INTRODUCTION
Few places are more linked to the law than Babylon, the stronghold of King Hammurabi, whose eponymous code is one of the oldest, and arguably most famous, known to history. Dating back to the 18th century bce, the Code of Hammurabi controlled all aspects of Babylonian life, from business and trade to the household to crime and punishment. Hammurabi promulgated his code throughout Mesopotamia, inscribing its provisions on public monuments, one of which—a stele larger than a grown man—can still be admired at the Louvre Museum today.Footnote 1
Now, several millennia after Hammurabi’s Code, the laws governing ancient Mesopotamia no longer fit on a single slab. The Republic of Iraq—a distant successor to Hammurabi’s kingdom—is struggling to preserve its past through a legal framework that includes international treaties, domestic legislation, and even constitutional provisions. Laws criminalize the looting of archaeological sites and trafficking of antiquities as well as regulate their study and management. Within the past decade, the country has overhauled many of these protections, even in times of invasion, occupation, and civil war.Footnote 2
The history of these recent measures is intertwined with that of Iraq itself (as is true of the country’s heritage law throughout the past century). On 18 November 2002, the same day United Nations weapons inspectors returned to Baghdad, Antiquities and Heritage Law Number 55 of 2002 took effect and modernized the country’s preservation mandate.Footnote 3 The next year, on 29 October 2003—not six months into the Iraq occupation by the Coalition Provisional Authority—the Ministry of Culture proposed that Babylon and the Marshlands of Mesopotamia be added to the Tentative List of the World Heritage Convention. These were the first of six postwar submissions, a “forecast” of sites to eventually be nominated for World Heritage Status.Footnote 4 Finally on 15 October 2005, the new Constitution of the Republic of Iraq came into force, pledging state backing for “cultural activities and institutions.”Footnote 5 More importantly, in Article 113 it also placed such “national treasures” as “antiquities, archeological sites, cultural buildings, manuscripts, and coins” under federal jurisdiction, but to be “managed in cooperation with the regions and governorates.”
Article 113 may not immediately appear significant, or contentious, but it is both. Federalism remains a heated and even deadly issue in Iraq, which in the wake of the 2005 Constitution, is fighting to balance authority between its capital and other parts of the country. On its face, the Constitution grants all powers to the regions and governorates, save for a short and select list that is exclusive to Baghdad. The latter does not include heritage or, more controversially, oil and gas. However, the Constitution appears to contradict itself elsewhere, by underscoring the national character of these very resources.Footnote 6
The Constitution’s handling of heritage—like its comparable treatment of oil and gas—therefore raises many questions. Who is ultimately responsible for Iraq’s archaeological sites and antiquities—and thus able to legislate them—the federal authorities or the regions and governorates? How is their “cooperation” to work in practice? And what happens if there is conflict between them?
The answers to these questions have massive implications, as they not only determine who governs culture in Iraq but additionally could void much existing domestic law and even interfere with Iraq’s obligations under international law. Or they could, in short, unravel the country’s entire heritage management system. Indeed, disputes between Baghdad and the local authorities at Babylon, as well as the regional authorities in Kurdistan, portended such a worst-case scenario early on.
The stakes have only risen with recent events. In June 2014, Iraq’s long simmering insurgency exploded with a new offensive by the Islamic State of Iraq and Syria (ISIS), a Sunni jihadist group too extreme even for Al Qaeda.Footnote 7 As ISIS stormed northern and western Iraq, fears grew that Baghdad itself would fall, prompting Kurdish calls for independence and threatening the entire federal system.Footnote 8 But at the time of this writing, ISIS is losing ground to an Iraqi and Kurdish counteroffensive, supported by U.S. airstrikes. World leaders have also expressed optimism that the departure of former Prime Minister Nuri al-Maliki—a Shia accused of disenfranchising Iraq’s Sunnis to the point of revolt—could lead to “a peaceful transition of power, based on democratic elections, … a first in modern Iraq’s troubled history of kings, coups and dictatorships.”Footnote 9
It remains to be seen whether this optimism is warranted, but instead of derogating preservation to the background, the crisis has given it renewed urgency. As ISIS seeks to annihilate its enemies and all they hold sacred—including Sunnis who refuse to subscribe to its hardline ideology—mass executions and cultural destruction have gone hand in hand. The militants infamously made international headlines after razing the Judeo-Christian Tomb of Jonah (and with it the Sunni mosque of the Prophet Younis) along with countless other graves and shrines.Footnote 10 They are also reportedly arming their cause with “millions” earned from antiquities looting and trafficking.Footnote 11 So with the threat of ISIS, heritage has become a matter of national security, making its protection more important than ever.
This article thus aims to clarify the 2005 Constitution’s treatment of heritage and resolve who controls one of the Republic of Iraq’s most important historic, cultural, and potentially economic resources. Because such an endeavor requires a basic knowledge of the document itself, as well as Iraqi legal principles, these are first introduced in theory and practice. The relevant constitutional law is then explored—in particular, the legislative history, text, placement, and implications of Article 113—within the wider domestic and international legal system. Finally, based on this analysis, the author holds that heritage should be treated as a federal power despite arguments to the contrary from the regions and governorates.
THE 2005 CONSTITUTION OF THE REPUBLIC OF IRAQ
The 2005 Constitution of the Republic of Iraq created the modern Iraqi state. This charter was a remarkable achievement, but it has yet to be fully implemented, resulting in one nation on paper and another in actuality.Footnote 12 Contradictions in the text have not been amended and gaps not filled. Key institutions are still unrealized. Given such instability, this article does not attempt to present a snapshot of Iraq at this moment, which may be outdated tomorrow. Instead, it outlines the government as it is meant to be, while making every effort to indicate when reality diverges. Such a legal overview may seem far removed from cultural resources management, but it is crucial to understanding the Constitution’s treatment of heritage and thus the practice of archaeology in Iraq.
The United States began planning for a new Iraqi constitution well before the fall of Saddam Hussein.Footnote 13 By October 2001, the U.S. State Department’s Bureau of Near Eastern Affairs had established the Future of Iraq (FOI) Project, which gathered together select Iraqi exiles to prepare for expected regime change.Footnote 14 They quickly prioritized the need for a new constitution in order to strengthen democracy and the rule of law.Footnote 15 Many months and $5 million dollars later, their recommendations on this and numerous other topics resulted in a detailed report, spanning 1,200 pages over 13 volumes.Footnote 16
In retrospect, the FOI report accurately predicted many of the challenges facing postwar Iraq and provided a comprehensive strategy for addressing them.Footnote 17 But due to personalities and politics within the U.S. government, it was largely ignored after the American invasion, which began on 19 March 2003 and toppled the regime of Saddam Hussein 21 days later.Footnote 18 Instead of following the FOI roadmap, the United States and its allies laid a new groundwork. They first established a transitional government, the Coalition Provisional Authority (CPA), which in turn appointed the Iraqi Governing Council (IGC) from domestic leaders and former exiles.Footnote 19 Working together, the CPA and IGC drafted the Law of Administration for the State of Iraq for the Transitional Period (also called the Transitional Administrative Law, or TAL), which was signed on 8 March 2004.Footnote 20 On 30 June 2004, when the CPA and IGC officially transferred power to the new Iraqi Interim Government, the TAL became the country’s functioning constitution.Footnote 21
Iraq was still in need of a permanent constitution—and government—and the creation of these was soon the focus of the Iraqi Interim Government. It formed the Constitutional Drafting Committee (CDC), which was initially composed of members of the Transitional National Assembly, and later expanded.Footnote 22 But progress was slow, and work did not begin in earnest until June 2005.Footnote 23
Sections of the constitution were leaked in June and July, and by late August, a complete (but highly divisive) draft was presented.Footnote 24 Portions of the text were vigorously modified over the next weeks, revealing intense disagreements over key provisions, which continued right until the TAL’s deadline.Footnote 25 The finished draft was then officially submitted for a referendum on 15 October 2005. Despite continuing violence, and amid heavy security, the Iraqi people went to the polls in huge numbers. After 10 million votes and 10 days of counting, the electoral commission announced the results. The new constitution had been approved by 79% of the voters.Footnote 26
The 2005 Constitution of the Republic of Iraq, characteristic of such charters, includes a preamble, fundamental principles, a bill of rights and liberties, the structure for a federal government, enumerated federal and regional powers, an amendment procedure, and transitional provisions.
It totals 144 articles. The very first establishes Iraq as a “single federal, independent and fully sovereign state in which the system of government is republican, representative, parliamentary, and democratic.” Within this framework, “The people are the source of authority and legitimacy,” which they exercise through the federal powers of the judiciary, executive, and legislature. These branches of government “exercise their competencies and tasks on the basis of the principle of separation of powers.”Footnote 27
The Constitution also provides for a broader federal system, including the capital, regions, and governorates, in addition to local administrations. Baghdad is the capital, and as of now, Kurdistan the only region.Footnote 28 The most numerous divisions are thus governorates not incorporated into a region.Footnote 29 These are themselves further carved into districts, subdistricts, and villages.Footnote 30
Iraq is still determining the balance of power between all these entities. The Constitution does enumerate competencies that are exclusive to the federal government and also those that it shares with the regional and governorate authorities. It reserves all others to the regions and governorates.
The Constitution concludes with transitional provisions, meant to smooth the creation of the new government, and provides for an amendment process.Footnote 31 According to Article 144, the very last, “This Constitution shall come into force after the approval of the people thereon in a general referendum, its publication in the Official Gazette, and the seating of the government that is formed pursuant to this Constitution.” As noted earlier, the Constitution was approved in a 15 October 2005 referendum, and then published in the Official Gazette on 28 December 2005. These steps paved the way for the new government, and more relevant to this study, its legal system.
THE LEGAL SYSTEM UNDER THE CONSTITUTION
The Republic of Iraq’s new legal system, along with the rest of the country’s government, remains in a state of flux. The first administration following the Constitution could not instantly enact a whole new regime, so many earlier institutions and laws have remained in force, and they will continue until they are replaced by new ones or otherwise repealed. As a result, identifying governing legislation and how it should be applied is frequently difficult, and sometimes impossible. Nonetheless, there are a number of key legal principles that hold true, on whose basis the rest of the justice framework is being developed.
Perhaps most important of these is the complete sovereignty of the law. Of all law, the Constitution is the “preeminent and supreme” source and “shall be binding in all parts of Iraq without exception.” Additionally, “No law that contradicts [it] shall be enacted,” and “Any text in any regional constitutions or any other legal text that contradicts [it] shall be considered void.”Footnote 32
Not all other laws are created equal. In Iraq, as in most countries, the Constitution provides guidelines for a legal hierarchy. If laws conflict, these choice-of-law rules decide which should apply.
As noted earlier, in case of conflict between the Constitution and any other law, the Constitution will prevail. A more complicated question is what happens when two federal laws, or two regional/governorate laws, or a federal and regional/governorate law conflict. Regarding the latter, and in a sharp contrast from other federal systems, the regions and governorates apparently prevail in case of any dispute. The only exception concerns matters that are listed as exclusive to the federal government.Footnote 33 In many cases the interpretation of this principle is straightforward, but as will be discussed later, it has caused much debate regarding oil, gas, and heritage.
Another issue is what happens when a domestic law conflicts with an international law.Footnote 34 The Constitution is firm that Iraq shall “respect its international obligations,” which presumably includes treaties and other agreements that the country has entered, as well as jus cogens norms.Footnote 35 This is not empty language. According to U.S. observers of Iraq’s constitutional process, the document’s drafters “understood and embraced the legal and symbolic implications of including basic provisions in the text that reinforced [Iraq’s] commitment to international obligations.”Footnote 36
The Constitution also includes several provisions detailing how Iraq will enter such obligations. First, it gives the federal government exclusive authority in the realm of international affairs and law. This power includes “negotiating, signing, and ratifying international treaties and agreements.”Footnote 37
It fails to provide other guidance for how international law will fit into the Iraqi legal system. Iraq has traditionally followed the “dualist” theory of international law. According to this viewpoint—which is shared by the United Kingdom and the United States—international law must first be incorporated into Iraqi law before it can be enforced domestically.Footnote 38 Until this happens, it cannot be applied in the country’s courts or invoked by its citizens. Once an international law has been thus implemented, however, it would likely have precedence over other domestic law in case of dispute.
THE CONSTITUTION’S TREATMENT OF HERITAGE
Legislative History
More could be written about the Republic of Iraq’s legal system, but the preceding summary is sufficient to understand the 2005 Constitution’s treatment of archaeology and antiquities. As introduced above, this charter not only establishes the Iraqi government, but it also forms the foundation of the country’s heritage policy. Again, it does this by pledging state support for cultural activities and institutions and classifying select categories of objects and sites as “national treasures” under federal control, to be managed in cooperation with the regions and governorates.
Such provisions were not on the American radar during its prewar discussions, even though as early as late 2001, the United States had already started planning for a new Iraqi constitution and legal system. The FOI Project never convened a proposed working group on “Preserving Iraq’s Cultural Heritage,” and because “the project’s existence remained essentially unknown to anyone from the cultural heritage community,” it received little if any input on cultural heritage matters.Footnote 39 By fall 2002, archaeological organizations did launch an active campaign urging the United States to safeguard Iraq’s ancient sites and objects during the coming war, both from bombing and the looting sure to follow any conflict.Footnote 40 In early 2003, Pentagon officials also met with art collectors and curators from the American Council for Cultural Policy (ACCP), who echoed these same concerns.Footnote 41
However, archaeologists feared that the ACCP’s true goal was to instead relax antiquity export laws in postwar Iraq, which the organization’s treasurer seemingly confirmed in the press (although he later claimed that his remarks had been misinterpreted).Footnote 42 Either way, while the ACCP and archaeologists succeeded in alerting the United States to the dangers of bombing Iraq’s ancient sites, their influence apparently stopped there. After Saddam’s fall, the plunder of Iraq’s past was immediate and catastrophic, as looters ravaged countless archaeological sites and even the Baghdad Museum itself. And the laws, during the transitional government at least, remained unchanged.
Indeed, provisions on heritage were completely absent from the preliminary versions of the Constitution that emerged from the drafting commission in mid-2005, an omission that concerned both Iraqi leaders and international advisors.Footnote 43 Later that year, a 22 August 2005 draft did grant the federal government the authority “to regulate, preserve and maintain antiquities and the archeological, cultural and educational sites and the historical buildings and other cultural assets,” but only concurrently with the regional governments.Footnote 44 While this language was better than nothing, according to one U.S. observer (who has not been publicly identified), it “would have jeopardized the federal government’s role in regulating this area by allowing regional governmental control of antiquities. Such a result could have made impossible the federal government’s effort to comply with international agreements on antiquity protection, as it would have lacked sufficient means to fulfill its obligations.”
This August draft and later versions still failed to guarantee government support for Iraqi culture. During the last deliberations on 12 October 2005, such a clause was successfully championed by Nuri al-Maliki, a leading member of the Da’wa Party.Footnote 45 It became Article 35, which reads, “The state shall promote cultural activities and institutions in a manner that befits the civilizational and cultural history of Iraq.”
At these same negotiations, the drafters also revised the existing reference to the federal administration of heritage, which had first appeared in the August draft. The amended version became Article 113 of the Constitution. The final text states in full:
Article 113: Antiquities, archeological sites, cultural buildings, manuscripts, and coins shall be considered national treasures under the jurisdiction of the federal authorities, and shall be managed in cooperation with the regions and governorates, and this shall be regulated by law.
That was not, however, the debate’s end.
Analysis of Article 113
Article 113 prompts many questions. Under its terms, who in Iraq is ultimately responsible for heritage: the federal authorities or the regions and governorates? In an attempt to resolve this uncertainty, one must further examine the implications, context, placement, and text of Article 113.
The text of Article 113 is unclear if not outright contradictory. Again, it first designates cultural objects and sites as “national treasures under the jurisdiction of federal authorities,” and yet then it prescribes they “be managed in cooperation with the regions and governorates.” The legal meaning of “cooperation”—the Arabic can also be translated as “collaboration”—is ambiguous. Does it require, as the basic definition suggests, that the federal authorities act jointly with the regions and governorates (as did the August draft of the Constitution, which made heritage a “concurrent” authority)? Or does it just oblige the federal authorities to consult, but act independently from, the regions and governorates? Or something else?Footnote 46
Article 113’s placement within the broader Constitution provides few answers. The provision is located in Section 4—“Powers of the Federal Government”—which initially suggests that heritage should be a national authority. However, the purpose of this part was largely to limit the influence of Baghdad, as the legislative history and even text itself make clear.Footnote 47
Section 4 begins with Article 109, which makes the federal authorities broadly responsible for preserving “the unity, integrity, independence and sovereignty of Iraq.” Article 110 then enumerates those powers exclusive to Baghdad, inter alia, foreign affairs, national security, fiscal policy, citizenship, and water. Article 114 eventually follows with those competencies shared between the federal and regional authorities, such as customs, energy, environmental, health, and education policies.Footnote 48
Neither Article 110 nor 114 includes oil, gas, or heritage. These resources are addressed separately, in similar though not identical language, by Articles 111, 112, and 113.Footnote 49 Their position before the provisions on shared competencies, and after those on exclusive powers, has legal implications given Article 115 (the last in Section 4):
All powers not stipulated in the exclusive powers of the federal government belong to the authorities of the regions and governorates that are not organized in a region. With regard to other powers shared between the federal government and the regional government, priority shall be given to the law of the regions and governorates not organized in a region in case of dispute.Footnote 50
Section 5—“Powers of the Regions”—provides more clarification in Article 121(2):
In case of a contradiction between regional and national legislation in respect to a matter outside the exclusive authorities of the federal government, the regional power shall have the right to amend the application of the national legislation within that region.
In light of Articles 115 and 121(2), Article 113 could be interpreted as granting the regions and governorates power over heritage (as well as oil and gas). This is because antiquities, archaeological sites, and so forth, are not in Article 110’s list of exclusive federal powers. Additionally, as plainly stated in Article 113, they are to be administered “in cooperation” with the regions and governorates. Since they are “not stipulated in the exclusive powers of the federal government,” Articles 115 and 121(2) dictate they belong to the regions and governorates. Therefore, according to this viewpoint, regional and governorate law would trump national in case of conflict.
On the other hand, a strong textual argument can be made to the contrary, which is also supported by the legislative history. If the writers of the Constitution wanted heritage to be treated as a standard object of concurrent authority, for which regional and governorate law would prevail, presumably they would have listed it in Article 114. In fact, as noted above, an August version of the Constitution did just that. But the drafters removed this wording, according to the previously quoted unidentified U.S. observer, for the very reason that it would have resulted in “regional governmental control of antiquities.”Footnote 51 They instead created Article 113—and placed it between Article 110 on exclusive federal authorities and Article 114 on shared powers—suggesting that, like oil and gas, heritage is an area that warrants individual treatment.
Article 113, as it stands alone, supports this explanation. It identifies cultural pieces and places as “national treasures,” the Arabic for which can also be translated as “national assets,” “national resources,” or “national wealth.”Footnote 52 All of these renderings affirm national ownership (which, as will be discussed below, has important legal implications.) Such a reading is strengthened by the subsequent declaration that heritage shall be “under the jurisdiction of the federal authorities.” True, the Constitution also requires that it “be managed in cooperation with the regions and governorates,” but this stipulation alone does not lessen the federal or national quality of heritage. It may simply indicate that the federal government should welcome their input.
Implications
As the anonymous U.S. observer also noted, this interpretation of Article 113 may be the only one that fulfills Iraq’s international commitments under the various treaties to which it is a party, including the 1954 Hague Convention, the 1970 UNESCO Convention, and the 1972 World Heritage Convention. These agreements require a cohesive state policy and action, which would be difficult to achieve if regional/ or governorate law trumped national law. Since Article 8 of the Constitution requires Iraq to meet its obligations under international law, assigning the administration of heritage to the regions and governorates would not just be problematic, it could be unconstitutional.Footnote 53
Any other reading of Article 113 would also void much existing domestic legislation, potentially unraveling Iraq’s entire heritage management system. Other than Articles 35 and 113, which just outline general principles relating to cultural resources, the Constitution leaves archaeology to be “regulated by law.” In practice, this “law” is Antiquities and Heritage Law No. 55 of 2002, which remains in force even though it predates the Constitution by three years.Footnote 54
Law No. 55 is Iraq’s most thorough legal effort to protect archaeological sites, antiquities, historic architecture, and the like. In language that mirrors the Constitution—or, rather, language mirrored by the Constitution—the law establishes state ownership of heritage by recognizing select objects and sites as “national treasures.”Footnote 55 This provision complements similar ones in Law No. 55’s predecessors, Antiquity Law No. 59 of 1936, as amended by Law No. 120 of 1974 and Law No. 164 of 1975.Footnote 56
As previously mentioned, the history of Iraqi heritage law is intertwined with that of the country itself, and it warrants further study in its own right (however, since this legal history has little impact on the current governing law, this article addresses it only briefly). From classical and Biblical sources, the West had long known of Mesopotamia’s great past, but it was not until the 1800s that Europeans really began to explore, map, and excavate the region’s ancient sites. By the mid-19th century, the British and French were in a race to uncover buried treasures in what is now Iraq, creating a demand for antiquities that prompted locals to begin looting as well. As a result, thousands of objects were removed and traded overseas. The Ottoman Empire attempted to crack down on this plunder and trafficking with a series of decrees in the late 1800s and early 1900s. These governed until after World War I, when the League of Nations created the British Mandate of Mesopotamia, under British authority. English archaeologist, explorer, and official Gertrude Bell—who was appointed director of the new Department of Antiquities—then wrote and successfully lobbied for a new antiquities law that was adopted in 1924. Following Iraqi independence in 1932, this was replaced with Iraqi Antiquities Law No. 59 in 1936.Footnote 57
Iraq had thus recognized—and thrice reaffirmed—the state’s primacy over cultural resources for the seven decades leading up to its new Constitution. It is not alone in this approach. Gerstenblith notes that many “nations have enacted national ownership laws since the nineteenth century for the dual purposes of preventing unfettered export of antiquities and of protecting archaeological sites in which antiquities are buried.”Footnote 58 Source countries like Iraq have another incentive today: to repatriate objects that were looted and illegally removed from their borders. In both the United Kingdom and the United States—primary destinations for illicit art from Iraq and elsewhere—courts have ruled that such laws, also called patrimony or vesting laws, “create ownership rights that are recognized even when such antiquities are removed from their country of discovery and are traded in foreign nations.”Footnote 59 Under this interpretation, “one who removes the antiquity without permission is a thief and the antiquities are stolen property,” which the source country can then recover through the justice system.Footnote 60 Absent such an ownership law, however, Iraq would have few legal options for reclaiming its plundered art from the United Kingdom or the United States.Footnote 61
If the Constitution’s drafters had intended to reverse such an established Iraqi legal tradition at such great consequence—by surrendering a national authority to the regions and governorates—they could have done so unequivocally. Moreover, the Council of Representatives (which functions as Iraq’s main parliament) has not amended or repealed these provisions of Law No. 55, despite ample opportunity. Iraq’s leading archaeologist and cultural official, Dr. Donny George, had likewise declared heritage a federal power under the 2005 Constitution before his death in 2011.Footnote 62 A December 2005 cable from the American Embassy in Baghdad notes that he “expressed satisfaction” to U.S. officials that Article 113 had brought “antiquities under central government control since, in his view, the provinces are not ready to manage their cultural sites on their own.”Footnote 63
Given these arguments, it is all but impossible to believe that the Constitution desires “national treasures” under federal jurisdiction to be controlled by the regions and governorates or their law. Admittedly, Articles 115 and 121(2) do suggest such a conclusion, but it is outweighed by the language, placement, and legislative history of Article 113. All of these factors strongly indicate that the federal authorities are ultimately responsible for heritage and therefore national law governs.Footnote 64
CONCLUSION
Any study of Iraqi heritage law must begin with the Constitution of the Republic of Iraq. This 2005 charter forms the backbone of the country’s policy. Article 35 pledges support for cultural activities and institutions, and more significantly, Article 113 designates select objects and sites as “national treasures” under federal jurisdiction to be managed with the regions and governorates.
As explained above, this language may be clear on paper, but is the opposite in practice. This is because the Constitution identifies federal powers, regional/governorate powers, and shared powers. Unfortunately, oil, gas, and heritage are not clearly placed in either category, leaving their status open to interpretation. Nonetheless, Article 113’s plain text, placement, and legislative history strongly indicate that heritage should be controlled by the federal government and its law. This is the only reading of Article 113 that will not void Iraq’s domestic legislation and will fulfill its international obligations, which is required by the 2005 Constitution.
This constitutional analysis is not just an academic exercise, as the debate over federalism continues with real-world consequences for Iraq and its heritage. Since Reference Stone and Bajjaly2008, when Iraq regained control of its cultural resources, Baghdad’s relationship with the regions and governorates has progressively disintegrated.Footnote 65 Rising tensions at the ancient Mesopotamian capital of Babylon have even played out in the New York Times. In 2009, the Times reported that local authorities had “seized control” of the site, openly challenging the State Board of Antiquities and Heritage (SBAH). The SBAH branded this takeover “unlawful,” but seemed unable to prevent it. While maintaining its “legal authority over Babylon,” the SBAH’s acting director was forced to admit that in practice, “The federal government is weak.”Footnote 66 In 2011, continuing disputes again made headlines, as federal and provincial officials clashed over whether to reopen Babylon to tourism and who should collect its admission fees.Footnote 67
Excavation permits are another flashpoint, pitting Baghdad against the region of Kurdistan. Law No. 55 grants the SBAH—and it alone—the authority to issue such licenses.Footnote 68 However, Kurdistan has been liberally granting permits itself, as work had been long stalled in the rest of the country. The “first archaeological excavation in Iraq outside of Kurdistan by any foreign team in a decade” only started in late 2011.Footnote 69 Then just recently in 2013, the Iraq government made news by granting six additional permits to foreign teams from the Czech Republic, Italy, and the United Kingdom.Footnote 70 But with lingering uncertainty over the permit process, it is no wonder that looters are beating archaeologists in the race to excavate ancient Iraq.
As referenced in the introduction, such looting has now become a matter of national security, as credible reports emerge that ISIS is funding itself from Iraq’s plundered treasures. The archaeological importance of Iraq’s sites and antiquities thus cannot be overemphasized. National and international legislation could be a staunch guardian, protecting them from theft, development, and even war. However, Iraq’s heritage will only benefit from these many legal undertakings once such laws are properly understood, a process that begins with the Constitution. Only then can the country turn to the difficult task of enforcement. In the meantime, while the federal authorities are fighting with the regions and governorates, we must ask who is actually fighting to protect Iraq’s archaeology.
ACKNOWLEDGMENTS
The author wishes to thank Lisa Ackerman and the World Monuments Fund, whose work at Babylon first inspired this research, as well as Professors Ricardo Elia and Paul Zimansky, whose guidance, recommendations, and encouragement proved invaluable in completing it.
