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From Bamiyan to Baghdad: warfare and the preservation of cultural heritage at the beginning of the 21st century. Gerstenblith, Patty. "From Bamiyan to Baghdad: warfare and the preservation of cultural heritage at the beginning of the 21st century. " Georgetown Journal of International Law. 37.2 (Wntr 2006): 245(107). LegalTrac. Gale. University of Minnesota. 5 June 2008 <http://find.galegroup.com.floyd.lib.umn.edu/itx/infomark.do?&contentSet=IAC- Documents&type=retrieve&tabID=T002&prodId=LT&docId=A146957399&source=gal e&srcprod=LT&userGroupName=umn_wilson&version=1.0>. Full Text:COPYRIGHT 2006 Georgetown University Law Center I. THE HISTORY OF THE LAW OF WARFARE REGARDING CULTURAL HERITAGE SITES AND OBJECTS A. Early History B. The 1954 Hague Convention and Its Protocols 1. The Main Convention 2. The First Protocol 3. The Second Protocol C. Subsequent International Instruments and Developments II. THE EFFECT OF WAR ON THE CULTURAL HERITAGE OF IRAQ A. Significance of Ancient Mesopotamian Civilization B. The First Gulf War and Its Aftermath C. The Second Gulf War and Its Aftermath 1. The Iraq Museum and Other Cultural Repositories 2. Archaeological Sites 3. Military Construction at Babylon 4. Military Activity near Other Cultural Sites III. THE IMPACT OF THE SECOND GULF WAR IN LIGHT OF THE HAGUE CONVENTION AND OTHER INTERNATIONAL LAW A. Immovable Cultural Sites and Monuments 1. Restraints on Targeting of Cultural Sites, Buildings, and Monuments 2. Restraints on Looting and Vandalism 3. Restraints on Interference with Cultural Sites 4. Obligation to Maintain Security at Cultural Sites B. Movable Cultural Objects 1. General Legal Mechanisms 2. Iraq-Specific Legal Mechanisms a. Response of the United States b. Response of the United Kingdom c. Response of Switzerland IV. PROGNOSIS FOR THE FUTURE A. Assessment of the Hague Convention B. Recommendations for a New Protocol 1. Obligations with Respect to Local Populations 2. Cultural Resource Management Principles 3. Additional Provisions V. CONCLUSION In just over two years, the world witnessed two crises that led to the destruction of cultural monuments, sites, and objects that are universally recognized as embodiments of the world's cultural heritage. In March 2001, the Taliban, who at that time were the rulers of Afghanistan, set about the intentional destruction of two monumental Buddha statues that had been carved into the cliffs at Bamiyan. (1) The exact date they were carved is not known, but it is estimated to have been in about the sixth century. These were the two largest known representations of the Buddha, one of which once stood at fifty-eight meters and the other at thirty-eight meters. These carvings had endured, despite earlier attempts to destroy them, for more than fourteen centuries. (2) The destruction of the Bamiyan Buddhas, which was preceded by years of warfare and anarchy, was merely shorthand for the far more extensive cultural devastation wreaked upon Afghanistan by the Taliban. (3) Afghanistan was the Central Asian crossroads and part of the Silk Road throughout much of ancient and medieval history; it was the location of sites and monuments of the Hellenistic, Gandharan, and Persian, as well as Islamic, cultures. (4) These sites had yielded wondrous artistic creations representative of these civilizations. The Kabul Museum housed an extensive collection of antiquities including gold and silver coins, the Begram ivories, the Bactrian gold treasures, and a unique collection of images of the Buddha. (5) Others, of course, were still buried in the ground, awaiting eventual excavation. Since 1979, these cultural repositories had suffered extensively at the hands of Soviet occupiers, the mujahedeen, and the Taliban and as a result of the general lawlessness and lack of effective civil authority. (6) The museum had been attacked and looted numerous times, (7) although it was later discovered that much of the museum's collection, including the Bactrian hoard of gold objects excavated by the Soviets in the late 1970s, was safely hidden in the palace complex. (8) The final indignity was the Taliban's destruction of all works of art that contained human images, including the Bamiyan Buddhas, because they were considered to be an affront to Islam. (9) But even that was not enough. While the Taliban were routed from Afghanistan in October and November of 2001 by U.S. forces in the wake of the September 11th attacks, much of Afghanistan has now returned to the control of warlords who permit the looting of sites. (10) Lawlessness, lack of centralized civil authority, and economic poverty are now the accepted recipe for cultural heritage destruction--particularly the looting of unexcavated archaeological sites. (11) This is the most devastating type of cultural loss-- not only are objects lost to history, but the contexts in which those objects were embedded are also permanently lost. Just two years after the Bamiyan Buddha destructions, in March 2003 the United States launched the Second Gulf War in Iraq against Saddam Hussein's regime. The study of the fate of cultural heritage in Iraq is on-going and much is not yet known. However, it is possible to: (1) make a preliminary assessment of the effect of war on Iraq's cultural heritage; (2) assess the efficacy of existing international and national legal instruments that are intended to protect cultural heritage in a time of war; and (3) propose needed modifications to existing law so that more effective protection can be provided in the future. This Article will first outline the development of the law of warfare as it applies to cultural sites and movable cultural property. It will then recount, to the extent possible, what happened to Iraq's cultural heritage, both during and in the aftermath of the war. Finally, this Article will attempt a preliminary assessment of how the war and the occupation of Iraq by the coalition forces were conducted in light of international controls on the conduct of war intended to protect cultural heritage. This section will also consider legal responses to the situation in Iraq as part of both the international and the national legal regimes of several market nations and will include an evaluation of the international conventions intended to protect cultural property during peace as well as during war. (12) This Article will conclude with a proposal for a new protocol to the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict. These modifications are intended to take account of both the modern conduct of warfare and occupation, and our current understanding of cultural heritage preservation. I. THE HISTORY OF THE LAW OF WARFARE REGARDING CULTURAL HERITAGE SITES AND OBJECTS A. Early History The looting of art works has a long history, going back to Roman times and probably earlier. In ancient times and in the Middle Ages, the taking of war booty was considered a normal aspect of the conduct of war and often served as a means of compensating both soldiers and military leaders. (13) However, in the Roman period, this viewpoint was tempered by an understanding that at least sacred sites and works of art that were dedicated to religious purposes should be spared. (14) In addition, the Romans believed that a sense of proportionality should limit the amount of plunder taken and leaders should not personally enrich themselves to an excessive degree. For example, according to Professor Margaret Miles, the Roman historian Polybius, in the second century B.C., questioned excessive plundering and commented on Rome's actions after the siege of Syracuse: The Romans, then, decided ... to transfer all these objects to their own city and leave nothing behind. As to whether in doing so they acted rightly and in their own interest or the reverse, there is much to be said on both sides, but the more weighty arguments are in favor of their conduct having been wrong then and still being wrong.... At any rate these remarks will serve to teach all those who succeed to empire, that they should not strip cities under the idea that the misfortunes of others are an ornament to their own country. (15) This theme was greatly elaborated by Cicero in his prosecution, in 70 B.C., of Gaius Verres, the governor of Sicily, for corruption, including excessive pillage of both private and publicly dedicated religious works of art. Cicero distinguished between ordinary war booty (spolia), which a conqueror was free to take, and illegal removal of art and architectural decoration (spoliatio). (16) This notion was perpetuated in the writings of Livy and Pausanias as well. (17) Another theme found in Cicero's Verrine orations, as well as in Pliny's writings, is the distinction between the good uses of art (for public, commemorative, and religious purposes) and bad uses of art (for private, consumptive, and decadent purposes). (18) Cicero's writings were known during the Middle Ages and Renaissance. The Verrine orations became a staple of early travelers of the 16th century, particularly those who went to Sicily. (19) In his work published in 1553, international law commentator Jacob Przyluski stated that works of a religious, literary, or artistic nature should be protected. (20) Justin Gentilis, writing at the end of the 17th century, held a similar view, (21) and the Peace of Westphalia of 1648 included provisions for the restitution of cultural objects. (22) On the other hand, the legal right to claim prizes was perpetuated by the founder of modern international law, Hugo Grotius, writing in the early and mid-17th century. (23) In 1758, the Swiss jurist Emmerich de Vattel drew a distinction between cultural objects and legitimate war booty. (24) By the end of the 18th century, Edmund Burke referred to Cicero's prosecution of Verres as an example of an attempt to eradicate greed and corruption.

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