Friday, January 20, 2012

Significance of Saddam's Buttock as Cultural Property

The Guardian has reported that a 66-year-old man was arrested in the U.K. based on the importation of a buttock from a statue of Saddam Hussein in purported violation of the U.K.'s 2003 Iraq Sanctions Order prohibiting the import of "Iraqi cultural property."  The interpretation of the law, if accurately reported, is also relevant to the question of whether captured Iraqi Ba'ath party records should also now be considered "cultural property."

The full title of the U.K. legislation is "The Iraq (United Nations Sanctions) Order 2003." It incorporated U.N. calls for restrictions on the importation of Iraqi cultural property referenced in Security Council Resolution 1483 from May 2003 (which also recognized the U.K. as a joint occupier of Iraq with the U.S.) into the U.K.'s domestic law.  Both the Security Council Resolution and the U.K. Iraq Sanctions Order refer to "Iraqi cultural property" and other items "of archaeological, historical, cultural, rare scientific, and religious importance illegally removed" from Iraq.

In 2003, however, neither the CPA nor the United States treated statues of Saddam Hussein as cultural property.  If they had been cultural property, U.S. involvement in the episode at Firdos Square (and others like it) might have constituted violations of international humanitarian law. Why weren't the statues treated as cultural property?  One argument is that, because they were powerful ideological symbols of the Ba'ath regime, different rules applied.

Coalition Provisional Authority Order Number 1 "De-Ba'athification of Iraqi Society," for example, expressly prohibited "Displays in government buildings or public spaces of the image or likeness of Saddam Hussein" on the basis of an assertion of a "grave" threat to "Iraqi society" posed by Ba'ath party networks" and "the intimidation of the people by Ba'ath Party officials."  Another potentially colorable argument is that, even if the statues were cultural property, removing symbols of the former regime was justified by military necessity in order to prevent any Ba'ath Party resurgence.

Some Ba'ath party documents were treated similarly in 2003. Human Rights Watch noted, for example, that in Basra British officials:
publicly stated that they allowed the looting of Ba'ath party buildings, which house important archives, as a means of showing the population that the party had lost control of the city.
As I mentioned in an earlier article, whether Iraqi Ba'ath party documents should have been considered cultural property during the 2003 invasion could depend on a number of factors including whether Iraq was treating them as such (compare, for example, Ba'ath archives within the Iraqi National Archives with those in recently active government offices).  Regardless of what the answer to that question was in 2003, however, if the U.K. government is now taking the position that statues of Saddam have ripened into cultural property, it raises similar questions for various collections of captured Iraqi documents.  Have the 48,000 boxes of documents seized by U.S. forces in Iraq, for example, become, with the passage of time, archives constituting cultural property while sitting in a military warehouse in Qatar?

For more on the historical treatment of "ideological cultural property" see Duane M. Thompson's excellent thesis at p. 94 (comparing the treatment of Nazi cultural property) and for more on the destruction of Baathist property, see Benjamin Isakhan's "Destroying the Symbols of Baathist Iraq" and his longer article on the topic "Targeting the Symbolic Dimension of Baathist Iraq: Cultural Destruction, Historical Memory, and National Identity," behind a paywall here.