Abstract: U.S. Department of Defense (DoD) policy for preservation of cultural heritage during war time is clearly stated; it is informed by and generally conforms to the 1954 Hague Cultural Property Convention. However, and despite episodic success at protecting heritage sites during recent operations, DoD lacks both a formal mechanism and a set of standard procedures to ensure that Commanders are first aware of what in their battlespace requires protection, and then have systems in place that can incorporate Cultural Property Protection into on-going operations. The United States Department of Defense, the North Atlantic Treaty Organization, and many others embrace the moral and legal requirements to protect cultural property, although it has been accused of doing so in an ad-hoc and imperfect way. The destruction of cultural plays an important role in the information space – be it intentional destruction driven by iconoclasm or unintentional destruction that is presented as evidence of a belligerent’s disdain for the local populace. Formalized procedures, coupled with better planning and closer coordination with academics, historians, and anthropologists, would help ensure that our shared cultural heritage is preserved for future generations.
Problem statement: What steps can planners and policymakers take to minimize damage to cultural property?
So what?: Improving cultural property protection not only ensures compliance with treaties and other international obligations but may also support reaching operational or strategic objectives to gain the support of the populace or undermine the narrative offered by adversaries.
Source: shutterstock.com/Sviatoslav_Shevchenko
Introduction
As of March 2023, the United Nations Educational, Scientific and Cultural Organization (UNESCO) had verified the damage of 248 culturally significant sites in Ukraine since the resumption of the Russian attack on that country.[1] These sites include churches, museums, libraries, and buildings of historical or artistic merit. Russia’s invasion is a clear violation of international norms and of its treaty obligations under the Hague and Geneva Conventions. This wanton destruction, however, provides a cautionary note to military planners and policy makers across the globe. States and international organizations must ensure combatants maintain robust and effective processes to minimize the damage to cultural heritage resulting from combat operations.
Academic literature and the efforts of various norming entrepreneurs such as Raphael Lemkin focus only on the moral imperative of cultural preservation in conflict zones.[2] While this discourse may aid in generating broader support for the concept, it is of limited utility to military commands who must wrestle with difficult decisions related to Cultural Property Protection (CPP) when lives are at risk. This is difficult work. Professional military journals and even U.S. and NATO doctrine fail to address the topic in the level of detail required by war planners and operators. This paper will discuss the legal and ethical requirements to preserve heritage in areas of conflict, and provide specific recommendations that DoD should consider when formalizing processes for CPP during combat. It will also place the question of CPP into the context of Commanders’ broader legal and moral responsibilities under the Law of War.[3]
The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict serves as the principle international agreement which establishes a legal requirement for the safeguarding of cultural heritage in wartime. The convention binds its 193 state parties (and nonstate parties such as the European Union) to take “reasonable” precautions based on the principles of Military Necessity, Humanity, Proportionality, Discrimination to minimize damage to cultural heritage during combat operations. Article I provides a definition of cultural property.[4] Article II calls on belligerents to respect cultural property during operations. Article III tasks signatories to respect their own cultural property by marking or guarding cultural property. However, Article IV allows for a waiver of these requirements “in cases where military necessity imperatively requires such a waiver.” Article IV also provides a definition of the term “respect” used in Articles II and III.)[5] The extent to which parties are bound by Articles II and III is left an open question.[6] Belligerents are further restricted under the provisions of the 1949 Geneva Convention, particularly Article IV, which deals with the protection of civilians in times of war. The 1949 Geneva Convention mandates protection of medical facilities, educational institutions, and religious practice, and holds commanders responsible for the welfare of civilians on the battlefield.[7]
The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict serves as the principle international agreement which establishes a legal requirement for the safeguarding of cultural heritage in wartime.
Although the United States was an original signatory of the 1954 Hague Convention, it did not formally ratify the treaty until 2009. This 55-year delay in formalizing its adherence to the Hague Convention did not affect the U.S. adoption of legal and policy instruments to protect cultural property, prevent expropriation, or facilitate the return of illegally acquired heritage.[8] With respect to the Convention’s requirements to protect cultural heritage in combat, the United States has implemented its treaty obligations through a series of instructions, manuals, and policy documents internal to the U.S. Department of Defense. DOD’s Law of War Manual provides clear guidance to commanders concerning what are commonly understood to as the “Commanders’ legal and moral obligations under the Hague and Geneva Conventions” – it defines, at least at the policy level, what is meant by the concept of Jus in Bello. Significant attention is paid to the cultural property protection (CPP), with the term appearing in one form or another 587 times across the over 1200 pages of text). The U.S. Law of War manual draws heavily on both the Hague and Geneva Conventions, emphasizing the standard of “reasonable precautions” when protecting civilians or cultural property, allowing for the use of overwhelming force, and reinforcing the right of self-defense. It also offers a cautionary note on “military necessity” as described in Article IV of the Hague Convention, warning that the concept can be misapplied and used to “cloak slackness or indifference” to the obligations of the Law of War.[9]
In addition to any national instructions, each member of the North Atlantic Treaty Organization is subject to the NATO Standard Agreement (STANAG) 1741, which directly addresses issues of natural and cultural resources. NATO efforts at CPP are integrated with U.S. targeting efforts through a combined International Military Cultural Resources Working Group (IMCuRWG).
The Threat
Despite the best efforts of commanders, cultural property is often jeopardized during wartime. Some of this is simply the result of error – mistakes and miscalculations that arise in what Clausewitz termed the “fog of war.” In recent years there has been an increase in the deliberate destruction of cultural property where culture is targeted as a political statement or act of terrorism during ethno-sectarian conflict.[10]
In recent years there has been an increase in the deliberate destruction of cultural property where culture is targeted as a political statement or act of terrorism during ethno-sectarian conflict.
Under the concept of military necessity, some cultural property may be destroyed intentionally if there is no other alternative which allows commanders to achieve military objectives without incurring unacceptable casualties. While cases of intentional destruction are rising, unintentional destruction is more common. Inadvertent destruction can be caused by inaccurate weapons systems, incorrect or incomplete information, or incompetence or error. The strategic bombing campaigns of the Second World War destroyed entire cities. Pilots could not rely upon precision-guided munitions and satellite-assisted navigation to minimize collateral damage. The Allies destroyed the Monte Cassino monastery in the mistaken belief that the Germans had occupied it. In 1999 NATO bombed the Chinese Embassy in Belgrade because planners and pilots were relying on an outdated map.
The past few decades have also seen an increase in incidents of intentional destruction, particularly in ethno-sectarian conflicts. Destruction of cultural heritage may be intended to terrify or demoralize a population, to publicize a group or cause, or simply to shock and offend a broad, potentially even international audience. The Taliban’s destruction of the Bamiyan Buddhas and the actions of DA’ESH in and around Aleppo provide examples. Groups such as Al Qaida and DA’ESH target cultural property, such as Shia mosques, that deviate from their interpretations of Islam in an effort to demoralize the local populace.[11]
An additional threat to cultural heritage in war time comes in the form of trafficking, where parties to a conflict seek to generate revenue through the sale of antiquities in an attempt to fund their operations. In the case of insurgencies, non-state actors, or individuals listed as Specially Designated Global Terrorists by the United States or subject to the targeted sanctions of the United Nations Security Council, these sales are almost inherently illegal and executed covertly.
What Is to Be Protected
There is no formal process for identifying what cultural property merits protection. The United Nations Educational, Scientific and Cultural Organization maintains lists of important tangible and intangible cultural heritage. Article III of the 1954 Hague Convention requires member states to safeguard and, more importantly, mark their own cultural property. These two actions can provide a minimal list of sites to consider; but do not produce a comprehensive inventory that will include the wide range of cultural property that requires protection as mandated by the Hague Convention. In the past military planners have drawn on the technical expertise of the academic community to develop a more comprehensive picture of cultural property likely to be placed at risk during combat. In World War II, the American Defense Harvard Group worked closely with the Museum, Fine Arts, and Archives sub-division of Eisenhower’s Supreme Headquarters, Allied Expeditionary Forces.[12]
In the past military planners have drawn on the technical expertise of the academic community to develop a more comprehensive picture of cultural property likely to be placed at risk during combat.
In preparation for Operation IRAQI FREEDOM in 2002, George Washington University partnered with the U.S. State Department to identify heritage sites that would be placed in danger during any air or ground campaign. During Operation UNIFIED PROTECTOR in Libya in 2011, NATO planners worked closely with Oberlin College, among others, to develop an understanding of the cultural property that would be encountered during the air campaign to topple Moammar Qaddafi.[13] Academic expertise is vital to CPP; the preservation of cultural heritage has an important role to play in any durable conflict resolution by strengthening the national identity of collapsed states, and can perhaps even contribute to the creation of a tourist industry that will help drive economic reconstruction.[14] Livotti, Gerstinblith, and Teijgeler have discussed the hesitancy of some academics to work with the (particularly) U.S. military due to concerns over professional ethics and a desire for humanitarian “neutrality.”[15] As the examples previously cited show, this reluctance is likely overstated.
U.S. Policy for Cultural Preservation
DoD policy, as expressed in the Law of War Manual, firmly embraces CPP; however, there is very little operational or tactical doctrine that codifies how this is to be achieved. Even the examples of relative success – World War II, Iraq, and Libya – give the appearance of being handled separately from the operational planning of fire and maneuver/battles/offense/attack, and often only introduced into the overall planning effort at the last minute. While doctrine is lacking, it is not completely absent. Some practices have begun to emerge. Under the U.S. system of war fighting, the Geographic Combatant Commands (GCC) provide the operational headquarters for all major combat operations. And the GCC is the lowest level of headquarters which routinely includes the capability to conduct interagency cooperation with U.S. government counterparts and is authorized to directly coordinate with coalition partners (the military forces of other nations). The GCC prepares plans and orders which provide clear instructions to both air and ground forces, is responsible for intelligence preparation of the battlefield, it manages the target list and, more importantly for our discussion, the No-Strike List (NSL). It also controls the activities of the Air Operations Center (AOC), which conducts strategic and tactical bombing across the battlespace. These elements comprise the “targeting cycle”, which, perhaps counterintuitively, provides the means for protecting sites of cultural, social, or economic value. The GCC is the only existing command and control node capable of effectively protecting cultural property.
The Geographic Combatant Command prepares plans and orders which provide clear instructions to both air and ground forces, is responsible for intelligence preparation of the battlefield, it manages the target list and, more importantly for our discussion, the No-Strike List.
The Defense Intelligence Agency (DIA) also plays a major role in CPP through its management of the Basic Encyclopedia (BE) and Military Intelligence Database (MIDB) – voluminous lists of nearly every recognized geographic and man-made feature present in the battlespace. These two computerized systems are used to develop the GCC’s target list, and to ensure that cultural property is added to the NSL. This role assigned to DIA illustrates one of the more glaring doctrinal shortfalls in the current DoD process referenced above. Chairman of the Joint Chiefs of Staff Instruction 3160.01, No Strike List and Collateral Damage Estimation Methodology states: “Participation and cooperation among stakeholders is critical to the success of the No-Strike process. Non-DOD stakeholders, in particular, play a key role in protecting life and property by identifying the location and functionality of non-military entities…each stakeholder must nominate No-Strike entities for MIDB…If stakeholders do not or cannot have access to GEMINI then they must pass the required information to the appropriate combatant command No-Strike Coordinator for data entry into GEMINI.”[16] In other words, DoD welcomes the input of outside parties concerned with CPP but expects them to be able to provide that input directly to DIA using classified computer networks.
Recommended Improvements to DoD Management of CPP
DoD acknowledges the requirement to preserve cultural heritage as required under the Law of War and has created processes to ensure U.S. compliance with its treaty obligations. DoD has demonstrated that it is fully capable of doing so during operations in Iraq, Syria, Libya, and elsewhere.
Passage of the Protect and Preserve International Cultural Property Act (PPICPA) of May 2016 created an interagency coordinating committee to help “protect and preserve international cultural property at risk from political instability, armed conflict.”[17] This construct will provide policy guidance to improve the activities of the GCCs to protect cultural property in wartime. However, management of the targeting process and the level of cultural property protection that this process presents will remain an almost exclusive function of the operational commander. Several measures could be adopted at no or little cost that would create formal processes to replace the almost ad hoc procedures currently in place.
The Chairman of the Joint Chiefs of Staff should issue an instruction to the GCCs reminding them of their obligations under the LOW and task them to specify what they would need to comply with the Hague and Geneva Conventions. These requirements would then be reviewed by the Joint Staff through the Joint Capabilities Integration and Development System, the Joint Resource Oversight Committee, and Joint Services Capabilities Plan. “Validated” requirements – those that survive this detailed (and laborious) analysis by the Joint Staff – would become tasks for the Armed Services, who would then produce the people, gear, and doctrine specified by the GCC. This would involve training targeting personnel on the over 150 types of cultural property or critical civilian facilities in the MIDB, training Civil Military planners or staff historians on the targeting process, improving civil-military cooperation at the operational and strategic levels to enable much-needed input from not only academia but other stakeholders, and creating an unclassified means for outside expertise to inform DIA’s MIDBI and other databases in order to reduce the time-consuming and error-prone process of data entry.[18] Additionally, responsibility for CPP must be clearly assigned and methods of coordination formalized between operations and intelligence- along with greater attention being paid to improving communications with the civil sector.[19]
The Chairman of the Joint Chiefs of Staff should issue an instruction to the GCCs reminding them of their obligations under the LOW and task them to specify what they would need to comply with the Hague and Geneva Conventions.
DoD will also need to specify a “proponent” for CPP. Proponents manage a capability for the Department. In this case, the proponent would not be responsible for physically protecting cultural heritage, its focus would be on building the capacity to do so. At this early stage, the proponent would be responsible for developing an accessions and training program for personnel working on CPP, for developing a formal doctrine for CPP drawing the lessons learned in past operations, and for the inclusion of both interagency and coalition partners in the development process.[20] There are no obvious candidates to assume management of the task within the U.S. military. U.S. Army Civil Affairs theoretically possess significant capabilities here, with Functional Specialists in Heritage Preservation and representation on the theater-level targeting boards.[21] However, there is a significant disconnect in Army doctrine, with these subject matter experts retained under the control of senior Civil Affairs headquarters and not with the GCC. Furthermore, DoD assigns the responsibility for the identification and preservation of cultural heritage across the joint force without assigning overall responsibility to either a unit, such as U.S. Army Civil Affairs or to the GCC.[22]
Based on the work already done by military Judge Advocates General, lead for the task might be assigned to the Defense International Institute for Legal Studies (DIILS) in Newport, Rhode Island. Another option would be the U.S. Army Special Warfare Center at Fort Bragg, North Carolina. A third option would be one of the existing centers for professional military education: the Air War College at Maxwell Air Force Base, Alabama, the U.S. Army Combined Arms Center at Fort Leavenworth, Kansas, or the Marine Corps University at Quantico, Virginia. Additionally, the GCCs should clarify their own information requirements as they relate to CPP. The role of DIA would not likely change, however, the Intelligence Community would benefit greatly from a clear demand signal from war fighters about the types of information and the level of detail required. (It will also be necessary to reconsider how non-DoD stakeholders will provide their invaluable insight into the process.) The absence of a system or process for archeologists, anthropologists, or museum curators to provide detailed information in a timely manner incurs unnecessary risk of damage to cultural heritage.
Expanding the Focus Beyond Culture
Before offering a conclusion, those concerned with the protection of cultural property in war time should recall the phrase with provides the basis for DoD’s understanding of the Law of War, “Commanders’ legal and moral obligations under the Hague and Geneva Conventions.” Policymakers, strategists, and planners cannot limit themselves merely to the consideration of culture as outlined in the 1954 Hague Convention. The requirements relating to the protection of civilians on the battlefield laid out in the 1949 Geneva Convention are just as compelling (and acknowledge the need to protect religious, cultural, historical institutions, and structures – a proviso not replicated in the later Hague Convention).[23] The MIDB contains over 150 different categories of sites that merit protection under the Geneva Convention, ranging from diplomatic missions to power and sanitation systems to Prisoner-of-War Camps to theaters.[24]
Conclusion
The U.S. Defense Department fully recognizes its responsibility for the protection of cultural property in war time, as well as its responsibilities related to safeguarding any civilians that it encounters on the battlefield and for the maintenance of law and order and civil administration of any territory it occupies. The lack of formal processes to meet these responsibilities reflects not a rejection of the task but a result of the low priority given it. More importantly, the lack of clear guidance and standard practices have left Commanders to develop their own systems – on a case-by-case basis and as was seen in Libya, Syria, and Iraq reinventing past practice. The suggestions provided address current shortfalls in DoD’s efforts at CPP but are limited to clarifying roles and responsibilities – a more formal and comprehensive analysis would be the task of that as yet unnamed proponent.
The lack of clear guidance and standard practices have left Commanders to develop their own systems – on a case-by-case basis and as was seen in Libya, Syria, and Iraq reinventing past practice.
The U.S. DoD embrace of the United States’ treaty obligation under the 1954 Hague Convention and acceptance of the “Commanders’ legal and moral obligations” under that convention is not based solely on questions of what is right and fair and just (although honor remains a key principle of the Law of War), nor is it based on fear of prosecution for war crimes (in the case of the United States, Article 98 agreements under the Rome Statute prevent such prosecutions). However, there is an operational incentive for preserving cultural property and safeguarding civilians on the battlefield. Failure here will result in the loss of the support of the American people, the wider international community, and the local populace in the area of operations. Commanders’ obligations under Hague and Geneva may be moral and legal, but they are also critical to the success of any military operation.
Colonel Jack Kuttas is a retired senior U.S. and NATO Defense Official who has served in a variety of operational and staff assignments in the United States, Germany, Brazil, and Southwest Asia. He is currently a graduate student in the College of Public and & Global Affairs at Fairleigh-Dickinson University. The views contained in this article are the author’s alone.
[1] UNESCO, 2023, Damaged cultural sites in Ukraine verified by UNESCO, March 23, 2023, https://www.unesco.org/en/articles/damaged-cultural-sites-ukraine-verified-unesco.
[2] Raphael Lemkin, “Axis Rule in Occupied Europe,” (Washington, D.C.: Carnegie Endowment for International Peace, 1944), 79.
[3] Charles Dunlop, “Law and Military Intervention: Preserving Humanitarian Values in 21st Century Conflict,” Humanitarian Challenges in Military Intervention Conference, (Washington, D.C.: Harvard University, 2001), 6.
[4] The 1954 Hague Convention species protection for “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.”
[5] United Nations, Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, (The Hague, May 14, 1954), https://en.unesco.org/sites/default/files/1954_Convention_EN_2020.pdf.
[6] Article 4 prohibits “ any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility, directed against such property,” and requires parties to “undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property.”
[7] Patricia Gerstenblith, “The Obligations Contained in International Treaties of Armed Forces to Protect Cultural Heritage in Times of Armed Conflict,” In Archaeology, Cultural Property, and the Military, ed. Laurie Rush, 4-14, (Woodbridge, UK., The Boydell Press, 2010), 14.
[8] Patricia Gerstenblith, “International Art and Cultural Heritage,” The International Lawyer 44, no. 1 (2010): 487–501, http://www.jstor.org/stable/40708261.
[9] U.S. Department of Defense, Law of War Manual, (Washington, D.C.: Office of the Secretary of Defense, 2015), 52.
[10] RASHID International e.V., “The Intentional Destruction of Cultural Heritage in Iraq as a Violation of Human Rights,” Submission for the United Nations Special Rapporteur in the field of cultural rights, (Munich, Germany: OCHR, 2017), 6.
[11] Finbarr Barry Flood, “Between Cult and Culture: Bamiyan, Islamic Iconoclasm, and the Museum,” The Art Bulletin 84, no. 4 (2002): 641–59, https://doi.org/10.2307/3177288.
[12] Anna Kallen and Johan Hegardt, “OSS AND THE DEPARTMENT OF STATE,” In: The Archaeologist In-Between: Olov Janse, 1892–1985, 316–42. Kriterium, 2021. http://www.jstor.org/stable/j.ctv26qjj9f, 19.
[13] Joris Kila and Christopher Herndon, “Military Involvement in Cultural Property Protection: An Overview,” Joint Forces Quarterly (2014) 74, 3: 116-123.
[14] Roger Matthews, Qais Hussain Rasheed, Mónica Palmero Fernández, Seán Fobbe, Karel Nováček, Rozhen Mohammed-Amin, Simone Mühl & Amy Richardson, “Heritage and cultural healing: Iraq in a post-Daesh era,” International Journal of Heritage Studies, 26:2, 120-141, DOI: 10.1080/13527258.2019.1608585.
[15] René Teijgeler and P. G. Stone, “Archaeologist under pressure: neutral or cooperative in wartime,” Cultural Heritage, Ethics and the Military (2011): 86-112.
[16] DOD Chairman of the Joint Chiefs of Staff Instruction 3160, 01 No-Strike and the Collateral Damage Estimation Methodology, C-3. (2009).
[17] U.S. Congress, House, An act to protect and preserve international cultural property at risk due to political instability, armed conflict, or natural or other disasters, and for other purposes, HR 1493, 114th Congress, May 09, 2016, https://www.congress.gov/bill/114th-congress/house-bill/1493/text.
[18] Kila & Herndon mention the need for a large volume of data entry in an extremely time-constrained environment arose during NATO’s Operation UNIFIED PROTECTOR in 2011. The author faced this same challenge prior to the launching of Operation IRAQI FREEDOM in 2003.
[19] An anomaly to the U.S. military since the passage of Goldwater-Nicholls in 1986 is that the GCCs generate requirements; only the GCCs can specify what training, equipment, or doctrine is needed to meet military objectives. The Armed Services are no longer warfighting organizations but merely force providers to the combatant commands. It falls to the services to create capabilities that meet the requirements set forth by the GCCs.
[20] The task manager, referred to as ‘proponent’ in U.S. military jargon, would conduct a thorough analysis across the spectrum of DOTMLPF – doctrine, organization, training, materiel, leadership and education, personnel, and facilities.
[21] U.S. Department of the Army, FM 3-57, Civil Affairs Operations, May 2018, Headquarters Department of the Army, Washington, D.C, 2-19.
[22] U.S. Department of Defense, JP 3-57, Civil Military Operations, 2018, The Joint Chiefs of Staff, Washington, D.C., III-12.
[23] Erich Hatala Matthes, “‘SAVING LIVES OR SAVING STONES?’ THE ETHICS OF CULTURAL HERITAGE PROTECTION IN WAR,” Public Affairs Quarterly 32, no. 1 (2018): 67–84, https://www.jstor.org/stable/26897023.
[24] JCS Instruction 3160.01, P.C-A-1, 2009.
