seen as leading the climate and sustainability agenda, it can scarcely afford to be seen as falling behind.