On Sunday, January 5, President Donald Trump tweeted that the United States has identified 52 sites including, “some at a very high level & important to Iran & the Iranian culture.” as potential targets in case of Iran retaliating the killing of it’s General. The president repeated the threat Sunday on Air Force One, saying, “They’re allowed to kill our people, they’re allowed to torture and maim our people … and we’re not allowed to touch their cultural site? It doesn’t work that way.”
A day later Secretary of Defense Mark Esper (a retired Lt Col) directly pushed back on President Trump’s repeated threats to bomb Iranian cultural sites, telling the press that the US military “will follow the laws of armed conflict” that prohibit attacking civilian, cultural, and religious sites that have no military value.
This very important, not so subtle contradiction of Trump’s Twitter brinkmanship, is a striking break between the Pentagon’s top official and the nation’s commander-in-chief. One important thing to note is that Esper while being Trump’s minister of defence is also an ex-soldier who knows what probably Trump doesnt know- that Article 90 of the Uniform Code of Military Justice makes it clear that all members of the military have a duty to disobey any illegal or unlawful orders.
Esper also knows that according to the Rome Statute, Art 8(2)(e)(iv, intentionally directing attacks against buildings dedicated to religion, education, art, science, or charitable purposes, and historic monuments, provided they are not military objectives, is a war crime. Esper wanted to make it clear to any US military officer and soldier that they have a duty not to obey such orders.
He also knows that as an adviser to Trump he needed to frankly make Trump understand the consequences of his intended actions. Not surprisingly, on Tuesday, probably as a result of advice by military top brass, the secretary of defence and military lawyers, Trump tactically backed off threat to attack Iranian cultural sites, saying “the administration is “supposed to be very careful with [Iran’s] cultural heritage.
And you know what, if that’s what the law is, I like to obey the law. But think of it: They kill our people, they blow up our people, and then we have to be very gentle with their cultural institutions. But I’m OK with it.”
Now, what does the Law of War say about protection of Cultural Property during war. The main IHL treaties regulating the protection of cultural property are the Convention for the Protection of Cultural Property in the Event of Armed Conﬂict, The Hague, May 14, 1954 [H.CP], and its two protocols: Protocol for the Protection of Cultural Property in the Event of Armed Conﬂict, The Hague, 14 May 1954 [H.CP.P.I]; and Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conﬂict, The Hague, 26 March 1999 [H.CP.P.II]. Under international law CULTURAL PROPERTY includes places of worship, institutions dedicated to religion, charity, education, the arts and science, historic monuments and works of art and science.
In Iran, there are two dozen UNESCO World Heritage Sites, 22 of them cultural ones. The sites represent religious, economic, architectural and social achievements and history throughout Iran.
Now are there lessons for Nigeria even as the event is happening far way from Nigeria? Yes there are. It is important to note here that Nigeria is a Party to all IHL treaties on the protection of cultural property and our military men are obligated to obey all the provisions therein. Fortunately, some guidance /doctrinal publications for the Nigerian military include provisions on the protection of cultural property during war.
For example, the Nigerian Army Handbook on International Laws Guiding the Conduct of Operations (2017) has made adequate provisions regarding this issue.
Section 6.4.14 of the NA Handbook says “Cultural property is protected by international law. Each party to a conflict has obligations with regard to cultural property, and attacks against cultural property are restricted…..adding that it is prohibited to: attack historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; to use such objects in support of the military effort, and to make such objects the object of reprisals (IAC).
Section 9.7.8 also states that “It is prohibited ‘to commit any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to use them in support of the military effort’.” We need to constantly remind our military personnel of these provisions in the various courses they attend.
There are also duties applicable in peacetime with regards to protection of cultural properties. Under laws of war, some IHL obligations also apply in peace, i.e., even when a state is not engaged in an armed conflict. For example, States must: take appropriate measures to prepare for the safeguarding of cultural property like for example the Federal Ministry of Culture here in Nigeria is expected to display on all Nigerian cultural property a distinctive emblem consisting of a blue and white shield.
The last and to me the most important lesson is this: When the president and commander-in-chief without seeking expert advice, goofs on military or legal matters, it is a duty of the military and legal advisers to instantly and honestly bring the issues to the President’s attention not only to save the country but also to save the president from embarrassment, legal inconveniences or historical damnation.
On this issue of cultural property, Trump who is ignorant, has been duly informed and opposed by those who know and he made a tactical withdrawal thus saving the country from embarrassment and saving US military personnel from committing war crime.
Group Captain Shehu is a retired military officer and consultant on law of armed conflict.