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Bona Fide War Booty?

Marla Means
LIS 688, Jennifer Motszko
19 June 2014
Bona Fide War Booty?: Stolen vs. Taken and the Ethical Issues Surrounding the U.S.
Seizure of Iraqi Documents
In 2003, The Iraqi Jewish Archive experienced fires, looting, and a sewage-related flood
causing substantial damage to their collection; and with the Iraq War going on, United States
(U.S.) troops worsened the situation by seizing millions of documents with debatable intensions.
Michelle Caswell briefly details the damage done to Iraqi property, stating, In the wake of the
2003 U.S. invasion of Iraq, libraries, archives, museums, and other cultural heritage sites were
targets for violence and looting. The Iraq National Library and Archives was set on fire, the Iraq
National Museum was ransacked, and countless collections of cultural property were burned or
stolen (212). Because most of the looting was done by U.S. soldiers, the Society of American
Archivists (SAA) and the Association of Canadian Archivists (ACA) wrote a joint statement
demanding repatriation of the documents and cited international laws of the protection of
documents during wartime. The U.S. has yet to return the documents, also citing international
laws of protection in order to keep custody of the documents. The U.S. claims that the documents
were taken while Iraq claims that the records were stolen, thereby making the official status
of the documents seized (Spurr 30). This situation raises a multitude of ethical issues from
both parties, national versus international interests, ambiguous legal protocols, and Iraqi national
identities; all of which lead to the conclusion that the seized documents should be repatriated to
Iraq immediately.

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The ethical issues surrounding the seizure of Iraqi documents begin with the U.S.
establishing the Iraq Memory Foundation (IMF) with the Hoover Institution at Stanford
University. The IMFs website brags a collection ofapproximately 3.0 million pages gathered
from Baath Party Regional Command Headquarters in Baghdad following the fall of Saddam in
2003 (Caswell 217). The SAA and the ACA asserted that this enormous archive was illegally
obtained from the Iraqi people, but the IMF denied their statement and released a statement of
their own saying their position has consistently been that we hold the documents in our custody
on a trust basis, and that we derive our mandate for custodianship from the elected government
of Iraq (Caswell 217). The establishment of the IMF remains a political and financial gain for
the U.S., an ethically wrong decision. This unethical gain combined with the fact that the IMF
does not deny the illegal possession, but insists on a trust basis and an unnamed branch of the
Iraqi government undermines Americas argument of legal seizure.
What sends this already rocky situation down an even more slippery slope is the
condition of the documents. Technically, the U.S. has preserved and protected these documents,
even though they did not do it legally. In fact, the minister of culture in Iraq, Akram M. Hadi,
expresses his absolute rejection of the MF-Hoover dealbut the truth remains that those two
organizations have violated Iraqi legislations and world against the Iraqi people interests
(Caswell 220). By holding these documents and not returning them, the U.S. exercises control
and exerts power over Iraq. Although, the argument can be made that if the records remain in
America, more people will have access to them; and with the U.S. controlling access to the
documents, one argument arises that the protection of the Iraqi people rests on the refusal to
return the documents. Some of the seized material contains information on how to build an atom
bomb, which Bruce P. Montgomery wishes to keep from Iraq because returning intelligence

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documents to a successor state government that may exploit them against dissidents or entire
populations, or religion groups (Cox 475). The problem remains that Montgomerys statement
is a guess; he cannot speculate the events of the future, but hindsight is 20/20, so his argument is
somewhat valid.
Other issues surface from U.S. control of Iraqi documents, though. Since the U.S. has
claimed that it will not return the documents for the safety of Iraq and that it provides more
access to the documents through the internet, the U.S. assumes that Iraq remains in a hostile state
and that it does not have internet access. Unfortunately, these are both partial truths. On the one
hand, the Iraqi Jewish Archive receives a substantial amount of viewers, more than 31,000
articles are downloaded each month [] The value of the downloaded articles, if purchased for
full cost would be $9-18 million (Spurr 16). Mostly all of these users are college students
because they have access to internet, even though their internet access is limited 30-40% of
students can access the internet while 40-50% of computers are available on campus (Spurr 18).
On the other hand, the Iraqi Jewish Archive faces two challenges that hinder their argument for
repatriation: the cost of oil remains too great to afford over two hours of power every day and
attacks on the building or the surrounding buildings has not stopped, leaving both staff and
collections in danger (Spurr 25). Although, the Iraq National Library and Archive claims to have
the facilities, and its staff had the technical training, to restore the damaged Iraqi Jewish
Archive and that they are working on a project to digitize the archives and post it on the
internet, making its contents available to all (Spurr 31). There is no way for the U.S. to know
whether or not Iraq can salvage and protect their documents but the fact that they are willing and
seemingly able should be enough grounds to return them. Besides, the documents belong to Iraq

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and they have the right to determine who receives access to them and where they should be
stored.
Helena Ranta writes, There will be no peace without justice and no justice without
forgiveness (329). Considering that the documents belong to Iraq, should America not keep the
peace by returning them to Iraq so that the Iraqi people can have justice? Iraqs biggest and
arguably most important national interest remains their longing for a resolution to their warring
territories:
The Iraqis desperately want to know and confront the realities of their recent past.
They need to recognize the suffering of the victims and to identify those who
committed crimes, before bringing them to justice. The Iraqis are well aware that
any national reconciliation project cannot be successfully implemented without
making the seized documents available for both scholars and the public mediated
by a responsible agency representative of both. (Caswell 220)
In order to prosecute guilty members loyal to the dictators and the terrorists, Iraq needs the
physical evidence that the seized reports provide. Iraq needs to heal and put these terrible
instances behind them in a positive effort to record their history. The two problems that come
about from Iraqs need for national justice are the Saddam Hussein loyalists and Americas
international interests. Much of the blame for looting Iraq records falls on U.S. troops when
actually the most looting and destruction came from Baath Party members loyal to Hussein. They
burned countless archival documents detailing the history of the Baath Party since it seized
power in 1963 to protect themselves from persecution (Cox 452). For this reason, the situation

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remains hopeful for Iraqis seeking justice since American soldiers seized some of the documents
listing guilty Baath Party members.
Strangely enough, the U.S. refuses to allow Iraq to utilize these records for justice
because they fear that Iraq will in fact carry out justice to a point of persecution. Even though
American soldiers seized Iraqi documents for their own international interests of use in criminal
court, they do not want Iraq to do the same. Bruce P. Montgomery, the director of archives at the
University of Colorado at Boulder, wrote as you might imagine, we have particular concerns
that the Anfal secret police records, which include numerous informant files, could be reused
against the Kurds if returned to Iraq at this time given the unstable political situation and amid
increasing tensions between the current Shiite majority government and Iraqi Kurdistan (Spurr
36). America is currently protecting Iraq from the political consequences of possible segregated
religious wars, but should not the decision be left to the Iraqi government? Not only are the
documents originally theirs but so are the people named in them, and Iraq arguably deserves the
justice it wants to see and the consequences they are willing to handle.
Because archival material has so many values cultural, historical, military, political, etc.
concluding that Iraq deserves to have their documents returned is a difficult task, especially
when the law is ambiguous and can be twisted to either partys interests. Two organizations that
defined cultural property and established illegal tampering of said property are the ICC and the
ICTY:
According to the Rome Statute of the International Criminal Court (ICC) and the
Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY),
the deliberate destruction of cultural property in the absence of overriding military

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necessity is a violation of international law and those responsible for ordering and
carrying out such attacks can be prosecuted for war crimes. Such crimes include
seizure of, destruction of, or willful damage to institutions dedicated to religion,
charity, education, historic monuments and works of art and science. (Ranta 329)
According to the ICC and ICTY, both the U.S. and Iraq should be punished. Iraq destroyed
cultural property by burning documents. America violated international law by ordering troops to
willfully enter institutions of education with works of art and seize said works. Yet America
could argue that they were protecting cultural property while Iraq could argue that they were
destroying documents under overriding military necessity.
International laws that should concern the U.S. and Iraq the most are those belonging to
the Hague Convention, since they are both members. The Hague convention clearly states,
Cultural property should enjoy immunity from seizure, placing in prize, or capture, which
American soldiers clearly violated (Caswell 224). The Hague Convention of 1954 also clearly
outlines the Protection of Cultural Property in the Event of Armed Conflict, which expressly
extends protections to archives and declares in its preamble that damage to cultural property
belonging to any people whatsoever means damage to the cultural heritage of all mankind,
which both America and Iraq disregarded (Cox 454). Yet which country should be punished
when the Hague Convention of 1907 implied a distinction between archives maintained by
cultural institutions, which are provided protected status, and government records of the state,
which may be captured and exploited (Cox 460). Without a clear definition or distinction
between archives and government records, the responsibility for the seizure of the
documents cannot be placed on the U.S. Although, in my opinion, American troops transparently
stole documents of archival quality since the building was named the Iraqi Jewish Archive.

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Moving from international laws created by organizations to national laws enforced by
individual countries makes an even trickier argument for who was wronged. According to Jeff
Spurr, the Hoover-IMF agreement is illegal because the IMF is not presently registered in Iraq.
The Iraqis also stated that the confidentiality of the terms of the agreement constitute a gross
violation of Iraqs sovereignty (31). So, the millions of documents housed at the Hoover
Institute were illegally seized even though an agreement was drawn up between the Iraq Memory
Foundation and Hoover Institute. Even if the IMF claims to be preserving the archive materials,
they did not protect them. In fact, some Iraq scholars have noted [that] the U.S. send troops to
guard the Ministry of Oil while leaving the Iraq National Museum and INLA unprotected from
looters (Spurr 226). With this release of information, Americas argument of protection and
preservation becomes invalid; even with an argument of seizure based on incriminating evidence
of Iraqi Kurdish people, international law demands that the documents return to their country of
origin due to the restriction of temporary custody during wartime.
The U.S. needs to repatriate the seized documents to Iraq based on international law, but
unfortunately there are little grounds for a lawsuit due to Americas late membership with the
Hague Convention. The international community, such as SAA and ACA, lacks the power to
enforce laws against the U.S. because the United States, while a signatory of the 1954 Hague
Convention, did not ratify it until 2008, after the U.S. invasion of Iraq [] while the United
States was not a signatory to the Hague Convention at the time of the seizure, Iraq was, and the
Convention applies to the territory and only those in the territory (Caswell 229-230). Therefore,
the U.S. cannot be punished under the Conventions standards. Ethically, America should admit
to this convenience of late membership and apply the current rules of the Convention that they
have ratified to their past seizures. In my opinion, this scenario is not likely to take place because

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of political interests. U.S. soldiers were instructed to seize documents from Iraq just like they
were instructed to do decades ago during World War II (WWII).
If the past dictates for the future, Iraq has little hope of receiving their seized documents
soon, if at all. One example is Britains preservation of the Elgin Marbles:
The British say they have saved the Marbles. Well, thank you very much. Now
give them back. Similarly, Elazar Barkan contends that protection means
control, a control that calls into question the sovereignty of source nations. This
is not to say that the IMF did not initially protect the records from destruction,
which it did, but rather, once the initial act of protection is complete, the records
should be repatriated as soon as possible. Failure to do so is a failure to
acknowledge the power inequalities inherent in their acquisition. (Caswell 235)
Just as the British exhibited control over Greece, so the U.S. exhibits power over Iraq by refusing
to return the seized Baath documents. America has the ability to invade, attack, and sue Iraq
again at any time with the incriminating records. This power struggle comes as no surprise when
the U.S. has followed Britain in their footsteps by seizing cultural property from other countries
throughout history.
At the end of WWII, the U.S. had seized Russian archives from Smolensk and did not
return them until 2002 (Cox 455). Under Operation Urgent Fury in 1983, the U.S. had seized
records from Grenada and they were never returned (Cox 477). In 1994, the U.S. had seized
160,000 pages of documents from Haiti which were eventually returned under the advisement of
President Clinton in 2001 after much controversy over America claiming to have already
returned them (Cox 478). Under Operation Just Cause in 1989, the U.S. had seized records

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from Panama, which America offered to return in 1993 but the president of Panama rejected,
making the documents rightfully belonging to the U.S. (Cox 478). These past instances diminish
any hope of Iraq having their archival records repatriated, especially since the U.S. has been
known to lie about the status of the documents and keep them. At least most countries received
their seized materials later, even though the time it took spans decades. The only remaining shred
of hope for Iraqs Baath Party documents is Bruce P. Montgomerys assertions of unclaimed
ownership. Montgomery writes to Jeff Spurr, As you know, the U.S. government has not
claimed ownership over the 100 million pages of files in its possession, which it seized under the
international rules of war in the 2003 invasion. American authorities intend to repatriate the
documents, but I suspect it could take some time (36). If the past dictates for the future, the
documents will be repatriated after some time, as long as Iraq remains persistent in their
requests for their documents and peace replaces violence in their country, but as cited earlier
there will be no peace without justice and justice can only occur through the physical
documents being returned to Iraq.
For this reason and many others, the seized material should be repatriated immediately.
Not only do these documents represent Iraqs past, but they also represent Iraqi and Jewish
Identity. Caswell appropriately states, They do, after all, belong to the Iraqi people. This
assertion is based both on the concepts of nationalism [], inalienability, and provenance,
whereby records rightfully belong within the context in which they were created. It reveals a
strong link between cultural property and national identity (233). Caswell points out the very
foundation for the argument supporting Iraq: the documents existence started in Iraq, therefore
they belong there. The documents are inalienable and therefore should not have been removed in
the first place. These documents remain paramount to developing Iraqs national identity because

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they preserve the past and define the people. Some of the seized documents are from Iraqs
Jewish Archive, almost all of which are written in Hebrew. Iraq needs to have these records to
show that Iraq is an open country, [] Our purpose is not to hide the Jewish archive. On the
contrary, Iraq wants to show the world that there was a Jewish archive in Iraq and Iraq does not
hide this side of its history; words spoken by Dr. Saad Eskander at the 2010 Iraqi delegation
(Spurr 33). Indeed, the preserved documents of the Iraqi Jewish Archive, whether written in
Hebrew, Syriac, or Arabic, deserve to show off the rich heritages of the fascinating country.
According to Eskander, What makes a Kurd or a Sunni or a Shia have something in common is
a national library. It is where the national identity of a country begins (Caswell 234). These
documents define entire cultures of people. If someone were to ask about ones religious beliefs,
would one not pull out a Bible or a Koran or the Book of Mormon? Just as books are references
for defining religious beliefs, so the seized materials remain references for defining groups of
people and their documented way of life.
In fact, the seized historical documents recreate identity, and libraries and archives alike
are responsible for this recreation. In the words of Elisabeth Kaplan, History constantly reminds
us that the reification of ethnic identity does not foster tolerance or acceptance; it constructs
communities and then draws hard, arbitrary lines between them, creating differences and making
them fixed, constricting the freedom of the individual to define or understand him or herself in
multiple ways (151). Yes, historically speaking there was battles fought for the defined
differences found among libraries and archives in Iraq, but in a peaceful sense these acts are a
part of their history and their cultural heritage. Positively, these documents can construct
communities that are very close knit, and historically Iraq has the possibility to celebrate these
differences if only the U.S. would give them a chance for peace and repatriate the seized

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materials. The U.S. initially performed a good deed; preserving the seized documents spared
them from the hard wartimes in Iraq. Now they must ethically return the materials without
displaying them any further, unless they utilize the digital copies that they made. Since Iraq has
little internet access, the physical copies should be repatriated immediately and scholars can use
Americas digital archives to study Iraq. U.S. justice against Hussein followers should have
already taken place in criminal court, thereby making the physical copies obsolete to the
American government. Continuing to deny Iraq their rightful records displays negative political
interests on Americas part and could even be argued as holding power over Iraq. Caswell best
explains this issue on page 239, asserting that by having custody of the records and providing
American scholars, military personnel, and government officials access to them at the expense of
Iraqi citizens, the United States and American institutions exert their imperial power on a
colonial subject. [] Until Iraq regains custody of these records, it cannot write its own history
and determine its own future. This display of imperial power hinders Iraq in forming its national
identity. Therefore, the seized documents should be repatriated to Iraq immediately, especially
since the records were obtained illegally, the international laws regarding the protection of
cultural property during wartime favors Iraq, and their national identity as well as their history
depends on the physical copies of the records.

Works Cited

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Caswell, Michelle. Thank You Very Much, Now Give Them Back: Cultural Property and the
Fight over the Iraqi Baath Party Records. The American Archivist 74 (2011): 211-240.
The American Archivist Online. Web. 9 June 2014.

Cox, Douglas. National Archives and International Conflicts: The Society of American
Archivists and War. The American Archivist 74 (2011): 451-481. The American Archivist
Online. Web. 9 June 2014.

Kaplan, Elisabeth. We Are What We Collect, We Collect What We Are: Archives and the
Construction of Identity. The American Archivist 63 (2000): 126-151. JSTOR. Web. 9
June 2014.

Ranta, Helena. Defending Cultural Heritage Defending Humanity. IFLA Journal 38 (2012):
329-331. IFLA. Web. 9 June 2014.

Spurr, Jeff. Report on Iraqi Libraries and Archives (2010). MELA 83 (2010): 14-38. JSTOR.
Web. 9 June 2014.