LICIT WAR TROPHIES AS A MEANS OF PRESERVING ART AND CULTURE IN TIMES OF WAR.

• Author: Govern, Kevin H.

INTRODUCTION

In the conduct of military operations throughout history, soldiers serving on the battlefield have returned home with souvenirs and relics to remember their tours. When David fought with an adversary, and overcame him, "he took away his armor and his weapons, and as other victorious heroes were wont to do, he bore them home as mementoes of his prowess, the trophies of the battle. These were placed in the house of the Lord." (2) Many war-related items, on display in museums, were brought home by individual service members, while other similar items remained in private hands or suffered loss or destruction.

As international humanitarian law has developed norms towards this practice, state practice has established the rule that "parties to conflict may seize military equipment belonging to an adverse party as war booty . . . as a norm of customary international law applicable in international armed conflicts." (3) This is distinct and different from places and their contents that, barring few exceptions and exigencies, are culturally protected, such as historic monuments, museums, and scientific, artistic, and cultural institutions. It also is distinct and different from circumstances of domestic disturbance and internal armed conflict, and the domestic laws that would proscribe takings of private or public property.

"Different operations and areas of responsibility will have different rules on prohibited activity regarding souvenirs." (4) Longstanding laws of war proscriptions have permitted parties to a conflict to seize military equipment belonging to an adverse party as war booty. "Aside from U.S. legal restrictions, there may be [domestic ministry/department of defense], . . . command, and combined or joint task force regulations and orders proscribing certain activities and allowing others." (5)

This Article will examine these issues and more with respect to the history of prescriptions and proscriptions on objects that may be seized in occupied territory during time of war, even though technically they may not be captured or found on the battlefield, (6) and the practical operational, ethical, and legal advantages of promulgating and enforcing a limited "war trophies" policy for service members serving in time of war or armed conflict.

1. HISTORICAL EXAMPLES OF TROPHY-TAKING PRACTICE AND LAW

   History is replete with examples of takings in time of war. "When armies occupy a city or countryside, desirable things change hands. The collection of booty is a tradition of war that persists despite being outlawed and morally condemned--[a practice which has been referred to] as 'ancient, timeless, and pandemic.'" (7) What follows is the briefest and most cursory of surveyed exemplars of such takings and rationales for same.

   In The Iliad, the mythical Achilles, in Book Nine, is "delighting his heart in a lyre, clear-sounding, splendid and carefully wrought, with a bridge of silver upon it, which he won out of the spoils when he ruined Eetion's city." (8) In medieval times, "[Duke] Maximilian graciously [announced] that he would send the library [of Heidelberg] to the Pope [Gregory XV] as a war trophy and as a 'token of my most obedient affection.'" (9) In addition to the stupendous amount of cultural items wrongfully taken by the Nazis during World War II, (10) in practice, the restitution of items from the USSR to East Germany in the 1950s "was pursued by the Soviet government to calm social tensions caused by the post-war economic exploitation of East Germany. No legal considerations were applied." (11)

   Duane Michael Thompson has reflected upon the irony of how the lure of spoils have eroded the discipline of fighting forces in conflicts past, when their "attention shifted to stuffing their rucksacks even before the enemy had been defeated" and how "[a]cts of pillage and plunder exacerbated the task of restoring peaceful relations in a post-war environment" such that "[something had to be done to constrain the evil of war." (12) The two prongs of international humanitarian law, jus ad bellum for the resort to war and jus in bello for the laws within war, evolved in the nineteenth and twentieth centuries to restrict the resort to war in the first place, then to protect noncombatants and cultural property from harm and destruction as well. (13)

2. MODERN LAW OF ARMED CONFLICT, AND THE PROTECTION OF PRIVATE AND CULTURAL PROPERTY

   The law of war ("LOW"), interchangeably called the law of armed conflict ("LOAC") and international humanitarian law ("IHL"), as it has evolved over the years, has authorized the confiscation of enemy military property as property of the capturing force. (14) War trophies or souvenirs taken from enemy military property are legal under the LOAC. (15) War trophy personal retention by an individual soldier is restricted under the deploying force's domestic law. (16) Consistent with IHL, U.S.-confiscated enemy military property is the property of the United States. (17) The property becomes a war trophy and capable of legal retention by an individual solider as a souvenir, only as authorized by a higher authority. (18) Pillage, or the unauthorized taking of private or personal property for personal gain or use, has been expressly prohibited. (19)

   The modern tradition for this set of rules is generally viewed as the Lieber Code of 1863. (20) According to the Lieber Code, war booty belongs to the party that seizes it and not to the individual who seizes it. (21) This rule, whereby a party to the conflict may seize military equipment belonging to an adverse party as war booty, also reflects a long-standing practice in international armed conflicts, as codified in the later Hague Regulations and Third Geneva Convention of 1949, requiring that prisoners of war must be allowed to keep all their personal belongings (as well as protective gear). (22)

   Particular prohibitions include Articles 28 and 47 of the 1899 Hague Regulations which provide: "The pillage of a town or place, even when taken by assault, is prohibited," (23) and "[p]illage is formally prohibited." (24) This is mirrored by Article 7 of the 1907 Hague Convention (IX) which provides: "A town or place, even when taken by storm, may not be pillaged," and Article 21 of the 1907 Hague Convention (X), whereby its signatory parties "undertake to enact or to propose to their legislatures . . . the measures necessary for checking in time of war individual acts of pillage." (25)

   Article 6(b) of the 1945 International Military Charter ("IMT") includes "plunder of public or private property" in its list of war crimes, for which there must be individual responsibility. (26) Also arising post-World War II, the Geneva Convention IV, Article 33, second paragraph, provides that "[p]illage is prohibited." (27) By the late twentieth century, Article 4 of the 1977 Additional Protocol II prohibits acts of pillage against "[a]ll persons who do not take a direct part or who have ceased to take part in hostilities." (28)

   Pursuant to Article 8(2)(b)(xvi) and (e)(v) of the 1998 International Criminal Court (ICC) Statute, "[p]illaging a town or place, even when taken by assault" is a war crime in both international and non-international armed conflicts. (29) More recently, in the wake of international armed conflicts in West Africa, Article 3 of Statute of the Special Court for Sierra Leone gives the Court jurisdiction over serious violations of Article 3 common to the 1949 Geneva Conventions and the 1977 Additional Protocol II, including pillage. (30)

   Paige Goodwin's study of art and the spoils of war led her to conclude that,

   [t]he idea of "cultural property" came out of World War II, but the legal regime that allows for the repatriation of art taken during WWII seems to have a statute of limitations. Things taken centuries ago remain where they are. Goodwin makes "an argument for why France should return Flemish art [ . . . ] and describes the legal routes Belgium might take to retrieve its works of art." (31) Nations and peoples around the world have sought to have their cultural heritage returned from foreign powers:

   The British Museum is famously home to many such artifacts, including the Elgin Marbles, statues...