Toppling Saddam, Not His Statues:
Why it is Important to Stop the Looting of Medical Supplies, the Theft of Cultural Artifacts, and Other Economic War Crimes

By ANITA RAMASASTRY

Tuesday, Apr. 22, 2003

Recent news reports have made clear that widespread looting, arson and apparent lawlessness have overcome Iraq - with restless crowds taking to the streets, beginning on April 7 in Basra, on April 9 in Baghdad, and on April 10 in Kirkuk.

Hospitals, oil company offices, food warehouses, schools, banks and museums have been looted and ransacked. Bandits have taken furniture out of private Iraqi homes.

Meanwhile, far from helping defend against the looting, U.S. soldiers have helped topple Saddam statues (still part of Iraq's history, if no longer its government) and taken their own small souvenirs from Saddam's palaces. Otherwise, they have often stood by, apparently unwilling or unprepared to prevent such violence and theft.

This is the harsh reality facing millions of Iraqi civilians in areas newly under the control of Coalition forces. Thieves and bandits roam the streets. Private and public property is no longer respected. Coalition forces are not willing to, or cannot manage to, restore order.

International Human Rights Law Requires the Protection of Property

Even before the conflict commenced, international human rights organizations such as Amnesty International repeatedly warned the US and UK governments that there was a high risk that once the Iraqi regime was removed, widespread disorder would ensue.

Now that this has indeed come to pass, U.N. Secretary-General Kofi Annan has remarked that, "[o]bviously law and order must be a major concern...I think the [Security] Council has also reaffirmed that the Hague Regulations and the Geneva Conventions [on the duties of occupying powers] apply to this conflict and that the coalition has the responsibility for the welfare of the people in this area."

Annan is right. Now that US/UK forces are occupying large parts of Iraq, it is not only morally correct for them to protect the Iraqi people's rights and property, it is also legally required - under international human rights and international humanitarian law.

Looting Often Follows Wars, And Leads to Prosecutions

Economic war crimes such as looting, plunder, and pillage are recurring factors in armed conflict. For example, during the Second World War, German industrialists were prosecuted for economic war crimes of plunder when they seized factories and property in countries that the Nazis occupied.

In addition, both during the Second World War and in more recent war crimes prosecutions relating to the former Yugoslavia, soldiers have also been prosecuted for theft of private property from civilians.

Looting is further exacerbated in countries where a repressive regime has been toppled. In Kosovo and Sierra Leone, for example, initial disorder and pillage occurred before public order was restored. Now the same is happening in Iraq.

Military officials have reportedly been hesitant to act, seeing looting and disorder as the Iraqi public's venting of anger after decades of repression. Yet such inaction or passivity has had grave consequences.

The Law of Occupation, and Why It Applies in Iraq

Are there laws to deal with such a situation? Fortunately, the answer is Yes. As Secretary General Annan has stated, the 1907 Hague Regulations on the Laws of War and the 1949 Geneva Conventions both apply.

Indeed, the law of belligerent occupation is perhaps one of the oldest developed branch of international humanitarian law. Occupation is defined as effective control over a territory or population - and thus describes the relationship between Coalition powers and Iraq. The legal rules apply irrespective of the duration of the occupation, or the motives for the military operations. Thus, the Coalition's stated objective to "liberate" Iraq, and withdraw from it, is irrelevant to its legal status as, for now, an occupying power.

The duties of an occupying power are codified in Articles 42-56 of the Hague Regulations Respecting the Laws and Customs of War on Land, and in Articles 47-78 of the Fourth Geneva Convention relative to the Protection of Civilian Persons. As their titles indicate, these treaties provide safeguards for civilian populations in the territory under the control of invading forces. Their paramount concern is to regulate the relationship between the civilian population and the invading forces when the two are in contact.

The Duties of an Occupying Force To Prevent Looting and Ensure Medical Care

These rules impose a number of duties on an occupying force. As of now, according to news reports, Coalition forces are violating these duties in Iraq.

First, Article 43 of the Hague Regulations states that the occupying power's is responsible to take all measures in its power to restore and ensure, as far as possible, public order and safety.

This duty clearly encompasses Coalition forces' doing everything in their power to protect civilians from looting and associated violence. It does not require perfection - some looting may occur despite the Coalition's best efforts. But it does requires that best efforts be used. That means guarding sites likely to be looted of valuable items, providing adequate numbers of troops to maintain order, and apprehending civilians who engage in looting and other crimes.

Second, Articles 55 and 56 of the Fourth Geneva Convention further enumerate duties of an occupying force with respect to food and medical care. This convention explicitly states that medical establishments must be protected, that the wounded and sick must be the object of particular protection and respect, and that hospital personnel must be protected and must be free to carry on their duties.

Similarly, the International Committee of the Red Cross (ICRC) has voiced its concern that the looting was further hampering attempts to deliver humanitarian assistance. Millions of people in Iraq face grave dangers to their health, with many hospitals unable to cope with the number of war casualties and sick.

Failure to Stop Looting of Cultural Artifacts, In Particular, Is A Law Violation

Meanwhile, looting has had yet another grave consequence. Baghdad's National Museum of Antiquities has been ravaged - some suspect by international art traffickers.

Looters made off with statues, golden bowls, manuscripts and other treasures in the museum's collection chronicling ancient Mesopotamia, considered the cradle of civilization and modern home to Iraq. According to the museum's deputy director, who blames U.S. forces for refusing to prevent the plunder, at least 170,000 items were taken or destroyed.

Three members of the White House Cultural Property Advisory Committee have resigned to protest the looting. "The tragedy was not prevented, due to our nation's inaction," the committee's chairman wrote in his letter of resignation.

This looting was hardly unforeseeable. Prior to the outbreak of the current war, experts warned the Pentagon of the dangers to Iraq's cultural heritage posed by post-conflict pillage. The American Anthropological Association sent letters to President Bush and the Defense Department urging Bush to "use all means" to protect Iraqi cultural sites and institutions.

There was strong precedent to justify these fears. In 1991, at the end of the first Persian Gulf War, nine of Iraq's regional museums were looted by rampaging mobs opposed to Saddam Hussein's government. In all, about 4,000 items (including antiquities) were stolen or destroyed. Some were later smuggled out of Iraq, and by the following year, were turning up at art auctions and in the hands of dealers in London and New York.

The Coalition's failure to protect Iraq's cultural treasures is also a law violation.

Under the laws of war, the Coalition is specifically required to protect museums and other cultural property against damage.

Toppling the Saddam Statues Was Also a Violation of Law

Though it may surprise many observers, Coalition forces' participation in - and failure to prevent - the toppling of statues of Saddam also violated international law.

Of course, when regimes are toppled, their statues often quickly follow - a principle the end of Ceaucescu's in Romania exemplified. Statue-toppling comes in various forms - grass-roots uprisings, state-sponsored campaigns and outside invasions. Though it may be rhetorically powerful, it is also frequently illegal.

Granted, the Saddam statues are relics of repression. But they are also important symbols of repression that should be preserved for historical purposes - so that the Iraqi people will have evidence for future generations of their suffering and of the tyranny that existed. Surely these should be preserved as markers of darker times.

Such statues may also have economic value for Iraq. Think of the statues of busts of Lenin and Stalin from the former Soviet Union. It is not for the Coalition - or for mobs - to decide these statues' fate, but rather for the new government of Iraq to do so.

Failure to Act to Stop Looting May Hamper Future War Crimes Prosecutions

Finally, there is also the problem raised by the removal and destruction of Iraqi government official documents by looters. Such documents can serve as important evidence in the future for any proceedings against alleged perpetrators of human rights violations.

Similarly, vital information about Saddam's assets, or how the country was previously run, may be destroyed, to the detriment of the new government as it attempts to assess Iraq's assets, create a budget, and destroy or restructure the apparatuses Saddam created. Moreover, as with cultural artifacts, these documents have historical value and must be preserved for that reason alone.

In sum, international law compels Coalition forces to protect and preserve the property of Iraq - be it art, furniture, documents, crucial medical supplies, or oil - for the people of Iraq. Thus, it places a duty on Coalition forces - as occupiers - to promote security and the rule of law. Failing to fulfill this duty will set a bad precedent as Iraq transitions into a new phase.


Anita Ramasastry is an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology.

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