FROM THE EDITOR'S DESK:

ABOUT THAT HAGUE CONVENTION

This is a follow-up to my post last week, "When Scholars Cry Wolf." I'm assuming you've read this and will not include here every link that you can find there. I was intending for this to be just a few short remarks but I'm afraid it has turned into another editorial. My comments apply in the first instance to the Baghdad Museum, but I also deal with the cultural looting in general later in the essay.

This is the opening text of a resolution passed by MELCOM (via the Iraqcrisis list):

MELCOM, the European Association of Middle East Librarians, assembled in Beirut at its 25th annual conference, unanimously

Deplores the destruction and theft of Iraqi libraries, archives and their contents following the US and British led invasion and occupation of Iraq in April 2003. This occurred in breach of the United Nations Convention on the protection of cultural property of countries under military occupation.

[�]

My emphasis. Well, I deplore it too, but I suggest that people who want to assert a "breach" of international law by allied forces read the U.N. Convention for the Protection of Cultural Property in the Event of Armed Conflict a little more carefully. Here is my reading of it.

Article 4, on Respect for Cultural Property, says:

1. The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed convict [sic: read "conflict"?]; and by refraining from any act of hostility directed against such property.

2. The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.

3. The High Contracting Parties further undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property. They shall refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party.

4. They shall refrain from any act directed by way of reprisals against cultural property.

5. No High Contracting Party may evade the obligations incumbent upon it under the present Article, in respect of another High Contracting Party, by reason of the fact that the latter has not applied the measures of safeguard referred to in Article 3.

My emphasis. It is well established that Iraqi forces used the Baghdad Museum grounds as a base from which to fight U.S. forces from 7 April for three days. This is a case of imperative military necessity and the U.S. forces could not have been expected to protect the site during this period (when, evidently, some looting was already going on). (It may be that the Museum would count as a site put under "special protection," in which case Articles 8-11 apply, which say much the same thing.) It isn't clear to me exactly when the situation in Baghdad moved from "warfare" to "occupation" � I imagine it varied from location to location. The crucial period from about 10-12 April (after which, remember, the report for some time was that the Museum had been completely gutted) could be argued to fit either. If there were still hostilities going on in the immediate vicinity, paragraph 2 may still apply. (Paragraph 3 is obviously trumped by paragraph 2: if the parties to the conflict are allowed to use cultural property for purposes that might expose it to damage if it is a case of imperative military necessity, they can hardly be expected to protect it from theft, pillage, or vandalism under the same circumstances.) If not, and the area was now "occupied," the relevant part of Article 5, on Occupation, reads:

1. Any High Contracting Party in occupation of the whole or part of the territory of another High Contracting Party shall as far as possible support the competent national authorities of the occupied country in safeguarding and preserving its cultural property.

2. Should it prove necessary to take measures to preserve cultural property situated in occupied territory and damaged by military operations, and should the competent national authorities be unable to take such measures, the Occupying Power shall, as far as possible, and in close co-operation with such authorities, take the most necessary measures of preservation.

My emphasis. The occupying power should take measures for preservation as far as possible. It is not enough simply to show that some antiquities were looted or destroyed, which is not in doubt here. To assert violation of the Hague Convention it is necessary to show that the occupying troops did not take whatever steps were reasonable given the situation, the whole array of things that were calling for their attention, and the manpower and resources they had available. This, I submit, has by no means been demonstrated.

(I don't have the patience for a detailed exegesis of the 1999 Second Protocol to the 1954 Hague Convention and I doubt that many would have the patience to read it if I did. Suffice to say that Chapter 2, Articles 6-9, and all of Chapter 3 cover the same ground in more detail and build on the 1954 Protocol without changing anything I have said above. By the way, I am aware that the United States has not ratified either the Convention or the Protocol, but it has gone on record as recognizing much of the Convention as "customary international law." For a primer on archaeological ethics and international law, go here.)

In the case of the Baghdad Museum it is unrealistic to suggest, as it was by a museum official on the day the looting was announced, that one tank and two soldiers could have kept away the looters. A commander with any sense would not place two of his men in so vulnerable a position to secure an important site. There were still bands of Fedayeen loose in Baghdad and there was the danger of a determined mob of looters. Two men and a tank would not have been a sufficiently intimidating presence to be sure of keeping looters at bay, which meant the soldiers might have had to fire on the looters in contravention of the rules of engagement. It would have taken a large contingent of troops occupying the museum to secure it. I pointed this out on 13 April.

Was there such a contingent to spare during the crucial days of 10-12 April? I don't know. But I bet you don't either. It is clear that the troops were mopping up armed resistance, securing the Ministry of Interior and the Oil Ministry, being called upon to help figure out if their were prisoners underground dying of thirst, and (at the same time or shortly thereafter) trying to keep a zoo full of animals alive while they got a supply line of food going. Not to put too fine a point on it, but all of these actually were a higher priority than securing the Museum. The decision to allot resources to them makes sense. We do need all the military intelligence we can get: we're fighting a war on terrorism and, although Saddam had nothing to do with the September 11th attacks, he was in bed with a number of terrorist groups. We needed to keep as much information as possible which would help us preserve the oil infrastructure for the rebuilding of Iraq. And can you imagine the condemnations we'd still be hearing today if we'd let all the zoo animals starve or if there had been underground prisons and we'd let the prisoners die? And I don't know what other urgent needs were present, but I bet there were quite a few. Robert Fisk makes much of the ministry buildings that were not protected, but doesn't their number indicate that troops and resources for protecting them were rather scarce in comparison to the need? Were there indeed other resources that were wasted? Again, I don't know. Maybe there were units off wasting time somewhere who should have been protecting the Museum and all those other ministry buildings and hospitals, etc. But if so, I'd like to see the evidence. Remember, Baghdad was not yet "secured." I would like an account of what Lieutenant-Colonel Schwartz's men were doing after the Battle of the Museum. If it can be shown that were doing things that were obviously less important than securing the Museum and that the things they were doing were unreasonable choices by comparison at the time, then there may be a case for saying they violated the Hague Convention. If ASOR or MELCOM want to present evidence that this is so, I am willing to listen.

This is obviously just the most publicized and best-known site that suffered some looting or destruction. There were reports early on that the Mosul Museum was seriously looted but it seems these were exaggerated. Various libraries and archives were burned or looted or both. The most recent information I can find on these is here. (pointed out to me by Francis Deblauwe). About these I will say just two things. First, we know even less at present about exactly what was lost in them than we know about the Baghdad Museum and about what was happening at the same time in the same vicinities. There is at least one report that some of the holdings of the National Library and Archives had previously been removed to safety. Given that a good bit of what was originally reported destroyed in other collections had actually been saved earlier (such as the majority of the holdings of the Ministry of Endowments & Religious Affairs Central Library), I'm hoping that most or all of the old and rare holdings in the National Library and Archives will turn up safe too. Second, there are certainly an awful lot of libraries and archives. Is it really realistic to argue that they all should have been heavily guarded? Again, I don't know whether it was feasible to put a heavy guard around the National Library and Archives on 14 April. I'm not sure it would even have occurred to me that the Iraqis themselves would burn it down. And once Robert Fisk reported to the U.S. troops that the Koranic Library was burning, with flames shooting a hundred feet into the air, what were they supposed to do? Did they have fire-fighting equipment? Would even that have made a difference at that point?

I am not trying to support anyone's agenda or propose a simplistic interpretation of very complex and confusing events. I want to know what happened too and if it can be shown that there was negligence on the part of the troops and the occupying powers, then they should be called to justice. But the point I am making is that we still know very little about what actually happened and that negligence has by no means been established and it can only be established by a full accounting not only of what the troops didn't do, but also what they did instead and why. If allied forces had gone to the Baghdad Museum, packed up its contents and sent them back to museums in the States, we would all be talking about violations of the Hague Convention. If they had burned down the National Library, we would all be talking about war crimes. They did no such thing and no one claims that they did. They are being accused, rather, of neglecting to prevent looting and burning by the local population, a much more nebulous charge that is correspondingly harder to prove and that should be advanced with due caution. If ASOR, MELCOM, etc. think they can make a case for negligence, let them speak up. Let them call for a formal investigation. Let them present a full array of evidence to the public. If the case is strong, there will be support for an investigation. But so far it looks to me as though the Hague Convention is being invoked purely on the grounds that antiquities were looted. This is not adequate, based on what the Convention actually says. Accusing someone of a war crime is a serious matter and ought to be done only if the accuser offers a detailed and convincing case. In the meantime, the accused should be regarded as innocent until proven guilty. ASOR, MELCOM and others have jumped to conclusions and are embarrassing us all in the public arena as a result. This was not necessary. You have only to look at the Statement of Concern of the Oriental Institute of the University of Chicago (which invokes the Hague Convention in a sensible way) and the Statement on destruction of Cultural Heritage in Iraq by the World Archaeological Congress to see that it was perfectly possible to express concern about the situation and to call for action without resorting to overblown rhetoric and unsupported accusations.

UPDATE (23 June): In this article (originally published 7 May in German, English translation via Francis Deblauwe's website), Professor Walter Sommerfeld makes some specific and serious accusations that, if true, would indicate that American troops blatantly violated the Hague Convention and committed war crimes. According to the article, after the fighting around the Baghdad Museum the troops broke into the Museum and brought out unidentified objects, then incited the crowd to loot the treasures of the Museum. However, the account is presented as based on anonymous reports by Museum staff and local residents, "as they are afraid of repercussions and will be forced to work with the Americans in the future." There are also alleged quotations from three local residents who say not only that the American troops looted the Museum, but that they brought Kuwaitis with them and together they carried off seven truckloads of artifacts while protected by armored cars! Certainly Americans as well as anyone else would want to know if all this is true. I have to say that at this point I am not inclined to give great weight to anonymous accusations. If there had been blatant looting by American troops on this scale, surely the newspapers would have been all over it - it could hardly have been covered up or escaped their attention. The National Geographic report on Iraq's antiquites deals at length with the Iraq Museum and shows no awareness of any accounts or rumors of this kind. Nor does Professor McGuire Gibson, one of the team members who visited the Museum in May, say anything about any such rumors in his interview in the current (July/August) issue of Archaeology Magazine, even when asked how the looting happened. So we have some specific and serious accusations but no verification or indication that people in the know or with the means of finding out are taking them seriously. I remain to be convinced.

UPDATE (26 June): Roger Atwood has published an article in ARTnews online, "Inside Iraq�s National Museum," (via the Iraqcrisis list and Francis Deblauwe) which gives a detailed account of what happened in and around the Museum during the crucial days before, during, and after the looting, based on interviews with museum workers, U.S. troops who were present, and eyewitness bystanders. The Museum was "turned into a major military defensive position by Iraqi forces."

Three U.S. Army platoons, with four tanks and 16 soldiers each, rolled into the immediate vicinity of the museum that day under heavy fire. It was a big force, attesting to the importance of the junction and the strength of Iraqi resistance. The commander of the operation was Captain Jason Conroy.

I asked Conroy why his troops didn�t make more of an effort to guard what he must have known would be a tempting target for looters.

"That building was being used as a defensive position. They were fighting out of it. It wasn�t like you came here and there was no enemy. The area was completely saturated by enemy positions, and they weren�t abiding by the rules we were abiding by," he said. An engaging, articulate man, Conroy seemed more bewildered than angry at the charges that his troops could have stopped the plunder. "I mean, you�re talking about one little building. Yes, it�s an important building, but you have to think back to what point we were at. We were just moving into Baghdad, and just to get to this area was a major undertaking."

[...]

Behind the battle lines, looting was well under way by Thursday, April 10. According to Abbas, a group of seven men smashed open the museum�s glass front door and went inside. Most of the shelves were empty, but there were still some choice works, like the Warka Vase, a copper bull from the Tell Ubaid site, and a 4,400-year-old diorite statue of an early Babylonian king.

[...]

More looters had gotten in through a back entrance.

By Saturday, April 12, other employees began returning to the museum and chased out some of the looters. Abbas put up a large sign in the entrance saying in Arabic: "The American army is in control of the museum. Those who enter will be killed." It was a lie, of course, but it helped. They were able to block the doors and hold looters at bay.

George and Khalil, meanwhile, were getting nowhere in their efforts to gain U.S. military protection for the museum, they said later. On Sunday, April 13, they ventured out of their homes and went to the Palestine Hotel, where there was a U.S. command post, and got what they thought was a commitment from a U.S. Marine colonel to get troops to secure the building. None came. By then, the marines had largely withdrawn from the west side of the Tigris, where the museum was located, and the U.S. Army had taken over all operations in that area.

Conroy said his forces took sporadic fire for four more days, until Tuesday, April 15, when they withdrew to refuel. The next day, with news of looting all over the world�s media, he finally received orders to return and "secure" the museum, but by then the battle was over and the pillage had ended. They returned expecting to find Iraqi armed defenders and instead found only reporters. Conroy told me that he had no idea the museum had been looted. He, George, and Khalil inspected the museum for booby traps, finding none but coming across discarded Republican Guard uniforms.

[...]

This is an extremely important account, so please do follow the link and read it all. Needless to say, it bears no resemblance to the version published by Walter Sommerfeld and commented on in the previous update. Also, David Nishimura (Cronaca) comments briefly on my posting and discusses the same ARTnews article here.