US Secretary of Defense Donald Rumsfeld dismissed the looting of the Iraqi National Museum in April 2003 by remarking, “stuff happens.” In doing so, he gave an early indication that in planning to invade Iraq, the Bush Administration failed to take seriously the legal obligations of an occupying power. Occupying powers have a variety of binding legal obligations, including obligations to stop looting, protect cultural property, and protect persons in detention. Yet, the Administration sent a wholly inadequate force to fulfill those obligations, and, more seriously, the force received no direct and imperative orders to do so. As a result, in addition to the questionable basis for initiating war the war in the first place, the Administration conducted it in a way that amounts to an independent ground for concluding the decision to invade Iraq on March 19, 2003, violated international law.
This article focuses on the Administration’s failure to protect Iraqi cultural property as one clear example of the Administration’s disregard for its obligations. The article discusses cultural property and the long, continuous development of legal principles, through treaties and rules of customary international law for the protection of cultural property in wartime—developments in which the United States has played a leading role. On the eve of the Iraq invasion, no US leader could have been in doubt about the legal requirements to stop looting and protect cultural property. Yet, we find little evidence of any preparation to do so. The article analyzes the literature on Iraqi war planning to understand why this lapse occurred. It further analyzes the consequences of this failures, including: the possibility that individuals will be held accountable; the high cost to the US associated with the war, and Iraq’s right to claim reparations, including in-kind reparations from US holdings of Iraqi cultural property.
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Date of this Version
Mary Ellen O'Connell, "Occupation Failures and the Legality of Armed Conflict: The Case of Iraqi Cultural Property" (December 2004). The Ohio State University Moritz College of Law Working Paper Series. Working Paper 6.