As Prof. Boylan makes clear in his remarks on ICOM-L (forwarded to this
list), the United States Defense and State Departments jointly formally
recommended in about 1996 that the President should seek to ratify the
Hague Convention (though not the First Protocol - presumably due to
objections from the art and antiquities trade). The Convention was
duly sent to the Senate for ratification in 1998, but successive
Senate Foreign Relations Committee chairmen (of both parties) have
failed to even submit the proposal for debate by the Committee. As
far as I know, that's still the situation today. Given the current
Congress's and the Administration's hostility to international legal
instruments (other than those relating to trade), U.S. ratification
of the 1954 Hague Convention seems a long shot to say the least.
A presentation on this subject of the 1954 Hague Convention for
the Protection of Cultural Property in the Event of Armed Conflict,
by W. Hays Parks, Chief, International Law Branch, Office of the
Judge Advocate General of the U.S. Army, is on line at
http://www.kakarigi.net/manu/ceip4.htm
Because they relate to the question about U.S. legal obligations
and as a follow-up to my previous postings, I'm forwarding the
foll. two articles from FindLaw and The Guardian.
Andras Riedlmayer
=======================================================================
http://writ.news.findlaw.com/mariner/20030414.html
FindLaw
Monday, Apr. 14, 2003
Liberation and Looting in Iraq
By JOANNE MARINER
While Baghdad burned, Donald Rumsfeld fiddled. Questioned about the
orgy of looting and pillaging taking place under the gaze of U.S. forces,
Rumsfeld criticized the media for exaggerating the extent of the damage.
"The images you are seeing on television, you are seeing over and
over and over," he complained. "It's the same picture of some person
walking out of some building with a vase and you see it twenty times.
And you think, my goodness, were there that many vases?"
After pausing for laughter, Rumsfeld delivered the punch line: "Is it
possible that there were that many vases in the whole country?"
Well, yes, as it turns out, it is possible. And the loss of such
artifacts is no laughing matter, at least to people who care about
these things. Many of the irreplaceable objects lost in Baghdad's days
of anarchy and turmoil were thousands of years old, material evidence
of humanity's earliest strivings. They came from places like Babylon,
Kalkhu, Nineveh and Ur, ancient cities dating back to the dawn of history.
Last week, after two days of unhindered pillage, the Baghdad museum that
housed these treasures was emptied. By Friday afternoon, when Rumsfeld
made his dismissive remarks, looters were carting away the last spoils.
According to the museum's deputy director, who blamed U.S. forces for
refusing to prevent the plunder, at least 170,000 items were taken or
destroyed.
The pillage of the National Museum of Iraq should have come as
no surprise. And if the risks were obvious, the legal responsibilities
were equally clear.
The Lessons of Gulf War I
In 1991, at the close of the first Gulf War, nine of Iraq's regional
museums were looted by rampaging mobs opposed to Saddam Hussein's
government. While the national museum did not come under attack at that
time, because the government retained firm control over Baghdad, it lost
a number of artifacts that had been transferred to the regional museums
for safekeeping.
In all, about 4,000 items were stolen or destroyed during the 1991
looting spree, including some that were thousands of years old. Some of
the pieces were later smuggled out of Iraq, and were, by the following
year, turning up at art auctions and in the hands of dealers in London
and New York.
The lessons of this close precedent were not lost on archaeologists and
scholars of antiquity. Well prior to the outbreak of the current war,
they warned the Pentagon of the dangers to Iraq's cultural heritage
posed by postwar pillage and destruction.
The Legal Responsibility to Protect Cultural Property
Under the laws of war, the United States is obligated to ensure public
order in territories that it occupies, and to prevent looting and other
forms of lawlessness. More specifically, it is required to protect museums
and other cultural property against damage.
The primary international treaty on this point is the Convention for the
Protection of Cultural Property in the Event of Armed Conflict, drafted
in 1954. The convention specifies that an occupying power must take
necessary measures to safeguard and preserve the cultural property of
the occupied country.
Because this rule codifies customary international law, it is binding
even on countries such as the United States that have signed but not
ratified the convention. (Iraq, in contrast, is a party to the convention,
as are 102 other countries.)
Interestingly, international rules to protect cultural property
from looting and damage are an American innovation, dating back to the
Civil War. Revulsion at widespread destruction during that war led to
the drafting of the Lieber Code, which gave protected status to libraries,
scientific collections and works of art. The Lieber Code's protections
had a significant influence on the development on international law
in this area, culminating in the drafting of the 1954 convention and
its subsequent protocols.
Of course, the U.S. responsibility to protect Iraq's cultural property
is not absolute. Legitimate battlefield demands might well take priority
over the duty to protect. But even if an investigation is necessary
to clarify whether U.S. forces failed in their duties, the evidence of
negligence available so far is compelling.
Not only did the Pentagon have prior notice of the likelihood of looting,
museum officials reportedly called on troops to stop the plunder just
after it began. At the urging of an Iraqi archaeologist, a group of
marines with a tank opened fire above looters' heads and drove them away.
But instead of staying to protect the building, the marines left, and
the looters returned.
The museum's deputy director decried the American refusal to help:
"If they had [provided] just one tank and two soldiers nothing like this
would have happened."
Rumsfeld's Response
"Stuff happens," Rumsfeld told a Pentagon news briefing on April 11,
when asked about widespread looting in Baghdad.
"But," he continued, "it is a fundamental misunderstanding to see those
images over and over and over again of some boy walking out with a vase
and say, 'Oh, my goodness, you didn't have a plan.' That's nonsense."
Two days later, faced with overwhelming proof of mayhem in Baghdad,
Rumsfeld again disavowed responsibility for the looters' rampage.
When the interviewer pointed out that Iraqi museum officials claimed
that they had asked the U.S. military to protect the museum, and that the
military had refused, Rumsfeld responded: "Oh, my goodness. Look, I have
no idea."
Looting, he concluded "isn't something that someone allows or doesn't
allow. It's something that happens."
An Avoidable Disaster
Looting most definitely happens when the authorities take no steps to
prevent it. Unfortunately, the evidence suggests that this was the case
with Iraq's National Museum and its priceless collection of artifacts.
The New York Times, in an article published yesterday, said that the
ransacking of the National Museum will probably be remembered as "one
of the greatest cultural disasters in recent Middle Eastern history."
What is worse, it is likely to be remembered as a disaster that was
avoidable.
/Joanne Mariner is deputy director of the Americas division of Human
Rights Watch. Since 1994, when she joined the organization, she has
covered prison conditions in Brazil, war crimes and other abuses in
Kosovo, counter-narcotics policy in Bolivia, and super-maximum security
prisons in the United States, among other issues. In January 1999, she
drafted Human Rights Watch's submission to the House of Lords in the
Pinochet case. [] The views expressed in her column are her own, and
do not necessarily reflect those of Human Rights Watch./
-------------------------------------------------------------------------
http://www.guardian.co.uk/international/story/0,3604,936194,00.html
The Guardian (London)
April 14, 2003
War in the Gulf: Museum's treasures left to the mercy of looters:
US generals reject plea to protect priceless artefacts from vandals
Jonathan Steele in Baghdad
US army commanders have rejected a new plea by desperate officials of the
Iraq Museum to protect the country's archeological treasures from looters.
Despite worldwide media coverage at the weekend of the waves of vandalism
and plunder last week, no tanks or troops were visible there yesterday.
A further plea for them to act comes from eminent British archaeologists
in a letter to the Guardian today.
With Iraqi police still absent from their posts - those at the museum
fled as the looters arrived - the US remains the only potential policing
presence in the city. Abdul Rehman Mugeer, a senior guard, was shaking
with anger yesterday at the destruction. He praised the US for at least
parking four tanks in front of the museum when they took control of
Baghdad last Wednesday. But they were later removed, leaving the museum
to the mercy of rampaging Iraqis.
"Gangs of several dozen came," he said. "Some had guns. They threatened
to kill us if we did not open up. The looting went on for two days."
The Americans returned with tanks at one point on Friday and sent the
looters fleeing, but as soon as the tanks rumbled away, the gangs came
back to finish the job.
"I asked them to leave one tank here all the time but they have refused,"
said Raeed Abdul Reda, an archeologist.
For months before the war began the archaeologist curators crated and
stored some of the most valuable items in the building's basements.
The museum escaped the bombing, but it has been stripped almost bare.
"Eighty per cent of what we had was stolen," Mr Reda said, standing in
the glass-littered compound.
"They prised open the special chambers which are protected behind
thick doors like safes. They came with crowbars and prised them open."
At more or less the time the world was watching Saddam Hussein's statue
being torn from its plinth, looters were vandalising statues from the
great civilisations of Nineveh and Babylon with equal energy.
Heads of ancient stone now lie on the museum floor. The bodies from which
they came have been pockmarked by powerful blows.
"They were too heavy to move to the basement, and stood there until the
vandals came and laid into them with iron bars," Mr Reda said.
It was clear from his description of the frenzy of destruction that these
were not professional thieves with an eye on the auction markets of the
world but people out for whatever they could get their hands on, and if
it was too big to cart away, they smashed it to vent their frustration.
Display cases are empty, pottery shards litter the floor. In the vault
for archeological fragments drawers that once held evidence of Sumerian,
Assyrian and Babylonian culture have been pulled out and stripped.
"There were hundreds of looters, including women, children and old
people. They were uneducated. We know who they are," Mr Reda said,
in a way that left little doubt they were from the poor slums of the
Shia quarter.
Books seemed to have escaped, and in a remote corner a few Islamic
manuscripts and even some Hebrew texts remained unscathed. So too do
the items in basements the looters failed to penetrate.
This is the only item of good news, though the museum staff
were unwilling to say exactly what was saved, perhaps for fear of
prompting more looting.
Iraq had the world's first known civilisations. The cities of Ur, Nimrud,
Babylon and Nineveh were known to every ancient historian. Their remains
have been plundered for centuries, and some of the best pieces are in the
British Museum and other European capitals.
In recent decades local looters have picked away at tiles and brickwork
in unguarded ancient sites. In the turbulence and popular uprisings after
the previous Gulf war about 4,000 objects went missing from local museums.
But until last week the museum in the capital was untouched: a rare
place where Iraqis could celebrate a past that preceded Saddam, although
a small slab outside the entrance to the department of antiquities lauds
"our wonderful president".
Now in the chaos of the post-Saddam era these priceless artefacts have
been stolen, while the paean to Saddam remains strangely unscathed.
PHOTOS: Not coalition bombs but Iraqi mobs reduced the Iraq Museum
in Baghdad to splinters. Its treasures included, clockwise from
left, a relief from the throne of Shalmansese lll in Nimrud, a gold
bison-headed harp from Ur, Assyrian human-headed winged bulls, a Sumerian
alabaster statuette. Without help from the US troops, a museum official
is left to guard what remains with an iron bar
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