Article contents
THE PROTECTION OF IRAQI CULTURAL PROPERTY
Published online by Cambridge University Press: 17 January 2008
Abstract
Images of widespread looting were the first to come from Baghdad following the entry of US forces into the Iraqi capital city in April 2003. In particular, it is hard to forget the powerful images of smashed display cases, empty vaults, and desperate staff in the Iraqi National Museum. Worse still, the National Library was burnt down. The looting of the Iraqi National Museum took place between 8 April, when the security situation prompted staff to leave the museum, and 12 April when some of them managed to return. Despite early pleadings with US forces to move a tank to guard the museum gates, US tanks did not arrive until 16 April.1 Cynics would say that the protection of the Oil Ministry appeared to take priority at the time.2 Early reports estimated that around 170,000 items went missing from the Iraqi National Museum in Baghdad.3 This figure was completely exaggerated and the Bogdanos enquiry established that over 13,000 items had been stolen and about 3,000 recovered by September 2003.4 This article seeks to determine to what extent the US can be held legally responsible for the looting, and then to examine the international legal framework in place to facilitate the recovery and return of the items stolen from the Iraqi National Museum and other Iraqi cultural institutions
- Type
- Articles
- Information
- Copyright
- Copyright © British Institute of International and Comparative Law 2004
References
1 See Jenkins, S ‘A shameful theft of the crown jewels of memory’ The Times 2 05 2003.Google Scholar
2 Ibid.
3 See Langley, W and Harrison, D ‘Raiders of the lost art’ Sunday Telegraph 20 04 2003;Google ScholarMcdougall, L ‘UK database to track stolen art treasures’ Sunday Herald 27 04 2003;Google ScholarMcDougall, D ‘US shamed by looting of antiquities’ The Scotsman 19 04 2003.Google Scholar
4 See Bogdanos, Colonel MIraq Museum Investigation: 22 April-8 September 2003 <http://www.defenselink.mil/news/Sep2003/d20030922fr.pdf>..>Google Scholar
5 See Burkeman, O ‘Iraq: after the war: Bush's cultural aides quit over sack of Baghdad's treasures’ The Guardian 18 04 2003.Google Scholar
6 See ‘Army Describes Steps to Protect Iraq's Cultural Heritage’ 4 May 2003 <http://usembassy-australia.state.gov/hyper/2003/0405/epf604.htrn>..>Google Scholar
7 See Regulations Respecting the Laws and Customs of War on Land, annex to Hague Convention Respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat 2277, 1 Bevans 631 (hereinafter the 1907 Hague Regulations).Google Scholar
8 Art 56 also provides that the property of cultural institutions should be treated as private property and that any seizure or damage is unlawful and should lead to legal action. Art 53 of Additional Protocol I prohibits acts of hostility directed against historical monuments and works of art. See Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts, 8 June 1977, 1125 UNTS 3. Nevertheless, there was no direct US involvement in the looting of the museum, and in any case, the US is not a State party to Additional Protocol I.Google Scholar
9 See Report of the Secretary-General pursuant to para.2 of SC Res. 808, S/25704, 3 May 1993, para 35.Google ScholarSee also Benvenisti, EThe International Law of Occupation (PrincetonUniversity Press 1993) 98.Google Scholar
10 Convention for the protection of cultural property in the event of armed conflict, 14 May 1954, 249 UNTS 240, hereinafter the 1954 Hague Convention. It is supplemented by two protocols, see First Protocol for the protection of cultural property in the event of armed conflict, 14 05 1954, 249 UNTS 358;Google Scholarand Second Protocol for the protection of cultural property in the event of armed conflict, 26 03 1999, (1999) 38 ILM 769. The protection of cultural property during armed conflict was given renewed prominence with the adoption of the statutes of international criminal tribunals. The 1993 Statute of the International Criminal Tribunal for the former Yugoslavia included the destruction of cultural property in the list of war crimes ((1993) 32 ILM 1192, Art 3(d)). For more detail, see H Abtahi ‘The protection of cultural property in times of armed conflict: the practice of the International Criminal Tribunal for the former Yugoslavia’ (2001) 14 Harvard Human Rights Journal 1. The 1998 Rome Statute of the International Criminal Court includes a similar provision (UN Doc A/CONF. 189/9, Arts 8(2)(b)(ix) and 8(2)(e)(iv)).Google Scholar
11 The US signed the 1954 Hague Convention, but subsequently made clear its intention not to become a party in 1958. See Meron, T ‘Editorial comment: The time has come for the United States to ratify Geneva Protocol I’ (1994) 88 AJIL 678, at 685.Google Scholar This decision was made partly because ratifying the Convention would limit the US capacity to use nuclear weapons (since one cannot protect individual cultural sites from a nuclear explosion), see Meyer, DA ‘The 1954 Hague Cultural Property Convention and its emergence into customary international law’ (1993) 11 Boston University International Law Journal 349 at 353.Google Scholar Nevertheless, President Clinton submitted the Convention to the Senate for ratification in 1999. See Colwell-Chanthaphonh, C and Piper, J ‘War and cultural property: the 1954 Hague Convention and the status of US ratification’ (2001) 10 International Journal of Cultural Property 217.CrossRefGoogle Scholar
12 Kastenberg, JE ‘The legal regime for protecting cultural property during armed conflict’ (1997) 42 Air Force Law Review 277 at 297.Google Scholar
13 See Meyer, ‘The 1954 Hague Cultural Property Convention’ 387.Google Scholar
14 See Nafziger, JAR ‘Protection of cultural heritage in time of war and its aftermath’ (2003) IFAR Journal vol 6, Nos 1 and 2.Google Scholar
15 Bogdanos Iraq Museum Investigation 6.Google Scholar
16 SeeGibson, M ‘Cultural tragedy in Iraq: a report on the looting of museums, archives, and sites’ IFAR Journal vol 6, Nos 1 and 2.Google Scholar
17 See ‘Who's to blame? The Economist 22 05 2003.Google Scholar
18 See Cruickshank, D ‘Lost and found in Iraq’ The Times 16 06 2003.Google Scholar
19 Art 18(3) reads: ‘If one of the Powers in conflict is not a Party to the present Convention, the Powers which are Parties thereto shall nevertheless remain bound by it in their mutual relations. They shall furthermore be bound by the Convention, in relation to the said Power, if the latter has declared that it accepts the provisions thereof and so long as it applies them.’Google Scholar
20 See Minutes of evidence taken before the House of Commons Select Committee on Culture, Media and Sport, 8 July 2003, <http://www.publications.parliament.uk/pa/cm200304/cmselect/cmcumeds/59/3070804.htm>..>Google Scholar
21 Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property, 14 11 1970 (1971) 10 ILM 289, hereinafter the 1970 UNESCO Convention (as it was adopted by the UNESCO General Conference).Google Scholar
22 UNIDROIT Convention on stolen or illegally exported cultural objects, 24 06 1995, (1995) 34 ILM 1330, hereinafter the 1995 UNIDROIT Convention.Google Scholar
23 See Merryman, JH ‘Two ways of thinking about cultural property’ (1986) 80 AJIL 831,CrossRefGoogle Scholarreproduced in Merryman Thinking About the Elgin Marbles: Critical Essays on Cultural Property, Art and Law (The HagueKluwer Law International 2000) 66–91.Google Scholar
24 Ibid 66–7.
25 The expression ‘cultural heritage of humanity’ has also appeared in the preamble of the recently adopted Convention of the safeguarding of intangible cultural property, 17 Oct 2003 <http://www.unesdoc.unesco.org/images/0013/001325/13254Oe.pdf>..>Google Scholar
26 See Art 136 of the United Nations Convention on the law of the sea, 10 12 1982 (1982) 21 ILM 1261.Google Scholar For a comparison between the two concepts, see O'Keefe, R ‘The meaning of ‘cultural property’ under the 1954 Hague Convention’ (1999) 46 Netherlands International Law Review 42–3.CrossRefGoogle Scholar
27 See Merryman, ‘Two ways of thinking about cultural property’ 67.Google Scholar
28 Ibid n 2.
29 See Gibson ‘Cultural tragedy in Iraq’.Google Scholar
30 See SC Res 661, 6 Aug 1990.Google Scholar
31 Quoted in Mcdougall, L ‘Iraq: a nation robbed of its history’ Sunday Herald 20 04 2003.Google Scholar
32 See Coulée, F ‘Quelques remarques sur la restitution interétatique des biens culturels sous Tangle du droit international public’ (2000/2002) Revue Générate de Droit International Public 359.Google Scholar
33 Law Prohibiting the Smuggling of Antiquities No 40 of 1926; Antiquities Law N o 59 of 1936 and the two Amendments (No 120 of 1974 and No 164 of 1975); Law No 6 of 1942: Regulations regarding the Registration of Old Manuscripts; Antiquities and Heritage Law No 55 of 2002.Google Scholar
34 See Minutes of the International conference on cultural property stolen in Iraq, Lyon, 5–6 May 2003, esp comments by Mrs Magness-Gardiner and Chaffinch <http://www.interpol.com/Public/WorkOfArt/Iraq/Minutes.asp>..>Google Scholar
35 See Jowers, K F ‘International and national legal efforts to protect cultural property: the 1970 UNESCO Convention, the United States, and Mexico’ (2003) 38 Texas International Law Journal 145 at 154–9.Google Scholar
36 See Schwartz, RS ‘In Schultz we trust: the future of criminal prosecution for importers of illicit cultural property und r the National Stolen Property Act’ (2003) 11 Cardozo Journal of International and Comparative Law 211.Google Scholar
37 See Illicit Trade in Cultural Objects, report of the Ministerial Advisory Panel (chaired by Professor Norman Palmer), London, Dec 2000 <http://www.culture.gov.uk/global/publications/archive_2000/Report_Illicit_Trade.htm>..>Google Scholar
38 For detail on the UK implementation of the Convention, see Chamberlain, KUK accession to the 1970 UNESCO Convention’ (2002) 7:3Art Antiquity and Law 231.Google Scholar
39 See s 1 of the Dealing in Cultural Objects (Offences) Act 2003.Google Scholar
40 See s 22 of the Theft Act 1968.Google Scholar
41 See s 24 of the Theft Act 1968.Google Scholar
42 See Chamberlain ‘UK Accession to the 1970 UNESCO Convention’ 232.Google Scholar
43 See Art 3(3).Google Scholar
44 See Arts 4 and 6.Google Scholar
45 See <http://www.unidroit.org/english/implement/i-95.htm>..>Google Scholar
46 See Illicit trade in cultural objects, paras 49–53.Google Scholar
47 Speech by Mr Mounir Bouchenaki, Assistant Director-General for Culture, UNESCO, Interpol international conference on stolen Iraqi art, 5 May 2003, Lyon, France <http://www.interpol.int/Public/ICPO/speeches/Bouchenaki20030505.asp> (author's own translation).+(author's+own+translation).>Google Scholar
48 SC Resolution 1483, 22 May 2003 para 7.Google Scholar
49 SI 2003–1519,12 June 2003.Google Scholar
50 See Sykes, K ‘The trade in Iraqi antiquities: a conference held by the Institute of Art and Law in association with Clyde and Co.,London,18 June 2003—report and commentary’ (2003) 8 Art Antiquity and Law 299 at 301.Google Scholar
51 Ibid 301–2.
52 Art 8(4).Google Scholar
53 Art 19.Google Scholar
54 Art 1(4).Google Scholar
55 HR 2009, 108th Congress, 7 May 2003.Google Scholar
56 Section 1291,108th Congress, 19 June 2003.Google Scholar
57 ‘An overview of the Iraqi Sanctions Regulations-Title 31 Part 575 of the US Code of Federal Regulations’ <http://www.treas.gov/offices/eotffc/ofac/sanctions/tlliraq.pdf>..>Google Scholar
58 Council Regulation No 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and repeahng Regulation No 2465/96, 2003 OJ L 169/6.Google Scholar
61 See Minutes of the International conference on cultural property stolen in Iraq, comments on international initiatives to combat the traffic in Iraqi cultural property.Google Scholar
62 It can be consulted at <http://www.interpol.int/Public/WorkOfArt/Iraq/Items.asp>..>Google Scholar
64 See Interpol posters at <http://www.interpol.int/Public/WorkOfArt/Poster/Default.asp>..>Google Scholar
65 See Gibson, ‘Cultural tragedy in Iraq’.Google Scholar
66 see Bogdanos, Iraq museum investigation, 16.Google Scholar
67 See ‘Looted treasures “still in Iraq”’ BBC News 2 10 2003.Google Scholar
68 See A Crawford ‘Looted Iraqi artefacts “found in London”’ BBC News 7 11 2003.Google ScholarSee also House of Commons Culture, Media and Sport Committee Cultural objects: developments since 2000, First report of session 2003–04, HC 59, 16 12 2003, para 66.Google Scholar
69 See s 49 of the Customs and Excise Management Act 1979. See also Art 18 of the Iraq (United Nations Sanctions) Order 2003.Google Scholar
- 7
- Cited by