Robert Bejesky


Three weeks after the U.S.-led attack on Iraq, looters descended on the artifacts in the Iraq National Museum. Over ten thousand pieces were assumed destroyed or stolen, and the Coalition Provisional Authority estimated the losses at $12 billion. The gravity of the privation led the Security Council to include language in Resolution 1483 to restrict countries from trading in Iraq’s pillaged antiquities, and the U.S. Congress passed the Emergency Protection of Iraqi Cultural Antiquities Act of 2004 to enforce the measures. Several thousand pieces were recovered, but thousands remain missing. In March 2013, Hussein ash-Shamri, the head of the Iraqi Interior Ministry’s Economic Crimes Department, announced that Iraq opened 39 cases against countries to investigate circumstances surrounding the missing archaeological treasures to procure their return.

This article tenders a suppositional analysis of culpability for the pilferage of the artifacts. Culpability standards are first assessed by using Part II’s précis of the substantive international law that safeguards antiquities. Part III provides a factual chronology of the looting to address the responsibility of Iraqis who engaged in looting after law and order collapsed and the obligations of invading/occupying military forces during the stages of jus ad bellum and jus post bellum. The Iraqi government presumably would prefer an equitable remedy that facilitates the return of missing artifacts if the items are located and identified; this would implicate any state that failed to halt black market trades. However, if items are certified as missing and cannot be located within a reasonable period of time or were destroyed during the looting, should there be a right to recover damages against actors who transgressed substantive law and impelled the sequence of events into motion that led to losses? Considering this prospect, Part IV offers a conjectural analysis of liability. It is hypothetical because the Iraqi government may have divided political will (which might necessitate a qui tam-like public interest action), it is novel to pierce the veil of official immunity in the context posed, the analysis extrapolates offenses that have previously eliminated official immunity for war crimes and crimes against humanity in a tort-like derivative civil action, and the inquiry entails pitting factual analyses against heuristics and the presumption that collateral losses can be absolved if ends justifies the means.