Why I am worried about AAMD's new "safe haven" protocols

Brian Daniels, whom I greatly respect for the important work he and his colleagues are doing to try to monitor and help Syrians safeguard archaeological sites and artifacts, is happy about the AAMD's announcement of safe haven protocols for antiquities from conflict zones. Here's Brian's facebook post, which many other fellow heritage protection advocates are retweeting approvingly:

"Quite possibly one of the most important developments in the field of cultural heritage policy in recent years. Not only does the AAMD declare its support for the 1954 Hague Convention, but it will treat objects in AAMD member museum safe havens as loans--not permanent acquisitions. (As such, a U.S. museum would need to follow U.S. law for an international museum loan to participate). The guidance outlined here is what framers of the 1954 Hague Convention had in mind for museums following World War II."

I cannot share this enthusiasm. Framers of the 1954 Hague Convention did not have in mind, objects dug up from archaeological sites by private parties, smuggled out of Syria to Turkey or Dubai and then bought up by dealers or collectors. There was nothing like the global market for illicitly excavated antiquities in 1954 that there is now. And the AAMD protocols, I worry, include provisions that will encourage more looting and smuggling of artifacts.

Here's the relevant section of the AAMD protocols, with the problematic language italicized:

II. The Source of Works In Need of Safe HavensIn the event of a terrorism occurrence or during an armed conflict or natural disaster, works may be brought for safe haven in the United States, Canada or Mexico from any depositor, assuming of course compliance with applicable law (see below).  Predetermining who may request such assistance in the abstract is not always possible, but may include the legal owner of a work, the agent for the owner, the bailee of a work, the custodian of a work, and a person or entity who comes into possession of the work and the owner is unknown, unavailable or legally constrained [sic] (collectively, a “depositor”).  Examples of a depositor are:

• Museums in the affected area that hold works;

• Governmental entities of or within the affected areas;

• U.S. government authorities who have seized works on entry to or in the United States; or

• Private individuals, companies or organizations who own or come into possession of works, whether in the affected area or after removal from the area.

Member museums should exercise caution to assure that accepting the request for safe haven will not violate the rights of lawful owners, subject the museum to a claim for return, reflect negatively on the reputation of the museum or cause the museum to be involved in any illegal or unethical activity.  Requests for safe haven and agreements to accept such requests should be documented where possible prior to movement of works to be transferred.

The garbled syntax in the first italicized phrase is a tell, indicating that this is an issue the AAMD must have been wrangling. With good reason. The last quoted paragraph above notwithstanding, the protocols give a green light to museums to accept as loans artifacts purchased from the networks that are paying looters to continue to dig, networks that in some cases are run by or beholden to ISIS. Those who purchase such blood antiquities will now be able to loan them to a museum, which will provide the buyers with a patina of legitimacy and museum approval that will increase the value of the artifact when it is returned to them. 

Taking as loans artifacts from museums, government entities, or seizures is an excellent idea. Taking as loans artifacts bought from the illicit market is a terrible idea.

, seeing it as marking a welcome albeit belated move that 

Army Field Manual passage protecting cultural property under revision -- Not to Worry

At the recent colloquium at Toronto's Royal Ontario Museum one of the panelists asserted something very disturbing: that the sentence added in 2009 (if memory serves) to the military's invasion planning "bible" (the Army Field Manual), requiring the US military to include in any invasion plans orders to secure cultural monuments, buildings, and sites, was being stripped from the new edition. That would be terrible news, since getting that sentence added was -- along with the ratification of the 1954 Hague Convention -- one of the key policy recommendations made by policy experts and stakeholders who studied what went wrong in Iraq, and one of the few concrete changes made by the military based on lessons learned.

I am happy to report that reliable sources tell me that there is nothing to worry about. While it is true that the draft left blank the portion dealing with cultural property protection, that is because the language is being strengthened and the revisers of the manual are deciding how to coordinate its placement in one chapter or the other.

But this episode demonstrates why it would be better to embed such a requirement in law rather than trust that the policy will remain in effect. On the other hand, as I pointed out in The Rape of Mesopotamia, the law in which heritage protection advocates invested their hopes, the 1954 Hague Convention, was already being observed by the US military as a matter of customary international law, even though it had not been ratified as it would be eventually -- but nothing in the Hague Convention requires militaries to secure archaeological sites from civilian looters. (The looting that the convention addresses is looting by militaries, not civilians -- of a piece with the convention's focus on restraining the destructive actions of militaries.) If we want to be more assured that American invasion plans will always include provisions for securing sites and museums from looters, we would need to be pushing for additional legislation. I myself do not think that is the best use of our energies right now. 

UNESCO's response to the Syrian crisis: more handwringing where new ideas are needed

In response to the latest footage showing, again, shelling of World Heritage sites in Syria, the head of UNESCO has issued yet another in a series of futile calls for an end to such destruction. What is most depressing is not just that these appeals are almost certain to fall on deaf ears, but that Ms. Bokova is missing the opportunity to call for changes that need to be made in the international instruments she cites -- changes that are desperately needed if there is to be any hope of reducing site destruction going forward -- whether such destruction is due to military action, as in the case of Syria, or to the actions of antiquities looters who operate with impunity in these conditions.

Take the 1954 Hague Convention, which was designed to discourage States Parties from firing at sites or pillaging them. As the article notes, "In an earlier statement, Ms. Bokova had said that 'destroying the inheritance of the past, which is the legacy for future generations, serves no purpose except that of deepening hatred and despair and it further weakens the foundations for cohesion of Syrian society.'" It is true that one effect of of destroying World Heritage sites is to deepen social divides, and in the case of the Taliban that was certainly the purpose. But as a matter of fact, the Hague Convention itself recognizes that there might well be a good reason for shelling a World Heritage site -- if the enemy has moved onto the site, the Convention says, anything goes. Whoever moves onto a site first is culpable in that case.

For the Hague Convention to do any good in the Syrian context, then, Ms Bokova would need to go beyond vague appeals to warring parties to cool it, and instead urge that the international community to do what it would take to hold accountable whoever moves their forces first onto a site. Why does she not call strenuously for an international monitoring system capable of putting eyes in the skies over World Heritage sites in conflict zones, so that those who move first onto the sites can be identified and then indicted and prosecuted?

The other international instrument cited by Ms. Bokova, the World Heritage Convention, is similarly hamstrung when it comes to dealing with Syria-style threats. The Convention itself has always been overblown about the protection it provides to the sites listed -- looting may have been one of the threats mentioned but from the beginning the more important threat was defined as that caused by development or by neglect. And the aim of the list was to incentivize governmental investment in conservation and planned tourist development.

What happens, then, when war breaks out? Tourism is non-existent. That makes the threat of de-listing -- the only stick that the Convention provides -- relatively unimportant, in the short run, which is the only run that matters when a state is at war.

Is there any change that could be made to the Convention's listing procedures to give it some relevance in situations like Syria? Yes. For starters, to get or stay on the list, UNESCO could require countries to submit a disaster preparedness plan for approval. A more robust change would require countries to contribute a percentage of tourist-generated tax revenues to an international disaster-response fund, a kind of insurance policy.

These are, admittedly, not necessarily easy changes to effectuate. But that is all the more reason for the head of UNESCO to be forcefully advocating for them, or for some other innovations. The problem is too dire to settle for the usual "I am shocked" pronouncements.

"We had no idea it was a library"

The CNN story on the burning of the library in Egypt contains a telling vignette:

At least one demonstrator was unaware that the structure was a library containing historical documents.
"We had no idea it was a library. We love our country. Why were the military thugs on the rooftop of the building in the first place, throwing debris and rocks at us? They destroyed it, not us, and now they will use it to turn public opinion against us and label us thugs," said Ahmed Ali, a student and activist involved in the clashes.

"Since when are buildings or manuscripts more important than the lives of humans?" he added.

The demonstrator's comments hold several lessons one hopes will be learned by heritage protection advocates:

1. There is no guarantee that protestors, patriotic as they are, will know that the buildings they are fighting over are cultural institutions. Organizations that want to avert the disaster that befell the library need to make sure that their buildings are prominently labelled, and heritage protection advocacy groups should be handing out leaflets marking buildings as offlimits.

2. The 1954 Hague Convention requires the marking of cultural buildings in war zones with Blue Shields, but that provision would probably not apply to the kind of conflict occurring in Cairo or elsewhere between citizens and government forces rather than between militaries. The law of war has not caught up with the realities of war today, which involves irregular conflicts much more often than traditional war did. The International Committee of the Blue Shield, which might have taken proactive measures as suggested in #1 above, is hamstrung by its need to operate on a government to government basis, so it either needs to persuade the UN to broaden its mandate or other international and non-governmental organizations need to step in to make sure combatants are informed about the risks they are taking with cultural heritage when they confront each other near or on the grounds of cultural institutions.

3. The Egyptian military should be held accountable for a war crime if its soldiers attacked the demonstrators from the roof of the building, assuming that the 1954 Hague Convention applies. But if the soldiers were attacked first, the Convention (at least so far as I, a non-lawyer, understand it) would be moot. And if the soldiers were trying to drive the protestors away from the building to keep it from burning, they would be acting heroically not illegally.

4. Buildings or manuscripts are not more important than human beings, which is why the 1954 Hague Convention recognizes that military necessity can allow buildings to be destroyed if there is no way to avoid doing so in the midst of a fight. But this is all the more reason why, since both sides in this conflict recognize that manuscripts are important, steps should have been taken by both sides in advance to ensure that there was no need to choose between protecting lives and protecting culture.

The Museums Will Be Protected Next Time Round

The military has just released FM 3.07, its new field manual on Stability Operations.  Those concerned that the lessons of the looting of the Iraq National Museum might not have been learned will be pleased to find that among the "Essential Stability Tasks" is that of protecting key personnel and facilities. The eight tasks under this heading include the requirements to "protect and secure places of religious worship and cultural sites," and to "protect and secure strategically important institutions (such as government buildings;medical and public health infrastructure; the central bank, national treasury, and integral commercial banks; museums; and religious sites)."

A bare mention, but nonetheless extremely important, and arguably far more consequential than the ratification of the 1954 Hague Convention. It means that cultural heritage protection is now embedded in the task matrix that operational planners will take as the starting point for future war planning. This is a victory for all those who have been working inside and outside the military and defense establishment to make sure that the U.S. never again acts with the indifference towards cultural heritage that it did in April 2003. 

The field manual also mentions cultural heritage protection in a very prominent place: the epigraph to Chapter 5 quotes Harry L. Coles and Albert K. Weinberg's history of Civil Affairs, Civil Affairs: Soldiers Become Governors:

Because of the ideological aspect of the struggle and because the United States acted as  a member of a coalition of Allies, U.S. military leaders sometimes had to add to their traditional roles as soldiers those of the statesman and the politician. They were beset by the problems of resolving conflicting national interests and of reconciling political idealism and military exigency. On another level—in feeding hungry populations, in tackling intricate financial and economic problems, and in protecting the cultural heritage of a rich and ancient civilization—they had to exercise skills that are also normally considered civilian rather than military.

Whether this quotation means that Civil Affairs will develop the capacity to protect the cultural heritage of a rich and ancient civilization is not clear. Certainly, the record in Iraq and Afghanistan does not reflect any major beefing up of capacity in that regard yet. But with Corine Wegener and others pushing hard on this, we may well also see a great improvement in the military's ability to protect sites and museums during transitions.

What still needs to be done is to help the military to think -- now, not when it is too late -- about what tactics and tools it can and should be prepared to use to secure and protect museums and archaeological sites (as well as other cultural sites).

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.