Changes in Military Attitudes Toward Cultural Heritage Law
By: Bree Evans
In 1954, the world gathered and produced the first-ever international treaty for the protection of cultural heritage: the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Among other protections, the Convention intends to safeguard immovable cultural property, like museums and archaeological sites, from use in combat. Under the Convention, both movable and immovable property “of great importance to the cultural heritage of every people” is to be protected. Parties must refrain from acts of hostility toward this property. But this obligation may be waived “where military necessity imperatively requires such a waiver.” Additionally, cultural property under protection shall be marked with the distinctive Blue Shield emblem.
The United States did not ratify the 1954 Hague Convention until 2009. The U.S. invasion and occupation of Iraq in 2003 is notorious in the cultural heritage field for the military treatment of sites. Yet in the fifteen years since, there is evidence to suggest that changing attitudes are guiding new policies within the U.S. military for the protection of cultural heritage in armed conflict.
Along with looting, the protection of immovable cultural property is of paramount concern during armed conflict and in its aftermath. For the 1991 Gulf War, some sites had been placed on a “no strike” list for protection, including the Iraq Museum in Baghdad. After the 1991 Gulf War, nine museums in Iraq were looted and some were burned. Accordingly, in the run-up to the 2003 invasion, archaeologists called on the military to develop both conflict and post-conflict protection plans. Despite these requests, the Iraq Museum was extensively looted. The Coalition forces’ failure to protect the Iraq Museum, the National Library, National Archives, and the Religious Library is often cited as one of the more egregious cultural protection oversights of this campaign. It should be noted, however, that under the language of Article 5 of the Convention, the obligation of an occupying power is to support competent national authorities.
In 2003, despite an international call to avoid using important cultural heritage sites for military operations, U.S. Marines operated a base from the ruins of Babylon, disturbing the archaeological matrix of the site, and prepared sandbags full of artifacts. Even more troubling, U.S. forces were accused of spray painting the ruins of the Sumerian city of Ur– including with the motto “Semper Fe [sic].” In response, the U.S. military made that city off-limits to its own troops and made violations punishable in military courts.
As previously mentioned, the United States ratified the 1954 Hague Convention in 2009. Today, the legal landscape has changed for cultural property in armed conflict. The military works with other nations and with non-governmental entities to establish, train, and enforce protocols for the protection of cultural property.
The U.S. Committee of the Blue Shield (the various international branches of the Blue Shield taking their name from the emblem specified in the 1954 Hague Convention) trains the U.S. military, government, and cultural organizations to protect cultural property in armed conflict. Inter-agency cultural heritage action groups have also been formed to provide training, resources, and tools for improved compliance with heritage directives.
In September of 2018, the President of the U.S. Committee for the Blue Shield, Nancy Wilkie, presented a pack of playing cards to USSOUTHCOM. Five thousand bilingual (English and Spanish) decks will be provided to the troops of USSOUTHCOM. These decks contain information about cultural heritage sites (such as cemeteries and churches) and artifacts (such as pre-Colombian art) of relevance to soldiers in South and Central America. The deck is based off of the success of similar decks distributed by CENTCOM for Iraq and Afghanistan in 2007, Egypt in 2009, and Afghanistan in 2010.
The December 2016 version of the Department of Defense Law of War Manual reflects the responsibilities outlined in the 1954 Hague Convention. However, the Manual goes beyond mere recitation of those obligations and instructs that “feasible precautions should be taken to reduce the risk of harm to cultural property” which includes the compiling and dissemination of no strike lists, establishing civil authorities to assume responsibility for planning and acting, physically shielding cultural property from harm, and establishing refuges and evacuating movable cultural property to them. The Manual also instructs that affirmative acts should be taken to protect cultural property, and in general effort should be made to not use cultural property and its immediate surroundings for purposes likely to expose it to destruction or damage. The imperative to protect by “affirmative act” is quite significant in response to the major critique from academics that the United States failed to deploy forces to protect the Iraq Museum but did send forces to affirmatively protect the Ministry of Oil.
The 2016 instructions offer broader protections for cultural heritage, especially when viewed in contrast with the 2004 Law of War Handbook. The 2004 Handbook mentioned the 1954 Hague Convention by name but had little else to say, except that “[t]he U.S. asserts the special protection regime [of Articles 8 and 11 of the 1954 Convention] does not reflect customary international law.”
Once again, academics and the military are working to draw up no strike lists. There is preliminary evidence that the no strike lists are working: the NATO aerial strikes in Libya in 2011 managed to avoid some important sites. For example, Peter Stone, the Chair of the UK Committee of the Blue Shield reported positively on careful targeting to avoid the destruction of a Roman fort at Ras Almargeb.
The ratification of the 1954 Hague Convention has clearly altered the U.S. legal landscape for protection of cultural property during armed conflict. It is worth noting that the United States has not ratified either of the Protocols to the Convention, the Second of which would call for even more protection for immovable property.