Wonderful. Welcome everyone to the Vagts Roundtable. I am Greg Shaffer, outgoing president of the Society, and just really welcome you to this annual event we have now. I want to start by acknowledging Detlev Vagts, known by “Det,” for his immense contributions to the field and his longtime contributions to the Society.

By the end of his career, among his many contributions, Det was known as one of the great developers of viewing international law in transnational terms, which has affected so many of us in our own work. Those that knew him speak of him as a supreme gentleman, a great scholar, and a wonderful teacher. We here at ASIL could not be more pleased to honor his memory with this roundtable discussion.

I thank Karen and Lydia Vagts and the Vagts family for their generous gift, which enabled the Society to create this annual event. Although they are unable to be with us this year, they send their greetings for another successful event, as this is something that is very important to them personally.

I also want to thank our convener, Patty Gerstenblith, the distinguished research professor and faculty director of the Center for Art, Museum, and Cultural Heritage Law at DePaul College of Law, where actually I was a visiting professor once, many decades ago. In 2011, President Obama appointed Patty to serve as chair of the President's Cultural Property Advisory Committee in the Department of State, on which she had previously served as a public representative in the Clinton administration. Since 2020, Patty has served as president of the board of directors of the U.S. Committee of the Blue Shield and chair of the Blue Shield International Working Group on Countering Trafficking of Cultural Objects.

Patty, thank you for the wonderful job you did in organizing this event for us this year. I turn it over to you.

Thank you so much for inviting me to be the convener of this year's roundtable. It is a great honor for me, and it has been fun bringing together the various speakers; in particular, as I will mention, Professor Carstens, in a moment.

The topic of the roundtable this year is preserving cultural heritage and protecting humanity in conflict zones, unfortunately, a topic that has only become more relevant in the past twenty-five years and one that is continually in the headlines of our newspapers as well as prominently featuring in many legal publications.

As was mentioned, the purpose of the roundtable is to showcase the work of an emerging scholar, and this year's emerging scholar is Professor Anne-Marie Carstens. She is the Associate Professor of Law at the University of Baltimore. Her scholarship focuses largely on international legal obligations to protect cultural property, especially during armed conflict, and how violations of these obligations are prosecuted in international criminal tribunals. She received her JD from Georgetown Law, and a DPhil in Public International Law from Oxford University.

I should mention the way that we will organize this is that Professor Carstens will have the first twenty or so minutes to present. It is essentially a preview of a work in progress, an article that she is working on. This will be followed by our three discussants, whom I will briefly introduce now as well. They represent different areas of legal practice, both public and government, NGO areas of practice. And as was mentioned, to some extent, I am also here representing the Blue Shield Movement.

I will introduce our three speakers, starting at your right, our left. Tracey Begley serves as the Deputy Head of the Legal Department for the Washington Delegation of the International Committee of the Red Cross. In this capacity, she is primarily responsible for the delegation's legal work regarding detention in Guantánamo Bay and resettlement of former Guantánamo detainees, arms transfers, and naval warfare, as well as dissemination of international humanitarian law. Tracey earned her JD from American University, Washington College of Law, and has interned for the U.S. Department of Defense and the International Criminal Tribunal for the former Yugoslavia.

Next in the center is Karl Chang. He is the Associate General Counsel, specializing in international affairs in the Office of the General Counsel of the U.S. Department of Defense (DoD). He, in particular, is important to this conversation because he was the primary drafter of the recent DoD Law of War Manual, which was published in 2015, and its subsequent updates as well. He, therefore, is obviously in the position to discuss the position of the United States with respect to armed conflict and cultural heritage. He has represented the U.S. government in various international meetings, including the Quadrennial International Conference of the Red Cross and Red Crescent, and he also has represented the United States in the Assembly of States Parties to the Rome Statute of the International Criminal Court. Again, a very relevant issue for us.

Next to him is Professor Michael Kelly, who holds the Senator Allen Sekt Endowed Chair of Law at Creighton University. He serves on the board of directors of L'Association Internationale du Droit Pénal, a Paris-based society, and also works with the Board of the International Scientific and Professional Advisory Council of the UN's Crime Prevention and Criminal Justice Program in Milan. He is a specialist in international criminal law and is the author of Prosecuting Corporations for Genocide, published by Oxford in 2016. He currently co-chairs the ABA's Internet Governance Task Force.

I will also mention that you can find out there at the Oxford University Press display my recent book entitled Cultural Objects and Reparative Justice: A Legal and Historical Analysis. It discusses the question of where movable cultural objects should be located as the result of where they have been dislocated due to armed conflict, imperialism, and colonialism. We have all been awaiting Professor Carstens's Oxford book as well.

With that, I will turn the presentation over to Professor Carstens.

Thank you very much. I want to start out by thanking the Vagts family for funding and supporting this initiative to identify emerging scholars in the international law space. I have been coming to the ASIL annual meeting for many years and always point out all the bigwigs in the room. It is exciting to have this initiative here as well.

I am going to talk for hopefully less than twenty minutes. I do not think Patty trusts me to do so because I am not sure that I have ever done it. But I am going to do my best so that we can have more time to operate this more in a roundtable space where it is a conversation among the participants here rather than straight down the line.

To give a framework of where I focus my scholarship, I write on various topics of international law, sometimes on issues of copyright law and property law, but primarily in the public international law space. I focus on armed conflict and international criminal law and the place of cultural heritage protection within those two particular spheres.

I am going to try to condense all of the things I write about into making three quick points to guide the discussion. The first is, what is the body of material that I am identifying as being subject to this enhanced or special kind of protection, these special rules as cultural property?

The second piece is, how we define the obligations? Once you have identified what that body of material is, what is the nature of those obligations?

Finally, the last piece I have moved into exploring is looking at how international criminal law and the international tribunals have developed in terms of thinking about how to prosecute. Who do they prosecute? What do they prosecute? What are those crimes when cultural heritage is involved? Related to that, how does that intersect with the movement within the cultural heritage sphere to talk about trying to resurrect cultural genocide as a separate concept.

In defining cultural property as a body of material that should get some specific rules written about it, I track the history. I am also a bit of a historian and look at the conception of war as a just war and even as we moved into the first codifications, there was a focus on reverence. It had to be something that was revered both in the religious sense that applied to Christian wars and classical material. It excluded a lot of things that were written off as ethnographic, which created a tension among the kinds of things that were protected right up to the beginning of the twentieth century.

When the body of material was first defined, the law focused on attributes. It was about whether it was religious, scientific, artistic, or historical and not any reference to any connection to people. This is at a point in time in which there were not separate rules written, although there were certainly a lot of initiatives, about protecting civilians.

After World War II, you see the emphasis change away from attributes and become entirely focused on the idea that it is the relationship between certain kinds of property and certain types of groups and collectivities and what they value and the fact that the destruction of these things is part of the tapestry of subjugating and eradicating and killing communities. So the emphasis became both value to the international community as a whole, in some sense, but also its value to particular individual cultures.

Nonetheless, as we have moved into defining international criminal law, there has been some combination of that in that international criminal codes revert back to those old definitions, and yet the tribunals seem to be following the post-World War II sensibilities about how we think about cultural property. That is my first point.

One of the questions that then comes up that I struggle with, and would really like to engage with people within the community, is just how do we now think about contested monuments, and how do those kinds of things fit within the definition of cultural property?

That has been one of the challenges I have tried to focus on because it is not really addressed in any of the contemporary scholarship in what I find to be a particularly intellectually honest or satisfying way. I invite the participants to help me work through some of those knots as well.

Secondly, defining the obligations, a big part of my book, which hopefully will be forthcoming soon, really focuses on the presumption that we all know that it is obviously against the rules of armed conflict to intentionally and unnecessarily destroy and take away property—the negative rules of restraint against destruction and misappropriation.

If we know all that—it is in customary law and has been around for decades—what are the additional obligations that now have evolved? What are the stages of conflict? How do the obligations change when you are in occupation? How do they change when you have non-state actors? How do they change when you have non-international armed conflict, and you are trying to identify the contours of those rules that exist beyond what we all know are those well-entrenched rules of restraint?

Finally, looking at international criminal law, the unnecessary and intentional destruction of cultural heritage is a war crime. I always find this a little peculiar when something has been destroyed, and there is an op-ed that says this should be a war crime, and I am like it is a war crime.

But apart from that, cultural heritage destruction is a marker of so many other things, even if it is not independently identified as a specific crime beyond being a war crime. It is a marker of persecution. It can be used to show the actus reus of persecution, a crime against humanity. It is a marker of genocide because it can show that the intent to subjugate and eradicate a people is shown by the fact that the things that they care about are subjected to destruction and seizure and loss. The curious piece is that the offenses have reverted back to the old definitions, although I think the jurisprudence itself shows that they really do connect. Because it is a marker, they are connecting civilian protection and cultural property protection quite closely.

Within the cultural heritage community, a lot of people are moving to resurrect what Raphael Lemkin had originally suggested should be cultural genocide as one branch of the definition of genocide. You could have biological genocide and physical genocide, but cultural genocide was the destruction of vandalism against the objects that these collectivities cared about.

I would argue that because it is already a marker of genocide, that the use of it as a marker in all of these different ways already does encompass what Raphael Lemkin was getting at. I do not know that the international community is ready to embrace cultural genocide as a part of genocide where physical and biological genocide do not also exist. I think it is an important part of that narrative, but I have a slightly different take on it than what a lot of people within the cultural heritage community want to resurrect from what that original definition was one hundred years ago.

Thank you very much, Patty, and a big thank you to the Vagts family and also to you, Patty, for inviting the International Committee of the Red Cross (ICRC) to participate today. Congratulations to you, Anne-Marie. I know this is a huge amount of work, and you have spent a lot of time in the ICRC archives, which is a bit of a daunting task but hopefully very fruitful as well.

I am going to present today some of the positions of the International Committee of the Red Cross regarding the protection of cultural property in armed conflict, and you heard some of the basic protections that cultural property enjoys during armed conflict from Anne-Marie. But I am going to go a little bit back to the basics because it is important to reiterate the protections of cultural property, starting at the foundation.

First of all, cultural property should be considered a civilian object. It should be considered civilian in nature, provided that it does not meet the definition of a military objective. If it is a civilian object, then it benefits from the protections of the principles of distinction. It is prohibited to make a civilian object the object of a direct attack. It also benefits from precautions, the requirement that a party to a conflict take all feasible precautions when conducting an attack, as well as the principle of proportionality. A party to a conflict has to do an analysis to determine whether the anticipated military advantage would outweigh the anticipated civilian harm that would occur from an attack. These are the basic principles of international humanitarian law (IHL) that exist in customary international humanitarian law, and cultural property, provided that it is civilian and is not being used for military purposes, should benefit from these basic protections.

On top of that, we have very specific protections for cultural property that are in Additional Protocols I and II to the 1949 Geneva Conventions. The 1949 Geneva Conventions are universally ratified, and the two additional protocols are not. But the ICRC believes that there are four customary rules that exist to protect cultural property during armed conflict as well. So many states are party to the first and second Additional Protocols, and they would be required to uphold the protections for cultural property under those protocols. But in addition, there are these four customary rules of international humanitarian law.

So in terms of the questions about protections in non-international armed conflict versus international armed conflict, the ICRC believes that three out of four of those rules are applicable in both international and non-international armed conflict. There is just the one rule of customary law that specifically applies to occupation and protections for cultural property in occupation, and there are some very good questions about the determination of an occupation and what happens if one party believes there is an occupation but the other party disagrees, and interpretations of the status of the armed conflict, and how that then trickles down to the applicable legal protections. That is one rule that the ICRC believes applies in international armed conflict. And the other three apply during both types of conflict.

These are the basic rules of protection of cultural property that provide that parties have to take special care, both when they are conducting attacks, that they may not be using cultural property in a way that would adversely affect it, and it also protects cultural property against seizure and pillage. Those are the basic rules, and then you have the 1954 Hague Convention, which provides the additional protections with the two Additional Protocols as well, so the first Additional Protocol, which provides protection during occupation, and the second, which provides enhanced protections for cultural property and does include a waiver. A state could use this waiver that is available in the second Additional Protocol. However, the cultural property would still be considered civilian in nature unless it meets the definition of a military objective.

The takeaway is to approach cultural property as civilian in nature unless it meets the definition of a military objective, and then to see these additional protections from customary international law as well as treaty law that apply to protect cultural property.

I will stop there. It is over to you, Karl.

Thank you, Patty, and also thanks, Tracey. Of course, I also want to thank the Vagts family and ASIL and, in particular, Anne-Marie for bringing us all together with your very thoughtful scholarship.

I will start with the very standard disclaimer. I have been working at DoD a long time. I do not think I have any personal views left because they have been ground out of me by the Department, but I am sure that the Department does not have an official position on your paper, Anne-Marie. I hope colleagues understand my remarks today in a personal capacity rather than an official capacity.

I will also start with another confession, and that is that I really do love cultural property protection and law of war as a topic. Working on law of war issues, you work on war a lot, and war is death. It is destruction. It is suffering, and even when everyone has complied with international humanitarian law, it is terrible.

Cultural property is the opposite of all of that, and so I think that is what is so inspiring about cultural property protection. Art is about creation. It is about purpose. It is about wonder and life. What international humanitarian law is trying to do in armed conflict is to recognize that there is terrible suffering and death and destruction, but to mitigate that harm to the extent possible, and the protection of cultural property is a distilled essence of this purpose and spirit of international humanitarian law.

I am delighted to be here this morning. I also wanted to piggyback on a theme in Anne-Marie's work, and that Tracey just mentioned about the relationship between civilian protection and protections for cultural property under international humanitarian law. There is a clear overlap, and I would be remiss in not mentioning that the U.S. Department of Defense is currently engaged in a four-year plan to improve its capabilities to mitigate and respond to civilian harm during military operations. Like everything in the Department of Defense, it is given an acronym, so it is the CHMRAP, Civilian Harm Mitigation Response Action Plan. It is really an extensive effort. It is directed by the Secretary of Defense, beginning in August 2022, and shows Secretary Austin's leadership, initiative, strong interest in the subject matter. It is a four-year plan. It is not just a change of policy or a doctrinal change, but it is meant to increase capabilities within the Department. There are very specific steps. You can find it on the DoD website.

Tens of millions of dollars have been allocated to it. They are hiring more than 140 people who would be specifically devoted to civilian harm mitigation response activities. They are creating a data management platform to better manage the information flows associated with the information needed to prevent and mitigate civilian harm and investigate it, and they have also created a new Civilian Protection Center of Excellence. So, this is an effort to do a lot more and increase the Department's institutional capabilities. These capabilities are aimed at protecting civilian lives in the first and foremost instance, but they are also aimed at and will benefit protections for cultural property as well.

The last point I would make on that is that these efforts are, from the Department's perspective, policy initiatives. They are practical initiatives. They are not driven from the legal side. They are not taken out of a view that they are required out of a sense of legal obligation or out of a need to correct some kind of legal deficiency, but it is an attempt to go beyond what the law requires and to do more to protect civilians. There are some great disclaimers and footnotes in the CHMRAP and DoD Instruction 3000.17, Civilian Harm Mitigation and Response, if you want to understand the Department's legal jargon on that particular point.

Going more specifically to Anne-Marie's presentation, the aspect I wanted to comment on in more detail is your distinction between the affirmative obligations to safeguard and take precautions to protect cultural property and then the negative obligations to respect cultural property. That is an important distinction. It is reflected in the Convention between the obligations to safeguard and the obligations to respect. But I think you are right that the obligations to take affirmative steps to protect cultural property are much more interesting, and I would like to highlight a couple of ways that is the case.

Generally in international law, whether it is the international law of state responsibility or law applicable to individual responsibility, each actor is responsible for its own conduct and not responsible for the conduct of other actors. That is a general legal principle. The ICRC has taken the view that States have obligations to ensure that other States respect international humanitarian law. The U.S. Government has not agreed with this interpretation of customary law or Common Article 1 of the 1949 Geneva Conventions. Under customary law, it is clear that there are affirmative obligations to take steps to safeguard and protect cultural property, including from other actors. The precise contours of those obligations are less clear, because what is a feasible precaution, what is practicable or practically possible, depends on military and humanitarian considerations that are very contextual and based on what the commander, the decisionmaker at the time, understands. It is difficult to say in abstract what is affirmatively required.

What is affirmatively required is based on not just what one State does but what all States generally do in conducting military operations and what they do out of a sense of legal obligation. That is a difficult inquiry — to understand what all States are doing affirmatively to ensure the protection of cultural property in military operations.

I will wrap it up here by noting that when a State is an Occupying Power, it has more affirmative obligations to ensure the protection of the civilian population, and so that is a clear situation where more affirmative obligations to take steps for the protection of cultural property come into place. But even short of occupation, the U.S. Government has taken the view that—and this was a statement of understanding expressed on the ratification of the 1954 Hague Cultural Property Convention—as is true for all civilian objects, the primary responsibility for the protection of cultural objects rests with the party controlling that property to ensure that it is properly identified and is not used for unlawful purposes. Even short of occupation, the U.S. Government has generally expressed the view that the party which controls a civilian object has obligations and the primary responsibility to take steps for its protection, and then specifically in the Law of War Manual, Section 5.18.6.1, we articulate the following standard: “Military commanders have an obligation to take reasonable measures to protect or stop any form of theft, pillage, or misappropriation of, any acts of vandalism directed against, cultural property. This obligation may also be viewed as part of the obligation to take feasible precautions to reduce the risk of harm to cultural property.”

These are a few thoughts to build on what Tracey said and what Anne-Marie said and I very much look forward to the discussion.

I love that Anne-Marie is getting attention for her work. I consider her to be an established scholar rather than an emerging scholar. Nevertheless, I am glad that she is here, and I am glad that we have this panel to discuss all these prongs.

The prong that I was given was the enforcement prong, specifically the international enforcement prong, not within domestic jurisdictions. All kinds of countries have all kinds of enforcement mechanisms within their own jurisdictions to protect what they consider to be cultural heritage, and the definitions of that range wildly across countries. One example in the United States is NAGPRA, protecting Native American cultural heritage statutorily, et cetera.

At the international level, from the perspective of the Rome Statute and the International Criminal Court (ICC), which are the most current articulation in a positive law way of what has come before in more customary forms, you have got four prongs. You have got the possibility of protecting or enforcing against violations of cultural heritage from a criminal perspective in a war crimes footing, crimes against humanity footing, a genocide footing, or an aggression footing.

The aggression footing has its precursor back to what Jackson termed crimes against peace at Nuremberg. We see some echoes of that today, and Anne-Marie's work brings that out in really important ways when Jackson referred to crimes against civilization when he was standing at the bar before the Nuremberg Tribunal.

The other ones, Tracey and Karl already have covered the war crimes angle.

Crimes against humanity comes in under the persecution prong, and so that is where that lives.

The genocide one, really cultural genocide, that goes back to Lemkin's early thinking in the 1940s in his original definition. That was left on the wayside when the crime of genocide crystallized, first in the UN General Assembly resolution and then in a more restricted way in the convention. Every tribunal since then has just copied and pasted that definition and concretized it further. I do not know that you are going to be able to reopen that to start talking about cultural genocide, but who knows? It was there in the origin story, and so that is the best argument for doing so.

One of the things that Anne-Marie does brilliantly is that she connects the property to the people, and so if you are protecting the civilians, you are also protecting what is important to those civilians. They really piggyback on one another. I have a couple of scenarios that I want to work through that stretch and challenge that a little bit. Since I am a law professor, we work in hypotheticals, right? So let us imagine the unimaginable. Donald Trump is elected president in November and provokes a border war with Canada. Okay. Now let me get to the unimaginable part. As a result of this, Canada invades the United States, and the mighty Canadian Army, as it is descending through Massachusetts on to Boston, encounters a burial mound of a Native American Tribe that has been extinct for over a century. Let us say it is the Mohegans. And on top of this burial mound is placed by the Massachusetts militia a howitzer, which converts it into a military object.

Those people are long gone, and so there is a disconnect between living civilians and a cultural object. Is that still a cultural object that is worth protecting, let alone converting it from a military object to a civilian object? That challenges this connectivity between protecting civilians and protecting what is important to them. When they blow up that burial mound, they are not really affecting any connection to living humans. They are long gone. I think that is an interesting discussion to be had.

So as the Canadian Army rampages through the eastern United States and descends on Alabama, it encounters some Confederate monuments that it begins destroying. Those are controversial cultural property. Is that worth protecting, and is it the cultural property of the United States that is what is getting protected or a subunit within the United States? If you want to argue that it is part of the culture of Alabama, I do not know. Where is that line drawn? The line drawing is important for targeting purposes. If you are a military, where are those lines? We see the Israeli Defense Forces basically bulldozing through Gaza. That is not really particular individual targeting. It is razing everything. That is a lot of cultural property, gone.

These are kind of interesting pinpoints that stretch a lot of what you are working with, but they are also interesting discussions to be had.