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research essay- Kings College London

  1. 1. RESEARCH ESSAY International law and cultural property Case study on the lootings at the National Museum of Iraq Student candidate number: 0830501
  2. 2. LLM specialism: Public International Law Word count: 7213 2
  3. 3. What are the potentials and limitations of international law in securing the protection of cultural property during wartime? Focus in your answer on some particular aspect or issue. You may wish to illustrate your discussion with reference to a case-study. Candidate number: 0830501 Course code: 7FFLA902 King’s College London, School of Law Tutor : Pr. Susan Marks 1st September 2009 Table of Contents INTRODUCTION 4 - 6 3
  4. 4. I- LAW APPLICABLE TO LOOTINGS OF THE NATIONAL 7 - 10 MUSEUM OF IRAQ II- STATES OBLIGATIONS TO PROTECT THE NATIONAL 11 - 15 MUSEUM OF IRAQ FROM LOOTINGS III- JUSTIFICATIONS TO PREVENT LOOTINGS OF THE 16 - 19 NATIONAL MUSEUM OF IRAQ IV- FUTURE DEVELOPMENT OF INTERNATIONAL LAW TO 20 - 22 ENHANCE THE POSITIVE OBLIGATION OF OCCUPANT TO PROTECT CULTURAL PROPERTY CONCLUSION 23 Concern for the preservation of cultural property is due to its artistic, historical as well as in some cases its spiritual value. Cultural property is particularly at risk in times of war. 4
  5. 5. Studies of warfare generally overlook its cultural consequences... Yet often the cultural impact of war, in the long term, far outweighs other considerations. Military victories and defeats are replaced by other victories and defeats, but cultural destruction is permanent and irremediable.1 This essay will focus on the role of international law in limiting the destructive impact of armed conflict on cultural property. The first instance of a law protecting cultural property is believed to date back to 70 BC when Gaius Verres, the Governor of Sicily, was prosecuted by Cicero for theft of art and architecture; contrary to ordinary looting, this was recognised as a breach of the law of war.2 Cultural property emerged as a distinctive category in law as early as in the 16th century.3 It is viewed as ‘the cultural heritage of all mankind’ in the legal instruments created thereafter.4 At the international level, humanitarian law, which regulates the conduct of armed conflict, was also the first to be concerned with the protection of cultural property.5 Under international law, the territorial State is responsible for the protection of its cultural property. It is also the duty of the territorial State to adopt the necessary peacetime safeguarding measures against foreseeable effects of armed conflicts.6 However, all other States must respect such property if it is not used for military purposes.7 This approach is particularly important for an effective protection of cultural property during armed conflicts. International law imposes negative and positive obligations on belligerents and occupants. Negative obligations prevent soldiers from destroying, seizing8 and using9 cultural property. Those provisions are widely accepted and applied. However, instances of violations still occur, such as in Iraq where the United States (US) Army created a military camp in protected 1 BR Foster 2005, preface 2 United States Department of Defence (USDD), ‘Cultural heritage training’ 3 E. de Vattel 1758, p. 62 excluded ‘public monuments, temples, tombs, statues, pictures’ from legal destruction or seizure of enemy property. 4 1954 Hague Convention, preamble 5 AF Vrdoljak 2006, p. 63: ‘Efforts to moderate the behaviour of “civilised” States and their combatants during war from the mid nineteenth century meant that the first codified protection of cultural objects related to armed conflict and belligerent occupation’. 6 1954 Hague Convention, article 3 7 1954 Hague Convention, article 4(1) 8 1863 Lieber Code, articles 34 and 36; 1874 Brussels Declaration, article 8; 1880 Oxford Manual, article 53; 1907 Hague Regulations, article 23, 27 and 56 and 1907 Hague Convention IX, article 5 9 1954 Hague Convention, article 4(1) 5
  6. 6. Babylon in April 2003.10 Positive obligations go beyond refraining soldiers from damaging or stealing cultural property. They require them to ensure that cultural property is not mistreated by others. The 1863 Lieber Code already provided that ‘classical works of art, libraries, scientific collections, or precious instruments (…) must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded’. 11 Under the 1899 Hague Regulations, armies are required to take all necessary steps to avoid seizure, destruction, or intentional damage to ‘religious, charitable, and educational institutions’ as well as to ‘historical monuments’.12 Finally, the 1954 Hague Convention for the protection of cultural property in the event of armed conflict requires the parties to ‘prohibit, prevent, and if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property’.13 To analyze the potential and limitations of international law to secure the protection of cultural property during armed conflict, a focus on positive obligations is relevant. Recent conflicts such as the US led invasions of Afghanistan and Iraq are illustrative of the modern dangers faced by cultural property in time of war due to vandalism and looting by civilians. International humanitarian law, contrary to national or international criminal law, is not directly concerned with providing normative guidelines for civilians. However, by imposing positive obligations on belligerents to an armed conflict (States or non-States actors), it favours the prevention of such individual lootings. The potential and limitations of international law to protect cultural property by imposing positive obligations on belligerents will be illustrated by the case of the 2003 war in Iraq. Large-scale lootings of cultural property by civilians occurred only a few days after the US- led coalition invaded Iraq on the 20th of March 2003. They took place in different parts of the country and were aimed at archaeological sites and cultural institutions such as museums, libraries and universities. Thousands of objects of art disappeared and have yet to be 10 International Coordination Committee for the Safeguarding of the Cultural Heritage of Iraq 2009: Babylon was occupied by the Coalition Forces on the 21st of April 2003 and served as a military camp from September 2nd, 2003 until the 22nd of December 2004. The site was damaged because of military forces’ ‘digging, cutting, scraping, and levelling’ and because of fortification and defensive measures. 11 1863 Lieber Code, article 34 12 1899 Hague Regulations, article 56 13 1954 Convention, article 4(3) 6
  7. 7. recovered. Reports underlined that theft has always existed in Iraq. However, the war notably increased its occurrence due to the insecurity and poverty reigning in the country.14 In a situation of warfare where the government collapses and the invader is still facing opposition, protection of those sites and buildings from private theft seems a difficult task. Several questions needed to be answered before saying which States were responsible for the protection of cultural property in Iraq. It is particularly important to establish whether the invaders became occupants at the time of the lootings. If that were the case they would have more obligations under international law. This study will be restricted to the particular case of lootings at the National Museum of Iraq so that answers are more easily demonstrable. The lootings at the National Museum of Iraq triggered international concern and media attention. It might be because first estimations of lootings were exaggeratedly high15 or because the looted site was ‘the premier collection of Mesopotamian artefacts’.16 The event was even referred to as ‘one of the greatest cultural disasters in recent Middle Eastern history.’17 This essay will focus on States responsibility to stop lootings of the National Museum of Iraq. It will be argued that the positive obligations of occupants need to be better established in international law and in practice, to be more efficient in preventing the looting of cultural property by civilians during armed conflicts. I will argue first, that international humanitarian law and more particularly its provisions on military occupation were applicable to the case. Second, I will argue that the US was in charge of preventing the lootings of the museum. Third, I will overlook the legal justifications provided for the US’s failure to protect the museum. Finally, I will discuss how the international law for the protection of cultural property can be enhanced. 14 S. Breitkopf 2007 15 First accounts of the lootings said the whole collection disappeared; the international press quoted officials saying that 170,000 pieces were gone which represent the museum content (Burns 2003). US army investigations estimated in September 2003 that 13,500 pieces disappeared in total with 3411 recovered or returned at that time. These investigations discovered items removed before the war in underground vaults at the Central Bank, in a bomb shelter in Western Baghdad and in a secret storage area (M. Bogdanos 2003). 16 W. Sandholtz 2007, p. 243 17 Burns 2003 7
  8. 8. I. LAW APPLICABLE TO LOOTINGS OF THE NATIONAL MUSEUM OF IRAQ. The 1954 Hague Convention established the most comprehensive definition of cultural property to enhance its protection. It comprises ‘movable or immovable property of great importance to the cultural heritage of every people’, archaeological sites, groups of buildings, buildings which preserve or exhibit the movable cultural property, centers containing a large amount of cultural property, and objects of artistic, historical or archaeological interest.18 A subjective element, ‘great importance’, accommodates issues of sovereignty. As the term ‘people’ referred to the State, it is the State who appraises the cultural importance of a property and therefore defines what is cultural property within its borders. However, if a State does not notify the adverse party on what it understands to be cultural property, the belligerent should consider all the objects in the categories of the definition to be protected.19 The National Museum of Iraq and its content were definitely recognized as cultural property under international law. Museums are specifically cited at the second paragraph of this definition as being cultural property. Speaking on American archaeological Non Governmental Organisations’ actions for the protection of cultural property in Iraq, Rothfield stresses that they did not focus on ‘the lawless period of stabilization following armed conflicts- a period that, in Iraq, began with a bang but has turned out to be never ending.’20 If it was a mistake for civil and military societies to focus on military and peacetime actions, it is also an error to think that lootings took place in a lawless period. A guard in the museum at the times of lootings heard looters ‘yelling that there was no government and no State and that they would do whatever they liked’.21 However international law applied to those looters as well as to belligerent States. International humanitarian law applied at the times of the lootings. International Humanitarian Law is triggered by the existence of an armed conflict. The US led coalition invasion of Iraq in 2003 fit the traditional definition of war: ‘a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions 18 1954 Hague Convention, article 1 19 R. O’Keefe 2006, p. 104 20 L. Rothfield 2009, p. 31 21 ibid, p. 94 8
  9. 9. of peace as the victor pleases’.22 The legal justification for the invasion of Iraq is unconvincing.23 However, even if the war was deemed illegal, it would have no consequences on the application of humanitarian law. The customary principle of equal application provides that the application of humanitarian law is not dependent on the causes of war but on the actual existence of an armed conflict.24 Humanitarian law applies until the end of the war. In the case of Iraq, no peace treaty or armistice was concluded; Saddam Hussein government disappeared and peaceful relations between Iraq and the coalition were legally observed on the 30th of June 2004 when a ‘fully sovereign Iraqi Interim Government’ was constituted by the Governing Council and the Coalition Provisional Authority. 25 The occupation ended de facto because the sovereign State of Iraq re-gained control of the occupied territory. Although ‘the occupant has not necessarily withdrawn at the end of all occupation’26 and American troops are still present in Iraq, Iraq is sovereign and is no longer engaged in an international armed conflict. A more controversial question concerns the application of international humanitarian law obligations on occupants. It is recognised that ‘there is no intermediate period between what might be termed the invasion phase and the inauguration of a stable regime of occupation.’27 When did the coalition begin to be bound by occupants’ obligations? The traditional legal definition of occupation requires that the territory be ‘actually placed under the authority of the hostile army’28 An important part of the definition being that occupation can concern only part of the territory, indeed ‘the occupation extends only to the territory where such authority has been established and can be exercised’.29 However, this legal definition is far from being 22 L. Oppenheim 1952, p. 202 23 Use of force is prohibited under article 2(4) of the United Nations (UN) Charter. Under article 51, a State acting individually or collectively can use force to repel an armed attack. Anticipatory self-defence is permitted under customary law if the attack is imminent. The coalition did not prove that such a danger existed. Therefore, the justification for the invasion was based on Security Council resolution 678 which allowed the use of force against Iraq in 1991. The argument was that this resolution was suspended by resolution 687 which imposed disarmament obligations on Iraq and was revived when Iraq breached its duty. Since no weapons of mass destruction were found in Iraq after the 2003 invasion, a further justification for the operation was needed, and the coalition claimed that the invasion was a humanitarian intervention. 24 1949 Geneva Convention IV, common article 2; 1977 Additional Protocol 1, preamble 25 Law of administration for the State of Iraq for the transitional period, article 2 26 A. Roberts 1984, p. 257 27 4 Commentary, Geneva Convention Relative to the Treatment of Civilians in Time of War 60 (ICRC 1958) 28 1907 Hague Regulations, article 42(1) 29 ibid, article 42(2) 9
  10. 10. easily applicable and results in juridical black holes.30 In the Iraqi case, occupation has been interpreted very differently. The term appears in political speeches as early as 28th March 2003 31 but is believed to officially begin on the 1st of May 2003 when the end of the war was declared. The first question is whether there was an occupation at all. General Tommy Franks thought that there could be no occupation of Iraq since ‘this has been about liberation, not about occupation.’32 Secretary of State Rumsfeld was also cautious to present the operation as liberation and not as invasion or occupation.33 This argument can easily be put aside since according to the principle of equal application, the factual situation is more decisive than the purposes of war.34 The Security Council (SC) confirmed that occupation did exist in its resolution 1483 where it recognizes the US, the United Kingdom (UK) and the Republic of Ireland as ‘occupying powers under unified command’.35 However, the date when military occupation of Iraq began is not explicitly specified. Some state that it began on the 1st of May when the ‘end of major combat operations’ was declared.36 It is true that the existence of a conflict is an important criterion as to when and where military occupation exists. However, as stressed by Dinstein, a proclamation can only reflect occupation which might have existed before.37 Though, a proclamation is desirable38 , it is not required. One important feature of occupation is that no other authority existed other than that which was imposed or tolerated by the occupant.39 Military occupation of Iraq was historically observed with the creation of the Coalition Provisional Authority on the 21st of April 2003. It functioned as a transitional government with executive, legislative and judicial authority. However, military occupation can exist at different times in different areas. This date is only relevant when speaking of Iraq as a whole despite the fact that military occupation may have 30 A. Roberts 1984, p. 250 31 HM Fattah 32 cited by Katherine Butler and Donald Macintyre 2003 33 USDD 11 April 2003 34 JJ Paust 2003 35 UNSC Res 1483 36 SP Paroff 2004, p. 2029 37 Y. Dinstein 2004 38 US manual 357: ‘In a strict legal sense no proclamation of military occupation is necessary. However, on account of the special relations established between the inhabitants of the occupied territory and the occupant by virtue of the presence of the occupying forces, the fact of military occupation, with the extent of territory affected, should be made known. The practice of the United States is to make this fact known by proclamation.’ 39 LC Green 2008, p. 286 10
  11. 11. been established earlier in restricted parts of the country. As for Bagdad where the museum is located, 12,000 soldiers entered on the 5th of April. At the time of the lootings coalition troops were in control of government buildings and government officials were being hunted.40 Baghdad as a whole might have been ‘a city that (was) still not controlled by the coalition, where fighting and killing (was) still going on.’41 However, the existence of fighting can only be a proof that the territory was not yet occupied if it is demonstrated that this opposition was capable of exercising authority. Before the lootings occurred, the US military declared that the Iraqi leadership structure was fragmented and that conventional forces had been destroyed.42 More specifically, the museum was under the responsibility of Lieutenant Colonel Schwartz at the time of the lootings. This American presence favours the interpretation that the National Museum of Iraq was in the area occupied by American forces at the time of the lootings. Therefore, lootings of the museum did not take place in a lawless period. Which leads to the question: Does the applicable law oblige States to protect cultural property against individual lootings by civilians? 40 USDD 11 April 2003: ‘We continue to strike key leadership targets when and where we find them.’ 41 ibid 42 Brooks 8 April 2003 11
  12. 12. II. STATES OBLIGATIONS TO PROTECT THE NATIONAL MUSEUM OF IRAQ FROM LOOTINGS International reactions to the lootings were unanimous: ‘the US should have secured the museum’.43 Under which particular obligations were the US in charge of stopping the lootings at the Iraqi museum? Under international law, States are only bound by obligations they agreed to or by rules that became, over the time, customary rules as ‘evidence of a general practice accepted as law’. 44 There is no controversy as to the customary status of 1907 Hague Regulations, which the Nuremberg tribunal recognized in 194645 , so that they oblige all States. They provide for specific obligations in times of military occupation and applied to the US in 2003. The status of the 1954 Hague Convention, which is uniquely concerned with cultural property protection in times of armed conflict and which regulates both armed conflicts and military occupation,46 is less clear. Referring to this text, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) stated in 1993 that ‘the fundamental principles of protecting and preserving cultural property in the event of armed conflict could be part of international customary law’.47 However, the doctrine hesitates between a comprehensive and a partial recognition of this Convention as customary norm.48 The analysis of its status is important for its application to the case because although Iraq ratified the 1954 Hague Convention in 1967, at the time of the conflict the UK and the US were not party to the Convention.49 However, the non-ratification by the US was due to diplomatic reasons linked to Cold War international policy and not to an opposition on the substance of the Convention. The US even played a particularly active role at the 1954 diplomatic conference leading to the adoption of the Convention. President Clinton transmitting the text to the Senate for its ratification acknowledged that the Convention has 43 W. Sandholtz 2007, p. 258 44 International Court of Justice (ICJ) Statute, article 38 45 A. Roberts and R. Guelff 2000, p. 178 46 1954 Hague Convention, article 18(2) 47 1993 UNESCO Resolution 3.5 48 W. Sandhotz 2007, p. 257 cites different authors agreeing that most provisions are custom and always refers to article 4 as part of them. JM Henckaerts 2005 refers to four rules concerned by cultural property which have the status of customary international humanitarian law for the ICRC. 49 The US ratified the Convention in 2009, 55 years after having signed it; the UK still needs to ratify it. 12
  13. 13. been integrated by the government and the Army.50 The US proved their respect for the Convention in their conduct during the 1991 Gulf War. Individual lootings of cultural property is prohibited by international law. In its section concerned with ‘military authority over the territory of the hostile State’, 1907 Hague Regulations article 47 prohibits pillage in general.51 Article 56 is concerned with cultural property in particular outlining that its seizure and destruction are prohibited and should be the object of legal proceedings.52 Contrary to the Oxford manual article 53, there is no military necessity exception to this prohibition nor is the Lieber Code provision that seizure may be allowed for the benefit of the nation applicable.53 Those developments favour the interpretation that the 1907 Hague Regulations could apply to individual lootings by civilians. However, given the context in which previous Hague treaty of 1899 was written, it has not been understood to be concerned by individual lootings by civilians. Indeed, at that time, international law was conceived as an answer to the soldiers’ attack on cultural property. However, having a customary status, those rules bind individuals who are responsible for breaching the rules.54 Iraqi law has interpreted international law on cultural property in its own way. Looters of cultural property are punished by death and the exportation of cultural objects is highly regulated.55 Under those rules, the US would only be responsible for the lootings if it had incited them.56 It was said that lootings were premeditated, encouraged and fostered by the Bush administration,57 although this observation is doubtful, the whole debate seems to be moot since US obligation to protect cultural property against individual lootings can be found under 1907 Hague Regulations article 43 and 1954 Hague Convention article 4(3). According to 1954 Hague Convention article 4(3), not only shall States ‘refrain from 50 US Senate 1999: ‘United States military policy and the conduct of operations are entirely consistent with the Convention’s provisions.’ 51 1907 Hague Regulations, article 47 52 The article particularly aims at ‘the property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences (…) historic monuments, works of art and science.’ 53 Lieber Code, article 36 54 SP Parroff 2004, p. 2045 55 C. Phuong 2004 56 K. Chamberlain 2003 57 G. Hassan 2004 13
  14. 14. requisitioning movable cultural property situated in the territory of another High Contracting Party’ but they also have ‘to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property’.58 This article applies both to States and occupants.59 Among the Convention rules, the customary status of this article is the best established. The International Criminal Tribunal for the ex-Yugoslavia (ICTY) that has jurisdiction over crime against cultural property, recognises 1954 Hague Convention article 19 as customary rule; this article is concerned with non international armed conflict on the territory of a State party and requires as a minimum rule the application of article 4.60 However, there is a debate as to the application of article 4(3) to individual lootings by civilians. The 1969 Vienna Convention specifically provides that ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.61 Some authors adopt a contextual interpretation of article 4(3) which proves restrictive.62 Bassiouni chooses, with regrets, this last position because of the distinction between war and peace in the international law protecting cultural property which has the effect that war time conventions are presumed to apply only to persons acting under the authority of State. However, a literal interpretation of the article focused on the term ‘any’ allows Sandholtz to comprehend individual lootings by civilians, which is also an interpretation according to the purpose of the Convention.63 Invaders are further reminded at article 4(5) that if the invaded country did not take safeguarding measures in times of peace, they are still bound by their duty to protect.64 Therefore the State which has a possibility of doing so has the responsibility to stop lootings. As only the US can be recognised as an occupant of Bagdad at the time of the museum lootings, it is important to record that under customary law, they were responsible for the maintenance of law and order. 58 1954 Hague Convention, article 4(3) 59 ibid, article 18(2) 60 ICTY 1995, Prosecutor v Tadic [98] 61 1969 Vienna Convention, article 31(1) 62 BR Foster 2005, p. 253: ‘given the context ... the obligation applies only to the conduct of the military forces of the nation and not to controlling the conduct of the individuals of the opposing nations’. 58 SP Paroff 2004, p. 2050 63 W. Sandholtz 2007, p. 253 64 1954 Hague Convention, article 4(5) 14
  15. 15. 1907 Hague Regulations article 43 requires the occupant to ‘take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’.65 The rationale of the judicial regime governing situations of military occupation is that the occupant is not the sovereign of the country it occupies and shall administer the territory not only in its interest but also in the interest of the occupied population. In a recent case opposing the Democratic Republic of the Congo (DRC) to Uganda, the ICJ interpreted 1907 Hague Regulations article 43 as a positive obligation for occupant to ensure respect of international humanitarian law. It recalls that occupant’s ‘responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of (…) international humanitarian law by other actors present in the occupied territory.’66 Concerning the protection of cultural property, occupant obligation is thus ‘to leave in place and abide by local cultural property laws (… and) to ensure, as far as possible, that others abide by them too’.67 If 1954 Hague Convention article 4(3) is interpreted in relation with occupants’ obligations, it can be viewed as an elaboration of 1907 Hague Regulations article 43 specifying that occupants are obliged to stop lootings of cultural property by civilians.68 It is finally the responsibility of all States to limit the effects of lootings. First Protocol to the 1954 Hague Convention requires an occupying power to prevent all exportations of cultural property.69 If the US is not party to the Protocol, it was pressured by the international community to secure the borders to stop illicit export of artifacts.70 The 1970 UNESCO Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property requires States to control export and import of cultural property, specifically coming from museums and to ensure the recovery and return of this property in limited conditions.71 This Convention binds other States than the US where Iraqi cultural property could be transferred. Finally, in 2003 UNSC Resolution 1483 requires States ‘to facilitate the safe return to Iraqi institutions of Iraqi cultural property (…) illegally 65 1907 Hague Regulations, article 43 66 ICJ 2004, Armed Activities on the territory of the Congo [178-180] 67 R. O’Keefe 2004, p. 33 68 C. Phuong 2004 and K. Chamberlain 2003 69 1954 First Hague Protocol, paragrah 1 70 For instance, at the second meeting of international experts to save Iraq’s museums and cultural property organized by the UNESCO and the British Museum in London on the 29th of April 2003 (UN Wire 2003). 71 UNESCO 1970 Convention, articles 6 and 7 (b) 15
  16. 16. removed (…) since the adoption of resolution 661 (1990) of 6 August 1990’.72 Adopted under chapter VII of the UN Charter, it is binding on all States. Although it should be welcomed, the question of safe return is problematic because of the difficulty to protect cultural property in Iraq after wars. The US broadly contributed to the recovery of cultural property by developing protection policy in cooperation with international organisations, and by providing expertise and funding.73 They also developed a policy of amnesty for return of cultural property.74 Despite US’s legal obligations to protect the National Museum of Iraq from lootings during and after the US led invasion, they did take place. Was the US failure to protect Iraqi cultural property justified under international law? 72 UNSC 1483 73 W. Sandholtz 2007, p. 251; M. Bogdanos 2003 ‘investigative raids on targeted locations, (…) seizures ,(…) dissemination of photographs and descriptions of the missing artefacts’ were successful for the recovery of artefacts. 74 M. Bogdanos 2003: ‘the team has met with local Imams and community leaders’ who communicated ‘the amnesty or “no questions asked” policy’ to the Iraqi public. 16
  17. 17. III. JUSTIFICATIONS FOR THE FAILURE TO PREVENT LOOTINGS OF THE NATIONAL MUSEUM OF IRAQ The first US argument for its failure to protect the museum is that it was technically impossible for the Army to intervene. Just after the lootings took place, Bodganos was asked to lead museum investigations and found evidence of firing position, Iraqi Army uniforms and ammunitions supporting earlier testimonies that Saddam's troops were using the museum. In this context, it was said that the US Army, still engaged in the conflict, did its best to protect the museum but was impeded to do so.75 Because of 1954 Hague Convention article 4(3) phrasing, ‘the occupying power (may not) claim excuses such as military necessity for failing to protect cultural property from looting and theft during an occupation.’76 Indeed, contrarily to article 4(1) prohibiting the use of cultural property for military purposes, article 4(3) does not provide for a military necessity excuse. However, the previous US excuses would be valid under international law and responsibility would actually bear on Iraq for violating the prohibition not to use cultural property for military purposes.77 Moreover, lootings were, for one part, really well planned: storage rooms were opened with keys hidden in the museum (although the report excluded the implication of museum employees in the looting) and some hardly accessible parts of the museum were entered into.78 It was later reported that Iraqi secret police plan when Americans enter Iraq was to deliberately loot and destroy the public buildings and create chaos which will impede the coalition to ensure security and establish political authority.79 Also, there was account that Saddam might have removed the artefacts for his personal collection before the war.80 What is now asserted is that some of the museum’s contents were removed before the war for safety reason.81 75 M. Bogdanos 2003: US forces were ‘engaged in intense combat with Iraqi forces that fought from the museum grounds and from a nearby Special Republican Guard compound.’ 76 M. O’Connell 2004, p. 352 77 1954 Hague Convention articles 4(1) and 18(3); JM Henckaerts and Louise Doswald-Beck 2005, Rule 39 78 M. Bogdanos 2003: ‘in the basement-level storage room, (…) the evidence strongly suggests (…) thieves with an intimate knowledge of the museum and its storage procedures.’ 79 Scott Johnson and Evan Thomas 2003 80 Burns 2003: ‘It remains unclear whether (museum artifacts have) been locked away for safekeeping elsewhere before the looting, or seized for private display in one of Mr. Hussein's myriad palaces.’ 81 See n. 15 17
  18. 18. Another argument is based on military capacity. It was said that other sites such as hospitals, water plants and ministries had to be secured first.82 More dramatically, General Richard Myers reminded: ‘when some of that looting was going on, people were being killed, people were being wounded (…) So I think it's, as much as anything else, a matter of priorities.’83 However, States are equally engaged to protect both cultural property and human life and it is the State’s responsibility to ensure that they have the necessary means to fulfil their obligations. Saying that the task cannot be fulfilled because of a lack of troops84 is simply not acceptable. What’s more worrisome is that the US was clearly aware of the dangers of looting before and during the occupation. Americans had previous experience of individual lootings by civilians in times of military occupation.85 General Vincent Brooks admitted this awareness before lootings took place: ‘we know that there is often in liberated areas a vacuum in terms of control’.86 Before the war, cultural experts warned the Army of possible dangers to specific museums and sites even if they experienced difficulty to be put in relation with the US Army in the planning phase and during the war.87 Furthermore, the Pentagon’s Office of Reconstruction and Humanitarian Assistance (ORHA) memo to the Coalition Forces Land Component command listed buildings to be secured after the taking of Bagdad. The Central Bank and the National Museum were listed first and the list referred to the National Museum as a ‘prime target for looters’.88 Despite those warnings, the Army was not prepared to protect cultural property from lootings. Neither stability police forces nor infantry troops were present and tanks were ill equipped to threaten looters while respecting humanitarian law obligation to distinguish between civilians and soldiers when attacking.89 However, the Secretary of Defence was well advised to increase the number of troops for the maintenance of order after the invasion but simply ‘refused to listen to his military experts’.90 To respect its obligations under international law, 82 USDD 11 April 2003 83 USDD 15 April 2003 84 JF Burns 2003 85 In the no fly zones of Iraq in 1991 for inst ance. 86 V. Brooks 2003 87 L. Rothfield 2009, p. 36-37 88 P. Martin 2003 89 L. Rothfield 2009, p. 91 90 M. O’ Connell 2004, p. 347 18
  19. 19. the US should instead have invested the necessary resources.91 It could also have allocated its troops better since buildings such as the oil ministry were better guarded than the museum despite the fact that the ministry was ranked 16th on the OHRA memo list. Although denied by Rumsfeld92 , the US Army failed to achieve its obligation of maintaining public order and safety because of insufficient planning that did not account for post victory strategies. Pentagon officials unrealistic assumption that Iraqis would welcome the US arrival and that a new Iraqi government could be quickly put in place might explain this failure.93 When an occupation plan did form, cultural property was particularly at risk since the Future of Iraq Project (project for policies and institutions after the war in Iraq), left no place for cultural related issues.94 There were again solicitations by experts to do so and collaborate.95 The cause of the US failing to meet its obligations may be because cultural property positive obligations are misunderstood. For instance, Lieutenant Colonel Peter Zarcone indicated that ‘the issue of archaeological sites was considered a targeting problem’ and not a security one.96 Brigadier General Brooks thought the solution to the lootings was to rely on Iraqi actions not on military control.97 However, heritage site guards went unpaid after Saddam fell and did not receive technical support of any kind. Most surprising is that it is reported that troops were ordered not to stop lootings.98 Consequently when Iraqi archaeologists brought marines to frighten looters, they refused to stay; and requests that US soldiers be present on the ground were only answered lately.99 While Iraqi forces may have fostered the lootings at the National Museum, the US was clearly not prepared nor willing to stop them. It is likely that these acts will damage the US’s historically good record of protecting cultural property from being looted.100 However, the previous discussion does not aim at establishing States’ or individual responsibilities. It is 91 ibid, p. 352 92 USDD 15 April 2003 93 M. Danner 2003, p. 89 94 L. Rothfield 2009, p. 26; Hawkins and Anderson 2002: ‘we are unaware of any systematic government-wide thought being given to the protection of religious and cultural sites of that ancient land.’ 95 Hawkins and Anderson 2002 96 L. Rothfield 2009, p. 82 97 V. Brooks 2003 98 L. Rothfield 2009, p. 90: order given from Col. David Perkins to Lt. Col. Schwartz who was responsible for the area of the museum. 99 JF Burns 2003 100 BR Foster 2005, preface 19
  20. 20. possible that a case against the US will be brought before the ICJ101 or that heads of command will be tried before a tribunal for international crimes.102 This essay is more interested in the consequences on international law than in the establishment of responsibilities. In the Nicaragua case103 , the ICJ explained that an inconsistency with a customary rule is either a breach or an exception, the later having the effect to confirm the rule if it is legally justified. However, if violations or exceptions are recurrent, it proves that the rule will be superseded or that its existence is contradictory. US legal justifications for its failure to stop lootings and the violations of its obligations to do so is one element which proves that the positive duty of occupant to protect cultural property needs to be reaffirmed and developed for international law to afford an effective protection of cultural property in times of armed conflict. 101 ICJ Statute, article 36 102 Before an American tribunal under national jurisdiction, before an Iraqi tribunal under territorial jurisdiction or before any other national tribunal under universal jurisdiction but not before the International Criminal Court since the US is not party to its statute. 103 ICJ 1986, Military and Paramilitary Activities in and against Nicaragua [186] 20
  21. 21. IV. FUTURE DEVELOPMENT OF INTERNATIONAL LAW TO ENHANCE THE POSITIVE OBLIGATION OF OCCUPANT TO PROTECT CULTURAL PROPERTY First and foremost, the steps to be taken in times of peace should be enhanced. 1954 Hague Convention article 7 requires armies to deploy personnel ‘to secure respect for cultural property and to co-operate with the civilian authorities responsible for safeguarding it’.104 Already and more comprehensively, the 1954 UNESCO Intergovernmental Conference advised States to form a national advisory committee to help the government implement the Convention and ensure that the army knows, respects and protects cultural property in case of an imminent armed conflict.105 By agreeing to abide by such a recommendation, States would more efficiently implement their positive obligations. Indeed, the lack of communication between experts and soldiers for the planning and during the war proved crucial in the failure of the US to fulfil its obligations to protect the museum from being looted. Second, international law can still be more explicit about the positive obligations binding occupants to protect cultural property. It is still debated whether 1954 Hague Convention article 4(3) covers civilian lootings. Viewed as an elaboration of 1907 Hague Regulations article 43 binding on occupants, it makes sense that it applies to individual lootings by civilians. However, a more transparent rule might well be needed given the reaction of US officials about their obligations toward cultural property which they essentially view as a targeting problem. However, it seems that this interpretation of cultural property obligation particularly concerned the US since cultural policy there deals mainly with ‘peace time issues’ and that US soldiers ‘consider themselves warriors, not police’.106 International law protecting cultural property has been broadly developed since the creation of rules prohibiting States’ armies to loot and destroy the cultural heritage pertaining to all when they are on mission abroad. Therefore, the statement that a positive duty for the occupant to protect cultural property exists or should at least be affirmed goes in conformity with this movement. Recently, Second Protocol to the 1954 Hague Convention (entered into force on the 9th of march 2004) actually enhanced the positive obligations of an occupying power and 104 1954 Hague Convention, article 7 105 1954 Intergovernmental Conference, Resolution 2 106 L. Rothfield 2009, p. 22 and 29 21
  22. 22. obliges it to prevent archaeological excavations and alterations of cultural property.107 Under his cyclic model for the development of international law, Sandholtz explains that the National Museum of Iraq case will trigger further developments of positive obligations binding occupants to protect cultural property. US failure to prevent the looting of the museum was followed by criticisms and debates as to its obligation which make possible the emergence of such norms.108 Even without the concretisation of such norms, it can be foreseen that ‘if a cultural treasure like the Iraqi National Museum stands vulnerable to looting in some future war (…) parties may be quicker to recognize the responsibility to protect.’109 As to the means provided by international law to permit an occupying power to fulfil its obligations, they are not satisfactory at present. Normally, the occupying power has to abide by local law. 1949 Geneva Convention IV applies to occupation of the territory of a high contracting party.110 It provides that penal laws can be changed if they represent a threat to security or an obstacle to the application of the Convention.111 That does not allow a grand margin of action for the occupying power to act. The 1954 Hague Convention article 5 translates occupants’ obligation in the field of cultural property and precise the means States can use to fulfil their obligations: they have to ‘as far as possible support the competent national authorities of the occupied country in safeguarding and preserving its cultural property’.112 If they can not do so, the occupant ‘shall, as far as possible, and in close co- operation with such authorities, take the most necessary measures of preservation.’ It is therefore only in limited circumstances that occupants can enforce the local law on their own. Article 5 dealt with the reluctance of occupying powers to intervene to protect cultural property from war related damages or from actions of the army during World War Two. It should be developed today given the new type of reluctance of occupying armies to protect cultural property against individual lootings by civilians. Occupants are also obliged to cooperate closely with the UNESCO, should it require inspections or measures of protection.113 That gives the UNESCO the responsibility to impulse actions by occupants which should be use efficiently. 107 1999 Second Hague Protocol, article 9 108 W. Sandholtz 2007, p. 242 109 ibid, p. 259 110 1949 Geneva Convention IV, article 2(2) 111 ibid, article 64 112 1954 Hague Convention, article 5 113 ibid, article 23 22
  23. 23. The failure of the US to protect the museum from being looted is just one example of the huge cultural disaster that struck Iraq at the arrival of coalition troops on different sites of the countries. The previous proposals as to which rules of international law should be reaffirmed and developed for an efficient protection of cultural property at war is based on a broader vision of what happened in Iraq and what could happen in other geographical areas. 23
  24. 24. CONCLUSION Positive obligations of occupants to protect cultural property against individual lootings by civilians need to be reaffirmed and expanded for international law to adapt to contemporaneous threats to cultural heritage in times of war. Whether they are justified under international law or not, modern international armed conflicts are increasingly fought in the name of humanitarian intervention with invaders having no difficulty to win the war but much more work to ensure security and order once the conventional forces of the invaded countries are dismantled. Occupants are responsible under humanitarian law to ensure the protection of cultural property against the threats arising from this type of warfare such as lootings by civilians. What happened at the National Museum of Iraq reminds us that this regime can still be enhanced to ensure that cultural property is better protected. The notion of military occupation is flexible enough to create a lack of clarity as to which State is responsible for the protection of cultural property at a particular time, in a specific place. Occupants’ obligations are not phrased clearly enough so that debates are still going on as to whether they refrain military unit from damaging cultural property or if they also require them to intervene against civilians’ actions. This case study also demonstrates that cultural property obligations need to be taken better into consideration in the planning phase of occupation. States are responsible for their failure to abide by international law but in the end cultural property will only be better protected if actions are taken in advance to ensure that States understand their obligations and the tools to implement them. The recent ratification of the 1954 Hague Convention by the US came to reaffirm the validity of this instrument. Better international guidance and cooperation could ease its effective application. A clarification and development of international law on the positive obligation of occupant to protect cultural property from civilians’ lootings is however still needed. 24
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