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Protecting Cultural Property in Iraq: How American Military Policy Comports with International Law

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Protecting Cultural Property in Iraq: How American Military Policy Comports with International Law Note Protecting Cultural Property in Iraq: How American Military Policy Comports with International Law Matthew D. Thurlow† I. 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 † J.D. Candidate, Yale Law School, 2005. Many thanks to Abigail Horn, Kyhm Penfil, Nicholas Robinson, Professor Susan Scafidi, Katherine Southwick, and the many helpful people in the United States armed services. Lastly, a special thanks to George L. Thurlow (grandpa) and Robert G. Thurlow (dad) for blazing the lawyering trail. 1. See John Noble Wilford, War in Iraq Would Halt All Digs in Region, N.Y. TIMES, Feb. 25, 2003, at E1. 2.See John F. Burns, Pillagers Strip Iraqi Museum of Its Treasure, N.Y. TIMES, Apr. 13, 2003, at A1. 3. See generally Kenneth Baker, At a Loss Over Theft of Artifacts: Calamity Should Have Been 153 154 Protecting Cultural Property in Iraq [Vol. 8 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 Foreseen, S.F. CHRON., Apr. 17, 2003, at E1; Dexter Filkins, As War Ebbs, History, Hope and Fury: An Art Center Left in Ashes, N.Y. TIMES, Apr. 17, 2003, at A1; Paul Richard, Bush Panel Members Quit Over Looting: Cultural Advisers Say U.S. Military Could Have Prevented Museum Losses, WASH. POST, Apr. 17, 2003, at C1. 4. See COLONEL MATTHEW BOGDANOS, UNITED STATES MARINE CORPS, IRAQ MUSEUM INVESTIGATION 22APR-8SEP03, 7-12, 17 (2003), available at http://www.defenselink.mil/ news/Sep2003/d20030922fr.pdf (last visited Feb. 16, 2002); David Johnston, Picking Up the Stolen Pieces of Iraq’s Cultural Heritage, N.Y. TIMES, Feb. 14, 2005, at A10; Alan Riding, Missing Antiquities: Loss Estimates are Cut on Iraqi Artifacts, N.Y. TIMES, May 1, 2003, at A1. 5.See infra Part II. 6. Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter 1954 Hague Convention]. 7.Id. art. 1, at 242. 8.Id. The United States has not ratified the Hague Convention of 1954 (and is thus not bound by this conceptualization of cultural property), but the U.S. military has largely recognized the categories of property protected under the treaty. See JUDGE ADVOCATE GENERAL, UNITED STATES ARMY, OPERATIONAL LAW HANDBOOK 23 (2004), available at www.jagcnet.army.mil (last visited Mar. 1, 2005) [hereinafter OPERATIONAL LAW HANDBOOK]. 9. Hague Convention II with Respect to the Laws and Customs of War on Land: Regulations Concerning the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, 2 Martens Nouveau Recueil (2d) 949 (entered into force Sept. 4, 1900); Hague Convention IV, Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 2005] YALE HUMAN RIGHTS & DEVELOPMENT L.J. 155 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 II15 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 (entered into force Nov. 27, 1909) [hereinafter Hague Convention of 1907]. 10. Protection of Artistic and Scientific Institutions and Historic Monuments, Apr. 15, 1935, 49 Stat. 3267, 167 L.N.T.S. 289 (entered into force July 13, 1935) [hereinafter Roerich Pact]. 11. The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 46, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention]. 12. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231 (entered into force Apr. 24, 1972) [hereinafter Illicit Import Convention of 1970]. 13. Convention Concerning the Protection of the World Cultural and Natural Heritage, Oct. 17, 1972, 27 U.S.T. 37, 1037 U.N.T.S. 151 (entered into force Dec. 17, 1975) [hereinafter World Heritage Convention]. 14. UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, June 24, 1995, 34 I.L.M. 1322. 15. Protocols Additional to the Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of International and Non-international Armed Conflicts, entered into force Dec. 7, 1978, 1125 U.N.T.S. 3 (Protocol I) & 1125 U.N.T.S. 609 (Protocol II) [hereinafter AP I and AP II]. 16. OPERATIONAL LAW HANDBOOK, supra note 8. 17. See, e.g., OPERATIONAL LAW HANDBOOK, supra note 8, at ii (“The Operational Law Handbook is not a substitute for official references. Like operational law itself, the Handbook is a focused collection of diverse legal and practical information.”). 18.See Draft UNESCO Declaration Concerning the International Destruction of Cultural 156 Protecting Cultural Property in Iraq [Vol. 8 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 Paper 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.
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