The Archeologists, the Military and the Law Some ‘Theor-ethical’ and Practical Considerations Patrizia La Piscopia, University College Dublin, Dublin, Ireland E-mail:
[email protected]
RESEARCH
Archaeologies: Journal of the World Archaeological Congress ( 2013) DOI 10.1007/s11759-013-9229-0
ABSTRACT
In less than a decade, archaeologists have seen the discipline increasingly entangled in the thriving dispute concerning the political and ethical responsibility the profession has to face, in the context of contemporary armed conflict. The recent western military interventions, in Iraq, Afghanistan and the Middle East, ensured many archaeologists and heritage professionals became more involved with military institutions. This trend was counterbalanced by the fact that other members of the academic community strongly distanced themselves from this professional choice, challenging their colleagues on ethical grounds. This paper will put the debate in a wider context, and analyse the issue from several angles, in-order to understand whether a new conceptual framework could be of help in the analysis of this ethical dilemma. The intention is to explore if, when, and under what circumstances, archaeologists should get involved with the military to protect cultural heritage. This exploration will start with the evaluation of some of the limits and contradictions intrinsic in the ideals behind international law. Then it will move towards more contextualized and politically dense considerations and give a closer look to some possible practical solutions. ________________________________________________________________
Re´sume´: En moins d’une de´cennie, les arche´ologues ont vu leur discipline s’embrouiller de plus en plus fre´quemment dans de vives querelles au sujet de la responsabilite´ politique et morale de la profession dans le contexte de conflits arme´s contemporains. Les interventions militaires occidentales re´centes, en Irak, en Afghanistan et au Moyen Orient, ont eu pour effet d’accentuer l’implication de nombreux arche´ologues et spe´cialistes du patrimoine avec les institutions militaires. Cette tendance e´tait contrebalance´e par le fait que d’autres membres de la communaute´ scientifique se sont clairement tenus a` l’e´cart de ce choix professionnel et ont mis en cause leurs colle`gues pour leur manque d’e´thique. Cet article replace le de´bat dans un contexte plus large et analyse le proble`me sous plusieurs angles, dans le but d’e´tablir si un nouveau cadre conceptuel 2013 World Archaeological Congress
ARCHAEOLOGIES Volume 9 Number 1 April 2013
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pourrait aider a` analyser ce dilemme moral. Notre intention est d’e´tablir si, quand, et dans quelles conditions les arche´ologues devraient s’impliquer avec l’arme´e pour prote´ger le patrimoine culturel. Cette recherche e´value d’abordun nombre de limites et contradictions inhe´rentes aux ide´aux qui sous-tendent le droit international. On passera ensuite a` des conside´rations plus contextualise´es et avec plus de substance politique, puis on examinera de plus pre`s quelques unes des solutions pratiques potentielles. ________________________________________________________________
Resumen: En menos de una de´cada, los arqueo´logos han visto a la disciplina cada vez ma´s enmaran˜ada en la creciente disputa relativa a la responsabilidad polı´tica y e´tica a la que la profesio´n tiene que hacer frente, en el contexto de los conflictos armados contempora´neos. Las recientes intervenciones militares occidentales en Irak, Afganista´n y Oriente Medio, aseguraron que muchos arqueo´logos y profesionales del patrimonio se implicasen cada vez ma´s con instituciones militares. Esta tendencia se ha visto contrarrestada por el hecho de que otros miembros de la comunidad acade´mica se han distanciado fuertemente de esta eleccio´n profesional, desafiando a sus colegas por razones e´ticas. El presente documento situara´ el debate en un contexto ma´s amplio, y analizara´ la cuestio´n desde diversos a´ngulos, con el fin de comprender si un nuevo marco conceptual podrı´a ser de ayuda en el ana´lisis de este dilema e´tico. La intencio´n es explorar si, cua´ndo, y en que´ circunstancias, los arqueo´logos deben implicarse con los militares para proteger el patrimonio cultural. Esta exploracio´n comenzara´ con la evaluacio´n de algunos de los lı´mites y contradicciones intrı´nsecos en los ideales detra´s de la legislacio´n internacional. Despue´s, avanzara´ hacia consideraciones ma´s contextualizadas y polı´ticamente densas y aportara´ una mirada ma´s estrecha a algunas posibles soluciones pra´cticas. _______________________________________________________________________________________________________________________________________
KEY WORDS
Ethics, Law, Armed conflict, Military, Cultural heritage _______________________________________________________________________________________________________________________________________
‘Let us welcome all those who, surmounting personal difficulties, casting aside petty selfishness, propel their spirits to the task of preserving Culture, thus insuring a radiant future’ said the Russian visionary Nicholas Roerich in 1947. As archaeologists and cultural heritage specialists how should we assure that Culture is preserved at the times it is most vulnerable? For a decade now, archaeologists have seen their discipline engaging in the discussion of the political and ethical responsibility that the profession has to face in the context of contemporary armed conflict.
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On one hand, the recent conflicts in Afghanistan, the invasion of Iraq, and more recently the NATO intervention in Libya, saw many western archaeologists and heritage professionals getting very close to military institutions, providing their expertise as advisors and consultants. On the other hand, this trend was opposed by the fact that other members of the academic community, strongly distanced themselves from this professional choice, challenging their colleagues on ethical grounds and openly rejecting the validity of the principles that inspired this sort of collaboration generating what Hamilakis has defined as the new ‘military-archaeology complex’ (2009). Recently, this debate has affected several professional fields, and as Albarella points out, other disciplines, among which the sister discipline of anthropology, had to face similar concerns and engage in a deep process of ‘soul searching’ (2009:111). This process led to the publication of numerous works (e.g. Lucas 2009; Network of Concerned Anthropologists 2009; Price 2010; Forte 2011); but also to the active engagement of professional associations like the American Anthropological Association which issued a series of documents and commissioned a detailed report on the ethical repercussions that the engagement of anthropologists with the military could have (AAA 2007; AAA CEAUSSIC 2009). Nevertheless, only a handful of archaeologist ventured into the marshes of this ethical dispute, while failing to engage the wider professional community in the discussion. Looting and destruction of cultural heritage are no longer making the headlines. Although NATO was recently involved in Libya and the situation in Syria is rapidly deteriorating, the imminence of a new western armed intervention does not seem to be capable of moving the professional audience as strongly as the Iraq invasion did. It is as if the emotional reactions of archaeologists towards the consequences of armed conflicts are fading away. Nonetheless, instead of waiting for a new crisis to resuscitate the debate it might be wise to keep the ‘soul searching’ process in motion to make sure that any professional decision that we will be taken in future will be guided by a strong sense of moral awareness, whatever that decision might be. Before starting this journey in what I called the theor-ethical realm, it is crucial to clarify that the intention here is not to find the ultimate answer to the moral dilemmas that are affecting the discipline. Quite the opposite, I am persuaded by Bauman’s idea that ‘‘a non-aporetic, non-ambivalent morality, an ethics that is universal and ‘objectively founded’ is a practical impossibility; perhaps also an oxymoron’’ (Bauman 1993:10). Nonetheless, this conviction does not act as a constraint used to justify a pure and negative relativistic attitude towards moral choices, attitude that would prevent both action and reflection. On the contrary, it stimulates a continuous inquisitive approach towards morally sensitive topics. This allows us, as
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individuals, to keep the attention focused on the belief that we are constantly engaged in the creation of our own personal moral value system, which is not necessarily composed by certainties and dogmas, but it evolves, and varies in time, according to the combination of our intellectual reflections, our personal background and the string of experiences generated by life; so that even universal principles of freedom and justice might acquire new meanings. Not many of those who speak about war and armed conflict have ever experienced it directly. In particular, many of us, young western academics, never had to face the violence of war. This was not the result of the fact that war was internationally eradicated, but simply the product of politics, games of power and international relations, that successfully managed to keep armed intervention away from our national borders. Inevitably, this has created a distance, between the reality of war, and the intellectual speculation that is generated around it. Though it is clear that debating about the importance of the moral choices related to the protection of archaeological sites and cultural heritage in times of conflict, does not imply a rational detachment from the context. In particular it does not imply indifference towards the brutality of war and the suffering that it brings about. It shows instead commitment and understanding of the fact that the destruction of cultural heritage during armed conflict has a diverse range of implications and repercussion, affecting people in a physical sense but also in a deep personal psychological sense (Barakat 2007:27), leading to the ‘material and spiritual impoverishment society concerned’ (Hladik 2011:188) and consequently to intense suffering (Prott 1995). We can only work within the limits of our professional capabilities and within those limits I believe that some positive action can and should be taken while being ‘politically aware and sensitive to the pain of the other’ (Hamilakis 2003:108). But also conscious of the fact that the value of cultural heritage is slowly surging to level of international human right (Thurlow 2005; Francioni and Scheinin 2008; Shaheen 2011; Blake 2011; Stone 2012b). It seems reductive to label the concern for the destruction as uniquely motivated by the ‘stewardship’ argument related to the desire to preserve a ‘fetishized record’ (Hamilakis 2003, 2007:31).
International Law: Dichotomies in Man-Made Conventions Overall, when it comes to war there seems to be wide consensus on the idea that humanity should find a way to solve disputes in a more sensible way, mainly engaging in true diplomatic efforts to avoid violent solutions. However, the twentieth century saw the creation of a system of
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international relations supported by the proliferation of treaties, laws and alliances that contributed to the creation of a more polarized idea of war. As Walzer puts it, our moral perception on war is established in the law in its duality because ‘‘we now have both a ban on war and a code of military conduct’’ (1978:41). On one hand, after WWI, numerous states drastically agreed on the ‘renunciation of war as an instrument of national policy’ (Kellogg–Briandt Pact 19281). As we well know, this expression of goodwill failed miserably. Though, the idea was never entirely abandoned, and the United Nations Charter (1945) partially reiterated the abjure of war2, which narrowly defined the circumstances that could justify an armed response (jus ad bellum). On the other hand, from the Hague Rules to the Geneva Conventions the body of International Humanitarian Law (IHL) kept growing, feeding and constantly amending, the corpus of the Laws and Customs of War (jus in bello); indirectly, declaring that: if war had to be, it should at least be regulated. This dichotomy between the jus ad bellum and the jus in bello is paradigmatic. The international community would like to ban war, but failing to do so it tries to regulate it in all its aspects and in particular, it tries to ‘humanise it’ using the law as support (Doebbler 2005:14). This ambivalence is probably at the base of the ethical dilemma that some archaeologists and heritage professionals had to face on the run-up to the Iraq invasion. The feeling that that conflict was arbitrary, unnecessary, illegitimate and disastrous was accompanied by the genuine desire to do all that was in their power to mitigate the damages. This generated the rupture between those who took a political stand and strongly stood against the ‘unjust’ war and those who inspired by the principles of International Humanitarian Law felt the responsibility of offering their professional advice, even if this meant to become directly involved in a conflict that frankly they did not want to endorse. The idea that ‘just wars can be fought unjustly and unjust wars can be fought in strict accordance with the rules is morally destabilising (Walzer 1978:21). For example, in the past, even the Red Cross was reproached because its attempt to ‘humanise’ war was seen as an instrument that sanctioned the moral acceptance of the use of force (Sandoz 1987:287). Nobody here wants to equate the work of the Red Cross to the work of cultural heritage experts in times of conflict, but this example illustrates how the line between what is considered right or acceptable, and what is considered morally wrong or counterproductive, can be extremely fine and disputable. When speaking of just and unjust war it is necessary to remember that international law does not define the ‘justness’ of a war, but it rather define its legality (Luban 1980:160). Certainly, to venture in the philosophical
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speculation on the aporia between law and justice is beyond the scope of this paper. However, it is crucial to acknowledge that in a number of instances, International Law has also become the ‘shield used by great powers to justify their imperialist claims and subsequent military actions’ (Krisch 2005). So how do we reconcile all these inconsistencies? If we disregard International Law as irrelevant, we are left adrift with no guidance, but our own personal moral framework. This could be sufficient for many, but for others the risk is to become inadvertently steered by dogmatic and ideological forces. If instead we believe that, as imperfect as it is, the Law is the ‘public expression of morality’ (Trigg 2005:59), then we can look at International Law to find some widely recognised principles that could serve us as guide, while cognisant this does not mean that we are losing sight of our critical spirit.
The 1954 Hague Convention as a Guide As professionals and citizens, most of us live in Western states, governed by democratically elected governments. In all of our Nations, from the apparently neutral to the openly imperialistic, organised armed forces are intrinsic components of the state. Their functions are numerous, and they are trained to execute their tasks in the most efficient way. Now we need to understand, to what extent the perception that some archaeologists have of the members of armed forces is affected by ideological biases and generalisations. As Teijgeler highlighted in a recent archaeological publication, the debate on collaboration and dialogue with ‘the military’, has been up to now quite biased and limited (2011:98). The joint American and British invasion of Iraq in 2003 was the incident that triggered the discussion and because of the rise of strong anti-war feelings, UK and US armed forces became ‘the military’, the evil entity engaged in a war of aggression, the ‘undemocratic’ tool of modern imperialism (Bernbeck 2008). Those legitimate ideological positions need to be contextualised, weary of the risks involved in generalisations. To distance oneself from the military component of a country that is about to wage a war that we deem ‘unjust’ is legitimate, and for some desirable. But if we reject the possibility of dialoguing with members of all armed forces in absolute terms, because of the role that they play in modern society, or because of the misuse that governments have done of them, then the risk is that, both as citizens and as professionals, we are also distancing ourselves from the positive values of International Humanitarian Law. In particular from the principles claiming that the jus in bello overrides the jus ad bellum, meaning that IHL will apply regardless of the ‘nature or origin of the armed conflict’ (Moussa 2008:963), a concept that brings us back to the destabilising idea that any
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war, even an unjust one could or should be fought ‘justly’, playing by the rules. As Francioni, reminds us the ‘protection of cultural property is part and parcel of humanitarian law’ (Francioni 2008:13). The 1954 Hague Convention for the Protection of Cultural Property in Times of Conflict, with all its limitations and imperfections, is the legal tool expressly designed to guarantee and safeguard cultural heritage in times of armed conflict. To discuss the details of the convention and of its two protocols outdoes the ambitions of this paper. However, narrowing the scope, and focussing on the article of the convention dedicated to Military Measures, it will be possible to understand how and where in the convention archaeologists and cultural heritage professionals were understood to come into the picture. I am referring to Article 7 of the 1954 Hague Convention, which is composed of two separate sections, both equally relevant to the current narrative.
Fostering a Spirit of Respect Art 7: Military Measures 1. The High Contracting Parties undertake to introduce in time of peace in their military regulations or instructions such provisions as may ensure observance of the present Convention, and to foster in the members of their armed forces a spirit of respect for the culture and cultural property of all peoples. Apparently, this first section of the article is the less problematic, but it probably implies more than it says. As today, many countries that signed and ratified the convention have included in their manuals and regulations, provisions dedicated to the protection of cultural property. Some of these provisions are also present in military manuals of countries that have not yet ratified the convention (See UK)3, and, in time, they have been raised to the level of Customary International Law (Francioni and Lenzerini 2006:38; O’Keefe 2006). However, we can agree that three lines in a manual or an hour lecture dedicated to the 1954 Hague Convention are certainly not sufficient to ‘foster a (true) spirit of respect’ in a national armed force. A range of initiatives was recently designed in order to overcome this deficiency in the context of army training. Didactic tools were designed; manuals written and targeted lectures were delivered to officers and soldiers (Rose 2007; Emberling 2008; Eugene 2008; Brown 2010; Rush 2010; Siedebrandt 2010; Wegener 2010a). Unfortunately, because of the current political climate, these initiatives, that in a different context might have
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received full appreciation and commendations, received instead intense criticism and opposition (Albarella 2009; Hamilakis 2009). These initiatives sprung from the disastrous impact that the 2003 invasion had on Iraq’s archaeological cultural heritage. It was in the aftermath of the looting of the National Museum of Bagdad, and of the sadly famous damages caused to the site of Babylon, by the construction of a military base within the site perimeter, that training tools and programmes were conceived and designed. Certainly, in this case, the attempt to foster some spirit of respect for cultural heritage came quite late, and those opposed to these programmes voiced their arguments, but one might say ‘better late than never’, and recognise that these efforts could be considered as the foundation for future integrated training plans. As previously mentioned, these controversial initiatives were promoted mainly by US professionals and for US troops, all this in a time of strong involvement of the US in conflicts of questionable legitimacy. To the ideologically trained eye these actions might appear suspicious and part of a propagandistic mechanism conceived by the US to regain support and credibility to the public eye. I am not denying that this might be the case. However, aware of the fact that this is a possibility, I believe that those programmes should be evaluated critically without simply dismissing them on ideological grounds. We should ask ourselves: What are the immediate and long-term consequences of those efforts? What kind of change processes did they set in motion? Are they truly inspired by the principle expressed in the first section of Article 7? If we ask ourselves these questions it is more difficult to cast a univocal and definite judgement. These initiatives certainly improved military awareness of cultural heritage matters at national level, but most importantly they managed to reach an international audience and keep the debate animated and current. Other countries also have troops deployed abroad, and each member of the UN sooner or later have provided these for peacekeeping missions. Considering that the majority of armed forces are composed of volunteers and reserve officers, it is critical to understand that the ‘lack of appropriate knowledge and assistance, constitutes one of the fundamental gaps for implementation of the provisions concerning the protection of cultural property in the event of armed conflict (Toman 2009:611). This concept is not new, in fact, while reviewing the 1954 Convention in 1993, Boylan wrote two important recommendations directed to the UN and to all members of the Convention, stressing the importance of adequate peacetime training (Boylan 1993:13–14). So, if we agree with this principle, should we promote some sort of peacetime engagement to try to find an effective way to ‘foster a spirit of respect’ for cultural heritage in all military? If yes how? Can those training tools developed in the US be adapted
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and productively exploited to expand the notion of care and protection through knowledge? Certainly, as professionals we are not acting in a vacuum and should not lose sight of the historical and political context in which we are operating. When national armed forces are about to engage in international interventions things get complicated, and moral choices become more radical. During peacetime, however, the ideological aversion towards men in uniform should be overcome, professional and political responsibility should prevail, and the commitment to the promotion of the principles expressed in the first provision of article 7 of the 1954 Hague Convention should not be demonised.
Specialist Personnel Art 7: Military Measures 2. The High Contracting Parties undertake to plan or establish in peacetime, within their armed forces, services or specialist personnel whose purpose will be to secure respect for cultural property and to co-operate with the civilian authorities responsible for safeguarding it. The vagueness of this second section of Article 7 generated confusion and prevented the delineation of a standardised modus operandi within armed forces. In this confusion, the ethical debate found fertile ground for opposing moral standpoints. This legal provision does not specify what these ‘services’ are and how this ‘specialist personnel’ should be integrated in the armed forces. Moreover, in the convention ‘the wording of the undertaking is so weak that a High Contracting Party could perfectly well decide that they need to do virtually nothing’ (Boylan 2002:72). This assumption is not far from reality considering that this provision, together with many other measures, was simply and for a long time ignored by the majority of the countries that ratified the Convention4. Nonetheless, in 2003, even though the US and the UK had not ratified the Convention, they were still bound by Customary International Law to respect and protect cultural heritage. Besides, they gradually became aware of the fact that any misconduct towards the Iraqi cultural heritage would have generated exceptionally bad press that would have undermined public support and opinion. Hence, during the planning phase of the Iraq invasion, and in its immediate aftermath, it became clear that some sort of personnel specialised in cultural heritage and archaeology should be consulted. Archaeologists and heritage professionals were contacted to advise the
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Coalition’s forces (i.e. Stone 2005; Teijgeler 2008); while, only in extremis, suitably skilled reserved officers were scouted amongst those deployed (i.e. Wegener 2008, 2010b; Bogdanos 2005, 2008; Kila 2012). As mentioned above, the collaboration between archaeologists and invading forces inflamed the debate, amongst those opposing this cooperation, were Hamilakis and Albarella, who not only condemned the use of force against Iraq, but also vehemently opposed the idea of academics undertaking advisory roles for the military denouncing the ‘depoliticisation’ and ‘professionalization’ of archaeology’ (2005; 2009). The complete and utter repulsion for war emerged from their critique. Over simplifying their words, one might say that, even if on strong theoretical bases, they contended the immorality of all sort of cooperation with the armed forces of any country that is about to wage an illegal and unjust war. Even more extreme is the position of Orra Mourad who, in her chapter of the book Culture and Capitalism, makes use of defined legal terms without supporting her claims with proper legal arguments, to affirm that we should’ dissociate ourselves from the agents of war: otherwise our involvement with such agents would imply a status shift from civilian to combatant’ (2007:153). This last point of view is certainly the most extreme, where the author inappropriately used the legal concept of ‘status’ to coat an ideological and ethical opinion5. However, no matter what the arguments are, these radical positions bring us back to the personal, moral and legal ambivalence between the jus ad bellum and the jus in bello. From these ideological barricades one can deduce that, as individuals we can be grouped according to our moral inclinations. On one side, the utopian who believe in peace, and are ready to protect it at any cost, they could be termed ‘Kellog–Briandt people’; and on the other side, the realists who believe that while war is deeply rooted in the bellicosity of human nature, they are ready to take action to minimise damages, the ‘IHL people’. A third category could possibly be envisaged, composed of those who place themselves on an intermediate footing, feeling that they are ready to take action only if they believe the conflict is ‘just’. Undoubtedly, this division is extremely partial and superficial; nevertheless, it helps us comprehend that it is only by abandoning all ideological radicalisms that it becomes conceivable to grasp the theor-ethical legitimacy of all positions. Only by overcoming these idiosyncrasies will it be possible to build an acceptable frame-work that could allow states to comply with the provisions of article 7, while protecting the moral integrity of the professionals involved in the process. As Wegener asserts, those who refuse to cooperate with the military on ethical grounds might provide an ‘excuse for military planners to downplay cultural property concerns’ (2008:165); her opinion and concerns are supported by first-hand experience. However, the same argument as presented
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by Kila, dismissed the ethical concerns of those who experienced moral dilemma, as ‘invented’ or ‘irrelevant’ issues (Kila 2010:57). This attitude seems more obstructive than constructive and through adopting this kind of approach, the divide between opposing positions will only be magnified, and all hope of establishing productive communication will be hindered. For instance, those who favour cooperation between archaeologists and the military tend to use IHL as a shelter. For example, Kila affirms that ‘if all Parties adhere to the legal framework provided by The Hague Convention, then there should be no ethical problems. It could even be argued that ignoring the resolutions and suggested cooperation as outlined by IHL is itself unethical’. Though, to the eye of a legal novice it seems that that the 1954 Convention encourages collaboration between the military and the civilian authorities, and focuses on the relationships that should have been forged during peace time, and not on the eve of war. This small detail is not insignificant and should be considered when discussing cultural heritage protection in times of war. Certainly, each phase of an armed conflict, which includes a peace-time planning phase and the peri- and post- conflict phase, presents its own distinct and diverse legal and ethical challenges. Stone defines these phases in the context of a new approach to cultural property protection, called the ‘4-tier approach’ (2012a). While Stone’s paper is important for its pragmatic approach to the problem, a lot still need to be analysed in relation to the different legal and ethical implications related to each of these ‘tiers’. If we really believe that IHL should the pillar of our moral code, we should ask ourselves: Why were peacetime measures widely ignored? Why did Western powers realise they needed experts when it was too late? And what does it exactly mean, that countries should have within their armed forces, personnel specialised in the protection of cultural heritage? Can we play a role in implementing these measures? Do we want to? If yes, how? Now that the tones of the Iraq crisis have faded, it should be possible lo look ahead and discuss these issue in a constructive way. Surely, lobbying to convince governments to ratify the 1954 Hague Convention is critical. Although, if the ratification is not followed by a real commitment for an effective implementation process, the Convention will simply be ineffective and remain another piece of paper in a drawer. If instead, peacetime measures become a priority for all those who are willing to improve the protection of cultural heritage in times of conflict things might change. At UN level, for instance, a UNESCO document clearly summarises this concept stating that the ‘protection of cultural heritage should always be clearly included in the tasks of UN Peace-keeping missions as part of humanitarian aid […] since the principles of the Hague Convention are part of International Humanitarian Law (UNESCO 1994:10). If in each country, and in particular at UN level, some form of long-term awareness training for the
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military was institutionalized that would mean that the first step to foster a ‘spirit of respect’ for the culture and cultural heritage of all peoples, had been taken. Unfortunately, political choices might resolve to employ military forces in active conflict, self-defensive actions, occupations, or humanitarian intervention. In all these instances, and whenever the military are engaged in operations outside the national borders, they would still have to act according to the principles of IHL and therefore respect and protect cultural heritage, to avoid any criminal responsibility. To accomplish this task effectively, the military might need several things: some professional advice to generate maps detailing the location of culturally sensitive sites (no-strike lists); a more targeted form of training that should take place during the pre-deployment phase but also experts to be deployed in theatre (Stone 2012a). In this phase, once the intervention is signed off, and the public opinion is informed of the political reasoning behind the decision, a moral dilemma can arise in those scholars and professionals invited to collaborate with the military, personal considerations related to the legitimacy of the military action are unavoidable and will inevitably inspire different decisions. There are three available options; inflexible/obstinate refusal of all cooperation with the armed forces, full cooperation with no questioning, or a case by case decision, taken in accordance with ones political conviction and moral instinct. For some reason, it appears that within the professional community there is a need to define which one of the above mentioned approaches is ethically correct so that it could be commonly supported. In order to codify best practice when ‘lightening the burden of the moral choice’ for archaeologists, Teijgeler (2011:99), suggested that full cooperation should only be given when military operations are legitimately sanctioned by an international body. This suggestion is extremely coherent and rational; nonetheless, if such a proposal becomes an integral part of a professional code of conduct, it would create several inconsistencies. Somehow, to set a code of conduct that considers it ethical to only engage in legitimated conflict, would prescribe an action of deliberate discrimination; a distinction between the cultural heritage of those countries or communities that are legitimately attacked, and that of those who were unprovoked. Strangely, those who deliberately instigated an attack would be assured protection for their cultural heritage, while the same level of protection would be denied to those facing illegitimate acts of territorial aggression. This is a paradoxical example, but could nonetheless lead to the conclusion, that it is more advisable to train units of specialised soldiers in peacetime, who are ready to be deployed under any circumstance. A positive example can be found in the specialised Italian Carabinieri unit dedicated to the protection of cultural heritage (Nucleo Operativo Tutela Beni Culturali). This highly qualified police are part of a militarised system, and its members are accepting the compromise and moral implications of the choice
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they have made of wearing a uniform. This could be an efficient way of overcoming the difficulties linked with the integration of civilian experts in military ranks who may encounter policies or mandates with which they do not agree politically (Cuneo 2010) and therefore hinder the efficacy of cultural property protection policies. A different moral standpoint is adopted by Bernbeck (2008), who is moving away from the idea of developing a code of conduct. In principle, he has little hope in the fact that, once trained, military master-minds can start caring about cultural heritage in the event of an active conflict, and he does not welcome the involvement of archaeologists and academics with the military; but, on the other hand, he is contemplating the possibility of establishing neutral and independent organisations that could act as advisory bodies to the warring factions. The neutrality of such organisations and their ability to talk to all parties of a conflict should play a central role in assuring that cultural heritage protection is promoted without the risk of seeing it exploited as a propaganda tool. Bernbeck’s position is sharp and indisputably constructive; however, considering the changing nature of modern conflicts, where the actors are not exclusively states, but various factions, tribes and groups, it appears that even if this kind of institution existed it would have to face innumerable difficulties in-order to sustain neutrality and its ability to advise all parties. Moreover, such organisation would need to be financially supported by donors or governments, and given the current recessive climate; it is improbable to convince States to commit to further financial obligation without bringing any direct political advantages. These concerns are not raised to deny the validity of Bernbeck’s idea, but to stress the fact that his answer could only be considered as a longterm solution. The creation of third party institutions is laudable but this ambition should not stop us, and our countries, from implementing the provisions contained in Art.7 of the Convention. The commitment in the creation of military corps specialised in cultural heritage protection within national armed forces should not be seen merely as a new tool to ‘win the hearts and minds’ in the case of an armed conflict, but as a national resource that could efficiently intervene also in peace-time to protect cultural heritage in the case of man-made or natural disasters.
Conclusions It was stated that in the advance of armed intervention, advice is needed by the military in the form of no-strike lists, pre-deployment training and specialised personnel. All these elements would minimise the impact of the conflict on cultural heritage, yet no agreement has been reached on how to overcome the ethical dilemmas arising from these practical issues. For many, morality may
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supersede the law, and as individuals we should recognise our freedom of choice and use it in a responsible way (Trigg 2005:59). However, considering the authors opening statement that opposed a universal absolutistic idea of morality, I believe in-order to reconcile contrasting positions, both the idealists and the pragmatists, should give their opponents the benefit of the doubt, as a moral act is a complex, composite and certainly non-static event. Each moral decision is influenced by a variety of factors and it is inherently personal; therefore, it is exceptionally difficult to ascertain its value. A moral act is more than the ‘act’ itself, behind it there are the reasons and intentions that moved it, and it is followed by short and long-term repercussions at both a local and global level. As Hamilakis (2007:24) stressed, the important question should be ‘‘who will benefit?’’ Again, there is no clear-cut answer to this question. The military could benefit, our government might benefit, our career can get a push, local communities could profit, and hopefully cultural heritage too? So, perhaps the question we should ask is ‘‘who and what are we doing it for?’’ As discussed, the complexity of the current international situation poses several problems for the research of an ethically sustainable solution. The dilemmas that we are asked to face are numerous, and to find a univocal answer might be unachievable. Do we stand back and come forward only when we can openly criticise failures and disastrous decisions? or do we become conscious protagonists risking to be perceived as accomplices? Personally, I tend towards a critical but proactive approach. By assuring that international armed forces respect the law I do not feel that I am taking part of the process of legitimization. I believe instead that to foster ‘respect for cultural heritage is an essential element in respect for human dignity’ (Blake 2011:202). However, each individual choice should be respected and should only be judged on a case-by-case evaluation of the situation. The 1954 Hague Convention, its Protocols, and the HIL in general are offering some parameters but ‘paradoxically this convention is so badly needed because it is not respected’ (Dolff-Boneka¨mper 2010:15). This paper is far from offering a comprehensive critical review of legal issues. On the contrary, the law, and in particular Article 7 of the Convention, are simply used as an instrument to introduce and support practical and theor-ethical considerations related to the difficult relationship between the military, archaeologists and cultural heritage professionals at large. When thinking of cultural heritage and armed conflict I concur with Silverman and Ruggles when they affirm that ‘it is not enough for things and monuments to exist on a landscape’ (2007:12). But it is unquestionable, that when the same things and monuments are gone because they were damaged or destroyed by a foreign military force, it would be difficult for local communities to claim them as patrimony, thereby ensuring their right to memory is lost forever. This why we should keep an open door in this debate.
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Notes 1. Full text available at: http://www.yale.edu/lawweb/avalon/imt/kbpact.htm [Accessed April 2012]. 2. Full text available at: http://www.un.org/en/documents/charter/ [Accessed May 2012]. 3. http://www.icrc.org/customary-ihl/eng/docs/v2_cou_gb_rule39 [Accessed March 14, 2012]. 4. Austria is one of the few examples of a signatory country that in peace time fully compelled with the provisions of the 1954 Hague Convention. See: Micewski, E. R. & Sladek, G. (Eds.) (2002). Protection of cultural property in the event of armed conflict. A challenge in peace support opertions, Vienna, Austrian Military Printing Press, Schipper, F. T. & Eichberger, H. (2010). The protection of cultural property in the event of armed conflict: the Cultural Property Protection Officer as a liaison between the Military and the Civil Sector. 5. For a legal definition of the status of combatant see the ICRC database on Customary IHL, available at: http://www.icrc.org/customary-ihl/eng/docs/v1_ rul_rule3 [Accessed May 10, 2012].
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