THE PROTECTION OF CULTURAL PROPERTY IN ARMED CONFLICT
THE DESTRUCTION OF CULTURAL PROPERTY DURING ARMED CONFLICT
Throughout history war has gone hand in hand with the destruction of people and property, including cultural property. Countless works of art and historic monuments have been destroyed and pillaged as a result of armed conflicts. Just think of the pillage of Jewish art during the Second World, the destruction of the old city of Dubrovnik or more recently the looting of the Iraqi National Museum after the Coalition Forces invaded Baghdad. As international humanitarian law gradually developed the need to protect cultural property from the devastating affects of war grew. Today several legal instruments are in place to prevent the destruction of cultural property in times of armed conflict.
EARLY ATTEMPTS AT LEGAL REGULATION
The first attempts to draft legally binding rules to protect cultural property were made in the eighteenth century. The Lieber Code of 1863, the Brussels Declaration of 1874 and the Oxford Manual of 1880 provided some protection, albeit limited, for cultural property.
The Hague Peace Conferences of 1899 and 1907 resulted in the adoption of several conventions aimed at regulating the conduct of warfare. In particular, the Hague Regulations on the Laws and Customs of War on Land annexed to the Fourth Convention of 1907 contain provisions specifically aimed at the protection of cultural property.
In the aftermath of the First World War two serious attempts were made to draft a convention dedicated solely to the protection of cultural property. The first attempt resulted in the adoption of the Roerich Pact in 1935 which is still binding on 11 states in the Americas. The second effort focussed on creating a universal convention under the auspices of the League of Nations. Due to the outbreak of the Second World War , however, the Preliminary Draft Convention for the Protection of Historic Buildings and Works of Art in Time of War was never adopted.
Once the magnitude of destroyed and looted cultural property fully came to light after the Second World War, steps were taken to improve the protection of cultural property. Taking the Roerich Pact and the Draft of the League of Nations draft Convention into consideration, the preparations for a new convention commenced. On 14 May 1954 the Convention and Protocol on the Protection of Cultural Property in the Event of Armed Conflict was adopted. The first Protocol was adopted at the same time and deals with cultural property in occupied territory. This Convention has been ratified by 113 states and is today considered to be one of the most important instruments to protect cultural property in times of war.
At the time the 1977 Additional Protocols to the Geneva Conventions were negotiated not many states had ratified the 1954 Convention, and therefore two provisions on the protection of cultural property during international and non-international conflicts were included.
A few decades later a new impulse was given to the protection of cultural property with the creation of international criminal tribunals and courts. The 1993 Statute for the Criminal for the Former Yugoslavia and the 1998 Rome Statute for the International Criminal Court include the destruction of cultural property as a war crime.
Taking the recent developments of international criminal law and international humanitarian law into account, it became clear that the 1954 Convention contained several weaknesses and needed to be improved. In 1999 the Second Additional Protocol to the Hague Convention was adopted. It entered into force on 9 March 2004.
THE CURRENT INTERNATIONAL FRAMEWORK OF PROTECTION
The main legal instruments
a) the 1907 Hague Regulations (Arts. 23(g), 56)
b) The 1954 Hague Convention and First Protocol
c) The 1977 Additional Protocols to the Hague Convention (Arts. 53,16)
d) The 1999 Second Protocol to the 1954 Hague Convention
The scope of application
The protection of cultural property is governed by several legal instruments. In each conflict one has to see which of the instruments have been ratified to determine the level of protection cultural property should be afforded. The 1907 Hague Regulations have become part of customary law and are binding on all states. The provisions relating to cultural property, namely, Articles 23(g) and 56, are therefore applicable to all states in an international armed conflict. Some argue that certain parts of the 1954 Hague Conventions and 1977 Additional Protocols reflect customary law and are therefore also binding on all states.
Definition of cultural property
The 1954 Convention contains by far the most detailed regulations regarding the protection of cultural property. The term cultural property covers (Art. 1):
o Moveable or immovable property of great importance to cultural heritage of every people;
o Buildings whose main purpose is to exhibit or preserve movable property;
o Centres containing large amount of cultural property.
Generally speaking, this means that most museums containing works of arts, historic cities, archaeological sites, and important places of worship, whether temple, church or synagogue, are protected by the Convention. The 1977 Additional Protocols include places of worship which constitute the spiritual or cultural heritage of peoples.
The protection of cultural property consists of safeguarding of and respect for cultural property. Safeguarding measures have to be taken in time of peace and include inter alia: setting up an inventory, building shelters, preparing guidelines on how to proceed once war breaks out, etc.
Respect for cultural property implies that the State Parties may not use cultural property for military purposes nor carry out an act of hostilities against cultural property during an armed conflict. Only if military necessity requires can State Parties deviate from this rule. State Parties have to take measures that will prevent theft, pillage and looting of cultural property. Any acts of reprisals against cultural property are prohibited.
Under the 1977 Additional Protocols to the Geneva Conventions cultural property enjoys general protection because cultural property is civilian in nature (Art. 52 API). Cultural property that is covered by Article 53 enjoys ‘additional’ protection.
The 1954 Convention introduces the system of special protection. Only refuges providing shelter to cultural property, centres containing monuments and immoveable cultural property of very great importance can be granted special protection under strict conditions. Special protection is granted by entry in the International Register of Cultural Property under Special Protection. The Register contains hardly any inscriptions and due to several reasons has not functioned properly. The Convention also contains provisions relating to occupation, personnel, military measures and transport of cultural property.
Non- international armed conflict
According to Article 19 of the 1954 Convention, each party to the conflict must observe the provisions relating to respect for cultural property. This is only applicable to non-international armed conflict on the territory of one of the State Parties. In addition, the parties to the conflict should attempt to bring all or part of the other provisions of the Convention into force. Article 16 of the 1999 Additional Protocol also affords protection to cultural property during an internal conflict. Because its definition of non-international armed conflict differs from the 1954 Convention the scope of application is not the same.
The Second Protocol of 1999
Many changes have taken place since the adoption of the 1954 Convention. These developments should also be reflected with respect to the protection of cultural property. The Second Protocol to the 1954 Convention, adopted in 1999, addresses several shortcomings of the Convention but also strengthens the system of protection of cultural property in many respects.
Due to the fact that the system of special protection has been rather unsuccessful, the Second Protocol introduces the system of enhanced protection. Three criteria have to be met before cultural property can be placed on the List of Cultural Property under Enhanced Protection (Art. 10):
- It is cultural heritage of the greatest importance for humanity;
- It is protected by adequate legal and administrative measures recognising its importance and ensuring the highest level of protection;
- It is not used for military purposes or used to shield military objectives.
There is no difference in the level of protection for cultural property under general or enhanced protection. The only difference is that the holder cannot change cultural property under enhanced protection into a military objective whereas cultural property under general protection may be converted into a military objective. The Second Protocol defines conditions regarding precautions in attacks and precautions against the effects of attacks.
The Second Protocol establishes a system of criminal repression. Article 15 defines five serious violations:
o Making cultural property under enhanced protection the object of attack;
o Using cultural property under enhanced protection in support of military action;
o Extensive destruction of cultural property protected under the Convention and Protocol;
o Making cultural property under the Convention and Protocol the object of attack;
o Theft, pillage or misappropriation of, or acts of vandalism directed against, cultural property under the Convention and Protocol;
State Parties are under the obligation to criminalise these violations under domestic law and establish appropriate penalties. State Parties have to establish jurisdiction over these five violations and are under the obligation to either try or extradite the persons who have allegedly committed these violations.
The Second Protocol makes some improvements with regard to safeguarding of and respect for cultural property. Several institutional aspects have also been addressed as well by the Second Protocol.
 As of 16 December 2004. See www.unesco.org
- March 12, SCL Lecture "First Reflections on the ICC Katanga Judgement"
- April 23, SCL Lecture "Addressing Crimes against the Environment under the Rome Statute"
- May 22, SCL Lecture "Rethinking Culpability through the Impunity Gap"
- June 2 - 25, Summer Law Programme - The Hague
- August 25 - 29, Summer Programme on Countering Terrorism