Review of the Convention for the Protection of Cultural Property in



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DEPARTMENT OF DEFENSE

OFFICE OF GENERAL COUNSEL

WASHINGTON, D.C. 20301-1600
January 19, 1993

Honorable William H. Natcher

Chairman, Committee on Appropriations

United States House of Representatives

Washington, D.C. 20515
Dear Mr. Chairman:
The Senate Report (102-154) accompanying the Department of Defense Appropriation Bill for fiscal year 1992 (H.R. 2521), requested that the Department of Defense, in conjunction with the Department of State, convene a panel to examine "international policies and procedures regarding the protection of natural and cultural resources during times of war." The Senate Report also requested that specific recommendations be provided to the Secretary of Defense and to the House and Senate Committees on Appropriations as to ways in which "collateral damage to natural and cultural resources can continue to be minimized." In accordance with the Senate Report, the attached report is submitted for your information.
Sincerely,
John H. McNeill

Deputy General Counsel

(International Affairs & Intelligence)
Enclosure

- - - - - - - - - - - - - - - - - - - - - - -
Report to Senate and House Appropriations Committees
The Report accompanying the Department of Defense Appropriation Bill, 1992, recognized (p. 46) the effort taken by U.S. military services during Operation Desert Storm to ensure that valuable cultural resources were not harmed. The Report requested an examination of ways in which "collateral damage to natural and cultural resources from military operations can continue to be minimized."
The care exercised by the United States and its Coalition partners in Operation Desert Storm to minimize damage to natural, civilian, and cultural resources is documented in Appendix O to the Department of Defense's Final Report to Congress on the Conduct of the Persian Gulf War, submitted by the Secretary of Defense on April 12, 1992. These issues were reconsidered by a panel of experts within the Departments of Defense and State in response to the request contained in the Report accompanying the Department of Defense Appropriation Bill. These experts were:
John H. McNeill, Deputy General Counsel (International Affairs & Intelligence), Department of Defense;
Albert H. Dyson III, Senior Attorney, Office of the Deputy General Counsel, Department of Defense;

Victor A. D. Rostow, Deputy Assistant Secretary of Defense (Acting), Conventional Forces & Arms Control Policy, Office of the Assistant Secretary of Defense (International Security Policy);


Colonel James P. Terry, USMC [United States Marine Corps], Legal Counsel to the Chairman, Joint Chiefs of Staff;
Major Carol L. Brennecke, USAF [United States Air Force], Office of the Legal Counsel to the Chairman, Joint Chiefs of Staff;
W. Hays Parks, Special Assistant for Law of War Matters, International & Operational Law Division, Office of The Judge Advocate General, Department of the Army;
Commander Charles A. Allen, USN [United States Navy], Head, Law of Armed Conflict Branch, International Law Division, Office of the Judge Advocate General, Department of the Navy;
Major Steven J. Lepper, USAF [United States Air Force], International and Operational Law Division, Office of the Judge Advocate General, Department of the Air Force;
Edward R. Cummings, Assistant Legal Adviser for Politico Military Affairs, Office of the Legal Adviser, Department of State; and
James C. O'Brien, Attorney Adviser, Politico Military Affairs, Office of the Legal Adviser, Department of State.
The following constitutes their findings:
The United States considers the obligations to protect natural, civilian, and cultural property to be customary international law. The armed forces of the United States have one of the foremost programs for implementation of and respect for the law of war in the conduct of military operations, as evidenced by their actions in the course of the Gulf War. A fundamental problem with respect to minimization of collateral damage to natural, civilian and cultural property lies in the failure of implementation of the law of war by many nations and, in many cases, in its intentional abuse. Such was the case during the Gulf War; damage that occurred to natural or cultural property in almost every instance was directly attributable to intentional violations of the law of war by the Government of Iraq and its military forces.
Cultural property, civilian objects, and natural resources are protected from intentional attack so long as they are not utilized for military purposes. Each also is protected from collateral damage that is clearly disproportionate to the military advantage to be gained in the attack of military objectives. The law of war acknowledges the unfortunate inevitability of collateral damage when military objectives and civilian objects (including cultural property and natural resources) are commingled.
The obligation to take reasonable measures to minimize damage to natural resources and cultural property is shared by both an attacker and a defender. A number of steps can be taken by an attacker in order to minimize collateral damage to natural resources or cultural property. Many of these come in the design and development of weapons, weapon systems, and target intelligence, target acquisition, or weapons delivery systems. Each of these systems is enhanced by the quality of training provided personnel responsible for their operation. U.S. efforts to develop, acquire, and utilize weapon systems such as the F 117 aircraft, the laser guided bomb, and the Tomahawk missile are illustrative of the degree to which the armed services have sought precision in their military operations in order to minimize collateral damage. Even when the most precise means are not utilized, weapons systems such as F 15E Strike Eagle and F/A 18 Hornet aircraft employing general purpose gravity bombs possess weapons delivery systems that provide a measure of accuracy vastly exceeding previous capabilities, or current capabilities of most nations.
The defender has certain responsibilities as well, not the least of which is to take all reasonable measures to separate military objectives from civilian objects and the civilian population. Regrettably, in conflicts such as the Korean and Vietnam Wars, as well as the 1991 Persian Gulf War, the armed forces of the United States have faced opponents who have elected to use their civilian populations and civilian objects to shield military objectives from attack. Notwithstanding such actions, U.S. forces have taken reasonable measures to minimize collateral injury to civilians and damage to civilian objects while conducting their military operations, often at increased risk to U.S. personnel.
Finally, with the poor track record of compliance with the law of war by some nations, the United States has a responsibility to protect against threats that may inflict serious collateral damage to our own interests and allies. These threats can arise from any nation that does not have the capability or desire to respect the law of war. One example is Iraq's indiscriminate use of SCUDs during the Iran Iraq War and the Gulf War. These highly inaccurate theater ballistic missiles can cause extensive collateral damage well out of proportion to military results. Another concern is the proliferation of weapons of mass destruction, whose use on friendly targets could cause severe collateral damage. The United States must have the capability to raise the threshold for using these weapons through active deterrence and defense.
The foregoing establishes a foundation to respond to the question raised in the Report for the Defense Appropriations Act, 1992. The paragraphs that follow will provide more specific information relating to the protection of natural resources and cultural property from collateral damage.
Natural resources.
The United States recognizes that protection of natural resources, as well as protection of the environment, is important even in times of armed conflict. Natural resources are finite, and reasonable measures must be taken to protect against their unnecessary destruction. At the same time, combat has definite effects, however variable in extent and duration, on the natural environment; photographs of the battlefields of World War I provide evidence of that destructiveness, while photographs of those same battlefields today offer equal evidence of the resilient abilities of the planet to recover from the effects of conventional military operations.
In this respect the panel of experts was not inclined to agree with the suggestion in the Report of the Defense Appropriations Bill that "the employment of more powerful area munitions and standoff weaponry" necessarily results in a greater threat to the environment or natural resources. The area munitions now in use are not as destructive as the massive artillery barrages of World War I, or some bombs employed during World War II, while stand off munitions such as the Tomahawk missile offer greater accuracy without increasing the threat to natural resources or the environment.
Similarly, natural resources that may be of value to an enemy in his war effort are legitimate targets. The 1943 air raids on the Ploesti oil fields in Romania, and the Combined Bomber Offensive campaign against Nazi oil, were critical to allied defeat of Germany in World War II, for example. What is prohibited is unnecessary destruction, that is, destruction of natural resources that has no or limited military value. During Desert Storm, Coalition planners targeted Iraq's ability to produce refined oil products (such as gasoline) that had immediate military use, but eschewed attack on its long term crude oil production capability. This stands in direct contrast to Iraqi destruction of the oil fields of Kuwait. "Environmental terrorism" operations such as those used by Iraq are not a part of U.S. military doctrine or practice.
The U.S. military has taken special notice of the need to protect natural resources and the environment in recent operations, and will continue to do so. In the course of Operation Praying Mantis (April 18, 1988), U.S. military forces were to attack Iranian gas and oil separation platforms (GOSPs) being utilized by Iran for military purposes, including use as observation platforms for Iranian attacks on neutral flag oil tankers. Although aircraft were available to carry out this operation, the decision was made for Navy SEALs and Marines to assault the platforms in order to minimize the possibility of release of oil and gas contained by the platforms. The assaults were successfully conducted without release of the oil and gas.
In the course of Coalition efforts to liberate Kuwait, Iraqi forces sabotaged the Al Ahmadi terminal in Kuwait, releasing a vast amount of oil into the Gulf. This act constituted unnecessary destruction of natural resources while also constituting a serious environmental threat to the Gulf. The flow from the Al Ahmadi terminal was stopped by aerial destruction of vital equipment near the terminal by U.S. aircraft using precision guided munitions.
Several international conferences have been held since the Gulf War to address the issue of protection of natural resources from unnecessary destruction and the corollary issue of protection of the natural environment; the issue recently has been considered by the Sixth Committee of the United Nations General Assembly. A general consensus exists that there is adequate protection for natural resources and the environment in the law of war as now codified; what is required is a greater respect for the law of war, and an awareness of the potential effect particular military operations or means and methods of warfare may have on the environment.
Cultural property.
Like any civilian object, cultural property is protected from intentional attack so long as it is not used for military purposes, or to shield military objectives from attack. Law of war provisions relating to the protection of cultural property date back to treaties negotiated at the beginning of this century that today are regarded as part of customary international law. As recognized in the Report for the Defense Appropriation Bill, the U.S. and its Coalition partners in Desert Storm recognized that they were fighting in the "cradle of civilization" and took extraordinary measures to minimize damage to cultural property. Regrettably, these precautionary steps were met by Iraqi use of cultural property within its control to shield military objects from attack. A classic example is the positioning of two MiG 21 fighter aircraft at the entrance of the ancient temple of Ur. Although the law of war permitted their attack, and although each could have been destroyed utilizing precision guided munitions, U.S. commanders recognized that the aircraft for all intents and purposes were incapable of military operations from their position, and elected against their attack for fear of collateral damage to the temple.
Other steps were taken to minimize collateral damage. Although intelligence collection involves utilization of very scarce resources, these resources were used to look for cultural property in order to properly identify it. Target intelligence officers identified the numerous pieces of cultural property or cultural property sites in Iraq; a "no strike" target list was prepared, placing known cultural property off limits from attack, as well as some otherwise legitimate targets if attack of the latter might place nearby cultural property at risk of damage. Target folders were annotated regarding near by cultural property, and large format maps were utilized with "non targets" such as cultural property highlighted. In examining large format photographs of targets, each was reviewed and compared with other known data to locate and identify cultural property.
To the degree possible and consistent with allowable risk to aircraft and aircrews, aircraft and munitions were selected so that attacks on targets in proximity to cultural objects would provide the greatest possible accuracy and the least risk of collateral damage to the cultural property. Where necessary for their protection, attacking aircraft were accompanied by support mission aircraft to minimize the possibility that attacking aircraft aircrew might be distracted from their assigned mission. Aircrews attacking targets in proximity to cultural property were directed not to expend their munitions if they lacked positive identification of their targets.
The definitive U.S. policy of adherence to the law of war, which is entrenched in U.S. military doctrine and decision making processes, ensures that similar actions will be taken by U.S. forces in any future conflict. As is true with regard to the protection of natural resources, protection of cultural property ultimately will depend upon adherence to the law of war by all parties to a conflict.
In the course of responding to this request, the panel of Department of Defense and State experts considered one additional step for the protection of cultural property. The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of May 14, 1954 was the product of an international conference in which the United States played a very strong part. However, a decision was taken within the Executive Branch in 1958 that the convention would not be forwarded by the President to the United States Senate for its advice and consent to ratification. The basis for that 1958 decision is being reconsidered in light of changing world circumstances, the degree to which that treaty has been accepted and implemented by other nations, and the U.S experience in the Gulf War and other conflicts since 1958. We are hopeful that this reconsideration can be concluded shortly.
Conclusion.
The panel of Departments of Defense and State experts concluded that the steps taken by U.S. forces during the Gulf War to protect natural resources and cultural property from intentional attack and collateral damage exceeded the law of war obligations of the United States. Building on this record, in order to continue to minimize collateral damage to either, as well as to other civilian objects, similar steps will be taken by the United States in future conflicts, consistent with the fundamental law of war, principles of necessity, and proportionality. The United States will continue to encourage other nations to take similar steps. A greater degree of protection for natural resources and cultural property will result from increased respect for the law of war by all nations. The United States will continue to contribute to this improvement in respect for the law of war by encouraging other States and international organizations such as the International Committee of the Red Cross to do more to implement and ensure respect for existing law of war conventions by all nations.
Within the United States, in culture and in practice, sound doctrine and acute awareness of collateral damage issues are embedded throughout our policy and defense communities; however, these are not enough. The cornerstone of minimizing collateral damage is capability. We will continue to seek legislative support for the capabilities that provide the options necessary for achieving U.S. interests with the lowest collateral damage. Such capabilities include intelligence assets to identify cultural and natural resources and to assess U.S. responses; command, control, and communications assets to ensure rules of engagement are implemented; and the most precise weapons at the right level of lethality to achieve the desired results. Finally, the United States will continue to explore methods of protecting against violations that threaten to inflict serious collateral damage to our own interests and allies from the nations that do not have the capability or the desire to respect the law of war.


APPENDIX IX.

GOVERNMENT OF THE NETHERLANDS:
TRANSLATION OF HANDBOOK ON PROTECTING THE

CULTURAL HERITAGE IN EMERGENCIES JANUARY 1991

CONTENTS

1. Introduction

2. Responsibility for the protection of the Dutch cultural heritage

3. Objects to be protected

4. Dangers to be protected against

5. Protection: when and how

6. Measures

7. Funding

8. The 'Top 100' protected buildings

9. The 'Top 10' objects of cultural value (other than buildings)



1. INTRODUCTION
The blue and white shields hanging on the walls of fine old buildings are a familiar sight. But their significance is less widely known. The shield is an international insignia used to denote monuments of great cultural value. This booklet gives a brief description of the way in which the priceless cultural heritage of the Netherlands is preserved. It is intended for everyone who is involved in protecting this heritage in emergencies, for example during disasters or times of international tension.
The Netherlands has a vast cultural heritage, dating back to ancient times. This irreplace­able legacy must be carefully protected and preserved, especially in emergencies. The Cultural Protection Inspectorate plays a significant role in this regard.
Protection of our culture is the responsibility of the Ministry of Welfare, Health and Cultural Affairs. The Ministry's policy is based primarily on the government's duty to protect the community from external threats.
In 1959, the Netherlands ratified the Convention on the Protection of Cultural Property in the event of Armed Conflict, signed in The Hague in 1954. In doing so, we undertook to take suitable measures to this end during peacetime and to make the necessary funds available. In recent years, Government policy has concentrated in the first instance on the protection of cultural property from the consequences of peacetime disasters.
This brochure is intended for:
  Owners or managers of cultural property protected by the international insignia;

  Provincial and municipal authorities;

  Regional disaster relief organisations;

  Local disaster relief organisations;

  National Territorial Commander;

  Provincial Military Commander;

  Officials responsible for disaster relief;

  Officials responsible for the management and supervision of protected objects, buildings and historic sites.



2. RESPONSIBILITY FOR THE PROTECTION OF THE DUTCH CULTURAL HERI­TAGE
To fulfil its obligations to protect the national cultural heritage, the government created a national organisation, the Cultural Protection Inspectorate (ICB), which is run and coordinated by the Ministry of Welfare, Health and Cultural Affairs. The Inspectorate is made up of volunteers appointed by the Minister, consisting of provincial, regional and general inspectors. Each inspector has some kind of connection   often of a professional nature   with the Dutch cultural heritage. The organisation is structured as follows.
The Ministry of Welfare, Health and Cultural Affairs is responsible for the development of an integrated policy on cultural protection. This includes drafting legislation and regula­tions and assuming managerial responsibility for ensuring that its policy is implemented in practice.
The provincial inspectors coordinate measures aimed at protecting monuments and other cultural property within their areas of jurisdiction. It is their task to ensure that action can be taken in the event of emergencies. They also provide support for the regional inspectors in their areas, in close consultation with the Provincial Governor, the Provincial Military Commander or the Territorial Commander. They see to it that the regional inspectors are properly briefed, they assess recommendations and plans, and present these to the Minister and to owners of cultural property.
The regional inspectors, in their turn, support the provincial inspectors. They are respon­sible for protecting the monuments and other cultural property in their own regions in close collaboration with local mayors and municipal disaster relief organisations. They encourage the drawing up of emergency plans to protect cultural property and make recommendations on protective action. Their regions generally coincide with those of the regional fire services.
The general inspectors are responsible for the protection of particular categories of cultural property, including stained glass windows, carillons, bells, clock towers and organs, as well as for fire prevention in protected buildings. They also advise the provincial and regional inspectors and the owners or managers of cultural property.
In addition to the inspectors, there are a number of cultural protection officers. These officers, appointed pursuant to the Royal Decree of 16 May 1953 (Bulletin of Acts, Orders and Decrees, no. 31), belong to the Army reserve. Their tasks include:
  preventing as far as possible damage to or destruction of buildings, museums, libraries, archives etc. that are protected by the blue and white shield;

  preventing the theft of cultural property;

  taking steps to ensure that historical buildings containing cultural treasures and which bear the blue and white shield are not used as billets for military personnel or for other military purposes;

  providing support for the transport of cultural property.


The ICB is by no means intended to perform a "catch all" function. Its activities should rather be seen as supplementary to the regular provisions for the national cultural heritage.


3. Objects to be protected
The Netherlands possesses an abundance of buildings and objects of great cultural value. 43,000 buildings are listed under the Monuments and Historical Buildings Act, including churches, castles, houses and mills. An extensive collection of immovable cultural objects are housed in approximately 800 museums, antiquities rooms, libraries, archives, etc. In addition, there are a number of "movable" protected objects in "fixed" locations, such as church pews, tombs, organs, fonts, pulpits, carillons and stained glass windows.
The need to implement an effective and efficient policy with limited funds forced the government to select which buildings and objects to protect financially. To enable these choices to be made, clear criteria were drawn up and the existing status of all monuments revised.
The inspectors' activities are particularly directed towards the following objects:
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