Afghanistan, Iraq, and the Limits of International Cultural Property Law

May 29, 2019

By Kavita Oza

In 2003, the Baghdad Museum suffered tremendous damage due to looting during the US-led invasion of Iraq. Years before, Afghanistan’s National Museum went through a similar loss in 1989, after the end of Soviet occupation of Afghanistan. As the Soviets pulled out, the National Museum in Afghanistan suffered serious damage and lost 70% of its collection – approximately 140,000 objects – and 90% of its archives.^[1] While these lootings took place during vastly different political and historical circumstances, the similarities are obvious: not only do we see the continued practice of treating cultural heritage items as war plunder, but these items lose their cultural value as a trade-off for monetary gain. This article aims to compare the plundering of the National Museum of Afghanistan in 1989 to the events at the National Museum in Baghdad, Iraq in 2003. Furthermore, this article also goes through several international conventions, and explains how these laws failed to safeguard cultural heritage. One should not lay blame on a single party; after all, war and conflict often involve too many actors and stories. Instead, we should look to more proactive solutions by asking how we let this happen, and what failures in institutional mechanisms have allowed for such disasters.

Background of Civil Wars and Museum Looting

The National Museum of Afghanistan

The National Museum of Afghanistan (NMA) in Kabul was founded in 1921 and boasted a collection of antiquities excavated exclusively within the borders of the state.^[2] At the time of the Soviet intervention in 1979, the museum was thought to have possessed close to 200,000 objects. It should be noted that no full inventory of the museum’s collections has been conducted because all records were lost in the looting, and therefore it is very hard to obtain exact figures.^[3] The collection included artifacts from an array of ancient cultures, including India, China, Iran, Mesopotamia, Syria, and Egypt. Because of its geopolitical location, Afghanistan was considered the “crossroads of cultures” as it connects Europe, the Middle East, and North Africa to South Asia and Southeast Asia.^[4] Ideas, culture, and objects were frequently exchanged and this produced the legacy housed in the NMA. As armed conflict escalated in Afghanistan first with the Soviet occupation starting in 1979, and then the civil war beginning in 1989, the NMA’s preservation and safety were quickly compromised.

As their occupation in Afghanistan became increasingly costly, the Soviet Union ultimately decided to end its occupation.^[5] When they withdrew on February 15, 1989, Afghanistan’s political vacuum sparked further tension between different Afghani factions. This started multiple long and incredibly destructive civil wars, with the first ending in 1992.^[6] The museum in Kabul was particularly vulnerable, as it was positioned right next to the Presidential Palace in the capital city (see map below). Caught in the midst of a war, the NMA suffered serious damage from 1989 until 1996, and lost 70% of its collection, as stated above.^[7] With three decades of continued conflict, Afghanistan’s cultural heritage seems less and less relevant to those concerned with ending the war. This is tragic for the preservation of culture. Even though significant efforts have been put into repatriating items and rebuilding the museum (discussed later in this article), when Afghanistan finally emerges from its war zone state, its abundant history of diversity and culture will have been significantly damaged.

Map of Afghanistan, with the Presidential Palace and the Kabul Museum.

The Iraq National Museum

Similar to Afghanistan’s relevance in South Asia, present-day Iraq is located in the “cradle of civilization.” Home to some of the Near East’s great ancient powers, such as the Sumerians and Babylonians, Iraq’s cultural history is considered foundational to modern Western society.^[8] In efforts to unearth more about this deep and rich history, many archeological sites have been excavated since the mid-1800.^[9] Since the time of its opening in 1923, the Iraq National Museum in Baghdad has acted as a major repository of Iraqi cultural history, and its antiquities collection accumulated praise as amongst the finest collections that captured the essential developments of modern life.^[10] In anticipation of the American-led invasion of Iraq in 2003, there was increased media attention on what would be done, and who would safeguard the artifacts in the museum.^[11] Antiquities, reference books, and around 40,000 manuscripts were taken off-site for protection and windows and doors were barricaded.^[12] Still, when the United States army took Baghdad on April 9, 2003 in response to political turmoil in the region, looters soon entered the museum and took 10,000-15,000 items.^[13] Though the museum was put on a no-strike list at the beginning of the war, U.S. forces did little to prevent or stop the plundering and destruction.

By the time the American troops moved into position to protect the Museum, it had already been extensively damaged and looted. Unfortunately, there is a lot of blame attributed to the United States army for failing to move into position sooner.^[14] Colonel Matthew Bogdanos’ report shed light on the circumstances surrounding the regime change in Iraq. It is very clear that the United States army had very little opportunity to force looters out of the museum without causing excessive damage to the collections and the building itself.^[15] Additionally, the war planners overlooked the protection of the museum before entering the country in light of bigger issues, such as preventing civilian casualties.^[16] Assessing the United States’ legal duties to the preservation of cultural heritage is a different question, one that is addressed in this following section.

The Conventions Protecting International Cultural Heritage

There are multiple conventions in the body of codified international law that protect cultural heritage including but not limited to:

The 1907 Hague Convention respecting the Laws and Customs of War on Land: These texts were made in an effort to alleviate some of the worst effects of war on a civilian population. The convention’s purpose was to compel occupying powers to maintain law and order, including cultural property. Today, it is generally accepted as customary international law, a set of laws that are widely practiced by many states.^[17]
The 1954 Convention for the Protection of Cultural Property in Event of Armed Conflict: In the aftermath of the devastation caused by the Second World War, international leaders gathered at the Hague to adopt this convention in order to prevent the future destruction of cultural heritage.^[18] This convention defines what can legally be considered cultural heritage; it also claims that occupying forces of any territory are bound to this convention, as a legitimate government is obligated to actively protect the cultural heritage within that territory. The United States and the United Kingdom declined to sign the convention because it would limit their nuclear capabilities.^[19] The United States only became a party to this treaty in 2009, years after the museum in Baghdad was plundered.^[20] This body of law has been considered a part of customary international law as early as the 1990s; in fact, the United States observed many aspects of the convention during the Gulf War in 1991.^[21]
The 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property: This convention was drafted in response to the increased number of thefts of cultural heritage during the late 1960s to the early 1970s. It was an effort to encourage nations to cooperate and reduce the pillaging of cultural antiquities.^[22] It applies to the protection of cultural heritage where the 1954 Convention does not have jurisdiction (meaning outside warzones). Nations must do whatever they can in order to protect cultural heritage within and outside of their territories, and should the objects fall into illicit trade, steps must be taken to recover those objects.^[23]
Principle of Military Objective: This is defined by the 1954 Hague Convention for the Protection of Cultural Property as “limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”^[24] This is an exception whereby armed forces can only carry out certain missions or duties that are explicitly authorized only if they are absolutely necessary for clear warfare advantage.
Lieber Code, also known as the “Government of Armies of the United States in the Field:” This is the first attempt in the United States to codify the laws of war.^[25] They were prepared during the American Civil War. These instructions are only legally binding to the Armed Forces of the United States, but have been a source of great influence for wartime conduct for other nations. The Lieber Code also states “cultural property should be treated as private property unless used for military purpose.”^[26]

These bodies do not automatically apply to every state. In order to respect the sovereignty of nations, international law permits a country to refuse to sign international conventions should they disagree with certain principles. Additionally, states are also allowed to add reservations, understandings, and declarations to their acceptance of an international treaty. Furthermore, countries must ratify the treaty through their federal constitutions before the convention is fully enforceable.

Laws in Practice: Useful Tools or Ideologies?

The circumstances regarding the destruction of both museums are, at a very technical level, different. Mainly, the situation in Afghanistan during the civil war only involved national actors. Afghanistan was not a party/signatory to any of the international conventions when the plundering of the Kabul museum started. Though they signed and acceded to the 1954 Convention in 2017 and the 1970 UNESCO Convention in 2005, the damage to the museum was already done and any laws applicable could not be considered to apply retroactively.^[27] Under the circumstances, it is difficult to apply any international laws with regards to the plundering that started in 1989. There is also no legal argument against the parties that were involved in the Civil War. There could, however, be a claim against the international community: the 1970 UNESCO Convention states that other signatories of the treaty did have a responsibility to safeguard cultural heritage regardless of it being outside of their territorial boundaries.^[28] This included nations such as the United States, India, and Iran. The convention stresses, though it does not explicitly say, that nations on both ends need to cooperate with one another in order to protect the antiquities.^[29] However, there are two issues with this structure. First, it is not feasible to expect a nation’s “cooperation” when it is facing a civil war. Second, because sovereignty is at the basis of international law, entering territories that are not parties to the convention to save its cultural heritage should be done with verbal and physical support from the nation in question and the United Nations. Unfortunately, there was not enough international support for Afghanistan in this case.

At the time of the Baghdad Museum’s plundering, Iraq was occupied by a foreign state. The actions that followed are subject to the scrutiny of international laws. There are a number of claims that exist for Iraq’s case. According to international norms, the United States army, as the occupying force, had a duty to protect Iraq’s cultural institution.^[30] Instead, they failed to protect the Baghdad Museum. Matters become worse when the international community quickly drew the conclusion that the United States army, in spite of knowing that an attack on the museum was imminent, did nothing to prevent it. At the time of the conflict in Iraq, the United States was not a signatory of the 1954 Convention, and therefore cannot be held accountable under that convention (the U.S. has since ratified the Convention).^[31] The 1954 Convention is seen as customary international law, and the United States army observed these laws in the 1991 Gulf War despite not being a signatory.^[32] It is possible that the army was not physically able to observe them in this instance. The 1970 Convention was applicable but proved to be rather ineffective because the language of the law was “inadequate,” according to scholars.^[33] The U.S. is a signatory of the Hague Convention of 1907 and is accountable, as an occupying force, to safeguard Iraq’s cultural property.^[34] In failing to prevent the plunder of the museum, the U.S. breached the obligations set forth by this convention. Military objective is applicable here because they were not using the Museum as a stronghold. However, the army is accountable by duties set forth in the Lieber Code. In the wake of this war and the destruction of Iraq’s cultural heritage, no actor has faced any repercussions.

A study conducted showed that overall, the U.S. and the U.K. are two of the biggest markets for the trade of illicit goods.^[35] Customs agencies in each nation have successfully repatriated various goods to Iraq and Afghanistan, and tried to maintain strict barriers for entry because of their large market presence.^[36] Legally, because they are signatories of the 1970 Convention, they are obligated to make an effort towards this. These codified documents provide for a robust legal framework that could have prevented the plunder of the Iraq National Museum and the destruction of several other monuments and antiquities since that time. The international community made efforts to rectify writing where they believe it was not specific enough. For example, the 1995 UNIDROIT Convention attempted to clarify and elaborate on some of the legal issues that the 1970 Convention failed to mention.^[37]

The Shortcomings of International Cultural Property Law

When legally assessing the applicability of these laws to the situation in Iraq and Afghanistan, sometimes it is the country and not the convention that failed to ensure against the plunder of their cultural sites. Specifically, even though conventions are readily accepting nations into the agreement, some nations decline to ratify them. For many reasons, nations may find that they restrict certain indispensable activities. For example, the United States did not sign the 1954 Hague Convention because it limited their nuclear program.^[38] Signing a convention into a constitution is not mandatory. Additionally, respecting the sovereignty of each nation is paramount to the preservation of a peaceful international political climate. Following this logic, the weight of pillaging and the destruction of cultural heritage cannot be properly addressed by a general codified document. Nations must move to make bilateral agreements, which can be binding, consequential, and easier to follow.

Are There Ways to Better Mitigate Damages to Cultural Heritage Sites?

We are only able to mitigate these consequences; we have yet to create a preventative structure. Looking forward, it is clear that relying solely on international law would be a mistake. We cannot always blame international law for not being effective in preventing the destruction of cultural heritage. The texts exist, but there are often too many incentives that make pillaging appealing. It is difficult to carve out any enforceable solutions when the conventions do not lay out any frameworks to apply their rhetoric. This is why most efforts to preserve cultural heritage are generally reactive instead of proactive. There are many reactive solutions that effectively return a small percentage of what is lost in wartime. Proactive solutions, however, are much less apparent.

Many efforts have been made to restore both museums to their former conditions, with a particular focus on updating the museum archival methods. When the United States got involved in Afghanistan in 2001, the international community donated funds that would help the NMA re-open to the public in 2004.^[39] In 2009, the United Kingdom seized cargo consisting of 15,000 looted Afghan antiquities and repatriated them.^[40] It is unclear whether any artifacts from this seizure came from the NMA. In 2012, 20 years after the plunder, the U.S. Embassy in Kabul made efforts to partner the Oriental Institute at the University of Chicago with the NMA.^[41] From this coalition, the parties hope to restore the museum’s conditions and artifacts through four different projects: the National Museum of Afghanistan-Oriental Institute Partnership, the Afghan Heritage Mapping Project, the Core Operations Infrastructure Grant, and the Mobile Museum Outreach Program. These projects use technology and education to rebuild and maintain the cultural heritage of Afghanistan. Because of this, the NMA has seen much improvement since the early 2000s.

In Iraq, immediately after the looting occurred, American teams of soldiers and scholars set out to work with the museum’s staff in order to restore the state of the museum.^[42] They worked quickly in order to recover the stolen goods. Starting in 2003, the Oriental Institute began a database for the collection at the Baghdad Museum in order to help customs officials prevent the trafficking of Iraq’s cultural property.^[43] Today, over half of those items have been retrieved; approximately 7,000 were returned within a year of the plunder.^[44] The U.S. government and the international community also displayed support by passing legislation that condemned the illicit trade of Iraqi goods following the sack of the museum.^[45] Almost twelve years after the sack, the Baghdad Museum was re-opened in 2015 with new exhibitions, renovated galleries, and digitized records.

For all stolen cultural heritage items, the International Council of Museums created a Red List in order to help prevent the illegal trafficking of cultural heritage.^[46] This is particularly helpful for other types of illicit trafficking in Afghanistan and Iraq. Not related to the Museums, unearthed antiquities have been illegally excavated and sold in black markets. This is in violation of international regulations, yet it is hard to conceive what can be done to prevent it from happening. How can we monitor the theft of goods we do not even know to exist? There are been several technological solutions that have helped solve this problem, including the GIS systems used by the Oriental Institute in a project listed above.

International law is often difficult to critique because it is stuck between respecting state sovereignty and arbitrating violations, such as the plunder and illicit trade of cultural goods. In an effort to mitigate the extensive damage, it is important that we start to look beyond what international conventions can do for these issues.

Footnotes:

^[1] Gil J. Stein, The War-Ravaged Cultural Heritage of Afghanistan: An Overview of Projects of Assessment, Mitigation, and Preservation, 58.3 Near Eastern Archeology, 187, 189 (2015).

^[2] Vanessa Kam, Cultural Calamities: Damage to Iraq’s Museums, Libraries, and Archaeological Sites During the United States-Led War on Iraq, 23.1 Art Doc. 4, 4 (2004).

^[3] Stein, The War-Ravaged Cultural Heritage of Afghanistan, supra, at 189.

^[4] Joan Aruz & Elizabetta Valts Fino, Afghanistan: Forging Civilizations Along the Silk Road 2 (2012).

^[5] Stein, The War-Ravaged Cultural Heritage of Afghanistan, supra, at 187.

^[6] Id.

^[7] Id.

^[8] Donny George Youkhanna, Learning from the Iraq Museum, 114.4 Am. J. Archaeol. 1, (2010).

^[9] Katharyn Hanson, Ancient Artefacts and Modern Conflict: A Case Study of Looting and Instability in Iraq, in 4 Cultural Heritage, Ethics, and the Military, 113, 116 (Peter G. Stone ed., 2011).

^[10] Youkhanna, Learning from the Iraq Museum, supra, at 2.

^[11] Id.

^[12] Id. at 3.

^[13] Zainab Bahrani, Iraq’s Cultural Heritage: Monuments, History, and Loss, 62.4 Art J. 10, 17 (2003).

^[14] Matthew Bogdanos, The Casualties of War: The Truth about the Iraq Museum, 109.5 Am. J. Archaeol. 477, 482 (2005).

^[15] Id. at 483.

^[16] Id.

^[17] “Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land.” Opened for signature on 18 October 1907; https://ihl-databases.icrc.org/ihl/INTRO/195

^[18] “Convention for the protection of Cultural Property in the Event of Armed Conflict,” Opened for signature on May 14, 1954; https://ihl databases.icrc.org/applic/ihl/ihl.nsf/INz

^[19] Joshua M. Zelig, Recovering Iraq’s Cultural Property: What Can be Done to Prevent Illicit Trafficking, 31.1 Brooklyn Journal of International Law, 289, 298 (2005).

^[20] “Convention respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land.” Opened for signature on 18 October 1907; https://ihl-databases.icrc.org/ihl/INTRO/195 

^[21] Zelig, Recovering Iraq’s Cultural Property, supra, at 316.

^[22] “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property,” Opened for signature on November 14, 1970; Available here.

^[23] Id.

^[24] “Convention for the protection of Cultural Property in the Event of Armed Conflict,” Opened for signature on May 14, 1954; https://ihl databases.icrc.org/applic/ihl/ihl.nsf/INz

^[25] “Instructions for the Government of armies of the United States in the Field (Lieber Code),” April 24, 1863; https://ihl-databases.icrc.org/ihl/INTRO/110?OpenDocument.

^[26] Zelig, Recovering Iraq’s Cultural Property, supra, at 293.

^[27] “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property,” Opened for signature on November 14, 1970; Available here.

^[28] James Cuno, The Responsibility to Protect the World’s Cultural Heritage, 23.1 Brown J. World Aff. 97, 98 (2016).

^[29] “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property,” Opened for signature on November 14, 1970; Available here.

^[30] Kam, Cultural Calamities, supra, at 8.

^[31] “Convention for the protection of Cultural Property in the Event of Armed Conflict,” Opening for signature on May 14, 1954; Available here.

^[32] Zelig, Recovering Iraq’s Cultural Property, supra, at 316.

^[33] Id. at 319.

^[34] “Convention respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land.” Opened for signature on 18 October 1907; Available here.

^[35] Stein, The War-Ravaged Cultural Heritage of Afghanistan, supra, at 189.

^[36] Id.

^[37] Zelig, Recovering Iraq’s Cultural Property, supra, at 319.

^[38] Id. at 298.

^[39] Stein, The War-Ravaged Cultural Heritage of Afghanistan, supra, at 192.

^[40] Id. at 189.

^[41] Gil J. Stein, The Oriental Institute Partnership with the National Museum of Afghanistan 139, Oriental Institute Annual Report 2014–2015,139, 139 (2015).

^[42] Bogdanos, The Casualties of War, supra, at 482.

^[43] Clemens D. Reicher, Iraq Museum Database, 2003-2004 Oriental Institute Annual Report, at 106-113 (2004). Available here.

^[44] Bogdanos, The Casualties of War, supra, 525.

^[45] Zelig, Recovering Iraq’s Cultural Property, supra, at 320-321.

^[46] International Council of Museums, Red List Database. Available here.

Additional Readings:

Simpson, John. “The ‘Begram Ivories’: A Successful Case of Restitution of Some Antiquities Stolen from the National Museum of Afghanistan in Kabul.” International Journal of Cultural Property, vol. 23, no. 4, 2016, pp. 459–477. doi.org/10.1017/S0940739116000266.
Grissman, Carla. “The Inventory of the Kabul Museum: Attempts at Restoring Order.” Museum International, vol. 22, no. 3-4, 2003, pp. 71-76. doi.org/10.1111/j.1350-0775.2003.00440.x.
Gerstenblith, Patty. “The Meaning of 1970 for the Acquisition of Archaeological Objects.” Journal of Field Archaeology, vol. 38, no. 4, 2013, pp. 364-373. doi.org/10.1179/0093469013Z.00000000062.

About the Author: Kavita Oza is a student at Sotheby’s Institute of Art pursuing her Master’s degree in Art Business. Last year, she graduated from the George Washington University University with a Bachelor of Arts in International Relations with a double concentration in Security Policy and International Economics and a double minor in Art History and Socio-Cultural Anthropology. Kavita uses her interest in security policy, international law and fine art in order to guide her research in her professional and academic career. She is currently with Winston Art Group as an associate in the Advisory department.