Ceremony in the Royal Castle in Warsaw on the 50th Anniversary of the Convention of 14th May 1954 on the Protection of Cultural Property in the Event of Armed Conflict Opening Keynote Address by Professor Patrick Boylan ** The Significance of the 1954 Hague Convention and its 1999 Second Protocol in relation to the Protection of Cultural Property in the Event of Armed Conflict Mr. Chairman, Ministers, Excellencies, Ladies and Gentlemen, including so many Friends:
This is a great occasion. We gather in the historic setting of Warsaw Castle, so severely damaged in World War II and now so splendidly restored, on the 50th anniversary day of 1954 Hague Convention, five years after a further Diplomatic Conference representing over 80 States agreed the Second Protocol to the Convention, and just 2 months after that most significant updating of the Law of Armed Conflict came into force. Let me share with you first a few of my own memories and feelings.
I was born just two weeks before the invasion of Poland by the Third Reich in September 1939 which started World War II, in the City of Kingston upon Hull, Yorkshire, north-eastern England, and lived there (or in temporary accommodation just outside the City because of bomb damage to successive family homes) throughout the war. It was our City, not Coventry or London, which suffered proportionately by far the most severe war damage in Britain, though because of its strategic significance as the nearest major sea port to Germany its identity was a closely guarded secret throughout the war. Thus the war damage of 89,500 out of Hull’s 93,000 buildings, with over 10,000 totally destroyed, was always referred to as the bombing of “A North-East Coast Town”. I can therefore understand from my own experience the tragedy of Warsaw where the physical and human war damage was far greater. Then, 20 years after the first major air raid I got my first museum job with the City Museums - or more accurately their remains, working on the identification of tiny fragments remaining of a once great collection that was largely lost when four of the City’s six pre-war museums were destroyed by bombing or consequent fires. I can therefore claim to have been closely involved in the protection of cultural property affected by war from the very beginning of my career.
I know that the British are often, and quite rightly, perceived as people who take great care to hide their feelings, but today I could not hide the deep emotion that I feel at this moment, even if I wanted to do so. I can therefore want to say that I am deeply moved and greatly honoured that the organisers of this magnificent Conference have asked me to give the opening address in this ceremony to mark the 50th anniversary of the adoption of the original Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict exactly 50 years ago today, on 14th May 1956.
As many of you know, I have been very closely involved for nearly fourteen years with the development of improved measures to protect cultural property in times of armed conflict. As an Executive Council member of the International Council of Museums (ICOM) in 1990 I was asked by my colleagues to take special responsibility within the Council over the growing crisis in Yugoslavia, and then during the first Gulf War in 1991. In the Autumn of 1992 I was commissioned jointly by UNESCO and The Netherlands (as part of its contribution to the International Decade of International Law) to carry out a wide-ranging review of the apparent failure of the 1954 Hague Convention and its Protocol (now the First Protocol) to achieve the clear and honourable objectives which this important International Legal Instrument was intended to achieve, and to make recommendations for their updating and improvement. I must confess that I was surprised to be asked to undertake such a task, since I am not a qualified lawyer. However, I was assured by UNESCO and by the Foreign Affairs and Culture Ministries of The Netherlands that after a number of inconclusive legal reviews over a period of decades, they were seeking the perhaps more practical viewpoint of an experienced senior heritage manager.
Over a six month period I consulted very widely around the world, made detailed studies of the documentation of a number of conflicts in which there had been serious cultural losses, including various Middle East conflicts, Cambodia, Cyprus and the then current conflicts in Yugoslavia. I had at my disposal throughout outstanding specialist legal expertise, particularly from the UNESCO International Standards team led by Professor Lyndel Prott, and The Netherlands government international law experts, led by Drs Adriaan Bos, Chief Legal Adviser to the Foreign Ministry. By May 1993 my findings and recommendations had been brought together in a detailed report of 248 pages. After various consultations, including an International Expert Meeting in The Hague in June, the final version, Review of the Convention on the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954), was submitted by the Director-General to the Executive Board of UNESCO, which agreed to its immediate publication in English and French editions, and submission to the October 1993 UNESCO General Conference.
I criticised just about everyone for their failures: the UN, UNESCO, States Parties to the Convention, countries which had failed to adopt the Hague Convention, and both cultural professionals and their organisations. However, I found that the 1954 Convention itself was basically very good: most of the problems and failures had been, in my view, failures of implementation and commitment. This was a very bold position to take, at least at that time, and I know that the criticisms made enemies. However, all this was balanced by an insistence that the Hague Convention could be made to work with proper commitment and application by the world community and its international, national and local organisations. Nevertheless, I argued, that there was a need for some significant changes and additions to both clarify and strengthen its provisions, application and enforcement.
UNESCO’s publication of the Review was followed by contributions to very many - certainly some dozens - of meetings, conferences, symposia, workshops and individual lectures across five continents. At last March 1999 arrived, and with it the Diplomatic Conference to review the 1954 Hague Convention, attended by representatives of over eighty States. I attended in two capacities, as the consultant expert who had been so closely involved in the review and the subsequent consultations and negotiations for UNESCO and The Netherlands, and as Head of the Delegation of Accredited Non-Governmental Organisations. The conference lasting two very hard, and at times frustrating, weeks. I remember that one afternoon my colleague from the International Federation of Library Associations and Institutions (IFLA) and I took two hours off from a series of particularly obtuse working group debates and walked across the courtyard outside the convention centre to the International Criminal Tribunal for Yugoslavia. We sat in the public gallery listening to deeply disturbing evidence and cross-examination in one of the Bosnian war crimes prosecutions, both as a sort of rest from stresses of the Diplomatic Conference, and to remind ourselves what our work in trying to revitalise and improve the Hague Convention was intended to avoid in the future.
The Diplomatic Conference in The Hague, expertly guided by Drs Adriaan Bos, with whom I had by then been working for more than six years, finally adopted by consensus the Second Protocol, which sought to overcome almost all the problems and weaknesses identified in the 1993 “Boylan Report”.
During the formal Closing Ceremony of the Diplomatic Conference I was invited to sign the Final Act of the Diplomatic Conference. Three distinguished experts in treaty law present said that in their long experience this was the first time that a non-governmental participant in such a conference had been allowed to do so. Needless to say, I felt deeply honoured and humbled by this gesture. Today, I feel similarly honoured to give the opening address at this important session on the Hague Convention and its Protocols on the fiftieth anniversary day of the original Hague Convention on the Protection of Cultural Property ion the Event of Armed Conflict of 14th May 1954. I am most grateful to all concerned in honouring me in this way, particularly Col. Kalínski. I am also very glad that despite his health problems my friend Drs Andriaan Bos, now retired from the Ministry of Foreign Affairs of The Netherlands, will be able to participate in the parallel conference in the UNESCO headquarters in Paris later this week.
Actually, I was not invited here to recall history, nor describe my own emotions, on this important day, so let us look to the future. What are the implications of the revised Hague Convention regime, strengthened and reinvigorated by the 1999 Second Protocol, which entered into force just 67 days ago, on 9th March 2004, three months after the formal deposit of the 20th Instrument of Ratification, that of Costa Rica on 9th December 2003?
The first, and perhaps most important, thing to say is that there is still much to do regarding the adoption and effective implementation of the Hague Convention, even though it is now fifty years since it was first adopted. Fifty years on only just over half (109) of the world’s countries are Parties to the Convention, though this an increase of around 46% since I started work on the Review in 1992, and the more recent additions have included a number of NATO countries actively involved in UN Peacekeeping. I was particularly please to see China ratifying the Convention in 2000, because when we started consultations on my findings and proposals in 1993 the PRC was amongst those non-Party States that were most sceptical. Also, bearing in mind the often lengthy national legal processes for such ratifications, particularly where international criminal sanctions are involved, I am rather encouraged that 22 States have already adopted the 1999 Second Protocol, and I know that a number of other States have already actively begun work on ratification through their own national procedures.
Nevertheless there must be a continuing campaign to encourage countries to ratify both the 1954 Convention and Protocol and the 1999 Second Protocol. This month, when the European Union is being enlarged by the accession of ten more States, is a very appropriate time to try to renew understanding of the need for all EU countries to adopt a common approach to this increasingly important area of international humanitarian law. Currently 21 countries of the enlarged EU are already States Parties to the main 1954 Convention, but Ireland, Lithuania, Malta and the United Kingdom are not. However, only five have so far ratified the 1999 Second Protocol (Austria, Cyprus, Slovakia, Slovenia and Spain), so there is still much to do.
Another important problem requiring effective solutions and application is the issue of enforcement, through penal sanctions, where necessary at the international level, and I know that the need to go through special constitutional procedures where there is a possibility of the extradition of citizens for criminal trial abroad (or in an international tribunal) is a problem for some countries.
Time is passing quickly, as the first two-yearly Meeting of States Parties to the Second Protocol will take place quite soon, and certainly no later than during the next General Conference of UNESCO in October 2005. This will an extremely important landmark because of the very significant decisions that must be taken there. These include the election for a four year period from among the States Parties at that time of members of the powerful new intergovernmental Committee for the Protection of Cultural Property in the Event of Armed Conflict, the adoption of Rules of Procedure for meetings of States Parties and of the Committee, as well as work on Operational Guidelines for the implementation of the Convention and Second Protocol and for the use of the new Fund for the Protection of Cultural Property in the Event of Armed Conflict. If your country does not deposit a legal Instrument of Ratification or Accession with UNESCO at least three months before the first meeting of Second Protocol States, you will only be able to attend the meeting as an observer, and will not be eligible for election to the Committee.
In the limited time remaining I would now like to comment on a number of key issues relating to the implementation of the Hague Convention and its Protocols.
The original 1954 “Cultural Property under Special Protection” provisions for the most outstanding cultural property remains available should any State wish to seek such designations, even though as we now know it has never worked properly for a number of reasons identified in numerous studies. Only one cultural site, Vatican City, has been designated in 50 years, together with half a dozen or so wartime emergency refuges and shelters to which movable cultural property would be moved when war is threatened. At the height of the conflicts in Cambodia there was a proposal for the designation of the Angkor temples complex under the Special Protection regime, but this was blocked through the lack of unanimous support from States Parties, though the objections were essentially political (refusals to recognise the then Cambodian government) rather than for any valid cultural or military reason.
To deal with the identified problems, and in order to avoid a repeat of the Angkor case, the 1999 Diplomatic Conference adopted a new system of “Enhanced Protection”, which will be granted by the new Committee subject to a four-firths majority, not the unanimous approval of every single State Party required for Special Protection under the 1954 provisions. All the indications are that using the new criteria and procedures far more examples of the world’s most important cultural property will be submitted for Enhanced Protection designation.
Another important issue is to make the terms and scope of the Hague Convention better known and understood. It has to be said that it seems to be widely believed that the scope of the Hague Convention is basically the same as that of the 1972 World Heritage Convention, i.e. that it covers only monuments, sites and buildings. In fact, the definition of “cultural property” protected by the Hague Convention is far wider, covering all significant objects and collections of movable cultural property, such as works of art, antiquities, natural history, science and technology collections, and archive and library collections. In fact, the Hague Convention equally protects buildings and institutions dedicated to the collecting and care of movable cultural property, such as museums, art galleries, libraries and archive repositories. Further, the buildings and sites of such cultural institutions are equally eligible for Enhanced Protection if the Second Protocol intergovernmental Committee considers their collections to be of sufficiently high importance.
However, it has to be stressed that each proposal for Enhanced Protection must be assessed not only for its great cultural importance but also for its military implications. In particular there must be a sufficient separation from any potential legitimate military target or objective. I am very enthusiastic about the World Heritage Convention, but there is no way that all cultural World Heritage sites can be automatically granted Enhanced Protection. If the new Second Protocol Committee simply adopted a World Heritage designation without a proper assessment of the military implications this would gravely damage the credibility of the whole system.
If the World Heritage Committee ever made an unwise or unjustified World Heritage Inscription, the only damage would be to the credibility of the Convention and the World List. In contrast with this, an Enhanced Protection designation that did not take proper account of potential military conflicts, e.g. there was a insufficient separation distance from a military or military-economic establishment, then military personnel and their political direction will face potentially very severe penalties for war crimes. I am therefore strongly against the suggestion, made a number of times over recent years, that a World Heritage List Inscription should more or less automatically lead to the award of Enhanced Protection.
Perhaps I can give a hypothetical example to explain what concerns me. The historic naval complex of Portsmouth Harbour in southern England has the largest concentration of historic maritime buildings and structures in the country, ranging from the Roman period, and then every century from the 15th C. to the present day. In addition, it has internationally important museums, and three unique preserved historic warships from the 16th, 18th and 19th centuries. There is little doubt that if the United Kingdom ever presented historic Portsmouth Harbour to the World Heritage Committee there is a strong possibility that it would be added to the World Heritage List because of its universal importance to the world’s heritage. However, Portsmouth Harbour remains the very active home port of the Royal Navy of the United Kingdom, which is equipped with nuclear weapons. Consequently it would clearly be a legitimate military objective in the event of an armed conflict and could never be granted Enhanced Protection under the 1999 Second Protocol, even if it was on the World Heritage List, because of the conflict between its cultural and military significance.
Examining a range of typical World Heritage List application and Inscription files I found that in many cases it would be difficult to determine from the official maps, plans and geographical description the exact boundaries, and in some cases the exact location, for military purposes, whether by a commander fighting on the ground at night, or even in daytime, those directing air warfare attacks, or perhaps even programming the targeting cruise missiles from thousands of miles away. All cultural property inventories under the Hague Convention, and especially the location and limits of all Enhanced Protection locations, must be related to any relevant military mapping grid for the country or region, supported by the relevant universal coordinates, preferably the unique UTM (Universal Transverse Mercator) grid position, failing which latitude and longitude to the nearest second. I have recently been assisting UNESCO in the development of draft Operational Guidelines for consideration by the Second Protocol States Parties at the forthcoming first meeting, but the draft proposals are not yet ready for consultation.
Another highly important development with the coming into force of Second Protocol is the change in the war crimes provisions in respect of the unjustified intentional or reckless destruction or damage of cultural property. The original 1954 Hague Convention was an important advance in including explicit provisions in this area, but the enforcement regime was very weak, since investigation, prosecution, criminal sanctions and punishment an obligation only of each State Party, and in practice few if any countries established really effective measures under their military or civilian criminal codes to meet this obligation.
The Second Protocol therefore introduces a broader two-tier series of five definitions of war crimes against cultural property. The three most serious types of violation are now subject to universal jurisdiction including extradition, in line with the established law relating to Grave Breaches of the Geneva Conventions or Genocide. The final two categories remain to be dealt with under the military or civilian criminal codes of the State Party in respect of violations within its own territory or by its own nationals (anywhere in the world). Providing for universally enforceable arrest, prosecution and extradition, together with the possibility of criminal trial in any Second Protocol country or in any appropriate international tribunal or court, was one of the greatest advances achieved with the adoption of the Second Protocol.
Finally, I must stress, if only very briefly, the important improvements in relation to the obligations of States Parties relating to information and training. Under the original 1954 Convention, this was seen as relating almost exclusively to the training of the military and of personnel specifically responsible for civil defence and similar services with cultural property protection responsibilities during threatened or actual emergencies. Though a number of countries do this very well, the majority of States Parties do not. The Second Protocol aims to both reinvigorate and greatly improve the training of military personnel, but for the first time includes an obligation for States to promote respect for and an understanding of cultural property and the wider cultural heritage among all peoples, not least the general public. After all, the cultural heritage of a particular territory or population is a part of the universal heritage of all humanity, and therefore ultimately part of the culture of each one of us.
Thank you once again for the invitation and your attention. I hope that my short contribution, together with those of colleagues to follow, will contribute significantly to breathing life into perhaps rather formal texts of the Hague Convention on its 50th birthday, and to the 1999 new Second Protocol.