Review of the Convention for the Protection of Cultural Property in



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CHAPTER 14.

ROLE OF UNESCO

14. 1. UNESCO quite plainly has the central role in relation to the both the development and application of the 1954 Hague Convention and that position should be retained and, if possible, strengthened. Its parallel positions of leadership in relation to both the 1970 Convention on movable cultural property and the 1972 World Heritage Convention offer further possibility for an integrated approach at the level of practical application in times of threatened or actual armed conflict. UNESCO's efforts in relation to the protection of the World Heritage Site Old Town of Dubrovnik in the current conflicts in ex-Yugoslavia is an excellent model for future action, despite the totally irrational (and criminal) behaviour of some of the parties involved.


14. 2. There is a clear parallel role that could be developed by UNESCO in relation to illicit movement of cultural property out of war zones and other areas of armed conflict, integrating the provisions of the 1954 Hague Protocol and the 1970 movable property Convention. Unfortunately, the case in which UNESCO might in principle have been able to take a more interventionist role, that of the occupied areas of northern Cyprus, from which there has clearly been very great losses as a result of looting and unlawful exports, has proved much more difficult. It is clear that almost any practical measures taken by UNESCO will be used by the leader of the Turkish ethnic community in northern Cyprus as a significant step towards at least de facto if not de jure recognition of a the north Cyprus state by a key international body.
14. 3. Despite such problems, and the failure of States Parties to agree to implement the 1954 Convention's provisions for the appointment of Commissioners-General for Cultural Property during the many international conflicts of the past four decades, UNESCO has been able to make a significant contribution to reducing the loss of the physical heritage during armed conflicts of all kinds, not least by means of the flexible use of the Director-General's extensive discretionary powers under his general mandate, as well as under Articles 22 and 23 of the Hague Convention itself.

14. 4. In many ways it is a good thing that very many people interested in the heritage of the peoples of the world feel and publicly express deep anger and shock at the numerous outrages perpetrated in gross defiance of the Hague Convention and of other instruments of international humanitarian law, and indeed contrary to well-established principles of customary international law. It is perhaps understand­able, though very unfortunate, that the feeling of helplessness in the face of such grave crimes against the patrimony of all the peoples of the world that some should relieve their anger by criticising UNESCO for its alleged failure to somehow put a stop to such international crimes.


14. 5. However, to deliberately mis-quote Stalin's alleged aphorism about Pope Pius XII, `How many Divisions has the Director-General of UNESCO?'. To take the current case of the former Yugoslavia, it has been estimated that in less than three years many tens of thousands of unarmed civilians have been slaughtered in acts of genocide, outside assessors have estimated that perhaps as many as 20,000 women and young girls have been subjected to rape as a deliberate act of war, in gross breach of not only the local criminal law but also the Geneva Conventions, and that displaced and homeless victims of genocidal `ethnic cleansing' total millions. Compared with these statistics, in numerical terms the few thousands of possible war crimes against important cultural property are inevitably going to be seen as almost marginal to the totality of the war crimes, even allowing for the extremely grave, wanton, attacks on the defenceless Old Town of Dubrovnik, the virtual obliteration of the physical heritage of whole regions such as those of Vukovar, Osijek, and the Konvale part of the rural area of the Dubrovnik commune304. It has to be recognised that these losses have been due in most cases to the failure of parties in the various interna­tional and internal armed conflicts to comply with interna­tional law, and to both respect and positively safeguard physical evidence of the local, regional, national and international heritage.
14. 6. As a first step in achieving greater recognition and more effec­tive implemen­tation of the 1954 Convention, it is essential that the number of States Party to it be greatly increased, since the effectiveness of any interna­tional law ultimately depends on the principle of universal acceptance305. UNESCO should take the lead in a new campaign to actively promote the Convention's adoption. So far as specific measures are concerned, the current policy of the Director-General of urging newly admit­ted Member States to adopt without delay (inter alia) the 1954 Hague Conven­tion and Protocol is welcomed, and should be continued. In addition the Executive Board should immediately request Director-General to approach again every other non-signatory sovereign States recognised by the United Nations and/or UNESCO, whether or not they are UNESCO members, in accordance with Articles 31 and 32 of the Convention, urging them to adopt the Convention.
14. 7. In addition to taking action in times of armed conflict either through the appoint­ment of Commissioners-General or Special Representatives of the Director General, UNESCO should appoint or nominate experts to serve as liaison and advisory offic­ers in the field to commanders of United Nations Peace-keeping Forces in support of UN peacekeeping and peacemaking operations.
14. 8. It probably inevitable that in times of actual or threatened armed conflict interna­tional public opinion will focus attention on particularly famous and important sites: Angkor Wat in Cambodia, Dubrovnik in Croatia, Tyre in Lebanon. While World Heritage and other famous sites should certainly never be neglected, UNESCO and other interna­tional organisations, when under such pressure, should not restrict their actions and practical measures to such sites at the expense of more broadly based support for the wider cultural patrimony suffering serious damage or under threat in the region concerned.
14. 9. There is a considerable body of practical information and experience, dating from at least the period of the Spanish Civil War and the Second World War onwards, on practical measures for the protection of monuments, museums, libraries, archive repositories etc. in the face of the prospect of armed conflict. For example, the International Museums Office prepared for UNESCO's the League of Nations predecessor, the International Institute of Intellectual Cooperation, a very substantial practical handbook in the Autumn of 1939, and - especially UNESCO's own substantial Museums and Monuments Series handbook by A. Noblecourt published in 1954 (French edition) and 1958 (English edition). UNESCO should commission and publish up-to-date research and advice on practical protection measures, integrating this advice with recommenda­tions on necessary practical measures for the prevention and mitigation of natural and civil disasters. In this, UNESCO should work closely with all relevant non-governmental interna­tional organisations, including all of the NGOs associated with UNESCO working in the field of the material heritage, and with the International Committee of the Red Cross, in both developing and actively promoting such professional and technical advice.
14.10. One of the highest priorities for all international and national bodies in relation to both immovable and movable cultural property, and especially for UNESCO, must be to develop greater understanding of, and respect for, the great many different cultures and traditions of the different peoples of the world. UNESCO already has an admirable record in this field, but should take the opportunity presented by the recent adoption by the United Nations of its Declaration on the Rights of Persons belonging to National, or Ethnic, religious and Linguistic Minorities306 to develop its work in this area. This should include additional programmes of education and information for peoples of all ages, and especially within multi-ethnic and multicultural societies aimed at developing respect and understanding, as some of the greatest losses in recent armed conflicts have been the result of deliberate damage and destruction of the cultural evidence of the existence of enemy, or indeed just different, peoples.
14.11. In times of war and other armed conflict UNESCO should put additional resources into attempting to counter by all practi­cable means the prevailing negative cultural propa­ganda, particularly through the presentation of unbiased radio and television programmes both from ground stations and satellite.
14.12. Pending any future decision by the High Contracting Parties as to whether a majority wish to begin the process of revising the 1954 Conven­tion and Protocol or of developing an Additional Protocol, it is strongly recommended that the next General Conference of UNESCO should be asked to consider and adopt a substan­tial composite Resolution incorpor­at­ing a series of practical Recommenda­tions in relation to the Protection of Cultural Property in the Event of Armed Conflict, and in par­ticular aimed at greatly improving the effective­ness and practical application of the 1954 Convention including:
1. a Recommendation urging all non-signatory Sovereign States of the world to adopt and implement in terms of national legislation and adminis­trative procedures both the Conven­tion on the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 1954, and its Protocol without delay;
2. a Resolution urging that in view of the alarming scale of loss of movable cultural property from monuments, museums, libraries, archives and other depositories of cultural prop­erty in times of both international and internal armed con­flict, all High Contracting Parties to the 1954 Conven­tion be urged to adopt both the 1954 Hague Protocol and the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cul­tural Property, and to institute effective national and inter­na­tional measures to prevent trafficking in cultural material from war zones;
3. a Resolution establishing a UNESCO Intergovernmental Advis­ory Commit­tee on the Protection of Cultural Property in the Event of Armed Conflict, constituted under Category II (Articles 18 - 20) of the UNESCO Regulations for the general classification of the various categories of meetings convened by UNESCO. The Committee should follow in general terms the model of the World Heritage Committee, though it would not have executive powers. The main purpose would be keep under review the effectiveness and imple­mentation of the 1954 Conven­tion and Protocol, to advise the Director General, the General Confer­ence, States Party to the Con­vention, as well as non-signa­tory sovereign states, on appropri­ate practice in relation to all aspects of the imple­mentation of the Convention and more generally on the Pro­tection of Cultural Property in times of Armed Conflict. The Intergovernmental Advisory Committee would in particular receive, review and formally publish the periodic reports of High Contracting Parties specified in Article 26(2) of the 1954 Convention, and would assist the Director General in relation to the training and education pro­grammes referred to below. (In the longer term it would be desirable to re-constitute such a Committee under the Hague Convention itself, but more urgent action is needed in order to bring the Convention and the progress (or lack of progress) in its implementation more directly to the attention of the governments of the High Contracting Parties. Draft terms of reference and outline rules of procedure for the proposed Advisory Committee are set out in Appendix X of this Report;
4. authorization of plans for UNESCO to establish a pro­gramme of regional intergov­ern­mental information/training seminars for both High Contract­ing Parties and non-signatory States in different parts of the world (perhaps one per year for five or six years), as it is clear that many of the non-signa­tory Member States of UNESCO and some High Contracting Parties are uncertain about what adopting and implement­ing 1954 Convention would mean in practical terms. This is particularly true of the large number of States in the Americas which in 1954 were already parties to the 1935 `Roerich Pact', and of the many Mem­ber States in Africa, Asia and the Caribbean which became independent during the period of de-colonisation during the third quarter of the century ;
5. a Resolution reminding all High Contracting Parties to the 1954 Convention of the importance of their obligation under Article 26 of the Convention to forward four-yearly reports to the Director-General on the `measures being taken, prepared or contem­plated... in fulfilment of...' the Convention and Regulations.
6. a Recommendation proposing urgent new programmes of action to improve public understanding and tolerance in relation to the values of cultural property and cultural diversity, at both the interna­tional level through both UNESCO and relevant Non-Governmental Organisations, and at national, regional and local levels, through Member States, National Commis­sions for UNESCO, and educational and non-govern­mental organisations;
7. proposals for additions to UNESCO's Third Medium Term Plan, especially Pro­grammes III.3 (Preservation and enhancement of the cultural heritage), VII.1 (Peace in the minds of men) and VII.2 (Human rights), to provide additional staff and finan­­cial resources for necess­ary urgent action to enable UNESCO to respond more effectively to current crises, and the est­ablish the proposed new arrangements for increasing its activities in this field, including the proposed programmes of regional intergovern­mental information/ training seminars and of public information and education;
8. authorization for UNESCO support of United Nations peacemaking and peacekeeping operations in areas of cultural importance through the appoint­ment or nomination of appro­priate experts to liaise with United Nations force commanders in the field;
9. a Resolution calling on the United Nations to take appropri­ate action through the General Assembly, Security Council, Military Staff Commit­tee and Secretary-General respective­ly to adopt the policies and role proposed for the United Nations in Section 3 of these Recommendations.

CHAPTER 15.

ROLE OF THE UNITED NATIONS

15. 1. In contrast with UNESCO, the United Nations, and especially the Security Council, does have the necessary constitutional powers under its Charter to enforce its decisions, though through the long years of the Cold War the Security Council was deadlocked. In contrast with the 300 vetoes used by the five Permanent Members of the United Nations to block proposals across the whole range of peacemaking, peace-keeping and other proposals to the Security Council during its first 45 years, there has not been a single veto since 1990.


15. 2. Within this greatly changed world order both the Secretary-General, Boutros Boutros-Ghali in his 1992 An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping307, and independent experts,308 have begun to examine the possible ways in which the United Nations could begin to operate more effectively in the way that its founders at Dumbarton Oaks in 1944 and at San Francisco in 1945 originally intended.
15. 3. Despite the severe limitations placed on the operation of the United Nations in the service of peace through the long years of the Cold War, much was in fact done, as the latest edition of the United Nations' official history and current status of its many peace-making and peace-keeping demonstrates.309
15. 4. The resources of the United Nations in this area depend entirely on what service personnel and materiel the Member States are willing to allocate to a particular operation: the United Nations standing force of seconded military units envisaged in the Charter has never been established. In most if not all peace-keeping operations the resources of the United Nations have been and remain far below the strength considered desirable. As a consequence there have never been any spare resources for anything other than the most urgent humanitarian, monitoring and peace-keeping activities focused on the most fundamental human survival needs. Certainly there has never been the military resources available in any sphere of operation to enable U.N. `blue helmets' to undertake the physical guarding of e.g. important monuments, museums etc., nor is this a realistic prospect for the foreseeable future.
15. 5. On the other hand the United Nations forces have from time to time given invaluable assistance in support of UNESCO initiatives in times of armed conflict. Examples have included providing assistance to UNESCO's expert consultant, M. Jacques Dallibard, to travel freely across the `blue line' in Cyprus while preparing his study of damage to cultural property in both north and south Cyprus, while during the Israeli invasion of South Lebanon in 1982, which affected directly the highly important historic site of Tyre, particularly in helping UNESCO experts to enter and travel within occupied country in general, and the important cultural monuments in particular. The senior U.N. officials consulted stress that wherever practicable the U.N. security forces will always make every effort to assist and support such expert missions of UNESCO, though they see little prospect of the United Nations itself being able to supervise and finance from central U.N. funds any sort of standing panel or force of cultural protection officers operating in the war zone as advisers to the military commanders310.

15. 6. Historically, and even in recent times, disputes over issues relating to the physical evidence of the national, cultural and - especially - religious identities of peoples have been significant factors in the development and escalation of interna­tional disputes, and have even on occasion provided the final casus belli for interna­tional and civil wars. The United Nations should recognise that even in less extreme cases such issues can be potent factors in escalating conflicts, and in the promotion, spreading and reinforcing of international and inter-community fear and hatred. Actual or perceived threats against, let alone actual physical attacks on, powerful national, cultural or religious symbols can therefore be a significant threat to the maintenance of peace and of both peacemaking and peace-keeping.


15. 7. Consequently, the implications of the possible threat to peace of such matters should be an entirely proper consideration for the Security Council under its responsibilities relating to the `Pacific Settlement of Disputes' and `Threats to Peace' under Chapters VI and VII of the United Nations Charter, (see also the current Secretary-General's 1992 An Agenda for Peace)311.
15. 8. In accordance with these principles, the United Nations should continue to support the efforts of UNESCO and the High Con­tracting Parties to the 1954 Convention in relation to promoting of understanding, and should recognise the potential cultural dimension in inter­national rela­tions and in both interna­tional and internal armed conflicts.
15. 9. In future the United Nations, should as a matter of routine, seek expert advice through UNESCO on the cultural protection implications of proposals for action under Chapters VI and VII of the Char­ter in relation to threats to international peace, armed conflicts and peacekeeping.
15.10. In relation to the issue of possible `cultural' war crimes in the former Yugoslavia, the Secretary-General of the United Nations should accept the offer of the Director-General of UNESCO to assist in this investigation of possible war crimes. It is also most desirable that the United Nations' team of experts investigating the complaints and allegations in respect of ex-Yugoslavia should be augmented by the appoint­ment of at least one expert in relevant cultural property issues.
15.11. The United Nations is urged to develop and pres­ent to the proposed interna­tional War Crimes Tribunal on cases relating to ex-Yugosl­avia312 some test cases in rela­tion to war crimes against cul­tural property in violation of the provi­sions of the 1954 Conven­tion, in order to determine the extent of the application and effectiveness of international law in such matters, and to establish precedents and examples in this respect. One obvious example that should be examined more closely is the alleged day-time `St Nicholas Day' naval bombardment of the Old Town of Dubrovnik (26 December 1991), which prima facie could represent a breach not just of the 1954 Hague Convention, but also every one of the codified laws and customs of naval bombardment from the 1899 Hague Conventions onwards.
15.12. The assistance of the United Nations in providing practical support to UNESCO official representa­tives undertaking duties in relation to the provisions of the 1954 Convention in some past peacekeeping (including Observer Mission) operations has been of great importance. The United Nations should in future provide such necessary facilities and logistical support for UNESCO-appointed or -nominated experts on a regular basis. In addition to undertaking their functions on behalf of UNESCO and in relation to the 1954 Convention, where appropriate such experts should also act as liaison and advisory offic­ers in the field to commanders of United Nations Peace-keeping Forces, on the lines of the system of nominated Monuments, Fine Arts and Archives (M., F.A. & A.) Officers successfully pioneered in the later stages of the Second World War in western and central Europe.
15.13. It is recognised that the training and other preparation for their missions of peacekeeping etc. forces allocated to the United Nations is primarily the responsi­bility of the military systems of the Member States providing the forces. However, it is most important that both officers and the ordinary troops engaged on peacekeeping missions should have adequate training in relevant international and national military and civilian law relating to cultural protection, (and indeed in respect of the cultural, ethnic and religious values of the peoples of the country of the operation in question). The United Nations should develop standard minimum requirements in terms of training, briefing and/or the applicable national military oper­ations manual, including issues relating to the protection of cultural property. Participating Member States should be requested by the U.N. to ensure that forces allocated to United Nations operations are adequately trained and briefed in such matters, and that appropriate military discipline is maintained in relation to the respect of monuments and other cultural property, and relevant cultural property export laws and codes.
15.14. Because important cultural monuments and collections are frequently seen as amongst the clearest expressions of the identity and values of peoples, the United Nations should recognise that providing emergency practical assistance, including the services of international experts and of essential measures such as the supply of specialised conserva­tion materials and equipment required for the preser­vation of cultural property of interna­tional, national or other cultural importance damaged or threatened by armed conflict is a form of humanitar­ian aid. Such essential assistance should not be subjected to undue restriction or delay under any United Nations sanctions regime.
15.15. In the context of both the Universal Declaration of Human Rights (1948) and the 1992 Declaration of the United Nations in relation to the rights (including cultural rights) of minority peoples, and especially Articles 1, 4(2), and 4(4)313, the United Nations should support UNESCO and United Nations Member States in the development of programmes of public information and education about cultural and ethnic diversity and respect for the cultures of all peoples, especially within multi-ethnic, multi-religious and multicultural societies.
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