President Barack Obama’s Obligation To Iraq Regarding the National by osx12863


									                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 •
Permanent: 560 Villa Zanita, Altadena, CA 91001         ABA # 01556193        February 12, 2009


       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
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 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

        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


        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,
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

                                 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 best-

known 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


       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
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


       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

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
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 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

        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

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.


        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.

 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).
      Id. at 120.
      Johnson, at 120.
      Taylor, Foreword, in The Law of War: A Documentary History, at xv (L. Friedman ed. 1972) at 234.
      Id. at 441.
       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.
      Merryman, at 836.
      Kifle Jote, International Legal Protection of Cultural Hertiage 25, at 64 (1994). (quoting I. Artisbanov, in Disregard of the Law 33 (1982)).
       Id.; Merryman, at 838.
  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.
       See generally The Restatement (Third) of the Foreign Relations Law of the United States §§ 301-26 (2005).
       Vienna Convention on the Law of Treaties, 63 A.J.I.L. 875 (1969).
       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).
        Id. at 116-21.
   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),
       Jote, at 37.
       J.W. Garner, Some Questions of International Law in the European War, 9 AM. J. Int’l L. 72, 101 (1915).
       Sharon A. Williams, The International and National Protection of Movable Cultural Property 52, at 18 (1978).
        David Keane, The Failure to Protect Cultural Property in Wartime, 14 DePaul-LCA Art & Ent. L. & Pol’y 1,6-7 (2004)
        Keane, at 8.
        Williams, at 19.
        Jote, at 42.
        Jote, at 41-42.
         Williams, at 28-29.
         Merryman, at 836.
        Guy Gugliotta, Pentagon Was Told of Risk to Museums, Washington Post, April 14, 2003, at A19.

         Louise Witt, The End of Civilization,, Apr. 17, 200,
  Archaeological Institute of America, Open Declaration on Cultural Heritage at Risk in Iraq, AIA News (Mar. 19, 2003), available at http://
    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.
           Carl Hartman, White House Art Advisers Quit to Protest Looting of Baghdad Museum, Associated Press, Apr. 17, 2003.
   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.
           Gugliotta, at A19.
  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.
 Liam McDougall, Iraq: A Nation Robbed of its History, The Sunday Herald (Glasgow), Apr. 20, 2003, available at http://
  Looting Iraq National Museum: Catastrophe to Human Civilization, Xinhua (Beijing, China), Apr. 16, 2003, §Sci., Cul., Educ., Health,
available at http://
  See Colonel Matthew Bogdanos, USMC, Iraq Museum Investigation: 22 Apr.-8 Sept. 03, U.S. Dep't Def. (Sept. 10, 2003), available at http://
  Statement by Secretary Colin L. Powell, Cooperation for the Safeguarding of Iraqi Antiquities and Cultural Property, U.S. Dep't St. (Apr. 14,
   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 SECTION =201.html.
         Wayne Sandholtz, The Iraqi National Museum and International Law: A Duty to Protect, 44 Colum. J. Transnat’l L. 185, 222 (2005).
         Id. at 231.
        Id. at 232.
 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).
       W. Hays Parks, The Gulf War: A Practitioner's View, 10 Dick. J. Int'l L. 393, 413 (1992).
  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 (last visited Aug. 1, 2005).
       Id. at 621.

 Larry D. Younger, Jr., Principle 6: Protection of Cultural Property During Expeditionary Operations Other Than War, Army Law. 25-27 (Mar.
       Adam Roberts & Richard Guelff, Documents on the Laws of War, at 156 (1989).
        G.A. Res. 95 (I), at 188, U.N. Doc. A/236 (Dec. 11, 1946).
        Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 131, P 89 (July 9).
 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)].
 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).
       Keith W. Eirinberg, The United States Reconsiders the 1954 Hague Convention, 1 Int'l J. Cul.Prop. 27, 28 (1994).
  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),


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