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The Preservation of Art and Culture in Times of War The Oxford Series in Ethics, National Security, and the Rule of Law Series Editors Claire Finkelstein and Jens David Ohlin Oxford University Press About the Series The Oxford Series in Ethics, National Security, and the Rule of Law is an interdisciplinary book series designed to address abiding questions at the intersection of national security, moral and political philosophy, and the law. It seeks to illuminate both ethical and legal dilemmas that arise in democratic nations as they grapple with contemporary national security imperatives. The series also seeks to create a synergy between academic researchers and practitioners as they focus on common problems in national security theory and practice. The aim of the series is ultimately to advance thinking about how to protect and augment the rule of law in the context of contemporary armed conflict and national security. The book series grew out of the work of the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania. CERL is a nonpartisan interdisciplinary institute dedicated to the preservation and promotion of the rule of law in twenty- first century warfare and national security. The only Center of its kind housed within a major research university, CERL draws from the study of law, philosophy, and ethics to answer the difficult questions that arise in times of war and contemporary transnational conflicts. The Preservation of Art and Culture in Times of War Edited by CLAIRE FINKELSTEIN, DEREK GILLMAN, AND FREDERIK ROSÉN 1 3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2022 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-i n- Publication Data Names: Finkelstein, Claire, editor. | Gillman, Derek, editor. | Rosén, Frederik, editor. Title: The Preservation of Art and Culture in Times of War / Edited by: Claire Finkelstein, Derek Gillman, and Frederik Rosén. Description: New York, NY : Oxford University Press, [2022] | Series: Ethics national security rule law series | Includes index. | Identifiers: LCCN 2021033612 | ISBN 9780197610565 (hardback) | ISBN 9780197610589 (epub) | ISBN 9780197610572 (updf) | ISBN 9780197610596 (online) Subjects: LCSH: Cultural property—P rotection (International law) War (International law) Classification: LCC KZ6535 . P74 2021 | DDC 344/. 094— dc23 LC record available at https://l ccn.loc.gov/ 2021033612 DOI: 10.1093/ oso/ 9780197610565.001.0001 1 3 5 7 9 8 6 4 2 Printed by Integrated Books International, United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com. Table of Contents Preface vii Acknowledgments xiii List of Contributors xv List of Abbreviations xix Introduction: Cultural Heritage and Armed Conflict: Preserving Art While Protecting Life 1 Frederik Rosén PART I. THE VALUE OF CULTURAL HERITAGE 1. Preserving Valuable Objects and Sites, in Times of War and at Other Times 25 Derek Gillman 2. The “Cultural Turn” and the Reconstruction of Heritage 53 Helen Frowe and Derek Matravers 3. Mission Impossible: Weighing the Protection of Cultural Property against Human Lives 70 Frederik Rosén 4. Weaponizing Culture: A Limited Defense of the Destruction of Cultural Heritage in War 97 Duncan MacIntosh 5. The Concept of Cultural Genocide 129 Martin Hamilton PART II. LEGAL AND SECURITY ASPECTS OF CULTURAL HERITAGE PRESERVATION 6. Combating Illicit Trade in Cultural Objects to Defend Peace and Security 161 Kristin Hausler and Andrzej Jakubowski vi Table of Contents 7. Cultural Property Protection in the Context of Counter Terrorist Financing: An Emerging Legal Paradigm 186 Ricardo A. St. Hilaire 8. Non-Party Obligations for Cultural Property in Armed Conflict under the 1954 Hague Convention, Protocol II 225 Elizabeth Varner 9. The International Criminal Court and Cultural Property: What Is the Crime? 239 Mark A. Drumbl 10. Training for Cultural Property Protection 275 Laurie W. Rush PART III. HEALING THE PAST: REPATRIATION OF STOLEN ART AND CULTURE 11. Wartime Loot in American Museums: Lessons from the Museum of Fine Arts, Boston 309 Victoria Reed 12. Nazi Looting and Internal and External Colonial Plundering: Differences in Responses 348 Jos van Beurden 13. Syrian and Iraqi Opinion on Protecting, Promoting, and Reconstructing Heritage after the Islamic State 385 Benjamin Isakhan and James Barry 14. The Geopolitical Context of Cultural Heritage Destruction 414 Carsten Paludan- Müller Index 447 Preface On February 24, 2022, Russia invaded the sovereign nation of Ukraine, and for a third time in the past century, Europe was plunged into war. As of the time of this writing, the conflict between Russia and Ukraine rages on, with few signs that the conflict will abate any time soon. The inability of the Russian military to swiftly take control of Ukrainian territory, unlike when Russia invaded Crimea in 2014, has been due in part to a forceful international response in defense of Ukraine. Vladimir Putin’s evident frustration with the ineffectiveness of the Russian military campaign turned quickly to a punitive stance toward Ukraine: If Ukraine will not be part of Russia, it must cease to exist. The result has been a criminal campaign against the Ukrainian people, against Ukrainian life, against the Ukrainian language, and against anything that would signify that Ukraine is a separate country with a distinct history and culture of its own. This book was originally inspired by a similar campaign against culture waged in the Middle East during the Global War on Terror. As we commem- orated the twentieth anniversary of that war during the fall of 2021 and the impact of twenty years of war on all aspects of the international security envi- ronment, we were reminded of the degree to which wars of aggression are all too often attacks on culture, on a way of life that is anathema to the attackers. And in that sense, the campaigns waged by the Taliban, Al Qaeda, and later the Islamic State of Iraq and Syria (ISIS) achieved at least part of their object- ives. In the space of a few short hours, starting in the early morning hours of September 11, 2001, U.S. culture was transformed dramatically and irrevo- cably: the United States pivoted from focusing on how to avoid international armed conflict with rogue nations to an overwhelming focus on fighting non-state actors waging a jihad against not only Western democracy, but liberal culture as well. Ironically, the United States and Western Europe have now come full circle. After more than two decades learning how to fight violent non-state actors, we are once more honing our skills on the challenges of international armed conflict. Twenty years of fighting Middle East terrorism, however, has revealed the complexity of armed conflict against violent non-s tate actors on many levels, viii Preface especially against the backdrop of profound differences in culture, both between East and West, but also among the many different cultures and religious communities within the Middle East. In a world in which tolerance is not a value, ideological differences present an existential threat to one’s own way of life. It is not by accident that Al Qaeda chose to target the World Trade Center— the ultimate symbol of capitalism and economic might—a s part of its aim to reject American hubris and cultural supremacy. But it also why in 2001, Mullah Muhammad Omar, the leader of the Taliban, issued a de- cree ordering the elimination of all non- Islamic statues and sanctuaries in Afghanistan, including the famous Bamiyan Buddhas. The destruction of the Bamiyan Buddhas was an iconic act that came to symbolize the sheer brutality and intolerance of the Taliban almost as much as their intentional destruction of human life. Similar to the attack on so- called “degenerate art” on the part of the Nazis, or the burning of thousands of books, the destruction of the Buddhas became a symbol for the lack of humanity that characterized the Third Reich. Fortunately Nazi greed and the desire to ridicule German intellectual and artistic life led the Nazis to pre- serve, rather than destroy, some of the finest visual art of the twentieth century, though the art was separated from their rightful owners, often never the be returned to them or their descendants who sought the return of their property after the war. Similarly, ISIS’s plunder of Syria and Northern Iraq of its great treasures to provide funding for their murderous activities des- troyed cultural heritage in another way— by destroying archeological areas and separating objects from the cultures and contexts that were their intended homes. Attacking culture has been a part of war for as long as there has been military conflict, just as controlling religious and cultural practices and places has been a preferred tool of political repression and a challenge to individual autonomy since time immemorial. As the German poet Heinrich Heine wrote in 1823, “Dort wo man Bücher verbrennt, verbrennt man auch am Ende Menschen.”1 The greatest challenge the West has confronted in the face of this war of ideology is how to address the threat posed by illiberal worldviews that pro- duce violent extremism, while adhering to the rule of law that forms the core of western liberal culture. How do we fight a violent jihad oriented towards the destruction of our way of life, against an enemy that seemingly knows 1 “There where books are burnt, so too in the end shall men burn” (trans. mine). Preface ix no legal constraints, without losing our own integrity and humanity in the process? Thus far the United States and its allies have failed to answer this question. What should be clear is that addressing the challenges posed by the preservation of art, culture, and artistic expression in other cultures in the context of armed conflict is a critical part of that integrity. A substantial body of international and domestic laws prohibit the destruction and misappropriation of cultural heritage, but achieving global adherence to those laws is a significant challenge. In a deeper sense, the protection of cultural heritage is also the protection of a critical human right, a right that some regard as more precious than life itself. The UN Universal Declaration of human rights recognizes cultural and artistic rights as an aspect of personal freedom. Article 18 recognizes “the right to freedom of thought, conscience and religion.” Article 19 recognizes “the right to freedom of opinion and expression,” which includes the “freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media . . .” Article 22 talks about “cultural rights in- dispensable for . . . dignity and the free development of . . . personality,” and Article 27 recognizes “the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” These provisions sit uneasily with the libertarian orientation of the Anglo- American approach to liberty, which sees liberty as “freedom from,” rather than “freedom to,” as Isaiah Berlin once wrote. At the same time, the United States in recent years has experienced a cultural revolution in its rela- tionship to its own past, particularly relating to its shameful glorification of figures from the Confederacy, such as Robert E. Lee, the general who led the South’s military insurrection against the Union, and whose statute, image, and name one could find, until very recently, adorning the public spaces or educational institutions of numerous Southern towns and cities. Consistent with this was the conspicuous presence, until very recently, of Confederate flags flying next to the American flag in front of the state houses of so many American cities in the South. In the North, it was common to find tribute paid to many figures who are becoming increasingly controversial, such as Thomas Jefferson, who fa- mously owned slaves and even impregnated one of them, Sally Hemmings; or Christopher Columbus who has come under new scrutiny as a purveyor of prejudice and cruelty against indigenous peoples. Even Woodrow Wilson has been demoted from his vaunted position in US educational institutions, with the result that statues have been removed and schools renamed