President Barack Obama’s Obligation
To Iraq
Regarding the National Museum of Antiquities
Zaylore Sapphos Stout
University of St. Thomas School of Law • 2L
Current: 3528 Colfax Avenue S., Minneapolis, MN 55408
(626) 644-3374 • Stou5417@stthomas.edu
Permanent: 560 Villa Zanita, Altadena, CA 91001
ABA # 01556193
1
February 12, 2009
Intro
The war in Iraq has had a devastating effect on both the United States of America and
Iraq. In addition to the thousands of deaths on both sides, the United States has lost much of its
international influence and goodwill while Iraq lost not only its infrastructure but also its culture.
With Barack Obama’s rise to power, accountability will be one of the first issues he will have to
face as President of the United States. He will have to be accountability to not only the America
people but also to the international community, including Iraq. This essay will delve into the
history of international and customary laws, from the Lieber Code to the 1977 Geneva
Conventions, discussing the protection of cultural property. These legal principles will be applied
to the relevant international and non-international conflicts of their respective time frames.
Finally, international customary law will be applied to the apparent failure of the United States to
protect the Iraq National Museum in Baghdad during the 2003 invasion of Iraq.
International & Customary Law
The earliest attempt to codify protection for cultural property during armed conflict came
in 1863 when Dr. Francis Lieber developed the Instructions for the Governance of the Armies of
the United States in the Field – better known as the Lieber Code – which governed the “code of
conduct by belligerent forces in war” conducted by the Union forces in the American Civil War.i
The Lieber Code declared that property belonging to churches, charitable institutions, institutions
of learning, museums, and observatories should not be treated as public property subject to
confiscation, but as private property to be respected and preserved.ii The code provided
additional protection to art and libraries which were to be protected from damage to the extent
possible.iii This distinction between public and private property and its exception for cultural
property, proved highly influential among international lawyers in the remaining years of the
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nineteenth century. The Laws of War on Land – also known as the Oxford Manual – essentially
codified this into customary practice.iv
The Hague Conventions of 1899 and 1907 served as the first major international
documents adopted to regulate the conduct of belligerents borrowed heavily from the Declaration
of Brussels and, by extension the Lieber Code.v Article 28 and 47 of the Annex to the 1907
Convention prohibits pillage where Article 46 prohibits the confiscation of private property. This
convention also calls for religious, charitable, educational, artistic, and scientific property to be
treated as “private” property, through Article 56. The Convention Concerning Bombardment by
Naval Forces in Time of War (Hague IX) provides in Article 5 for the protection of historic
monuments, art and science.vi In 1923 another Hague conference produced the Hague Rules of
Air Warfare, although never adopted, included Article 25 and 26 which provided for the
protection of cultural property.vii
Under the Auspices of the United Nations Educational, Scientific and Cultural
Organization (UNESCO), an international conference at the Hague adopted the Convention for
the Protection of Cultural Property in the Event of Armed Conflict.viii This treaty served as the
first comprehensive international agreement for the protection of cultural property. The
Conventions Preable, Article 4, and Article 28 would become very influential.ix Its language
authorizes nations that acquire personal jurisdiction over persons accused of a Hague 1954
violation to try them.x Thou several major nations – such as the United States, the United
Kingdom, and Japan – have not formally adopted it,xi the convention is nonetheless a powerful
document governing the protection of cultural property. Military necessity was never defined by
the conference and has been fluidly used in the field to equate to what is “easy” or “convenient”
to justify the destruction of cultural property otherwise protected by the Convention. xii
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The 1977 Geneva Convention produced two Additional Protocols to the 1949 Geneva
Conventions. Both Protocols forbid military action aimed at, or military use of, “historic
monuments, works of art or places of worship which constitute the cultural or spiritual heritage
of people” while urging more states to become parties to the 1954 Hague Convention.xiii The
United States is a signatory to both protocols, but has ratified neither.
U.S. armed forces must comply with customary international law regardless of whether
they involve international or non-international conflicts. The doctrine of customary international
law was developed to address the force and effect of treaties pending ratification.xiv This doctrine
appears in Article 18 of the Vienna Convention on the Law of Treatiesxv, another treaty not
signed or ratified by the United States.xvi This principle of law, referred to as the “object and
purpose” rule, imposes an obligation on signatories’ who have expressed an intent to be bound
by the treaty, to abstain from any activity that would harm the “object and purpose” of the treaty
while ratification is pending. The Article 18 obligation can only be terminated when a signatory
has taken the step of submitting a formal diplomatic note to the treaty depository to demonstrate
through this international declaration its clear intention to not become a party to the treaty. xvii
The United States has taken no such action against the 1954 Hague Conventions or the Geneva
Convention Additional Protocols. On the contrary, two U.S. Presidents affirmed the executive
branch’s desire for the United States to become part of these treaties.xviii
Conflicts
As World War I began in 1914 Kaiser Wilhelm II, Emperor of Germany, reportedly
dictated that “everything must be drowned in fire and blood … not a house is to be left, not a
tree.”xix Not long after this statement Germany burned the renowned library at Louvian,
Belgium, containing “about 300,000 books manuscripts, scientific collections and works of art,
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many rare and ancient,” sparked international outrage.xx Next, Germany bombarded and
destroyed the Rheims Cathedral in France. The public outcry prompted the Germans to invoke
the principle of military necessity as their defense. However, they still subsequently attached art
officers to its units “to protect cultural property under their control.”xxi Nevertheless, many
churches, museums, and other protected sites were looted in German-occupied territory in the
course of the war.xxii Article 245 and 247 in the Treaty of Versailles required Germany to return
cultural treasures it had acquired from France, Belgium, and other nations during the war. In
addition, Article 247 called for the Louvian collection to be rebuilt.xxiii The treaty was a strong
international statement on the illegitimacy of targeting, destroying, or looting cultural property
during war.
During World War II cultural artifacts, sites and institutions were looted and destroyed to
an extreme degree by the German regime in direct contradiction to Article 56 of the Hague
Convention that established international law.xxiv Hitler directed Alfred Rosenberg, through the
efforts of Einsatztab Rosenberg, to systematically seize cultural treasures from across Europe
and bring them to Germany for the personal benefit of his regime. Einsatztab’s records indicate
the Germans had seized at least 21,903 works of art from Western Europe.xxv Over 4,000,000
artifacts vanished into railway cars headed to German, never to be seen again.xxvi After the war,
Rosenberg and other Nazi Officials were prosecuted, found guilty, and hanged for crimes against
cultural property, among other offenses.xxvii
The innovation of the Nuremberg Trials was that the international community and
individual nation could impose responsibility on an individual official of an offending belligerent
power for acts against cultural property committed in its name.xxviii
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The 2003 Invasion of Iraq
Iraq is the home of ancient Mesopotamia and has cultural heritage that extends for
thousands of years and encompasses the Sumerians, Akkadians, Babylonians, Assyrians,
Chaldeans, Persians, Greeks, Romans, Parthians, Sassanids, and Muslins, to name only the bestknown civilizations.xxix Months leading up to the Iraq war, U.S. scholars repeatedly urged the
Defense department to protect Iraq’s priceless archaeological heritage from looters, heeding a
specific warning about the National Museum of Antiquities as the single most important site in
the country.xxx
Joseph Collins, Deputy Assistant Secretary of Defense, met with civilian experts,
archaeologists, and curators in January of 2003 and was provided with a list of 5000 important
cultural and historic sites in Iraq, headed by the National Museum.xxxi Weeks prior to the 2003
invasion of Iraq, the Archaeological Institute of America published in its newsletter an “Open
Declaration on Cultural Heritage at Risk in Iraq” which was signed by thirteen organizations and
over 200 individuals from around the world.xxxii
The U.S. Army even had civilian advisors, Office of Reconstruction and Humanitarian
Assistance, who warned in a report that the Iraq National Museum as a “prime target for looters”
and cited the museum as a top priority for protection by coalition forces, second only to the
national bank.xxxiii The U.S. military foresaw problems in Baghdad, notably the Oil Ministry, and
developed a plan to establish immediate control over those locations.xxxiv If the United States
could develop plans for securing the Oil Ministry despite continuous combat, why wasn’t the
same done for the Iraq National Museum? The Office of Reconstruction and Humanitarian
Assistance (OHRA), a Pentagon agency, had sixteen key sites listed as meriting security to
prevent damage, destruction, and/or pilferage of records and assets.”xxxv The Central Bank and
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the National Museum were listed first and second, respectively, with the Oil Ministry listed last.
This document warned that looting would cause “irreparable loss of cultural treasures of
enormous importance to humanity.”xxxvi The Iraq National Museum staff attempted to pack up all
the portable items on display and stash them in vast below-ground storage rooms and vaults once
they became aware of the pending attack.xxxvii
General Meyers directly contradicted Secretary of Defense Donald Rumsfeld during a
Pentagon news briefing on April 15, 2003, where Meyers declared they both had knowledge that
scholars advised for greater protection and security to the museum in the initial phases of the
operation.
Even with the U.S. forces firmly in control of Baghdad, between April 8th and April 12th
of 2003, looters breached the museum, trashed its galleries, burned its records, invaded its vaults
and smashed or carried off thousands artifacts dating as far back as 3,500 B.C.E.xxxviii
Archaeologists and art historians called for the need to post border guards to intercept antiquities
as they try to leave the country. A statement from the Archaeological Institute of America called
on “all governments” to protect cultural sites during an expected conflict and in its aftermath.xxxix
The looting of the Iraq National Museum caught the front page headlines of major
newspapers around the world highlighting this catastrophic cultural disaster. Iraqi museum
officials expressed anger towards the American troops who ignored their pleas to protect the
museum. A deputy curator stated he had walked to the Palestine Hotel on April 12 asking
American commanders to send troops to protect what was left in the museum, but did not receive
any immediate assistance. British cabinet member Clare Short suggested that by failing to
prevent the looting in Baghdad, U.S. Troops had violated the 1907 Hague and 1949 Geneva
Conventions, which require occupiers to maintain civil order.xl The invading country had a
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responsibility to look after its cultural heritage. It was foreseeable and preventable.xli The U.S.
forces should be held accountable as they should take responsibility, in compliance with
international laws, to protect Iraq’s historic, cultural and religious legacies from being destroyed
or looted.xlii
A formal report, by the Department of Defense, regarding the missing antiquities listed
40 major pieces taken from the public galleries, 3138 items taken from storage rooms on the first
two floors, and 10,337 items from the basement storage rooms, totaling about 13,500 cultural
items.xliii Richard S. Lanier, and Gary Vikan, and White House Cultural Property Advisory
Committee Chairman Martin E. Sullivan all resigned over the incident. Sullivan stated in his
resignation letter “the tragedy was not prevented, due to our nation’s inaction.”xliv Secretary of
State Colin Powell released a statement declaring the taken artifacts are the property of Iraq, in
accordance with international law, and anyone possessing or dealing in such goods is committing
a crime.xlv
Is the U.S. Responsible for What Happened?
Does any international law apply to the U.S. failure to secure the Iraq National Museum
in Baghdad in April of 2003? The United States’ leading role in promoting the protection of
cultural property in wartime, and its diligent compliance with the requirements of the 1954
Hague Convention, supports the conclusion that the United States recognized its legal obligation
to protect the Iraqi National Museum under customary international law.
The United States was not a party to the Hague Convention of 1907, thus, its Article 56
does not apply.xlvi In addition, the document does not impose any positive duty on belligerents to
protect cultural sites from the harm of others. The 1954 Hague Convention, and Protocol II
(1999), does mandate positive action by belligerents to protect cultural monuments in the
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territory of the enemy.xlvii However, the United States is not a party to either of these agreements
so therefore these provisions have no legally binding affect on the United States.xlviii
During World War II, United States forces went to extraordinary measures to protect the
culturally significant sites in Europe.xlix The country was praised for choosing not to bomb Kyoto
because of its cultural and artistic significance.l Attorney Robert Bettauer, of the U.S. State
Department, explained that the U.S. did, in practice, conform to the1954 Hague Convention
requirements.li The Army Field Manual on the law of land warfare states “the customary law of
war” is part of the law of the United States. The manual cites the 1907 Hague Convention in
protecting buildings devoted to art, religion, science, historical monuments, and other locations
from destruction and pillaging. During the Persian Gulf War of 1991, U.S. officials stressed that
American aircrafts would not attack cultural and religious sites, even declaring that the U.S.
military, and all coalition forces, considered the 1954 Hague Convention applicable to the
Persian Gulf War since the treaty had been fully implemented by U.S. military forces for over
three decades.lii After the Persian Gulf War, the Department of Defense provided a list to
Congress on all the laws of war that were applicable during the conflict, the list included the
1954 Hague Conventionliii The report also accused Iraq of committing war crimes against Kuwait
including the “looting of cultural property, in violation of the 1954 Hague Cultural Property
Convention”liv even thou Iraq is not a party to the convention either. A research note, published
in the Army Lawyer, highlighted that the 1954 Hague Convention and Geneva Additional
Protocols I and II placed a duty on armed forces to protect cultural property during all armed
conflict stating its “universal application supports the development of the principle as a
fundamental principle of the law of war.”lv
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The Judgment of the International Military Tribunal at Nuremberg declared “by 1939
these rules laid down in the [1907 Hague] convention were recognized by all civilized nations,
and were regarded as being declaratory of the laws and customs of war.”lvi The UN General
Assembly passed Resolution 95(1) affirming “the principles of the international law recognized
by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal.lvii In 2004, the
International Court of Justice (ICJ) acknowledged that the provisions of the Hague Convention
had become part of customary law.lviii By this time a total of 113 countries have become parties
to the convention.lix
Legal scholars have also concluded that at least the key provisions of the 1954 Hague
Convention have evolved into customary international law. Scholars Adam Roberts and Richard
Guelff, Howard Levie, and David Meyer all assert that the basic principles of the 1954
Convention has become customary international law because the absence of significant
reservations of the Convention supports its status as customary international law with respect to
its general principles which include Article 4(3), thus binding on non-parties.lx
In the 1980’s and 1990’s the U.S. government attempted to ratify the 1954 Hague
Convention due to the fall of the Soviet Union, technological improvements to the accuracy of
U.S. weapons, and the desire to hold perpetrators accountable for offences against cultural
property in the wars of that time.lxi On January 29, 1987, President Ronald Reagan sent a letter to
the U.S. Senate requesting for their advice and consent on Additional Protocol II to the Geneva
Convention of 1949.lxii On January 6, 1999, President William Clinton sent a letter to the U.S.
Senate requesting their advice and consent to not only the Hague Convention (with the exception
of Section I) but also Additional Protocol II of the Geneva Conventions.lxiii President Clinton
even articulated that U.S. military policy and conduct of operations “are entirely consistent with
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the Convention’s provisions… based upon the practices of U.S. military forces during World
War II.”lxiv Both letters died at the doorstep of the Senate Committee on Foreign Relations. The
Senate never ratified either.
Conclusion
The arguments contained in this article affirm the conclusion that the key provisions of
the 1954 Hague Convention have achieved the level of customary international law. International
law dictates that should a treaty develop into customary law it is binding on all non-parties
regardless of whether those parties are a major power. The law requires occupying parties to
prevent or stop looting or vandalism of cultural property. Virtually all of the actions taken by the
United States since the creation of these documents support the belief that the United States
government intended to be, and should be, bound by this agreement. If the U.S. intends to hold
other nations, who are also not official parties to the convention, accountable on the basis that the
1954 Hague Convention has become customary international law, then the nation is agreeing to
be held to the same standard. The United States had clear international and domestic intelligence
supporting the fear and concern for the protection of these national treasures housed in the Iraq
National Museum of Baghdad. It should also be noted, that the U.S. government officials who
accepted responsibility for not taking the appropriate action have resigned. The Bush
Administration has done little to hold its own officials accountable for what occurred under his
command. With the new Barack Obama Administration in office, the U.S. government as a
whole needs to acknowledge its failure and be held accountable for the recovery, repatriation,
and/or payment of damages to the Iraqi nation for serving as an accomplice to the rape of its
historical culture.
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i
Major John C. Johnson, Under New Management: The Obligation to Protect Cultural Property During Military Occupation, 190/191 Mil. L. Rev.
111, 119 (2007); John Henry Merryman, Two Ways of thinking About Cultural Property, 80 Am. J. Int’l L. 831, 833 (1986).
ii
Id.
iii
Id. at 120.
iv
Johnson, at 120.
v
Id.
vi
Taylor, Foreword, in The Law of War: A Documentary History, at xv (L. Friedman ed. 1972) at 234.
Id. at 441.
vii
viii
See, e.g. the Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 539.
ix
Id.
x
Merryman, at 836.
xi
Kifle Jote, International Legal Protection of Cultural Hertiage 25, at 64 (1994). (quoting I. Artisbanov, in Disregard of the Law 33 (1982)).
xii
Id.; Merryman, at 838.
xiii
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts
(Protocol I) art. 54, June 8, 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II) art. 16, June 8, 1977, 1125 U.N.T.S. 609.
xiv
See generally The Restatement (Third) of the Foreign Relations Law of the United States §§ 301-26 (2005).
xv
Vienna Convention on the Law of Treaties, 63 A.J.I.L. 875 (1969).
xvi
See Treaties and Other International Agreements: The Role of the United States Senate, S. Prt. 23-4, 106th Cong. at 23-4 (2d Sess. 2001).
xvii
Id. at 116-21.
xviii
President Ronald Reagan, Letter of Transmittal, Protocol II to the Geneva Convention of August 12, 1949, and Relating to the Protection of
Victims of Non-international Armed Conflicts, S. Treaty No. 2, 100th Cong., 1st Sess. at 111 (1987), reprinted in 81 AJIL 910 (1987); President
William J. Clinton, Message to the Senate Transmitting the Hague Convention for the Protection of Cultural Property in the Event of Armed
Conflict, (January 6, 1999), www.gpoaccess.gov
xix
Jote, at 37.
xx
J.W. Garner, Some Questions of International Law in the European War, 9 AM. J. Int’l L. 72, 101 (1915).
xxi
Sharon A. Williams, The International and National Protection of Movable Cultural Property 52, at 18 (1978).
xxii
David Keane, The Failure to Protect Cultural Property in Wartime, 14 DePaul-LCA Art & Ent. L. & Pol’y 1,6-7 (2004)
xxiii
Keane, at 8.
xxiv
Williams, at 19.
xxv
Jote, at 42.
xxvi
Jote, at 41-42.
xxvii
Williams, at 28-29.
xxviii
Merryman, at 836.
xxix
Guy Gugliotta, Pentagon Was Told of Risk to Museums, Washington Post, April 14, 2003, at A19.
12
xxx
Id.
xxxi
Louise Witt, The End of Civilization, Salon.com, Apr. 17, 200, http://archive.salon.com/news/feature/2003/04/17/antiquities/index_np.html
xxxii
Archaeological Institute of America, Open Declaration on Cultural Heritage at Risk in Iraq, AIA News (Mar. 19, 2003), available at http://
www.archaeological.org/webinfo.php?page=10210.
xxxiii
Paul Martin, Ed Vulliamy & Gaby Hinsliff, Iraq After Saddam: US Army was Told to Protect Looted Museum, The Observer (London), Apr.
20, 2003, at 4.
xxxiv
Carl Hartman, White House Art Advisers Quit to Protest Looting of Baghdad Museum, Associated Press, Apr. 17, 2003.
xxxv
The ORHA warnings were contained in documents seen by reporters for The Observer (London). Paul Martin, Ed Vulliamy & Gaby Hinsliff,
After Saddam: US Army was Told to Protect Looted Museum, The Observer (London), Apr. 20, 2003, at 4.
xxxvi
Id.
xxxvii
Gugliotta, at A19.
xxxviii
Id.
xxxix
Id.
Michael White, War in the Gulf: Short Breaks Ranks Again: Cabinet ‘Conscience’ Condemns Failure to Prevent Looting, The Guardian
(London), Apr. 16, 2003, at 2.
xl
xli
Liam McDougall, Iraq: A Nation Robbed of its History, The Sunday Herald (Glasgow), Apr. 20, 2003, available at http://
www.sundayherald.com/33187.
xlii
Looting Iraq National Museum: Catastrophe to Human Civilization, Xinhua (Beijing, China), Apr. 16, 2003, §Sci., Cul., Educ., Health,
available at http:// news.xinhuanet.com/english/2003-04/16content_835900.htm.
xliii
See Colonel Matthew Bogdanos, USMC, Iraq Museum Investigation: 22 Apr.-8 Sept. 03, U.S. Dep't Def. (Sept. 10, 2003), available at http://
www.defenselink.mil/news/Sep2003/d20030922fr.pdf.
xliv
Id.
xlv
Statement by Secretary Colin L. Powell, Cooperation for the Safeguarding of Iraqi Antiquities and Cultural Property, U.S. Dep't St. (Apr. 14,
2003), http://www.state.gov/secretary/former/powell/remarks/2003/19628.htm.
xlvi
Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Mar. 26, 1999, 38
I.L.M. 769, available at http://portal.unesco.org/en/ev.php-URL_ID=15207&URL_DO=DO_TOPIC&URL_ SECTION =201.html.
xlvii
Wayne Sandholtz, The Iraqi National Museum and International Law: A Duty to Protect, 44 Colum. J. Transnat’l L. 185, 222 (2005).
xlviii
Id. at 231.
xlix
l
Id. at 232.
Id.
li
The letters are reproduced in John Henry Merryman & Albert E. Elsen, Law, Ethics and the Visual Arts 56-57 (3d ed. Kluwer Law International
1998) (1979).
lii
W. Hays Parks, The Gulf War: A Practitioner's View, 10 Dick. J. Int'l L. 393, 413 (1992).
liii
U.S. Dep't Def., Final Report to Congress: Conduct of the Persian Gulf War, Pursuant to Title V of the Persian Gulf Conflict Supplemental
Authorization and Personnel Benefits Act of 1991, Pub. L. No. 102-25, Appendix O: The Role of the Law of War, 605-06 (Apr. 1992), available
at http://www.ndu.edu/library/epubs/cpgw.pdf (last visited Aug. 1, 2005).
liv
Id. at 621.
13
lv
Larry D. Younger, Jr., Principle 6: Protection of Cultural Property During Expeditionary Operations Other Than War, Army Law. 25-27 (Mar.
1999).
lvi
Adam Roberts & Richard Guelff, Documents on the Laws of War, at 156 (1989).
lvii
G.A. Res. 95 (I), at 188, U.N. Doc. A/236 (Dec. 11, 1946).
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131, P 89 (July 9).
lviiiLegal
lix
Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulation Concerning the Laws and Customs of
War on Land art. 56, Oct. 18, 1907, entered into force Jan. 26, 1910, 36 Stat. 2277, T.S. No. 539 [hereinafter Hague Convention (IV)].
lx
Roberts & Guelff, at 339-40; Howard S. Levie, 1 The Code of International Armed Conflict xxi; vol. II, at 554-56. (1986); David A. Meyer, The
1954 Hague Cultural Property Convention and its Emergence into Customary International Law, 11 B.U. Int'l L.J. 356 (1993).
lxi
Keith W. Eirinberg, The United States Reconsiders the 1954 Hague Convention, 1 Int'l J. Cul.Prop. 27, 28 (1994).
lxii
President Ronald Reagan, Letter of Transmittal, Protocol II to the Geneva Convention of August 12, 1949, and Relating to the Protection of
Victims of Non-international Armed Conflicts, S. Treaty No. 2, 100th Cong., 1st Sess. at 111 (1987), reprinted in 81 AJIL 910 (1987).
lxiii
President William J. Clinton, Message to the Senate Transmitting the Hague Convention for the Protection of Cultural Property in the Event
of Armed Conflict, (January 6, 1999), www.gpoaccess.gov
lxiv
Id.
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