protection of "cultural property" in war

A question was raised by Lt. Col. Marttala's presentation as to why cultural sights and landmarks are forbidden as targets in armed conflict for US forces. Mention was made of a 1950s treaty dealing with this subject. I'd like to discuss the treaty and to link to a news article on artistic works looted in World War II by Nazi forces.

First, the Treaty.

The 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict defines the following categories of items and places as being protected in armed conflict:

"...(a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;
-(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a);
-(c) centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as "centres containing monuments". " (Art. 1)

In terms of the actions forbidden against such objects and places, cultural property (CP) may not be subject to military danger (Art. 4(1)), theft, vandalism or requisitioning (4(3)), reprisals (4(4)). CP is to be granted immunity from military action (Art. 9) . CP may be transported by a contracting party; such transports are to be protected (Art 12). CP may not be captured (Art. 14(1)), and CP has a distinctive emblem that is to be respected. (Art. 16) And these rules apply in both international and non-international conflicts-- a big step for 1954. (Arts. 18, 19)

These rules sound very much like the rules against targeting hospitals and other medical facilities, especially the provisions on how immunity against attack can be waved if the cultural centres are used for military purposes. Further, the United Nations Educational, Scientific and Cultural Organization (UNESCO) may be called upon to provide neutral technical assistance in protecting the CP. (Art. 23)

One interesting fact. While 118 states have ratified/aceeded to the Convention, 6 have only signed it: Andorra, Ireland, New Zealand, Philippines, UK and the US. At least we're not in the company of dictators as we sometimes are in these sorts of Conventions and Treaties. I'm glad to see that the US takes the protection of cultural patrimony seriously in its operations, even if not technically 100% bound to do so under international law.

(This issue of protection for CP has been an issue in the 2003 Iraq War, where the Iraqi National Museum was looted during the lawlessness of the initial period of the military action. There are many reasons this occured-- I do not point fingers-- but it is certainly unfortunant and a loss for all of humanity. I hope the US government, allied governments, UNESCO and/or other international organizations can assist the Iraqi government in rounding up the looted items and those involved.)

Second, the news article.

"Israel's national museum opened two new exhibits Monday of paintings with a tragic history: They were stolen from museums and salons by the Nazis and never reclaimed because many of the rightful owners perished during World War II. "

The subject of returning stolen/looted works to their rightful owners or heirs from the Nazi occupation of Europe has been a long contentious issue. As the article points out, after 60 years, it's increasingly unlikely that these works will be claimed by the survivors or their families. Many in the international community have pointed out the difficulties presented in helping reunite stolen works and goods with rightful owners/heirs because of the facts from the war years: people were driven from their homes with no documents and/or necessary documents were taken from them by the Nazis, making it extremely difficult to prove ownership. This is as much the case with artwork as it is with land, bank accounts, life insurance policies, stocks/bonds and other non-cash commodities. And let us not forget that entire families were murdered, so there are no heirs left to claim the stolen property.

There's also a tremendous difficulty in deciding what is the appropriate course of action when faced with the desire to return cultural or religious objects stolen from communities (synagogues, churches, museums even) when those communities or institutions no longer exist; vast numbers of Jewish communities were wiped off the face of the map by the Nazis and their sacred objects stolen. In such cases, perhaps the best solution is a museum (more or less) dedicated to their preservation and care, and to the story of the museum's acquisition of these objects.

"...Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world;..." (Convention, Preamble)

Lt. Watada: dissenter or disobdient?

We've been assigned to read a short op-ed about Lt. Watada, an Army officer who has refused to be deployed to Iraq based on his understanding that the Iraq war is an illegal one under international law. As of January 2007 he was facing a court-martial for this stance, with the possibility of prison and a near-certainty of a tarished career.

It's difficult for me to evaluate this situation comprehensively based on this one article. It is an op-ed piece, from a website that would appear to support him personally. But there are issues raised that I can comment on, drawing on this article and what I learned in Dr. Nolan's "Ethics and National Security" class. Still, it is difficult to comment coprehensively, as I'm unfamiliar with the applicable Military Code and the law.

From the standpoint of the US Army, it is easy to see Lt. Watada as a disobdient solider. He was given orders (to deploy) and he has refused those orders on grounds that are not crystal clear at his level of the organization. Therefore he must be brought into compliance, and failing that, punished. Afterall, the Army is a strongly hierarchical organization, and chaos would errupt if everyone declined to do what they don't 100% agree with.

Further, Lt. Watada joined the military of his own free will. He recognized that when he signed that contract, he was giving up a certain level of personal autonomy; he agreed to take orders: to do and go as instructed without question in the vast majority of the things that would required of him.

Additionally, even if the Iraq war is indeed illegal under international law (which it may or may not be-- I do not evaluate that here), it is not Lt. Watada's place to decline to participate. Participation in a potentially internationally illegal war is not necessarily on the same level as commiting more "typical" crimes of war, for example, killing or injuring civilians without cause. If Lt. Watada was concerned that he might be tried with war crimes for having merely participated in the war, he should be able to take solace in the fact that, if the Iraq war is later determined to have been illegal, it is unlikely that he persoanlly would take responsibility-- the government of the United States would, should it be sued in the International Court of Justice by the Government of Iraq, for example. (There is some support to this: soldiers who have been implicated in serious offenses against civilians and prisoners, much higher up on the mens rea foodchain, have gotten little more than smacks on the wrist)

From the perspective of Lt. Watada, as he deeply felt that what he was being ordered to do was illegal, he should not be prosecuted for speaking up. This is the principle that is taught to soldiers in how to avoid committing atrocities in the field: soldiers have the duty to refuse orders they legitimately believe to be contrary to the Uniform Code of Military Justice (UCMJ), and they have the right to bring the situation to the attention of higher authorities as tactical conditions allow. (Remember Goldie's "TAKE THE HILL!" film?)

Did the terms of his contract with the Army negate his ability to contientously object to certain missions? (we'd have to see the text of this contract and compare it against the regs on objection to say more definitively) From a practical standpoint, isn't the Army being a tad bit malicious in not allowing him to serve in Afghanistan (which he requested) as a way of navigating his objections? Certainly the Army cannot set a precident for anyone who just doesn't want to go to Iraq to get out of it by claiming a slightly nebulously-grounded objection-- who *wants* to go to Iraq to be shot at, place life and limb at risk and, at the very least, suffer the privations of being 10,000 miles away from family and friends? But are there not internal rules that govern when service members may and may not object? In a similar vein, is the Army's quest to make an example of Lt. Watada (which seems clear enough) an abuse of his due process rights? (granted the UCMJ works differently from civilian law, but it's a valid question)

(The treat to limb is very, very real-- I used to live outside of Washington and used to see regularly around town young men (often no older than 19 or 20 years) missing legs, arms, hands, eyes. A guy roughly my age lived a couple of buildings up from me and I used to see him struggle to get in his truck with a crutch in place of his right leg. A friend of mine who moonlights as a waitress once told me about a customer of hers who had such devestating brain damage that he could not speak or feed himself. And we mustn't forget those who come home physically intact but psychologically injured.)

So, I take a balanced view of Lt. Watada's unfortunant situation: he's acting in accordance with his beliefs and is seemingly being punished for it, while the Army is holding him to his contractual obligations and trying to contain what might be a wildfire. But what are the costs of their actions? Lt. Watada may be setting an example for anyone who is considering joining up, but he might be waging his campaign in thw wrong forum. Army might be protecting itself (as organizations are wont to do) but it might be embarrassing itself and acting needlessly heavy-handedly with Lt. Watada. I do wonder what will happen to him.

(I'd also like to point out that service members who have challenged the military's "don't ask, don't tell" policy on LGBT people serving openly have often faced the same set dilemmas, but they usually get witch-hunted and booted out with much less fanfare. If you're gay and in the military, silence and discretion are your friends and saviours.)