Category: Military Law

Iconoclasm and Looting

The recent destruction of sculptures and other objects in the Mosul Museum, as well as the ancient cities and archaeological sites of Nimrud, Hatra, and Dur Sharrukin^[1] by the Islamic State of Iraq and Syria (ISIS), sometimes also referred to as the IslamicState of Iraq and the Levant (ISIL), has been widely condemned.^[2] Many have identified the motivation behind the destruction as an ideology-driven iconoclasm.  [UNESCO Director-General, Irina Bokova, condemned the destruction, noting that “the attack was in direct violation to the most recent Security Council resolution 2199 that condemns the destruction of cultural heritage and adopts legally-binding measures to counter illicit trafficking of antiquities and cultural objects from Iraq and Syria.” See “Iraq: UNESCO Outraged over Terrorist Attack against Mosul Museum,” UN News Centre, Feb. 26, 2015. To view a video of the destruction at the museum, see Ben Wedeman and Dana Ford, “Video Shows ISIS Militants Destroying Antiquities in Iraq,” CNN, Feb. 27, 2015. See also Kareen Shaheen, “Isis fighters destroy ancient artefacts at Mosul museum,” The Guardian, Feb. 26, 2015.]

Art historian Simon Schama, placing ISIS’s actions in the context of many other historical iconoclasms, observed that:

[t]he obliterators . . . act from the same instinct of cultural panic that the supreme works of the past will lead people astray from blind, absolute obedience.  Neither beauty nor history have the least interest for them because they live in and force others to inhabit a universe of timeless subjection.  The mere notion that the achievements of humanity might rise to the level of sublimity is itself a sacrilegious affront.  In a way this is a backhanded compliment to the power of images. And yet when this puerile and fearful instinct leads to irreversible acts of annihilation, it is not only their own immediate culture that is the victim but the entirety of humanity, which loses a piece of its memory as surely as if a slice of our collective brain had been removed by a mad lobotomist. [Simon Schama, “Artefacts under Attack,” The Financial Times, Mar. 13, 2015.]

The Taliban’s demolition of the Bamiyan Buddhas in March 2001 exemplifies this “cultural cleansing,” but it also shows how changeable iconoclasts’ views can be.  In 1999, shortly after the Taliban assumed power in Afghanistan, the Taliban Minister of Culture “spoke about the respect due to pre-Islamic antiquities and also mentioned the risk of retaliation against mosques in Buddhist countries. . . . He made clear that, though there were no Buddhist believers in Afghanistan, ‘Bamiyan would not be destroyed but, on the contrary, protected.’” [Pierre Centlivres, “The Death of the Bamiyan Buddhas,” Middle East Institute website, Dec. 2009.]  However, on February 26, 2001, Taliban leader Mullah Muhammad Omar “issued a decree ordering the elimination of all non-Islamic statues and sanctuaries in Afghanistan.” [Id.] Within weeks, the buddhas had been destroyed.

Similarly, in 2012, the Al-Qaeda-related Islamic group Ansar Dine engaged in widespread ideologically-driven destruction of mosques, monuments, and manuscripts in Timbuktu, Mali [Federico Lenzerini, “The Role of International and Mixed Criminal Courts in the Enforcement of International Norms Concerning the Protection of Cultural Heritage,” in Francesco]. “Timbuktu’s ancient mosques and monuments,” observers noted, “built of mud and limestone bricks, [had] endured centuries [until Ansar Dine] swept across Mali’s north. . . . Intolerant of the city’s mystical Sufi traditions, they banned music, and took hoes, pickaxes and bulldozers to the shrines where saints were buried, and which they considered idolatrous.  16 mausoleums were destroyed, including two that sat alongside the vast 14th-century Djingareyber mosque.” In the case of the monuments of Timbuktu, the destruction of the buildings was itself not enough.  Complete elimination – including making it impossible for the monuments to be rebuilt with the same materials — was the goal.  After the monuments were destroyed, Ansar Dine “carried the clay obtained from the monuments outside the city . . . to prevent them from being rebuilt with the same clay in the future.” [Lenzerini, at 61.]

The ravages of recent weeks are only the latest examples of ISIS’s targeting of cultural heritage, erasing cultural sites and symbols they find offensive to their worldview or to establish a “pure” narrative of their own preeminence.  In July 2014, ISIS destroyed the 14th-century mosque that housed the Tomb of Jonah. [See Mark Movesian, “Why Did ISIS Destroy the Tomb of Jonah?” First Things, July 28, 2014; see also “Video Shows Islamic State Blowing Up Iraq’s Tomb of Jonah,” NPR, July 25, 2014.]

However, iconoclasm and “cultural cleansing” do not appear to be ISIS’s sole purpose in destroying ancient sites.  While ISIS declares that “ancient art [is] idolatry that must be destroyed,” reports indicate that the destruction of that ancient art is part of a looting scheme that monetizes that ancient art to fund ISIS’s activities.  “[T]he archaeological devastation is not about ideology,” David Kohn hasreported, “but income. . . . [ISIS] often brings in contractors who use bulldozers to dig up sites as efficiently as possible.”  Louise Shelley, writing in the current special issue of Foreign Affairs, describes the sources of ISIS’s funding, including the sale of oil, but also “the sale of counterfeit cigarettes, pharmaceuticals, cell phones, antiquities, and foreign passports.” [Louise Shelley, “Blood Money: How ISIS Makes Bank,” Foreign Affairs, Mar. 2015.]

War Crimes

United Nations Secretary General Ban Ki-moon condemned the destruction, designating the actions as “war crimes,” and issuing a statement calling on the international community “to swiftly put a stop to such heinous terrorist activity and to counter the illicit traffic in cultural artefacts.” [Kareem Shaheen, “Isis attacks on ancient sites erasing history of humanity, says Iraq,” The Guardian, Mar. 9, 2015.] UNESCO Director-General Irina Bokova likewise issued a statement after the destruction of Nimrud stating that she had “alerted the president of the Security Council as well as the Prosecutor of the International Criminal Court” concerning the unlawfulness of the destruction under international law.

International law protects cultural heritage from destruction and plunder during armed conflict (both international and internal) through a variety of instruments. Many of these instruments impose obligations on countries, not individuals, setting out the rules of war. [ Lenzerini, at 41-42.]  These instruments include Convention (IV) Respecting the Laws and Customs of War on Land of 1907,^[3] the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (which imposes not only obligations to safeguard cultural heritage during international/cross-border conflicts, but also, importantly, during internal conflicts), the two 1977 Protocols to the Geneva Conventions on Humanitarian Law of 1949,^[4] the Second Protocol to the 1954 Hague Convention,^[5] and the 2003 UNESCO Declaration on the Intentional Destruction of Cultural Heritage.^[6] Individual criminal liability for the destruction of cultural heritage was slower to develop, but is embodied in the statutes of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court (ICC), which, like the 1954 Hague Convention, imposes criminal liability not only for actions taken during international conflicts, but also during internal conflicts. ^[7]

In the case of individual criminal responsibility for ISIS militants for the destruction in Mosul, Nimrud, and elsewhere, an initial obstacle lies in neither Iraq nor Syria being party to the Rome Statute.  However, while the ICC’s jurisdiction is limited, states may accept the court’s jurisdiction for a particular case.  Even in the absence such state acceptance, the ICC has jurisdiction in cases in which the Security Council refers the matter to the prosecutor.  Either option, however, faces steep political obstacles.

Challenges to enforcement do not reduce the importance of establishing and maintaining the international legal norms that have developed in this area. Resolutions and declarations by the United Nations and the international community’s condemnation of these acts of destruction carry significance in themselves, even though they do not halt the acts themselves.  It is also important to recognize that treaty-based legal protections for cultural heritage not only have deep roots in the norms of customary international law, but they also contribute to the articulation and development of those customary international law norms, which have an independent legal validity in international law. [Francesco Francioni and Federico Lenzerini, “The Destruction of the Buddhas of Bamiyan and International Law,” 14 EJIL 619, 634 (2003).]

Still, as Simon Schama notes:

 the wringing of hands over this loss to humanity will have no effect on those for whom it is as nothing compared with the claims of divinity.  It is understandable that, when asked on BBC Radio 4 if he would countenance military intervention to save Nimrud, the Assyriologist John E. Curtis answered in the affirmative.  But a Unesco strike squad belongs, alas, to comic book dreams.  Even before its planes could be fueled, the bulldozer boys will be congratulating themselves on having reduced masterpieces to rubble and dust. [Simon Schama, “Artefacts under Attack,” The Financial Times, Mar. 13, 2015.]

_{[1] Kareem Shaheen, “Isis Ransacking of Ancient Assyrian City Confirmed by Iraq’s Head of Antiquities,” The Guardian, Mar. 12, 2015. (“[Dur-Sharrukin’s] city walls were razed, and some elements of the temples, but we don’t know the exact extent [of the damage],” Iraq’s director of antiquities, Qais Rasheed, told Reuters. “Looting took place, and then the razing.”); Anne Barnard, “Race in Iraq and Syria to Record and Shield Art Falling to ISIS,” The New York Times, Mar. 8, 2015. (“In just a few days last week, [ISIS] destroyed parts of two of northern Iraq’s most prized ancient cities, Nimrud and Hatra. On Sunday, residents said militants destroyed parts of Dur Sharrukin, a 2,800-year-old Assyrian site near the village of Khorsabad.”).}

_{[2] UNESCO Director-General, Irina Bokova (“The destruction of Hatra marks a turning point in the appalling strategy of cultural cleansing under way in Iraq.”)(“Islamic State ‘Demolishes’ Ancient Hatra Site in Iraq,” BBC, Mar. 7, 2015; Thomas P. Campbell, Director of the Metropolitan Museum of Art (“It’s the erasure of human identity, and nothing less than cultural cleansing.”)(Kia Makarechi, “At Persian New Year Gala, Met Museum C.E.O. Condemns ISIS’s “Sickening” Destruction of Antiquities,” Vanity Fair, Mar. 13, 2015. See also Graham Bowley and Robert Mackey, “Destruction of Antiquities by ISIS Militants is Denounced,” The New York Times, Feb. 27, 2015; Sturt Manning, “Why ISIS Destroys Antiquities,” CNN, Mar. 9, 2015; Zack Beauchamp, “ISIS’s War on History: 11 Cultural Treasures Lost Forever to the Group and Its Predecessors,” Vox.com, Mar. 11, 2015.}

_{[3] Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 Oct. 1907. (The Regulations annexed to the Convention state: “In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.  It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.”).}

_{[4] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 5 (Article 53 provides:  “Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals.”); and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 UNTS 609 (Article 16 provides: “it is prohibited to commit any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military effort.”).}

_{[5] Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 1999, 2253 UNTS 172.}

_{[6] Article VII, in proclaiming the principle of individual criminal responsibility for acts of destruction of cultural heritage, affirms: “States should take all appropriate measures, in accordance with international law, to establish jurisdiction over, and provide effective criminal sanctions against, those persons who commit, or order to be committed, acts of intentional destruction of cultural heritage of great importance for humanity, whether or not it is inscribed on a list maintained by UNESCO or another international organization.”).}

_{[7] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6. (Article 8(2)(b)(IX) provides that the term ‘war crimes’ includes “Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”  Article 8(2)(e)(IV) imposes a corresponding liability during internal conflicts, stating that war crimes includes, in conflicts not of an international character, “Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”).}