'Snipers in the Minaret—What Is the Rule?' The Law of War and the Protection of Cultural Property: A Complex Equation

摘要

On 2 January 2005, the Washington Post ran an article entitled "For U.S. Solders, A Frustrating and Fulfilling Mission." That article included a photograph with the following caption: "U.S. Army snipers took over the top of this nearly 1,200 year-old spiral minaret at a Samarra mosque after the streets below became the scene of frequent attacks by insurgents in the restless city." The article also stated that: Soldiers occupy this vantage point 24 hours a day, working in pairs for 12 hours at a time. An intersection below had become the scene of almost incessant attacks, and American commanders decided that placing snipers with .50-caliber rifles and powerful scopes in this circle of stone 10 feet in diameter, 180 feet above the ground, could deter insurgents. The characterization of this operational vantage point as a 1,200 year old minaret or mosque clearly raises concerns that this object falls within the category of cultural property. Assuming this minaret does in fact satisfy the definition of protected cultural property, was its use as a vantage point improper? The initial answer appears to be "no." In fact, the use may very well have been permissible. The equation that must be used to reach that answer is complex, and reflects the challenge of the source, scope, and effect of law of war-related proscriptions in the current operational environment. The purpose of this article is to use this incident to illustrate several of the legal issues related to determining the appropriate "rule of decision" for the employment of means and methods of warfare within the context of current combat operations.