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Iraq Cultural Property Law, 2002
The Impact of War on Iraq's Cultural Heritage







Respecting and safeguarding cultural property protection requires that we:

(1) recognize the types of cultural property that we are likely to encounter
     in theater;

(2) follow the basic "Dos" and "Don'ts" to minimize the risk of damage;

(3) understand the correct use of approved markings for cultural property;

(4) follow a few simple bed-down recommendations for units that are required
     to bed-down or take up temporary position at, or near, an archaeological or
     cultural heritage site; and

(5) follow the recommendations for engineering and construction units
     for USACE and other units engaged in post-conflict activity.

Everyone serving in a region with cultural property that is subject to protection under The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict should familiarize themselves with the following:





Nine "Dos"












 

1. Do recognize that safeguarding cultural property while in theater is both a treaty obligation and a legal requirement.  

Even though the U.S. has not ratified, the Joint Chiefs of Staff have unanimously agreed to respect The 1954 Hague Convention. Adherance to the Convention is cited in U.S. Army Field Manual 27-10 as well as the Department of Defense Directive 5100.77, DOD Law of War Program (8 Dec 1998), and DoD Directive 231.01E (9 May 2006).

The Office of The Judge Advocate General has determined that the 1954 Hague Convention has achieved the status of "applicable customary international law," which makes it binding on the United States and/or its individual soldiers and citizens.

Failure to respect and safeguard cultural property during armed conflict can seriously undermine the mission and cause the reputation of U.S. forces to suffer. In extreme cases of individual misconduct, military regulations and legal enforcement may also come into play.


 

 

 

 


 

2. Do learn about the cultural or archaeological past of the country in which you are stationed and familiarize yourself with the cultural sites and monuments in the region where you will be deployed.

This Cultural Heritage Training module is a good start for enlisted personnel. Mid-level officers, Civil Affairs personnel and senior staff may also access a restricted (password protected) section of this training module, which describes and provides locational information for more than 200 significant sites in Iraq.

Lack of information is the primary reason why damage occurs to cultural property during armed conflict. Knowing the names and locations of sites, buildings and monument that are subject to protection limits collateral damage and eliminates the possibility that troops might build a camp, wander onto a protected site by accident or fire upon or make improper use of an old building that may seem unexceptional, only to discover later that the building is a national treasure.

Also, Do learn about the basic geography and topography of the land in which you stationed; in many places, seemingly natural features such as hills and mounds are, in all likelihood, archaeological sites containing ancient cities, fortresses or settlements.

 


 

 




 

3. Do ask questions when you first encounter a protected archaeological, historical or religious site or first enter a province or region with known cultural heritage assets.

Whenever possible, identify the governmental institutions, authorities and individuals who are responsible for the site. In addition, identify the local Civil Affairs officer who may have useful information or advice.

Do ask your Civil Affairs officer to explain and clarify best practices for safeguarding cultural heritage sites and monuments in your area of deployment. Whenever possible, consult Civil Affairs and local authorities before undertaking any activity that might damage an archaeological site.

Do inform CA officers and/or responsible parties in the host government about what you are doing. Enlist their aid. Maintain communication with local staff, and make periodic inspections of sites where operations are contemplated or are occuring.

Before initiating any type of construction, consult archaeological experts, preferably from the national antiquities authority of the country where your unit is deployed. 
Make sure that the required experts walk over the entire area to be sure it does not contain unrecorded archaeological sites.

Do inform your OIC if you witness, receive reports or see obvious signs of looting. Unless exigent circumstances are at hand, consult your immediate superior before challenging civilian looters in the field.

If outside expertise is needed, contact The U.S. Department of State's Cultural Heritage Center at 1-202-453-8800, or send an email to the following address: culprop@state.gov.

The CHC can connect units in the field with archaeologists specializing in the region where the unit is deployed.

 










 

4. Do anticipate the types of problems and damage to archaeological and cultural heritage sites that are likely to occur in the field. These include:

• Unsafe or damaged structures
• On-going looting of site
• Land mines and unexploded ordnance
• Inappropriate use by refugees or others (e.g., temporary habitation).
   Farming or grazing livestock may be common practice; however, before
   accepting their presence, check with local authorities
• Competing claims of ownership
• Uncovering of unknown archeological sites, geological
   formations or fossils by extreme weather or natural disasters
• The types of damage most often encountered are:
   – bomb damage
   – vehicular damage
   – digging by army
   – digging by looters

 

 






  5. Do document site condition with photographs and verify site location and coordinates using portable GPS devices.

Civil Affairs officers have the proper forms and others needed to record this data. If a CA officer is not available, use a notebook and hand your notes to your superior officer or CA officer to maintain proper documentation.
 





  6. Do post guards to prevent looting; and Do inform your OIC if you witness, receive reports of, or see obvious signs of looting.  

Even the most ruined and pock-marked ancient sites often contain valuable artifacts that local people may be tempted to loot. Sites that have been previously excavated, such as Umma, Nippur and Tell a'Laim in Iraq and Ai Khanum, Balkh and Mir Zakah in Afghanistan have been especially vulnerable to looting in recent years. At Kharwar, near Gardez, in southern Afghanistan an entire ancient city known to archaeologists at "the Pompeii of the Buddhist world" is being looted to extinction.

While some site looters do work alone or in small groups, most looters work in organized teams, large gangs, extended clans or, in extreme cases, entire villages.

Diggers are often hired on a per-diem basis by local commanders, financiers or smugglers; looters travel in groups; some looting schemes in Iraq provide free daily bus transit to and from the site; and organized looters often have their own security detail, which is prepared to use lethal force.

In many cases, site guards and local police have been chased away, injured or killed when confronting looters in Iraq or Afghanistan, and military helicopters that approach actively looted sites are routinely ignored (see photo at right) and occasionally fired upon.

Helicopter pilots are often the first to see looting at remote sites from the air. Any such activity should be reported to the Officer in Charge (OIC) immediately.
 












 

7. Do post notices if a site contains unexploded ordnance or has confirmed UXO (unexploded mines or booby traps).

The marking of UXO and other explosives hazards implements STANAG 2002 and is performed to establish a clear and unmistakable warning to the military forces and local population, and where possible, a physical barrier to reduce the risk of unintentional entry onto the hazardous areas. The barrier must include one of more standard mine markers (when ordering, reference item number NSN 6230-00-926-4336) with theater-appropriate languages, as shown here.

The recognized symbol for mine danger is the skull and crossbones; this symbol must be illustrated on all mine danger signs. The various symbols used to identify mines, unexploded booby traps and unexploded explosive ordinance are illustrated to the right. Upon identification of the UXO, retire to a safe distance and enforce evacuation measures, when evacuation is possible. Do not remain in the immediate danger area any longer than absolutely necessary.

For further information, download FM 3-100.38 (UXO: Multi-Service Tactics, Techniques and Procedures for Unexploded Explosive Ordnance Operations), or consult Appendix B ("Marking UXO") of FM 3-100.38 as well as FM 21-16. Unexploded Ordnance (UXO) Procedures (30 August 1994) and
Appendix C of STANAG 2002.

As recents reports indicate, insurgents will plant IEDs or larger vehicle-born explosives at high-profile religious and archaeological sites, or will use sites such as religious schools as bomb factories.



 







  8. Under the current Rules of Engagement and the imperative military necessity waiver, detailed in Article 6(a)] of the 1954 Hague Convention, you do have a right to return fire or employ measures commensurate to the situation if an adversary makes first use of a cultural property, archaeological site or monument as an offensive position, defensive position or other hostile military purpose.

In nearly all cases, firing on an adversary who has taken up an offensive or defensive position at a cultural site or monument will permitted under current rules of engagement if a genuine imperative military necessity exists with no feasible or logical alternative.


Do Not assume that a claim of "imperative military necessity" will be invariably accepted. According to the Office of the Judge Advocate General (International and Operational Law Division, U.S. Army), there is no "general military necessity based exception" in making first use of a cultural property for offensive or defensive military purposes.*

The facts in each situation must be analyzed, and specific rules apply; for example, there must truly be no logical or feasible alternative to making first military use of a cultural property.

A "general military necessity based exception," applied in blanket fashion, could potentially violate the spirit, if not the letter, of the 1954 Hague Convention, which the U.S. has not ratified but has agreed to respect.

"First military use" of a cultural property or site usually turns that property or site into a valid military objective, thereby increasing the odds that the property, monument or site will be damaged or destroyed.

* For details, see Geoffrey S. Corn, International Law Advisor at the Office of the Judge Advocate General (International and Operational Law Division, U.S. Army), "Sniper in the Minaret - What is the Rule?" in The Army Lawyer, July 2005, page 40.

 




  9. Do take the time to review Chapter 6 ["Historical and Cultural Preservation"] of the August 2009 CENTCOM Contingency Environmental Guidance: Environmental Quality Regulation (*R 200-2) for essential guidance and best management practices when encounting cultural property or ancient sites while in the field.