Confronting ISIS’s War on Cultural Property

Introduction

This article explores the extent to which international law protects cultural property from looting and destruction by the so-called Islamic State in Iraq and Syria (ISIS). As a preliminary matter, states generally agree on the importance of protecting art and cultural property, in part because of their historical and artistic importance, but also because such property often holds economic, political, and social value for nations and their peoples. Indeed, the protection of cultural property is linked to the "common heritage of humankind," a principle of international law that says cultural or natural elements of humanity's common heritage should be protected from exploitation and held in trust for future generations. Moreover, most cultural property is unique and of some sentimental value and, therefore, is not fungible or readily replaceable­; once looted, defaced, or destroyed, cultural property may be lost forever. And the loss of such heritage may have broader, negative consequences, as it can affect a people's collective sense of identity, fuel a desire for revenge, and give rise to reprisals, especially in the context of an ongoing armed conflict.

Nowhere is this more apparent than in the current Syrian and Iraqi civil wars. Relics and artifacts counted among the world's greatest cultural treasures are disappearing at an alarming rate as casualties of the armed conflicts involving ISIS. Iraq, Syria, and other besieged lands within the region were home to some of the earliest civilizations that subsequently became major centers of classical Islam and thus have an incredible wealth of cultural property. ISIS has destroyed mosques, shrines, churches, statues, tombs, and other religious and archaeological sites throughout the region as part of its ongoing effort to establish a fundamentalist caliphate, assert its ideological and religious supremacy, and garner global attention through unspeakable violence and barbarism. At the same time, ISIS has engaged in strategic looting and selling of valuable cultural artifacts to help finance its operations.

The applicable law of armed conflict depends upon whether the war with ISIS is characterized as one of an international character (an international armed conflict, IAC) or not of an international character (a non-international armed conflict, NIAC). In Hamdan v. Rumsfeld, the U.S. Supreme Court interpreted an armed conflict of international character to include only that which involves a "clash between nations."[1] The Court determined that the United States' armed conflict with al-Qaeda was one against a terrorist organization, and not between nations, thus concluding that it was not of international character. Similarly, the armed conflict with ISIS (also a nonstate organization) in Iraq and Syria is not of an international character.

ISIS and the other nonstate actors in the conflict are not parties to the myriad declarations, conventions, and protocols that protect cultural property as a matter of law—indeed, they often reject such laws on ideological and religious grounds—but they are nonetheless bound by international humanitarian law (IHL) rules applicable to NIACs, including customary international law, which broadly protects cultural property in war. Legal principles established in treaties and protocols to which parties and nonparties customarily adhere in practice are generally understood to be customary international law, binding state and nonstate actors in all types of conflicts. The most well-settled principles are found in the 1907 Hague Convention Regulations,[2] the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Convention),[3] and the 1977 Protocol II to the 1949 Geneva Conventions,[4] which together prohibit the looting and intentional destruction of art and antiquities. Iraq and Syria, both parties to the 1954 Convention and its First Protocol, are, for example, obligated to: (1) protect cultural property against the foreseeable effects of an armed conflict such as that involving ISIS; (2) prohibit and prevent "any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property"; and (3) prosecute and punish those who loot or harm cultural property.[5]

Unfortunately, these and other international laws protecting cultural property in armed conflict have had very little, if any, practical impact on the battlefield. Instead, ISIS has intentionally flouted these rules, either to gain tactical advantage or demonstrate ideological, religious, and cultural supremacy. For example, ISIS smashes and destroys artifacts it considers to be idolatry, often on video camera, posting the videos on the internet.[6] Enforcement of the law in any armed conflict requires an enormous commitment of people and resources, including soldiers and weapons. In this case, such people and resources are desperately needed to wage war against ISIS, maintain peace and security in the surrounding region, handle massive refugee flows, and address a range of other pressing demands.  

Applicable Law

The 1954 Convention

Despite its sweeping language and impressive set of obligations, the 1954 Convention is generally recognized as having had "little or no success as an enforceable body of law."[7] The Convention does not explicitly establish universal criminal jurisdiction, thus hindering parties other than Iraq or Syria in their ability to take action to enforce the Convention against ISIS. Moreover, the Convention suffers from a lack of precision: it does not identify (1) how much effort must be made or what steps should be taken to safeguard property or prevent or stop attacks against it; (2) which violations of the Convention should be prosecuted;[8] (3) what mens rea or other elements are required for such crimes; and (4) what penalties should be imposed. Without any enforcement mechanism of its own, the Convention relies instead on national laws and ad hoc criminal tribunals (which are exceedingly rare) to investigate and prosecute those who violate its provisions. It also permits broad exceptions in the case of "military necessity" or if property is "used for military purposes."[9] For these reasons, the Convention provides relatively weak and incomplete answers to the myriad problems posed by ISIS.

1970 UNESCO Convention

The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (1970 Convention)—to which both Syria and Iraq, along with 127 other states, are party—likewise provides a powerful moral denouncement of unlawful pillage and trade in cultural property.[10] It makes illegal the "import, export or transfer of ownership of cultural property" in a manner contrary to its provisions, including when property has been stolen from museums and other public monuments and institutions.[11] Parties agree to prevent museums and similar institutions within their territory from acquiring stolen property, to ensure the "earliest possible restitution" of such property to rightful owners, and to "admit actions for recovery of lost or stolen items of cultural property."[12] A state party whose "cultural patrimony is in jeopardy from pillage of archaeological or ethnological materials may call upon other State Parties who are affected" to help prevent such injury, and the state parties to the Convention must then "participate in a concerted international effort to determine and carry out" measures needed to prevent such injury.[13]

The Convention's usefulness in preventing is limited, however, because it protects only those items designated for coverage by a state party. Furthermore, the Convention itself has no enforcement provision and comes into force only upon states' enactment of implementing legislation, which gives rise to a lack of uniformity in legal recourse, both in terms of procedure and applicable substantive law. In addition to inviting a spectrum of enforcement, this complicates or even prevents coordinated international efforts of the kind the Convention was intended to foster.

UN Security Council Resolutions

Three UN Security Council resolutions—which were issued pursuant to Chapter VII of the UN Charter and thus bind UN member states—address the cultural property crisis in Iraq and Syria. The first, Resolution 1483, was unanimously adopted in May 2003, following the U.S.-led invasion of Iraq and the very public failure to protect Iraq's museums and cultural institutions from looting in the early days of the occupation. It calls on member states to take a number of measures to assist in the post-conflict reconstruction in Iraq, including "appropriate steps to facilitate the safe return . . . of Iraqi cultural property" such as by "establishing a prohibition on trade in or transfer of such items."[14] A similar resolution adopted unanimously in February 2014, calls on all parties to "save Syria's rich societal mosaic and cultural heritage, and take appropriate steps to ensure the protection of Syria's World Heritage Sites."[15]

More recently, in February 2015, the Security Council unanimously passed Resolution 2199, which particularly addresses ISIS's destruction of cultural property.[16] It "condemn[s] the destruction of cultural heritage in Iraq and Syria" by ISIS and requires that all United Nations member states "take appropriate steps to prevent the trade in [illegally obtained] Iraqi and Syrian cultural property and other items of archaeological, historical, rare scientific, and religious importance."[17] Such steps include "prohibiting cross-border trade in such items," and that UNESCO, Interpol, and other organizations should assist in the implementation of such steps.[18]

Rome Statute of the International Criminal Court (ICC)

Although ISIS's acts constitute war crimes under the Rome Statute—which include "[d]estroying or seizing the property of an adversary," "[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments," and "[p]illaging a town or place"[19]—prosecuting them in the ICC would face several practical challenges. As the ICC prosecutor has recognized, the court does not have personal or territorial jurisdiction, since neither Iraq nor Syria are parties to the ICC. Therefore, jurisdiction could only be obtained through either state's formal declaration to submit to jurisdiction or a referral from a state party or the Security Council. The arrest of any defendants would also be challenging, as a defendant would have to be apprehended by a state party, and if potential ISIS defendants remain based in Iraq or Syria, Jordan is the only such state in proximity. Moreover, prosecution would face additional hurdles: high mens rea and causation  requirements and exceptions for military necessity and for cultural property that becomes a military objective.

Practical Solutions

As described above, relevant international law, is largely—perhaps entirely—ineffective as a practical matter in the war against ISIS. Indeed, the inefficacy and the lack of adequate enforcement mechanisms are evident from the ongoing destruction, looting, smuggling, and black market trading and sales of Iraqi and Syrian cultural property, every day, around the world. In addition, the war with ISIS demonstrates that treaty-based IHL, which focuses primarily on the actions and responsibilities of states, and even customary IHL, which applies more broadly to state and nonstate actors alike, are out of sync with the current crisis, a NIAC in which a nonstate organization controls large swaths of territory, demonstrates contempt for the rule of law, and engages in the wanton destruction of cultural property.

National laws are likewise proving insufficient. Although both Iraq and Syria have domestic laws to prohibit the looting and destruction of antiquities, these states are overextended by the armed conflict with ISIS and simply unable to effectively enforce their own laws.[20] Both states require outside assistance. Indeed, robust international collaboration and intervention are needed to help design, implement, and enforce practical measures to prevent, deter, and punish ISIS for its devastation of cultural property. Such measures may include:

• Globally directing military resources to guard (or oust ISIS from) areas with the most valuable cultural property, particularly those listed on the World Heritage List created through the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage,[21] to which both Iraq and Syria are parties;
• Implementing trade controls to discourage ISIS and its network from looting and trafficking in cultural property particularly in market countries, such as Turkey, Switzerland, the United States, the United Kingdom, and China (e.g., the U.S. Protect and Preserve International Cultural Property Act,[22] passed by the Senate Committee on Foreign Relations and the House of Representatives, which imposes tighter import restrictions and harsh penalties for trafficking in looted objects);
• Heightening customs screenings in countries that have a history as a conduit for smuggling between the Middle East and Europe, such as Bulgaria;
• Establishing joint task forces (such as the Cultural Racketeering Task Force recently proposed by Egypt, Saudi Arabia, United Arab Emirates, Iraq, Jordan, Kuwait, Lebanon, Libya, Sudan, and the Sultanate of Oman) to coordinate efforts among states to starve the illicit antiquities market;
• Creating and maintaining databases that provide and centralize information on cultural property reported as stolen (such as Interpol's Stolen Works of Art database) and that identify cultural property most likely to be illegally traded (such as the Emergency Red List of Iraqi Cultural Objects at Risk, maintained by the International Council of Museums);
• Investigating and bringing higher-profile criminal cases against ISIS and its network of antiquities traffickers, to send a strong, deterrent message that individuals engaged in the destruction and looting of cultural property will be arrested and prosecuted to the full extent of the law;
• Referring (or exerting diplomatic pressure to refer) the most serious cases involving the destruction or looting of cultural property by ISIS to the ICC for prosecution; and
• Prosecuting—in Iraq,Syria, and elsewhere, such as in the United States under the National Stolen Property Act[23] and the Anti-Terrorism Act[24]—those individuals who traffic, buy, or sell looted goods.

Such efforts in opposition to ISIS's unlawful looting and destruction are essential if we are to preserve and protect the cultural heritage of Iraq and Syria, not merely for the benefit of their people, but for the benefit of all people in the world today and for future generations to come.

About the Authors: David W. Bowker chairs the international litigation group at WilmerHale and teaches international commercial arbitration as an adjunct professor at Georgetown University Law Center. Laura M. Goodall is an associate in WilmerHale's Palo Alto, California office in the litigation department, focusing on intellectual property and art law matters. Rebecca A. Haciski is a Trial Attorney at the U.S. Department of Justice's Office of International Affairs, and is a former Senior Associate in WilmerHale's Investigations and Criminal Litigation Group in Washington, D.C.