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Does International Criminal Court have Jurisdiction over the Destruction of Cultural Property by the Islamic State of Irac and Syria?

The cultural property becomes objects of destruction in armed conflicts, such as Syria and Iraq, which were carried out by ISIS squads (Islamic State of Iraq and Syria). For ISIS’s actions, the ICC should judge ISIS. However, new problems will arise regarding the jurisdiction of the ICC to judge ISIS. Based on the explanation of this background, the question will arise: How are humanitarian law regulations related to protecting cultural property during armed conflict? And what is the regulation of the ICC’s jurisdiction over the protection of cultural property in armed conflict by ISIS? The research in this article is normative legal research with the statue approach. According to humanitarian law, the research results show that the regulations relating to the protection of cultural property during armed conflict are contained in the 1954 Hague Convention, Additional Protocol I and Additional Protocol II of the Geneva Conventions of 1977. The destruction of cultural property carried out by ISIS is included in war crimes, one of the Rome Statute material jurisdictions. In this case, the Rome Statute applied by the ICC has juridical power to uphold justice and punish, including war crimes committed by ISIS. For the destruction of various cultural property in Iraq and Syria, ISIS can be judge by the ICC through a referral by the UN Security Council based on the provisions stipulated in the 1998 Rome Statute. 
 


Introduction
Cultural property is important objects that must be protected because they hold a variety of stories in the past and can never be obtained in the present. 1 The international community has long realized this important aspect of cultural proper ty by establishing the United Nations Educational Scientific and Cultural Organization Violations in humanitarian law or referred to as war crimes are international crimes, which are the International Criminal Court's material jurisdiction or International Criminal Court (ICC). 12 For ISIS's heinous actions against the destruction of cultural property that violates humanitarian law, it can be said that the ICC as a permanent court to punish ISIS. 13 But to punish ISIS for its actions that violate humanitarian law is not an easy matter. This is related to the existence of jurisdiction, limiting the ICC's performance to sue ISIS, i.e. territorial jurisdiction. Based on the Articles 12 and 13 Ro me Statute, 14 the ICC can apply their jurisdiction over anyone (both citizens of the 1998 Rome Statute or noncitizens) as long as the crime is committed in the territory of the 1998 Rome Statute State Party and the ICC can also apply their authority against international crime in the territory of any country (both territory Parties to the Rome Statute of 1998 or not a state party) as long as the perpetrators are citizens of a State Party. In this case, the crimes committed by ISIS revolve around the regions of Iraq and Syria. The two countries have not yet ratified the Rome Statute so that the ICC does not have jurisdiction over the two countries. However, this does not mean that the ICC can't sue ISIS based on the Rome Statute.
Based on the explanation of this background, a question will be raised in the formulation of the problem, namely how humanitarian law regulations related to protecting cultural property during armed conflict? And what is the regulation of the ICC's jurisdiction over the protection of cultural property in armed conflict by ISIS?

Research Methods
The research in this article is normative legal research. Normative legal research is in the form of legal products influenced by pure legal doctrines, such as studying certain laws or regulations. 15 This research's approach method is the normative juridical method, which focuses on applicable legal provisions research. 16

Result and Discussion a. Cultural Property
Cultural property is a form of evidence, sources, and a reflection of the long history of the creation of humans that have been recorded until now, so it can be called a cultural property. 17 According to Davidson, cultural property is interpreted as a form of value from the past, which is a central element in the identity of a group or nation'. 18 Historical relics of cultural property are priceless assets, which really need to be cared for and utilized properly. 19 The protected cultural property is not an area which is natural character but rather the result of human culture in the form of objects from the past. 20 Cultural property is a material property in the form of cultural property objects, cultural property buildings, cultural property structures, cultural property sites and cultural property areas on land and/or in water whose existence needs to be preserved because it has important values for history, science, education, religion and /or culture through a process of determination. 21 Cultural property objects are the noblest relics for the national property because they contain the meaning of the ancestral culture's values for memories of all time. The most important thing in the cultural property as a historical/archaeological property is an object which is inseparable from the environment of the people who respect these relics. 22 Cultural property has two major focuses on the protection of movable and immovable cultural property at a time of armed conflict, the second and fourth on the protection of movable cultural property in peacetime, and the third on the peacetime protection of, primarily, elements of immovable cultural heritage.

b. Cultural Property Based on International Law
Based on the previous chapter's explanation, it can be seen that cultural objects have an important role even in the cultural, social, and economic aspects. So that in the international scope, cases of theft of cultural property and trafficking of cultural property, namely the smuggling of historical goods with the motive of illegal trade in either export or import activities, are very threatening crimes. As a response to cases of crimes against cultural property, The UNESCO,a United Nations special agency engaged in the fields of education, science and culture, 24 has initiated various conventions and regulations that protect cultural objects. 25 In the context of protecting cultural objects throughout the world, UNESCO has formed several conventions that the international community has agreed to as a form of protection of each nation's cultural property. In this case, cultural property has an important position in the eyes of the world that we must guard and protect both when peaceful and during the war. According to Kusumaatmadja, as quoted by Haryomataram, war is a condition that a country or more country is involved in an armed dispute, accompanied by a statement of one of the other parties' intention. When war or armed conflict, cultural property is protected based on international humanitarian law. 28 The purpose of humanitarian law is to protect those who suffer or who become victims of war, both those who ar e real and active in disputes (combat), as well as those who do not participate in disputes (civilians). 29 The laws of war are not intended to prohibit war or enact laws that define war, but for humanitarian reasons to reduce or limit individuals' suffering and limit areas in which  ) Securing cultural objects. Every country hopes to secure their cultural property when the conflict starts or when in safe conditions by taking appropriate actions. 2) Cultural respect. Respect for the cultural property can be done by mutual respect for cultural property belonging to other countries. Stopping anyone who wants to damage, steal, plunder, abuse, and other vandalism acts and prohibit acts of retaliation directed at cultural objects. This is an obligation of each party to this convention.
The 1954  Beside regulated in the Hague Law, protection of the cultural property is also regulated in Geneva Law, which is in Additional Protocol I and Additional Protocol II of the Geneva Conventions of 1977. Article 53 Additional Protocol I outlines the prohibition on attacking and using historical value or culture value buildings to support military operations. Also determined in Point D of paragraphs 4 and 5 states that cultural property destruction is a grave offence and is a war crime. While in Protocol II, which contains regulations concerning the protection of victims of noninternational armed conflict, it also regulates the protection of cultural property and places of worship. Regulations on protecting cultural property are contained in article 16. 42 Then, one of the criminal efforts in the act of destroying cultural property during a war can be seen in its implementation in the ad hoc court of the International Criminal Tribunal for the Former Yugoslavia (ICTY) which was formed to try the attack on the Old City of Dubrovnik. ICTY applies individual criminal responsibility to the perpetrators. 43 Nowadays, the international community has a permanent court in the world that has jurisdiction to convict war criminals who violate humanitarian law is the International Criminal Court or ICC. ICC has a legal basis in trying international crimes which based on the Rome Statute.
The act of destroying cultural objects during the war in international and noninternational armed conflicts is a war crime as defined in Article 8 of the Rome Statute of the International Criminal Court (hereinafter referred to as the Rome Statute). It can also be identified as a crime against humanity under Article 7 paragraph (1)

3) ICC Jurisdiction Over the Protection of Cultural Property in Armed Conflict by ISIS
Based on that explanation, it can be seen that cultural property in armed conflict is protected by humanitarian law. However, these regulations' existence does not rule out the possibility of destruction of cultural property when armed conflict occurs. It can be seen in the conflicts in Iraq and Syria by the Islamic State of Iraq and Syria or ISIS since occupying Mosul, Iraq, and a few central places in Syria. The ISIS group has damaged at least 23 tombs of Sufis and ancient mosques; 11 churches and monasteries; and 14 thousand-year-old ancient sites (including the ruins of Assyrian-era royal buildings). That number does not include libraries and museums that store pre-Islamic artefacts and ancient literature. 46 As mentioned above, cultural property in armed conflict is protected by humanitarian law, but what happens to cultural property when armed conflict in Iraq and Syria by ISIS violates humanitarian law provisions. So that ISIS as the main suspect must be tried for war crimes he had been done. In other words, ISIS can be tried by the ICC for the crimes they have committed. However, to punish ISIS for their actions that violate humanitarian law is not an easy matter. It is related to ICC jurisdiction's existence that limits the ICC's performance to sue ISIS, namely territorial jurisdiction. It is based on the provisions contained in the Rome Statute. 47 Based on the Rome Statute, the ICC can undertake their jurisdiction over anyone (whether a citizen of the Rome Statute 1998 or non-citizen) as long as the crime is occurring in the territory of the 1998 Rome Statute State Party and the ICC can also undertake their authority against international crime in the territory of any country (both territory Parties to the Rome Statute of 1998 or not a state party) as long as the perpetrators are citizens of a State Party Rome Statute 1998.
In this case, the crimes committed by ISIS revolve around the regions of Iraq and Syria. The two countries have not yet ratified the Rome Statute so that the ICC does not have jurisdiction over the two countries. In the absence of ICC jurisdiction in Iraq and Syria, ISIS cannot be reported to the ICC, and ICC cannot simply try ISIS without jurisdiction. Even so, that does not mean there is no way for the world to prosecute ISIS for all international crimes that they have already done . Because after all, the purpose of the establishment of the ICC was to improve distributive justice so that it would be unfair if ISIS could not be tried because the number of ISIS victims is not a bit. 48 Based on the provisions of the Rome Statute 1998, the ICC does not have jurisdiction for perpetrators of crimes who are not citizens of State Party of the Rome Statute, and crimes that have not been committed in a state party area. However, if international crimes are committed by non-citizens of the Rome Statute State Party, and the crimes that have not been committed in the state party area, the ICC can still prosecute those perpetrators based on the reference of the UN Security Council, as an institution that has a responsibility to maintain the peace and security on around the world. It is based on Article 13 Rome Statute. So that the ICC can try and punish ISIS but based on recommendations from the UN Security Council. However, until this time the Public Prosecutor of ICC has not yet investigated ISIS over the various crimes they have committed, so it can be said that the Security Council has not submitted a proposal to the ICC Public Prosecutor to investigate ISIS.
But that does not mean the Security Council is silent on crimes committed by ISIS, in this case, the Security Council has released several resolutions related to various crimes committed by ISIS, such as on December 16, 2015, the Security Council released a resolution S/PRST/2015/25 on investigations trafficking in persons, women and children carried out by ISIS. Then, on April 24, 2015, the Security Council released a resolution S/PRST/2015/10 on Syria's humanitarian crisis. Then in 2015, the Security Council released a resolution SC/12090 on suggestions for investigating illicit funds used by ISIS and investigations on ISIS members. The Security Council finally formed a resolution December 21, 2016, A/RES/71/248 to establish a fair and independent international mechanism to assist the investigation and prosecution of those responsible for the most serious crimes under international law committed in Syria since March 2011. The resolution was drafted by Liechtenstein and legitimated by 105 supporting states, 15 rejecting states and 52 states are abstaining. 49 So far, it can be seen that the real efforts of the Security Council to prosecute ISIS have not produced any tangible results related to the punishment that ISIS deserves for any crime they have committed.
International law and humanitarian law strictly prohibit the destruction of cultural property in any part of the world. The Prison Law itself is the only appropriate form of punishment for war crimes; fines by themselves are not an appropriate punishment for war crimes. The punishment imposed must fulfil the crime factors is a violation, especially of the values protected by the international community. 50

Conclusion
Protection of cultural property during armed conflict is regulated by the Hague humanitarian law and Geneva law. The Hague Law is regulated in the 1954 Hague Convention on the Protection of Cultural Property in Armed Conflict co mplemented by 3 related instruments and two protocols, namely Protocol I concerning the protection of cultural property in situations of armed disputes in 1954 and Protocol II concerning the protection of cultural objects in situations of armed conflict in 1999 and Protocol III concerning regulations for the implementation of the 1954 Hague Convention. In addition to being stipulated in the Hague Law, protection of cultural property also regulated in the Geneva Law, which is Additional Protocol I and Additional Protocol II of the Geneva Convention 1977.
The destruction of cultural property carried out by ISIS is included in the category of war crimes, one of the Rome Statute material jurisdictions. In this case, the Rome Statute applied by the ICC has juridical power to uphold justice and punish, including war crimes committed by ISIS. For the destruction of various cultural properties in Iraq and Syria, ISIS could be tried by the ICC through a referral by the UN Security Council based on the provisions stipulated in the Rome Statute 1998.
Based on the presentation of all papers, the author will suggest that it is necessary to take strict action to punish ISIS crimes to realise justice. As already stated, ISIS can be prosecuted by a referral mechanism through the UN Security Council. Thus the UN Security Council should immediately take action to sue ISIS so that the ICC can try it in accordance with applicable legal provisions.