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ABSTRACT
This article explores the plight of cultural heritage within the just war tradition. It traces the fate of two cities seen through the eyes of just war thinkers across time: Corinth and Tenochtitlan. This provides a useful heuristic tool to explore some of the tensions related to cultural heritage in times of war: the necessity tension (the dilemmas that military planners and soldiers face when deciding whether to destroy or preserve cultural heritage sites to advance toward victory) and the civilizational paradox (who defines which sites are intrinsically valuable), but also the magnanimity principle – the positive effects that could ensue in choosing not to pursue the full range of acts the laws of war permit in times of necessity. The story developed here is largely chronological in nature, spanning ancient Rome to the eighteenth century, and is largely a jus in bello story. However, it follows two distinct streams of just war thought represented by the plight of Corinth and Tenochtitlan that converge with the idea of cultural heritage as we understand it today, articulated explicitly by Vattel in the eighteenth century. It concludes with lessons this genealogy can teach us about the perennial moral dilemmas.
Disclosure Statement
No potential conflict of interest was reported by the author.
Notes on contributor
Daniel R. Brunstetter is Associate Professor in the department of political science and Faculty Director of Study Abroad at the University of California, Irvine. His research on the ethics of war and peace has appeared in Ethics & International Affairs, Political Studies, International Journal of Human Rights and elsewhere. He is the author of Tensions of Modernity: Las Casas and His Legacy in the French Enlightenment and co-editor of The Ethics of War and Peace Revisited: Moral Challenges in an Era of Contested and Fragmented Sovereignty as well as Just War Thinkers: From Cicero to the 21st Century.
Notes
1 European Parliament Briefing, ‘Protection of Cultural Heritage,’ 2.
2 Bellamy, Just Wars, 3–4. On the just war tradition more broadly, see the introduction to Brunstetter and O’Driscoll (eds.), Just War Thinkers, 1–6.
3 Johnson, ‘Thinking Historically about Just War,’ 252.
4 Cortés, Letters from Mexico, 101–06; see also De Solis, Histoire de la conqueste du Mexique, vol. 1, 504–16. De Solis's account was originally published in 1684 in Spanish and was widely available in the eighteenth century, and cited by Vattel as a source.
5 On the historical development of jus in bello, see Johnson, Ideology, chapter 4; see also: Rengger, ‘Jus in Bello in Historical and Philosophical Perspective’.
6 O’Driscoll, ‘Rewriting the Just War Tradition’, 1. For a study on the deeper roots of just war, see Cox, ‘Expanding the History of Just War’.
7 O’Driscoll, ‘Rewriting the Just War Tradition’, 2.
8 Miles, Art as Plunder, 2, 8.
9 Ibid., 286.
10 The idea of cultural heritage as we understand it today may be somewhat of an anachronism when discussing ancient Rome. One could equate buildings, art and statues with cultural heritage, for they formed an important part of the essence of city-state identity in the ancient world. However, these are not the same as temples (and the objects within), which were the property of the gods and allotted divine protection.
11 Bederman, International Law in Antiquity, 43.
12 Ibid., 248.
13 Cicero, On Duties, Book I, 33; my italics. On Cicero and the just war tradition more broadly, see Stuart, ‘Cicero’.
14 Cicero, On Duties, Book I, 35.
15 For a discussion that draws from relevant ancient sources, see Kallet-Marx, Hegemony to Empire, 84–96.
16 Lucius Florus, Epitome of Roman History, 143, 16, 6.
17 Diodorus Siculus, Library of History, 415, 4, 4–5.
18 Cicero, On Duties, Book 3, 46.
19 Kallet-Marx, Hegemony to Empire, 86.
20 Ibid., 88.
21 Josephus, Works, Book 6, 4, 3.
22 Raymond, ‘Greco-Roman Roots’, 18.
23 Quoted in St. Augustine, City of God, 1031–32.
24 Cicero, Verrine Orations, vol. 2, Book 2, 73–75; for a discussion, see Miles, Art as Plunder, 97–104. Compare, however, this example to Scipio's decision to slaughter the civilian population, per Roman custom when a city did not surrender, in the attack on New Carthage in 209 BCE. The decision was made out of military necessity to achieve victory before reinforcements could arrive. For a discussion, see Raymond, ‘Greco-Roman Roots’, 14.
25 Dench, From Barbarians to New Men, 72.
26 Cicero, On Duties, Book 1, 38.
27 In Gaul, see Lucan, Pharsalia, 3, 399-500. Cicero praises, in De Provinciis Consularibus, Caeser's wars in Gaul against a ‘savage’ and ‘barbarian’ enemy, but does not discuss the fate of the Gaul's sacred groves; Book 13, 32–33.
28 Polybius, Histories, Book 1, 1, 2.
29 Polybius, Histories, Book 5, 11, 4–5.
30 Polybius, Histories, Book 15, 17, 4; my italics.
31 Diodorus Siculus, Library of History, 443, 27, 1.
32 Josephus, Works, Book 6, 4, 5–8.
33 Sallust, Conspiracy of Cataline, 181.
34 Mattox, Saint Augustine, 1. On Cicero's complex influence on Augustine, see Tuck, Rights of War and Peace, 23–25, 55–57.
35 Cox, ‘A Law of War?’. See also Head and Landes, The Peace of God; especially chapter 1.
36 Johnson, Just War Tradition, 122; see also Mastnak, Crusading Peace, 59–67.
37 Peters, The First Crusade; see specifically the version of Robert of Rheims, 27; also that of Guibert of Nogent, 34.
38 Mastnak, Crusading Peace, 75–76.
39 Russel, Just War in the Middle Ages, 199; Muldhoon, Popes, Lawyers and Infidels, 67–8. For more detail beyond the scope of this essay, see Brundage's sweeping collection of essays in The Crusades, Holy War, and Canon Law.
40 Brunstetter, Tensions of Modernity, 23–6.
41 Vitoria, Political Writings, 239–40.
42 Bellamy, Just Wars, 52. In a more critical vein, Vitoria's arguments have been painted as marking the colonial origins of international law; see Anghie, Imperialism, Sovereignty and the Making of International Law, chapter 1.
43 Vitoria, Political Writings, 246; 252–76, 302–04.
44 On Vitoria's view of how to lead the Indians to Christianity, see Pagden, Fall of Natural Man, 99–104.
45 Cortés, Letters from Mexico, 105, 106.
46 Later in life, Cortés apparently did lament that they were not preserved as ‘testimony to the Aztec culture’ of the past, as a kind of memorial or memory of a defeated and converted people. See Todorov, Conquest of America, 109.
47 Cortés, Letters from Mexico, 223.
48 Ibid., 101.
49 Johnson, Just War Tradition, 75–76.
50 Vitoria, Political Writings, 288.
51 Ibid., 323.
52 Ibid., 321.
53 Ibid., 347.
54 Johnson, Sovereignty, 51.
55 Prévost, Histoire générale des voïages, vol. 47, 189–91. Prévost's compendium of travel accounts was widely available in the eighteenth century and cited as a reference by Vattel.
56 Ibid., 196.
57 Ibid., 217.
58 Forde, ‘Hugo Grotius on Ethics and War,’ 638. On the consequences of Grotius's thought for non-European peoples, see Tuck, Rights of War and Peace, 102–08.
59 Forde, ‘Hugo Grotius on Ethics and War,’ 644.
60 Johnson, Ideology, 223.
61 Grotius, Rights of War and Peace, 1304.
62 Ibid., 1312.
63 Ibid., 1466.
64 Ibid., 1472.
65 Vattel, Law of Nations, 19.
66 See Tuck, Rights of War and Peace, 191–6; and Zurbuchen ‘Vattel's Law of Nations’.
67 Vattel, Law of Nations, 571.
68 Sandholtz, Prohibiting Plunder, 44.
69 Christov, ‘Vattel’, 164.
70 Vattel, Law of Nations, 487.
71 Ibid., 575.
72 Ibid., 572.
73 Ibid., 575. It is clear that the Spanish wars in the New World, sometimes predicated on this idea, were not an example of what Vattel was talking about. Here Vattel follows Vitoria, but diverges from Grotius. See Vitoria, Political Writings, 272–5; Grotius, Rights of War and Peace, 1021.
74 Vattel, Law of Nations, 572.
75 Ibid., 575.