FROM BAMIYAN TO BAGHDAD: WARFARE AND THE PRESERVATION OF CULTURAL HERITAGE AT THE BEGINNING OF THE 21ST CENTURY

It was therefore a legal requirement that the relevant United States agency undertake a process of consultation to determine how to avoid or mitigate damage to the historic site of Babylon before it undertook or funded construction of the military base.313 At this point, because the site has returned to Iraqi control and no further work is being carried out under United States auspices, a suit against the United States government for failure to follow the NHPA would likely not be possible.314 However, this breach of both United States domestic law and of international law provides a moral and a legal basis to require the United States to fund efforts to reconstruct and mitigate the damage that has been done. This episode also provides a foundation for future planning on the part of the United States military and a warning for preservationist groups that might want to avert similar harm in the future. 315

4. Obligation to Maintain security at Cultural Sites

The 1954 Hague Convention also imposes an obligation on occupying powers to "support," as far as possible, "the competent national authorities of the occupied country in safeguarding and preserving its cultural property."316 The lack of security provided at archaeological sites must, of course, be viewed in light of the lack of security throughout Iraq during the occupation and the subsequent period.317 Yet the Hague Convention does not require that the occupying power safeguard cultural property, only that it assist the national authorities in doing so. The Iraqis now have trained guards who are capable of guarding the archaeological sites, but these guards require vehicles and communication equipment before they can be deployed.318

Another source of an obligation to protect Iraq's archaeological sites may be found in the 1907 Hague Regulations. Article 55 states that "[t]he occupying State shall be regarded only as administrator and usufructuary319 of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct."320 While it may seem incongruous to consider the "capital" of archaeological sites, these areas are not only a source of knowledge in which the whole world might share, but they also provide a sustainable economic benefit through non-destructive means such as cultural and archaeotourism.321 Article 55 thus imposes a positive obligation on an occupying power to safeguard this capital for the benefit of the people of Iraq; this the United States has failed to do.

B. Movable Cultural Objects

The First Protocol to the Hague Convention imposes the obligation on an occupying power to prevent illegal removal of cultural objects from occupied territory and the obligation on all States Parties to return to each State Party any moveable objects of cultural heritage removed from the territory of that State during occupation.322 The attitude of the United States toward this document has evolved over time. The United States did not sign the First Protocol at the time that it signed the main Convention. In 1999, however, President Clinton transmitted the First Protocol to the Senate for ratification at the same time that he transmitted the main Convention. In doing so, President Clinton recommended against inclusion of section I.323 The reasons given for this in the accompanying State Department letter are that the term "export" was found to be unclear and because the requirement to indemnify good faith holders of cultural property exported from occupied territory imposed "complexities and burdens of implementation under both U.S. and other legal systems."324 The stated position of the United States today is not opposed to the First Protocol provisions requiring restitution of cultural property but rather to the requirement of paying compensation, which contradicts established U.S. property and commercial law.325