2006/2007] PROTECTING CULTURAL PROPERTY 111
UNDER NEW MANAGEMENT: THE OBLIGATION TO PROTECT CULTURAL PROPERTY DURING MILITARY OCCUPATION
MAJOR JOHN C. JOHNSON*
Works of art and sculpture, artifacts, great monuments and temples have been prized throughout history as being of significant importance. This has been so, not only because of their aesthetic worth, but also because they represent the talent and endurance of man and the history of diverse civilizations. The contributions made to this universal collection since time began have produced a store which comprises man's cultural heritage. This heritage is a compendium of the sufferings and the genius of mankind. It must be well-preserved to ensure that future generations can see and marvel at the accomplishments of their own epoch and those that came before.1
On 9 April 2003, before the eyes of the world, in the middle of Baghdad, Iraqi citizens and U.S. military personnel pulled down a statue
of Saddam Hussein.2 United States forces had begun to penetrate Baghdad days before against disintegrating opposition.3 "The regime in Baghdad effectively ceased to function" on 9 April 2003.4 For the U.S.-led coalition,5 the invasion of Iraq appeared to be reaching a successful conclusion.
Yet elsewhere in Baghdad, a tragedy was beginning to unfold. Between 9 and 12 April 2003, unknown persons stole thousands of artifacts from the Iraqi National Museum.6 The museum, the largest and most modern of its kind in the Middle East,7 contained three-quarters of the archaeological artifacts discovered in Iraq during the preceding eighty years8-a collection ranging into the hundreds of thousands of items.9 Exaggerated initial reports suggested the entire collection was lost. Investigation, however, revealed the actual loss was far less in terms of raw numbers, and the museum staff had previously hidden many of the most valuable items elsewhere.10 Nevertheless, the damage to the cultural heritage of Iraq, and the world, was severe.11
The criticism leveled at the U.S. military was also severe. Certain experts complained they had previously warned U.S. government officials of the museum's vulnerability to looting in the event of war.12
Critics noted the United States did secure certain other buildings in Baghdad, including the oil ministry.13 In one oft-cited incident, a Marine officer allegedly denied multiple requests to stop the looting or to deter the looting by moving troops closer to the museum.14 United States forces finally secured the museum on 16 April 2003, four days after the museum staff returned, and four days after media reports of this incident.15
Criticism of strategy or priorities aside, do critics have a colorable argument that the United States violated international law by failing to secure the Iraqi National Museum against looters prior to 16 April 2003? Specifically, did the United States violate its obligations under the laws pertaining to military occupation and the protection of cultural property?
This article addresses these questions by first examining the legal regime for the protection of cultural property during armed conflict. Next, it reviews the regime for protecting cultural property in time of peace. The article then reviews applicable international law relating to military occupation. Finally, it applies these rules to the Iraqi National Museum incident, concludes that there is cause for concern, and suggests that greater attention to this area of the law might help prevent similar instances in the future.
Protection of Cultural Property
The protection of cultural property can be divided into two distinct international legal regimes: one designed to avoid targeting of or damage to cultural property during armed conflict,16 and another designed to prevent illegal trafficking in cultural property in times of peace.17 Although the former is more directly applicable for present purposes, the latter is significant with respect to an occupier's responsibilities. We therefore review each in turn.
Protection of Cultural Property During Armed Conflict
1. History Through the Second World War
Ancient Times Through the Renaissance
In ancient times, the law of war presumed the victors could seize or destroy the works of art, public buildings, sacred sites, and other cultural
treasures of the vanquished.18 Instances from classical literature and history abound. Emperor Xerxes of Persia's destruction of artifacts during his invasion of Greece is one frequently cited example, perhaps due to Xerxes' vilification by Greek historians.19 Some credit Alexander the Great of Macedon with a relatively enlightened view, for his era, regarding treatment of cultural property,20 but his army sacked and plundered cities such as Thebes, Tyre, Gaza, and Persepolis-with much slaughter-when Alexander found it politically or economically expedient to do so.21 Rome's total destruction of Carthage in 146 B.C. at the conclusion of the Punic Wars22 and sack of Herod's Temple in
Jerusalem in 70 A.D.23 are additional renowned examples. Pleas by scholars of antiquity such as Polybius, Cicero, and Saint Augustine seeking to prevent or limit looting and destruction24 were not representative of the practice or norms of early warfare.
The pervasive notion that the victor was entitled to the spoils of war and that cultural property was fair game continued through the Middle Ages and into Europe's Renaissance.25 The deliberate looting and destruction of cultural treasures remained widespread during the Thirty Years War of 1618 to 1648.26 In the mid-seventeenth century, when Hugo Grotius, a key figure in the development of international law, reviewed the practice of armies during millennia of warfare, he concluded: "[I]t is permitted to harm an enemy, both in his person and in his property; that is, it is permissible not merely for him who wages war for a just cause, and who injures within that limit . . . but for either side indiscriminately."27 Grotius continued, "the law of nations has permitted the destruction and plunder of the property of enemies, the slaughter of whom it has permitted," and the law "does not exempt things that are sacred."28
The Enlightenment and the Napoleonic Era
The intellectual stirrings of the Enlightenment coincided with a gradual change in the treatment of cultural treasures during warfare. By the end of the seventeenth century, "axioms of international law exerted an undeniable influence on the mode and manner of warfare" and contributed to making eighteenth century warfare "a relatively humane and well-regulated enterprise."29 The humanitarian tone of Swiss scholar Emmer30 de Mattel's 1758 treatise The Law of Nations stands in marked contrast to Grotius's gloomy observations.31 Foreshadowing modern principles of the law of war, de Mattel declared that "[a]ll acts of hostility which injure the enemy without necessity, or which do not tend to procure victory and bring about the end of the war, are unjustifiable, and as such condemned by the natural law."32 With regard to cultural property in particular, de Mattel wrote
For whatever cause a country be devastated, those buildings should be spared which are an honor to the human race and which do not add to the strength of the enemy, such as temples, tombs, public buildings, and all edifices of remarkable beauty. What is gained by destroying them? It is the act of a declared enemy of the human race thus wantonly to deprive men of these monuments of art and models of architecture . . . . We still abhor the acts of those barbarians who, in overrunning the Roman Empire, destroyed so many wonders of art.33
However, de Mattel clarified that it was not the destruction per se but the unnecessary destruction of such works that was unlawful.34 He continued, "if in order to carry on the operations of the war . . . it is
necessary to destroy buildings of that character, we have an undoubted right to do so."35
During the Napoleonic era, military forces continued to plunder cultural property, including Napoleon's own forces.36 The French method of acquiring and handling captured treasures differed from that of belligerents in earlier conflicts.37 France commonly made the surrender of valuable cultural properties a condition of the armistices and treaties imposed on defeated territories, thereby accumulating vast amounts of art to be kept and displayed at the Louvre and other locations in France.38 The regime created a committee for the specific purpose of managing these treasures.39 It is interesting that Napoleonic France should take the trouble to create a veneer of legal legitimacy and regularity when, in the past, the victors had simply taken or destroyed cultural monuments and artifacts as they saw fit.40 That France made such a gesture to legitimize its acquisitions suggests some recognition of an international norm against the brute seizure of a nation's cultural property. The 1815 Treaty of Paris following Napoleon's final defeat reinforced that expectations had indeed changed since Grotius's day.41
The treaty disregarded the coercive treaties that purported to authorize the acquisitions and required France to return the treasures it had taken.42
The British Foreign Minister Lord Castlereagh clarified that this was not merely victor's justice when he declared "the removal of works of art was 'contrary to every principle of justice and to the usages of modern warfare.'"43
The Lieber Code and the Late Nineteenth Century
Thus, by the middle of the nineteenth century, customary international law afforded some protection to the arts and sciences during