Protecting Cultural Property in Iraq: How American Military Policy Comports with International Law
Thurlow, Matthew D., Yale Human Rights and Development Law Journal
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). …