From the Summer 2010 issue of MHQ
Returning plunder to its rightful owner may sound straightforward, but in practice it is extremely difficult, particularly for objects seized in the distant past. Who the ‘rightful’ owner is seems to depend largely on your point of view
The Swedes came at night, rushing through a gap in the walls protecting the Mala Strana neighborhood at the foot of Prague Castle. By the break of day on July 27, 1648, the invaders had captured the entire western side of the city, including the castle, with its famous collections of art, rare books, and astronomical instruments. Over the coming weeks, the Swedes tried several times to cross the Charles Bridge to seize the Old Town on the opposite bank of the Vltava River, but were repelled by a ragtag force of townspeople and Jesuit priests. Despite receiving reinforcements, the Swedes were stuck on their side of the river in November when news of the Peace of Westphalia reached the city. The Thirty Years War, one of the bloodiest conflicts in European history, had finally come to a close, ending Sweden’s campaign against the Holy Roman Empire. N The Swedish army had been denied control of the commercial side of town but had achieved its main objective: the capture of the renowned trove of art, treasure, and curiosities collected in Prague Castle by the late Holy Roman Emperor, Rudolf II. For decades prior to his death in 1612, Rudolf had directed a small army of agents to scour the known world for unusual objects. There were paintings by Albrecht Dürer and Pieter Brueghel, jewels, precious stones, and ancient coins from Italy, the Balkans, and the Middle East, exquisite clocks from the four corners of Europe, and statues in stone and bronze. There was a horn allegedly taken from a unicorn, the jawbone of one of the Sirens who tempted Ulysses, and even a pair of iron nails supposedly salvaged from Noah’s ark. Rudolf had commissioned a greenhouse in which his staff maintained a collection of exotic plants and a menagerie where they tended unusual beasts, including a live lion. His paintings alone took up seven halls of Prague’s sprawling castle complex.
But perhaps the most wondrous of Rudolf’s many treasures was a book of enormous value and antiquity: the Codex Argenteus, better known today as the Silver Bible. The book—in which the four gospels of St. Mark were transcribed in gold and (especially) silver ink—had been created in the sixth century, probably for Theodoric the Great, king of the Ostrogoths, not many years before his nation was conquered by Justinian during the Gothic War of 535–554. For a thousand years its movements were lost to history, passed from owner to owner between its jewel-encrusted covers. At some point one of its vellum leaves was torn out and hidden with the relics of a saint within the walls of a church in the southwestern German town of Speyer. The remaining 187 leaves came into the hands of Benedictine monks cloistered on the outskirts of Essen in western Germany, where Rudolf’s agents somehow acquired them in the late 1500s. By the time the Silver Bible reached Prague, the book was so old that the language in which it was written had been forgotten. Today, in fact, its pages represent nearly half of all surviving examples of the Gothic language. Without it, scholars might never have been able to reconstruct that ancient language, a cousin to Old Norse, Old High German, and Old English.
The Swedish queen Christina wanted it all. On her orders, 500 paintings, 370 scientific instruments, 70 bronze statues, thousands of jewels, medals, and curios, and the live lion were loaded onto barges and shipped to Sweden. But most of all she wanted the books. “Do not forget to procure and send me the library and the rarities there in Prague,” she told her military commanders. “These, as you know, are all I really care about.” The Thirty Years War was all about plunder, and Christina wanted to get one last shipment in before the peace treaty was signed.
Fast-forward 362 years and the Silver Bible is still in Sweden (despite a brief sojourn to the Netherlands in the late 17th century), the most prized volume in the collections of the University of Uppsala and, indeed, the most valuable book in all of Sweden.
And the Czechs want it back.
After the collapse of communism, Czech president Vaclav Havel tried to persuade Sweden to return the Silver Bible and several other objects taken from Bohemia during the Thirty Years War. He was refused, leaving the Czechs despondent. As the director of the Czech National Library later put it, “If Vaclav Havel did not succeed then no one will succeed.” Sweden has allowed another manuscript seized from Prague—the Devil’s Bible, or Codex Gigas—to be exhibited in the Czech Republic, but has made it clear that the books and everything else their armies seized now belong to them.
Over the past two decades, globalization, changing attitudes, and the spread of both international law and civil lawsuits have emboldened aggrieved nations to demand the return of cultural property seized by enemy forces decades or even centuries ago, and a few holders of these spoils have complied. Five years ago, Japan returned a Korean monument on the centennial of its theft during the Russo-Japanese War; three years before that, Italy returned a 3,000-year-old obelisk taken during Mussolini’s invasion of Ethiopia.
But more often than not, the plunder has remained with the plunderer, despite near universal condemnation of the practice by some current belligerents. The Swiss canton of St. Gallen lobbied for years to force Zurich canton to return a 16th-century wooden globe seized in a 1712 invasion, but in 2006 had to settle for a replica. Sweden, which hasn’t fought a war in two centuries, has been under pressure to return looted cultural items not only to the Czechs but also to Poland, Denmark, Norway, and even its own region of Skåne, which it seized from the Danes in 1658. (As one blogger puts it: “It cannot be acceptable that I should have to take my grandchild in the hand, travel 650 kilometers to [the Swedish town of] Skokloster in order to see and experience our own Scanian history and culture.”)
Meanwhile, Germany has been angrily insisting that Russia return a vast trove of art looted at the end of World War II, even as Poland demands billions in compensation for cultural artifacts stolen or destroyed during the Nazi occupation.
Returning plunder to its rightful owner may sound straightforward, but in practice it is extremely difficult, particularly for objects seized in the distant past. Who the “rightful” owner is seems to depend largely on your point of view. After all, for much of human history, armies plundered the vanquished as a matter of course and sometimes went to war solely to do so. Well into the 17th century, armies survived by stealing crops, livestock, and other civilian property, their soldiers pilfering valuables in lieu of a proper salary or disability benefit. Virtually every belligerent participated, causing particular treasures to change hands over and over again, the original “owner” sometimes having been forgotten altogether, occasionally because their civilization had ceased to exist. Spanish conquistadors seized shiploads of Aztec gold artifacts that are now scattered in museums around the world, while European powers and American armies absconded with the cultural heritage of numerous African and Native American peoples by force of arms. In some cases, it is difficult or impossible to establish who would be a legitimate inheritor of these objects, even if the present owners agreed to return them.
Determining the legitimate owner of something as old as the Silver Bible can be a futile task. The Ostrogoths who created it died out centuries ago, and the Czechs weren’t in control of Prague when the Swedes arrived in 1648, the city being part of the now extinct Holy Roman Empire. Sure, the bible belonged to German-speaking emperors for 60 years, but nobody knows how they extracted it from the Benedictines. The Swedes have at this point possessed the book six times longer than anyone in Prague ever did, so it is not surprising that they don’t feel compelled to hand it over.
The fact is, there is no legal or customary basis to demand the return of anything plundered prior to the turn of the 20th century. Doing so successfully is ultimately a matter of public relations, of convincing whoever possesses the object that giving it back is the right thing to do.
“There’s no source of international law that clearly goes back before the late 19th century, and there’s no [international] statute of limitations that would get you back to the 15th, 16th or 17th centuries,” says Patty Gerstenblith, director of the Center for Art, Museum, and Cultural Heritage Law at the DePaul University College of Law. “There are examples of things being returned from long ago, but they were done on a cooperative or moral basis, not a legal one.”
Indeed, moral campaigns can succeed, even when the law is fixed against them. Take the case of the ghost shirt of Glasgow. The sandy brown tunic adorned with eagle feathers was a magical object created in the 19th century by the Lakota (or Sioux) Indians and worn by followers of the Ghost Dance religion. Lakota Ghost Dancers believed the ghost shirts would make them invulnerable to Western weaponry, which, unfortunately for them, was not the case. On December 29, 1890, the U.S. 7th Cavalry ambushed a band of Lakotas at Wounded Knee, South Dakota, killing between 150 and 300, including women, children, and Ghost Dancers. (The army lost 25 men, most to friendly fire.) The bodies were looted and piled into mass graves. One of the plundered ghost shirts was acquired a month or so later by George Crager, a Lakota-speaking adventurer and journalist, who took it with him when he joined William “Wild Bill” Cody’s traveling Wild West Show as a translator for Indian performers. While on tour in Scotland in 1892, Crager donated the bloodstained ghost shirt to the city of Glasgow, where officials placed it in their museum.
A century later, an American tourist of Cherokee descent came across the museum exhibit and was stunned to find something “stolen from a dead body at Wounded Knee.” The tourist contacted the Lakota, who were amazed to learn that a ghost shirt from the famous massacre had survived, and began a tenacious letter-writing campaign to have it returned to their reservation. Glasgow’s city council was adamant that the celebrated artifact should stay put, its case backed up by a recently passed British law declaring all museum artifacts in the United Kingdom to be British property.
The Lakota had no legal footing, but they sent delegations of tribal members to Glasgow who performed solemn ceremonies to bless the shirt and took their case to the local media. Letters poured in to the museum and to newspapers expressing overwhelming support for the shirt to be returned. The Lakota’s tragic story, introduced to the Scots by the wildly successful 1990 film Dances with Wolves, struck a chord in a nation that had itself been brutally subjugated by a more industrialized neighbor. “We as a nation have witnessed our own culture being ravaged and treated with disrespect and contempt,” one writer declared. “The shirt should be handed back immediately.” When the Lakota delegations returned to city hall in 1998, the city did just that. The ghost shirt is now being held at the South Dakota State Historical Society in Pierre until the Lakota complete a museum to house it.
Repatriation becomes a more confusing undertaking for objects seized in the early 20th century, a period for which legal remedy is uncertain, but possible. This “gray period” spans the time between the Hague Conventions of 1899 and 1954, a half-century in which the wartime plunder of cultural objects went from being frowned upon to being explicitly forbidden under international law. While the 1899 treaty forbade confiscation of most sorts of civilian property (military property can be confiscated, including supplies, ammunition, and souvenirs like side arms, hats, and uniforms), it wasn’t until 1954 that states worldwide were authorized to take action against violators in their own courts. A lot of cases may have had merit during that gray period, but there was no easy way to have them heard.
“State practice was evolving, and by World War I it would certainly have been acknowledged by all parties in a conflict that there was no legal basis to seize cultural property,” says Fred Borch, regimental historian and archivist at the U.S. Army Judge Advocate General’s Corps Legal Center and School in Charlottesville, Virginia. “But until 1954, there’s no international convention under which to seek remedy, so it’s all custom and state practice.” In effect, the only legal remedy available to an aggrieved party is to take the case to the courts in the country that possesses the plundered object, an uncertain forum at best. “Every country in the world says that you can only sue the government in my court if I give you permission to do so,” Borch explains. “In China or Russia today, I doubt you would receive a waiver from this sovereign immunity.”
The picture is further complicated in the early part of this period because most of the world was under colonial rule. For the colonized, this often felt like a belligerent occupation, particularly when independence movements were crushed with military force. But if a now independent nation seeks the return of objects allegedly plundered during such occupations, a former imperial power can easily dismiss a suit on the grounds that at the time the colony was, legally speaking, its own sovereign territory. Under such circumstances, claimants can turn only to the court of public opinion. If their country had to fight for its independence, winning the hearts and minds of their former rulers can be difficult.
The dispute over the rightful ownership of the Balangiga bells is just such a situation. American forces took the three bells from a church tower on the central Philippine island of Samar during the Philippine-American War, fought primarily from 1899 to 1902 (although the Moro Rebellion phase lasted until 1913). For the past 13 years, the government of the Philippines has pressed for their return, so far without success. Its case probably isn’t helped by the fact that it asks Americans to confront a conflict in which their nation’s objectives and conduct were at odds with its traditionally professed values.
American forces seized Manila at the close of the Spanish-American War, charged with turning the Spanish colony into an American one. That put American forces in conflict with Filipino independence fighters, who had already liberated most of the country and, in the aftermath of an American naval victory over Spain in Manila Bay, declared an independent republic. A protracted and bloody war ensued, in which the United States explicitly fought to force Filipinos into an American empire, killing a quarter million in the process, chiefly civilians who succumbed to starvation or disease, including thousands forced into concentration camps. The unabashedly imperialistic war caused deep divisions within the United States, with opponents arguing that the creation of overseas colonies was at odds with the republican ideals of the American Revolution. Supporters pointed to the Filipino’s racial inferiority as evidence they were unprepared to govern themselves, which exacerbated North-South tensions at a time when the Civil War was still very much in living memory.
The bells were seized during the most contentious incident of the war. On September 28, 1901, 74 soldiers from the U.S. Army’s 9th Infantry Regiment were ambushed in the Samar port of Balangiga while eating breakfast. The insurrectionists had infiltrated the town disguised as laborers or as women mourners carrying coffins ostensibly bearing cholera victims, but actually packed with machetes. The attack began on the prearranged signal of the local police chief: the ringing of the three bells in the church tower. Forty-five soldiers were killed and 11 wounded, the worst single-day losses for the army since Custer’s Stand. The American response was brutal. Brig. Gen. Jacob H. Smith ordered his men to kill every male over the age of 10 on the island, which had a population of 250,000.
“I want no prisoners,” Smith, who was later court-martialed for his actions, instructed a subordinate. “I wish you to kill and burn, the more you kill and burn the better it will please me.” Exactly how successfully these orders were carried out is unclear: Estimates of the number of islanders killed by American reprisals range from 1,000 to 50,000, with most scholars endorsing the smaller end of the range. General Smith’s men also burned Balangiga to the ground and carried off the bells that had signaled the attack.
In the century that followed, the Balangiga bells took on symbolic importance for both sides. For the 9th Infantry, they were important war trophies that memorialized the dead and paid homage to the unit’s participation in a bloody jungle counterinsurgency. One of the bells, which the 9th Infantry claims was given it by the people of a village, is currently deployed with its troops at Camp Red Cloud in South Korea; the other two are on display in Trophy Park on the F. E. Warren Air Force Base in Wyoming. For Filipinos, they have become a resonant symbol of their long independence struggle, equivalent to the Liberty Bell had it been tolled by Paul Revere on the eve of the Battle of Lexington. Since the mid-1990s, Philippine presidents, senators, and Catholic bishops have been pressuring the United States to return them—to no avail. “We are not involved in the business of dismantling memorials to our comrades that have fought in other wars,” the commander of the American Legion in Wyoming, Joe Sestak, told the New York Times when the issue first came to the fore in 1997.
But do the Filipinos have a legal case for the return of alleged war booty? A slim one, at best, legal experts say. The bells were seized at a very early point in the “gray period”—three years after the United States signed the 1899 Hague Convention, the first international formulation of the laws and customs of war. While addressing other concerns of the age—the observance of flags of truce and the prohibition of “the launching of projectiles or explosives from balloons”—the agreement placed limits on the seizure of nonmilitary assets. Attacking or bombarding undefended towns, buildings, and homes was prohibited, and during bombardments “all necessary steps” had to be taken to spare “edifices devoted to religion, art, science…charity [and] hospitals.” Pillage and the confiscation of private property, including that of religious institutions, were prohibited in all circumstances. The laws were further strengthened in 1907, requiring parties to avoid damage to cultural and historical monuments and to return even seized military assets after the conclusion of hostilities. The bells—religious property of questionable utility as war material—would seem a simple case.
But the 1899 and 1907 Hague Conventions provided no forum for the recovery of cultural objects, effectively leaving arbitration in the hands of the victors (as at the Versailles Peace Conference in 1919) or national courts. That’s where colonial-era claims like that of the Philippines get complicated. As a matter of international law, the archipelago belonged to Spain until 1899, when it was sold to the United States for $20 million. When the bells were seized, Balangiga was part of the United States and the conflict could be construed as a domestic affair outside the reach of international treaties. “I don’t think it’s an international law case; it’s a domestic law case,” says army archivist Borch. “You might be able to fashion a legal argument to have it heard, but it would likely be so convoluted that you would really be back in the court of public opinion.”
The Filipinos, like the Lakota, may only be able to get the bells back by winning a battle for hearts and minds abroad.
Perhaps the most searing debates over wartime looting of cultural property have come at the other end of the gray period and deal with the mass state-sponsored looting by Nazi Germany and, later, the Soviet armies that helped bring about the Nazis’ end. While distinguishing between right and wrong is more clear-cut—neither Hitler nor Stalin had the slightest respect for the laws of war—that hasn’t made resolving disputes much easier.
Even before the war, the Nazi leadership had an extraordinary penchant for stealing artistic and cultural objects by state decree. As the Reich’s Jewish citizens were by stages disenfranchised, pauperized, driven out, and rounded up to be murdered, the Nazis took great care to seize any works of art in their possession. Vast bureaucracies were created to accumulate, evaluate, and relocate the millions of objects, a chilling story detailed in Lynn Nicholas’s The Rape of Europa, and in Robert M. Edsel’s Rescuing Da Vinci. It was, Edsel wrote, “the most thorough and extensive looting operation in history.”
Works by Modern or Jewish artists—Picasso, Gauguin, Chagall, and Kandinsky among them—were declared “degenerate” and sold on the foreign art market to bolster the Reich’s treasury. Works favored by Hitler—he especially loved pastoral scenes painted by the Dutch masters—were reassigned to the führer’s planned museum in Linz or to the walls of senior officials’ mansions. Organized expropriations continued after the annexation of Austria and the invasions of France, the Netherlands, and other West European nations, and were extended to include any works of art declared to be “German” in origin. In France, the Nazis produced a 300-page list of objects that had been “transferred to foreign ownership, either without our consent or by questionable legal transactions” since the year 1500. While relatively little publicly owned artwork was transferred, the Nazis confiscated at least 22,000 items from Jewish owners that were exported to the Reich. Many were stored for Hitler at the Neuschwanstein Castle (the model for one at Disneyland). Other artwork was “purchased” from museums and collectors for extremely low prices and brought to depots in Germany.
On the Eastern Front, the Nazis were more brutal. Convinced that the Slavic race was inferior, Hitler intended to eliminate its culture and reduce Poles, Ukrainians, and Russians to a slave caste within the Reich. (Jews were to be exterminated.) In addition to confiscating art, in these countries the Nazis attempted to erase the cultural memory by demolishing monuments and stripping palaces, cathedrals, and museums. During the occupation, Warsaw was systematically destroyed, block by block, its libraries burned, and the Royal Palace dynamited. (In 2007 Poland demanded $20 billion in compensation for the lost and stolen artifacts alone.) In the Soviet Union, German troops sacked Leo Tolstoy’s estate, Yasnaya Polyna, desecrating his grave and burning his manuscripts in their stoves. Soviets estimated the Germans looted and destroyed more than 400 museums, 2,000 churches, and 43,000 libraries in their country.
“No historic or artistic treasures in the East,” German field marshal Walther Reichenau had decreed at the outset of the invasion, “are of any importance.” Even so, Russia now estimates some two million works of art were stolen by the Germans during their short-lived occupation of western Russia.
The shoe was about to be switched to the other foot. In the winter of 1942–1943, the Germans found themselves on the retreat in the East and soon were being squeezed from three directions as American and British forces pushed toward Berlin from Italy and Normandy. But as the Reich was snuffed out, there were sharp contrasts between how the Americans and the Soviets dealt with the artwork and other cultural property they captured from the Germans.
In past conflicts, captured art tended to flow in one direction: from vanquished to conquerors. After Napoleon’s defeat, France had been forced to return the cultural trophies it had taken during its short-lived conquest of Europe, including the carved horses of St. Mark’s in Venice and the Medici Venus. At the end of World War I, Germany was made to disgorge items it had taken, and even some it had legally purchased. But at the end of World War II, the United States broke with tradition. Despite pressure from the National Gallery in Washington and New York’s Metropolitan Museum of Art to confiscate German collections, United States military commanders insisted collections that rightfully belonged to German museums should stay at those museums. Taking the art, military archivists said, was “neither morally tenable nor trustworthy.” Works that had been shipped to the United States for “safekeeping” were returned to Germany. Art historians staffing the U.S. Army Monuments, Fine Arts, and Archives Section undertook an unprecedented effort to return tens of thousands of works of art to their rightful owners, public and private.
“Those folks really set the standard for the treatment of cultural property,” says Richard B. Jackson, special assistant for Law of War matters at the U.S. Army Judge Advocate General’s Corps. “We’ve been following in their footsteps in our efforts.”
Despite the work of the “Monuments Men,” some famous works were never recovered and, of course, many private owners had died or been murdered during the war. Museums worldwide are still coming to grips with the identification of this “Holocaust Art.” American museums alone have identified 16,000 objects in their possession that may have been seized by the Nazis. Plaintiffs have won suits in the United States for the return of objects held by American institutions that had previously been seized by the Nazis, including a 1989 suit against the U.S. Army involving the archive of Hitler’s official photographer. Numerous cases are ongoing, most involving private art museums. “Different countries have taken different approaches to the issue,” says DePaul’s Gerstenblith. “While the U.S. relies on private litigation, in Europe the museums are national institutions, so there tends to be more of a governmental process.”
What of the guilty? Germany had clearly violated the 1899 and 1907 Hague Conventions in just about every way imaginable, including the plunder and destruction of cultural property. At the Nuremberg trials, the Allies made a point of charging the Nazi official responsible for organizing most of the art seizures, Alfred Rosenberg, for the looting and destruction of works of art and cultural institutions. He was found guilty of this and many other heinous crimes (including organizing genocide operations in the Occupied Eastern Territories) and was hanged.
The Soviets took a decidedly vengeful approach to cultural objects as their armies overran the eastern Reich in 1944 and 1945. The Nazis would be made to reap what they had sown.
At first, Red Army commanders focused on recovering looted Soviet properties, which they found in enormous caches as they recaptured western Russia and Belarus, Poland. But as the scale of German looting became clear—priceless objects from the Catherine Palace and Pavlovsk were found in barracks, cafeterias, and officers’ quarters throughout the Baltics—the mood turned darker. As armies advanced into Poland and Germany, special Trophy Commission units were dispatched to gather valuable movable objects of all kinds before general looting by regular soldiers commenced. In Berlin, they raided museums and repositories, starting with those in sectors that would soon be turned over to their Western Allies. Some 2.5 million objects were loaded aboard special trains bound for the Soviet Union, including masterpieces by Renoir, Manet, and Goya and the famous Priam’s treasure of ancient Troy. Russia later returned more than a million objects to Communist East Germany, but many thousands of others remained hidden for decades in museum vaults in and around Moscow.
The dispute over what has come to be called “Russian Trophy Art” heated up in 1995, when the Pushkin Museum in Moscow and the Hermitage in St. Petersburg revealed hundreds of seized paintings they had secretly kept in storage for half a century. The works included many assumed destroyed and one Renoir previously unknown to the art world. Germany demanded the paintings be returned, citing a bilateral 1990 treaty in which both parties had promised to restore war booty to its rightful owners. The Russians flatly refused.
“Germany destroyed more than 400 museums and took two million pieces of art out of the country,” explained Pushkin Museum director Irina Anatova, who was among the museum workers who unpacked the treasure-laden trains arriving from Berlin in 1945. “Such unprecedented damage requires a special form of compensation.” Shortly thereafter, the Russian parliament passed a moratorium on the return of looted art and, by a vote of 291 to 1, legislation declaring all of it to be the property of the Russian Federation. While Presidents Boris Yeltsin and Vladimir Putin both promised to return many disputed objects, an estimated one million pieces of art looted from Germany remain in the country.
So do the Russians have a point? Ethically, perhaps, but as a matter of international law, not at all. “It isn’t that Russia isn’t entitled to reparations from Germany, but they can’t keep the art work unilaterally,” says Gerstenblith, noting that it is a clear violation of the Hague Conventions and at odds with the Nuremberg rulings against Rosenberg. The catch is one common to cases arising from the period between 1899 and 1954. “There’s no international mechanism to enforce this, so it’s up to national laws. If Germany wants to recover something from Russia, they are going to have to go into a Russian court where their chance of recovery is not high.” Winning hearts and minds is always an option, but it is not easily done when the aggrieved party is responsible for the Holocaust and the attempted elimination of the possessor’s national culture.
From the point of view of international law, things become much more cut-and-dried with the adoption of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The treaty clearly defines cultural property, recognizes its global (as opposed to strictly national) importance, and obligates state parties to “prohibit, prevent, and if necessary, put a stop to any form of theft, pillage, or misappropriation of, and any acts of vandalism against, cultural property.” Under Article 28, all parties are required to take “all necessary steps to prosecute and impose penal and disciplinary sanctions” upon violators, regardless of their nationality.
It is, in theory, as binding and enforceable as any other international treaty, which is to say, dependent on the political calculations of its signatories. And several major powers only became state parties recently. The United States signed the treaty a half-century ago, but ratified it last year. (“As a matter of policy, the Department of Defense has complied with it in all our internal policies,” notes JAG lawyer Jackson, who served as a military delegate to the convention.) China joined in 2000, Japan in 2007, and the United Kingdom not at all. Scholars are divided as to whether the treaty provisions can now be considered part of customary international law, binding on every state.
So how has the treaty stood up in more recent conflicts? The results are thus far mixed, as demonstrated by the Yugoslav wars and the aftermath of the American invasion of Iraq in 2003.
In terms of preventing the destruction of cultural property, the Hague treaty had little effect on the behavior of belligerents—particularly Serb and Bosnian Serb forces—during the violent breakup of Yugoslavia. Taking a page from Nazi Germany, the Bosnian Serb leadership sought to cleanse territories it controlled of Croatian and Bosniak (Bosnian Muslim) people and cultural symbols. Centuries-old mosques were dynamited. The National and University Library in Sarajevo was intentionally bombarded and burned, resulting in a loss of 1.5 million books, including the Bosnian National Archive and 155,000 rare volumes.
The 1954 Hague Convention provided for a special “blue shield” emblem to be placed on culturally important buildings to prevent their destruction; in former Yugoslavia, the measure backfired. “Where so much of the targeting of cultural sites was deliberate, the blue rhombus of the Hague emblem did not seem to do much good,” notes prominent Harvard University Islamic art and architecture expert Andras Riedelmayer. “If anything, it served to attract attention to buildings it was hung on, and would often result in more damage, not less.” In fact, Belgrade-controlled military units intentionally bombarded the old town of Dubrovnik, Croatia, (a UNESCO World Heritage Site) and burned Muslim religious monuments and cultural sites in Kosovo. Bosnian Croat forces, for their part, intentionally destroyed another UNESCO site, the famous 16th-century bridge in the city of Mostar in Bosnia-Herzegovina.
The treaty system did a better job of holding perpetrators to account, however. The United Nations War Crimes Tribunal for the former Yugoslavia has treated the destruction of cultural property as a serious war crime, something more onerous than destroying a factory or railroad. Two senior Yugoslav People’s Army officers were convicted for ordering the attack on Dubrovnik’s walled city, receiving prison terms of seven and eight years. Yugoslav president Slobodan Milosevic faced charges related to the destruction of the cultural heritage of Bosnia and Kosovo when he died in his cell in 2006, apparently from heart failure. At this writing, the leaders of the Bosnian Croat’s wartime statelet, Herzeg-Bosna, are on trial for numerous war crimes, including the deliberate destruction of several mosques and the Old Bridge at Mostar.
Iraq offers the most recent high-profile test case, though one in which an occupying power is accused not of plundering the vanquished but of failing to prevent others from doing so. The 1954 treaty obligates occupying nations to prevent looting and destruction of cultural resources. But in the aftermath of their 2003 invasion, American military forces were not ordered to protect significant sites like the Iraqi National Museum and the National Library and Archives. Both institutions were looted;?nearly a third of the library’s collection was wiped out, while the museum was ransacked for three days straight and lost some 15,000 objects dating back to ancient Assyria, Babylon, and Mesopotamia. (More than 5,000 have since been recovered.) Pleas by the museum’s director, Donny George, for the United States military to secure the area went unheeded. According to George, American troops didn’t move in until a foreign journalist loaned him a satellite telephone, allowing him to speak to colleagues at the British Museum; they, in turn, contacted the office of the British prime minister, which contacted the Pentagon. Confronted by journalists, U.S. Defense Secretary Donald Rumsfeld dismissed it as an inevitable consequence of war.
A strong case can be made that the inaction of the United States constitutes a violation of its international commitments. The International Council on Monuments has even said the neglect amounts to a “crime against humanity.” Martin Sullivan, chairman of President George W. Bush’s Advisory Committee on Cultural Property, resigned in protest, saying the looting was both foreseeable and preventable. Indeed, many have asked how the military could not have planned to secure key institutions, especially given the looting experienced in Iraq during the 1991 invasion. It later emerged that American scholars, museum directors, and art dealers had met with Pentagon officials two months before the war began, warning them of the threat to the museum’s priceless collections. The fact that unarmed museum personnel and foreign journalists reached the museum on April 12, days before the United States military secured it, suggests the museum, at that stage at least, was not in the hands of a formidable enemy force. That American forces swiftly secured the Iraqi Oil Ministry, oil fields, and other assets supports the argument that they could have also protected the museum, had they been ordered to.
The facts of the case are still in dispute. Matthew Bogdanos, the marine reserve colonel charged with recovering looted objects, has argued that American forces could not have secured the museum prior to the 12th. When the looting began in earnest two days earlier, enemy forces occupied the museum, and, in any case, committing forces to stop looters might have reduced the museum to rubble in a fight, he says. “[A]ny suggestion that U.S. forces could have done more than they did to secure the museum before the twelfth is based on wishful thinking or political ideology rather than any rational appreciation of military tactics, the reality of the conflict on the ground, the law of war or the laws of physics,” he has written, instead blaming the Iraqi army, for “taking up fighting positions within the museum.” He agrees that the failure of the United States to secure the museum until the 16th is “inexcusable,” although the museum staff did prevent further looting during this period.
Might the United States be liable under international law, all the same? That likely depends on whether the 1954 Convention really has achieved the status of international customary law, since in 2003 the United States had not yet ratified the treaty. If not, a legal case would have to move forward under the 1899 and 1907 treaties, which don’t require occupiers to prevent looting by third parties. (This would be more in accord with the Bush administration’s frequently expressed position that it took careful measures to avoid damaging major cultural sites, but did not make plans to prevent looting by others.) Any suit might have to be submitted in an American court, since there’s no international tribunal for the Iraq conflict.
If the 1954 Convention is found to be international customary law, there’s another snag for those wishing to bring the United States to account: Some lawyers argue that the clauses requiring an occupying power to prevent looting don’t necessarily apply to looting by private parties, but only to agents of other states. One lawyer who analyzed the situation, Sasha P. Paroff, concluded that a legal argument can be made that the United States did not violate the 1954 Convention, largely because the drafters of the convention never contemplated the private looting that took place in Iraq and thus didn’t clearly require that states prevent it. “The United States would only bear responsibility under the 1954 Hague Convention had the looting been accomplished by the United States armed forces or other persons officially affiliated with the United States,” Paroff wrote.
International laws, he concluded, “will only be effective in protecting the cultural property of the world when the great nations of the world decide that such property is worth protecting and act upon that decision.” Had they done so back in 1648, perhaps the Silver Bible would still be in Prague.