Protecting cultural property in Iraq: how American military policy comports with international law.

• Author: Thurlow, Matthew D.

1. INTRODUCTION

   AS American troops entered Baghdad as a liberating force on April 9, 2003, a wave of looting engulfed the city. Iraqi looters ransacked government buildings, stores, churches, and private homes stealing anything they could carry and defacing symbols of the defunct Hussein regime. American authorities had not anticipated the magnitude or the fervor of the civil disorder. But the looting over the course of two to three days at Iraq's National Museum, home to the world's greatest collection of Babylonian, Sumerian, and Assyrian antiquities, stood apart from the rest of the pillaging and vandalism in Baghdad. Months before, prominent members of the international archaeological community contacted the U.S. Department of Defense and U.S. State Department with concerns about the Museum. (1) Nonetheless, as the threat materialized, American forces largely stood idle as a rampaging mob ravaged the collection. Initial reports noted that 170,000 objects had been taken including some of the world's most priceless ancient treasures. (2) In the following weeks, the anger of Iraqis, archaeologists, and cultural aesthetes bubbled over in a series of accusatory and condemnatory newspaper reports and editorials. (3)

   Although the Museum's losses were far less than originally feared, (amounting to the loss of only about thirty-three major pieces and an additional 8,000-18,000 artifacts), (4) the incident focused international attention on an important issue of international law, namely the protections afforded cultural property during armed conflicts. The looting of the Museum and several other important cultural sites in Baghdad and throughout Iraq has raised important political, moral, and legal questions: Does the United States have an obligation to protect the greatest cultural assets of the Iraqi people? Does American military policy provide adequate guidance to ensure that the cultural property of the Iraqi people will be preserved? Finally, at what point is the responsibility to protect cultural property waived by countervailing principles of military necessity?

   Any discussion of the protection the United States should afford cultural property must begin with a definition--an explanation of what property the international community recognizes as deserving of special protections. Although the meaning of cultural property has shifted over time, (5) for purposes of this paper, I will adopt the broad definition of cultural property provided in the Hague Convention of 1954. (6) The 1954 Hague Convention defines cultural property as "movable or immovable property of great importance to the cultural heritage of every people." (7) More specifically, it includes protections for archaeological sites, archives, museums, large libraries, historic city centers, religious or secular monuments, individual works of art, books, scientific collections, and "other objects of artistic, historical or archaeological interest." (8)

   The United States has joined numerous international treaties that provide limited protections for cultural property including: The Hague Conventions of 1899 and 1907, (9) The Roerich Pact, (10) the Fourth Geneva Convention, (11) the UNESCO Convention of 1970, (12) the World Heritage Convention, (13) and the UNIDROIT Convention. (14) In addition to these obligations, international customary laws of warfare also bind the United States. While customary laws of war are often ill-defined, they generally include many of the principles from Geneva Protocols I and II (15) and other international conventions and treaties ratified by the United States. Finally, the United States has its own policy on the rules of war and cultural property. The Department of Defense has developed a Law of War (LOW), which incorporates the treaty obligations of the United States and creates a set of binding, wartime obligations for U.S. service members. (16) Each branch of the military has issued manuals outlining the responsibilities of troops and commanders under the Law of War (or Law of Armed Conflict). The manuals developed by the different military branches, however, are policy guides rather than strict military protocols. (17) The actual protection afforded cultural property during a conflict may be broadened or narrowed to fit political, social, and military exigencies.

   In this Note, using Operation Iraqi Freedom as a case study, I will argue that it is in the best interests of the United States to develop stronger and clearer standards of protection for cultural property. Specifically, I will contend that the United States should ratify the provisions of the 1954 Hague Convention and provide affirmative protection for cultural property during armed conflicts. The war in Iraq has shown that it is in the long-term strategic interests of the United States to cooperate with occupied countries in preventing the looting and destruction of cultural property. The response of the international community to the events in Iraq has also underlined a growing global consensus that cultural property is entitled to protection as a matter of international human rights. (18) To the extent that the United States is concerned with cultural rights, the United States military must shift its current understanding of cultural property as a mere special type of private property to an understanding of cultural property as belonging to the international community and the individual peoples of the world.

   In Part II of this Note I trace the development of international laws relating to the treatment of cultural property during armed conflicts. I will emphasize a shift in international law from conceptualizations of cultural property as private property or the property of a nation-state to the property of the international community and "individual peoples." In Part III, I describe current American military policy manuals with regard to the protection of cultural property during armed conflicts. In Part IV, I critique the purposes of the manuals and the military's limited vision of cultural preservation. In Part V, I return to Operation Iraqi Freedom and describe how the cultural protection standards established by American policymakers played out following the invasion in the spring of 2003. Specifically, I highlight the extent to which American policy in Iraq has both comported with and fallen short of international property protection standards. Finally, in Part VI, I describe how international cultural property treaties can be made more effective, propose specific changes to American military policy manuals, and argue for the adoption of international norms of armed conflict as a means of averting future cultural property tragedies.

2. INTERNATIONAL CONVENTIONS AND TREATIES RELATING TO THE TREATMENT OF CULTURAL PROPERTY DURING ARMED CONFLICT

   1. The Lieber Code

      Long before the Hague Convention of 1954, American military leaders during the Civil War played an instrumental role in developing the first modern code to protect cultural property during armed conflicts. The Lieber Code of 1863 (19) became the basis for all modern international agreements safeguarding cultural property in the event of war. The Code defined cultural property as a form of "private property" subject to higher standards of protection and preservation than public or government property. (20) Although the Code permitted the destruction and appropriation of property in some circumstances, (21) it provided strong protections for cultural property. The Code held that "[c]lassical works of art, libraries, scientific collections ... as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places which are besieged or bombarded." (22) This broad obligation to protect cultural property at points or places held by the enemy goes far beyond current U.S. military obligations. Not only did the Lieber Code require Union commanders to reconsider attacks against cultural sites held by the enemy, but the Code also placed an affirmative duty on Union commanders to "acknowledge and protect" cultural objects and sites in occupied territories. (23)

   2. Early Cultural Property Agreements & the Hague Convention of 1907

      The 1874 Brussels Conference (24) translated most of the Lieber Code into an international agreement. (25) Although the Brussels Conference failed to lead to an international treaty, laws of war developed rapidly in the next twenty-five years. The 1899 Hague Convention finally created an enforceable body of international law on the rules of land warfare. Adopted soon thereafter, the Hague Convention of 1907 became the defining source of the United States military's cultural property policies for the next hundred years.

      Unlike prior conventions, the Hague Convention of 1907 provides carefully tailored rules against the destruction of cultural property. Article 25 explicitly forbids attacks against undefended towns, buildings, or dwellings and Article 27 holds that "all necessary steps must be taken to spare, as far as possible," religious buildings, museums, monuments, and hospitals. (26) Under the same article, if the enemy uses cultural sites for military purposes, however, immunity is waived. Importantly, the Hague Convention of 1907 also requires defenders "to indicate the presence of such buildings or places by distinctive and visible signs." (27) This is a critical innovation because it provides that the protection of cultural property is a joint responsibility held by both defender and attacker.

      The Convention not only increases the responsibilities of defenders and civilians; it also implicitly limits the responsibilities of the attacking party. Attackers are required to treat cultural property as private property and "[a]ll seizure of, destruction or wilful [sic] damage done to institutions of this character ... is forbidden." (28) Although the Convention forbids pillaging and wonton destruction, it does not...