Hague Ratification: Fighting the Last War?

The Senate has at long last ratified the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. This ends decades of unflagging lobbying by cultural heritage protection advocates, led by the indefatigable Patty Gerstenblith and others. They are to be congratulated on achieving this legislative victory.

But lest anyone think that the protection of cultural property in the event of armed conflict is now assured, it is important to recognize what ratification of Hague does and does not accomplish. Ratification does send a strong signal to countries around the world that the United States values their cultural heritage, and it also signals the importance of protecting cultural heritage from the ravages of war. 

Practically speaking, however, ratification will make little immediate difference in the measures that the United States takes to protect the cultural and historical record of humankind, because we already were observing the provisions of the Convention as a matter of customary international law. During both Gulf Wars, for instance, the United States military took considerable care to gather information on the locations of cultural sites in Iraq and avoided targeting them. We all know that despite this, neither Iraq's National Museum nor its archaeological sites were secured, with disastrous and tragic losses to the record of our human origins.

The problem is that the 1954 Hague Convention was designed to deal with a threat quite different from the one that Donny George faced in 2003 or that guards on archaeological sites have faced since then. In 1954, the danger was understood as posed by military actions: bombing and shelling, tank movements, and pillaging, theft, or vandalism by troops. These dangers still exist, and Hague is necessary to force militaries to avoid doing harm themselves to cultural sites. 

A new and quite distinct danger has emerged in the half-century since the 1954 Convention, however. It comes not from military action, but from military inaction in the face of looting by civilians, fueled by the global market for antiquities that has boomed over the last few decades. While Hague leads the military to fucus on avoiding harm, it imposes no requirement to actively protect cultural sites against the harm that comes from the breakdown in law and order and the concomitant surge in market-driven looting. The obligations it imposes on occupying powers, in fact, seem designed to limit the responsibility of occupiers for securing cultural property, with such responsibility applying only to "cultural property situated in occupied territory and damaged by military operations," only when national authorities are unable to protect it, and even then only so far as possible. Since looting by civilians is not damage inflicted by military operations, Iraq's archaeological sites are fair game and no necessary concern of the US military, which may in fact point to Hague as putting it off the hook for whatever goes wrong.

This is not to say that ratification of the 1954 Hague Convention is valueless -- far from it. For one thing, by formalizing what had been a customary observance, it will certainly have a ripple effect within military planning and war-fighting doctrine, and will give a helpful boost to the efforts by the Blue Shield and archaeological organizations to embed cultural awareness training within curricula. We should all celebrate this victory, and then turn our attention to ways of getting national authorities both civilian and military to focus on the real and still unaddressed challenge of securing cultural property from looting by civilians in the aftermath of armed conflict.