Review of the Convention for the Protection of Cultural Property in



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CHAPTER 1

INTRODUCTION

1. 1. Although many specialists had been concerned for years about the effectiveness of at least the application at the practical level of the 1954 Hague Convention, international popular and media concern was aroused at the beginning of the 1990s by two armed conflicts: the Second Gulf War, fought in part over the Mesopotamian region that was one of the birthplaces of western civilization, and the conflicts in Yugoslavia, above all the attacks on the undefended World Heritage List Old Town of Dubrovnik, well known to millions of international tourists.


1. 2. Following expressions of concern about recent developments concerning the protection of cultural property during armed conflict from several countries, including Iran, at the October 1991 General Conference of UNESCO, the Director-General decided to seek ways of carrying out a study of the issues. Government of The Nether­lands decided to included a review of the 1954 Convention as part of its contribution to the Interna­tional Decade of International Law, and the Netherlands and UNESCO decided to commission and fund jointly a review of the objectives and operation of the Convention and Protocol, with a view to identifying measures for improving its application and effectiveness, and to see whether some revision of the Convention itself might be needed, perhaps by means of an Additional Protocol. At the end of November 1992 I was appointed by the two parties to undertake this review, to be completed in time for the May 1993 meeting of the UNESCO Executive Board.
1. 3. The main objectives and areas of study were to review and report, after extensive consultation and study of the relevant published documents and UNESCO files, on:
1. the present scope of the 1954 Hague Convention and Protocol in relation to both movable and immovable cultural property;
2. the objections to the 1954 Convention of States that have not ratified it and the reasons for these objections;
3. the relationship of the 1954 Convention to both other interna­tional cultural property instruments and to more general laws of war;
4. the effectiveness and implementation of, and possible improvement to, the peacetime preparations and training called for by the 1954 Convention;
5. the implications for the protection of cultural property of non-international armed conflict, such as civil wars and terrorist campaigns;
6. the possibility of improving the effectiveness and imple­mentation of the Convention through international means, eg. international assistance; the possible role of United Nations peace-keeping forces, etc.;
7. the resources needed at both national and international levels for effective implementa­tion of the 1954 Convention;
8. the effectiveness of various practical points in the 1954 Convention including:
a. the distinction between `protection' and `Special Protection' and the procedure for registering `Special Protection' on UNESCO's International Register;
b. the arrangements in times of armed conflict for systems of `Protecting Powers', Commis­sioners-General and for international assistance through UNESCO;
c. the effectiveness of the procedures for sanctions and penalties in the event of breaches of the 1954 Conven­tion.21
1. 4. I should stress that because of my background and qualifications I have not in any way been able to approach this task from the viewpoint of a lawyer. I am an essentially practical and pragmatic person, who has had over twenty years' senior manage­ment experience and responsibility covering nationally and regionally important historic monu­ments, archaeological and historic sites, museums, art galleries, collections in almost every significant subject area, and the professional support services for these, including archae­ological, ecological and educational units.
1. 5. I have carried out very wide-ranging consultations in the course of this study, sending personal invitations to submit evidence and comments to over 350 organisations and individuals in more than 80 countries, and in addition my study has been announced in some specialist international periodicals. I have also made over 50 visits in connection with the study over the past six months.
1. 6. I have, of course, necessarily had to consider complex issues of interna­tional law, and I am greatly indebted to various colleagues - listed in the acknowledge­ments - for most valuable and stimulating discussions on such matters. However, the concerns addressed in this study and Report include many points of international law which are often not at all well defined or universally agreed. Consequently, if this Report and its recommendations are to be taken further the next stage must clearly be to test my assumptions and interpreta­tions within the community of properly qualified specialist lawyers. I would only want to add that I believe strongly that such future discussions on new general legal arrangements and structures at the international level (not just in relation to the 1954 Hague Convention of course) should in future involve as a matter of routine not just specialists in international law (though their involvement is clearly of key importance)22. In this case, for example, it would be desirable to involve experts in the application of the principles and application of both criminal law and environ­mental protection law within both Civil Law and Common Law systems alongside the specialists in international law. This will be especially important if, as seems to be the case, the world community is moving towards the more frequent use of international courts or tribunals for the trial of, or lawsuits brought by, individ­uals, not just for the traditional role of regulating relations between States, as in the case of the proposed United Nations actions concerning alleged war crimes actions in the former Yugoslavia.
1. 7. In addition to the general documentation of the progress of UNESCO and States Parties to the Convention in implementing and applying it since it came into force in 1956, I have looked into some at several specific case studies of the impact of both international and internal armed conflicts on cultural property - both successes and failures, including in particular those of Cyprus since 1964, South Lebanon (and especially Tyre), since the mid 1970s, and ex-Yugoslavia over the past three years. I have also reviewed in some detail both the positive and negative experiences of the Second World War in Europe, since there are still lessons to be learned from these which were not incorporated in the 1954 Hague Convention.
1. 8. The history of the responses of the world community and the activities of UNESCO in relation to the Convention that have emerged from this study are briefly referred to at the appropriate points in this Report, but the whole story deserves to be told in a comprehensive historical study. I have reluctantly decided that, though desirable, adding a historical review to what I was commissioned to prepare and to what is already a very substantial Report would make it unmanage­able in practical terms. However, it would certainly be desirable to see the parallel historical review brought together in a final form for publication, perhaps to mark the the anniversary of the 1954 Intergovernmental Conference and the Convention in 1994.
1. 9. The Report considers each of the most important elements of the 1954 Convention in turn, before reviewing the particular issues of movable cultural property in times of armed conflict (particularly the 1954 Hague Protocol) and the relationship to the 1970 UNESCO Convention on illicit trafficking. The problem of the relatively low proportion of the independent States of the present day world that have adopted the Convention is also considered, together with the reasons for non-adoption and ways in which acceptance could be increased. The relationship with the highly successful 1972 UNESCO World Heritage Convention is also examined, and while the direct assimilation of the World Heritage List into the Hague Convention's designation of `Special Protection' is considered inappropri­ate, States Parties to both are urged to consider submitting their cultural World Heritage List sites for Special Protection under the 1954 Hague Convention, if the other criteria can be met.
1.10. It is clear that non-international armed conflicts, including civil, ethnic and religious ones, are now a major factor in the loss of important cultural property, and this phenomenon is considered, and the potential role of the international community in developing understanding and tolerance is discussed. Finally, the future roles of UNESCO, the United Nations, sovereign States and the voluntary sector are examined in turn, while the twelve appendices present much back­ground material of relevant to the study and to future consideration of the issues.
1.11. For the sake of convenience, this main body of the text has been preceded by a substantial Executive Summary, which also brings together the main recommen­dations of the Report, and the Appendices and Acknowledgements are followed by a selective Bibliography.

CHAPTER 2.
EVOLUTION OF CONCEPTS OF CULTURAL PROTECTION

IN TIMES OF ARMED CONFLICT

2. 1. There are now a considerable number of studies of the emerg­ence and develop­ment of the concept of legal protection for cultural property in times of war, and more recently in times of armed civil conflict also. A readily accessible and well-refer­enced short review is that of Prof. Stanislaw-Edward Nahlik in UNESCO's volume on International Dimensions of Humanitarian Law, published originally in French to mark the 40th anniversary of UNESCO23 following his major study of 196724. The verba­tim proceed­ings of the 1954 Inter-governmental Conference on the Protection of Cultural Property in the Event of Armed Con­flicts, The Hague, 1954 were subsequently published25, and UNESCO will shortly publish a very detailed analysis and com­mentary on both the 1954 Convention text and the Inter-govern­mental Conference proceedings prepared by Dr Jiri Toman26.


2. 2. Historically, the fate and treatment of cultural property have often been important issues in both international wars and in many kinds of internal armed conflicts, such as civil, religious and liberation wars. The taking of important movable cultural symbols of invaded and conquered states and peoples as trophies of war (or merely for their economic value), and the defacing or destruc­tion of their monuments as marks of victory, have been important parts of the culture of the waging of war for millennia27.
2. 3. To give just two examples out of many thousands that could be cited, the famous golden horses of St Mark's, Venice, were reputedly captured from Constantinople in the looting of the city by the Venetians following its fall to the First Crusade on 13 April 120428 and were in turn seized by France on the orders of Napoleon and taken to Paris in 1798, only to be returned under the imposed peace treaty of 181529. Van Eyck's famous polyptych Ador­ation of the Mystic Lamb altarpiece presented to St Bavon's in Ghent in 1432 was also seized by France in the Napoleonic Wars and again by the Germans in both the First and Second World Wars (in the Second World War with the Michelangelo Madonna and Child from the nearly Bruges Cathedral as well30). Indeed, the resti­tution of the Van Eyck was a specific condition of the 1919 Treaty of Versailles31.
2. 4. The destruction, defacing or conversion to a deliberately inappropriate use of monuments of special cultural value to the identity and spiritual values of a conquered people - such as religious buildings and national historic sites - has been widely used throughout history as a sign of conquest and subjugation. Again, cases of this syndrome are far too numer­ous to list. However, obvious examples include Cortes' destru­ction of the religio-political centres of Aztec culture in Mexico City and Cuernavaca and the building of colonial headquar­ters and Christian cathedrals on the desecrated sacred places, the numerous examples of forced conversions of Hindu temples into mosques in Mogul India, and of churches to mosques and vice versa over the centuries over much of the Near East and south-east Europe.
2. 5. Such destruction and forced changes were if anything even more common in non-international strife, such as the internal relig­ious wars in northern and central Europe during the protestant reformation of the 16th and 17th centuries, in which there were enormous losses of both building complexes such as churches and monasteries, and of cultural objects of religious significance, such as works of art, reliquaries and sacred vessels.
2. 6. Similar destruction took place in the political revolutions of the 18th centuries and more recent times, beginning with the French Revolution, though - alarmed by the scale of icono­clastic devastation of both buildings and collections of the first two years of the revolutionary period - the French Con­vention soon took urgent legislative action in the Quatres Instructions Initiales of 1791 to try to halt such destruction32.
2. 7. During the same period the traditional understanding of the rights of booty and prize-taking in war began to be questioned, at least in relation to museum collections. For example, in the 1812 war the British Navy captured a ship carrying works of art belonging to the Philadelphia Museum of Art and claimed these as prizes of war. In a subsequent action under British law in a Canadian court it was held that objects of artistic value on the ship had to be returned to the owner, arguing that art is part of the common heritage of all mankind and is thus protected from seizure during war33.
2. 8. However, as in many other areas of the laws or customs of war, the relevant modern interna­tional humanitarian law can be traced back to the classic five volume Vom Kreige of Carl von Clausewitz, published in 1832, and to the United States of America War Department's General Orders No. 100: Instructions for the Governance of the Armies of the United States in the Field, drafted by Francis Lieber and first published in April 186334.
2. 9. In Book V Chapter III(B) Clausewitz stressed the principle of proportionality in relation to the conduct of war, and on the need to restrict the war effort to genuine military targets and imperatives:
In this manner, he who undertakes War is brought back again into a middle course, in which he acts to a certain extent upon the principle of only applying so much force and aiming at such an object in War as is just sufficient for the attainment of the political object35.
2.10. Cultural property was explicitly protected for the first time in Lieber's Code. Following a general prohibition on the seizure or destruction of private property, this continued by stressing that works of art, scientific collections, libraries and hospi­tals must be protected from injury even in fortified places whilst these were being besieged or bombarded. If necessary it could be removed (for its own safety) but it could not be given away or injured. The Code also stressed that the ultimate ownership of such material after the war was a matter for including in the terms of the eventual treaty of peace36:
34. As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowl­edge, whether public schools, universities, academies of learning or observatories, museums of fine arts, or of a scientific character - such property is not to be considered public property...
35. Classical works of art, libraries, scientific collections, or precise instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded.
36. If such works of art, libraries, collections, or instruments belonging to a hostile nation or government can be removed without injury, the ruler of the conquered state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace. In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured37.
2.11. Further, Article 44 declared that unauthorized destruction or damage of property was `prohibited under penalty of death or other severe penalty adequate for the gravity of the offense'38­.
2.12. The first international codifications of wartime protection for cultural property followed closely the Lieber Code. These were in the Declaration of Brussels - drawn up by the 1874 interna­tional conference, and which provided as Article 8:
The property of parishes (communes), or establishments devoted to religion, charity, education, arts and sciences, although belonging to the State, shall be treated as private property. Every seizure, destruction of, or wilful damage to, such establishments, historical monuments, or works of art or science, shall be prosecuted by the competent authorities39.
The `Oxford Code' of 1880, drawn up at a conference of the Institute of Interna­tional Law adopted similar terms in its Articles 34 and 56:
Art. 36. In the case of bombardment, all necessary steps must be taken to spare, if it can be done, buildings dedicated to religion, art, science and charitable purposes, hospitals and places where the sick are gathered on the condition that they are not being utilised at the time, directly or indirectly, for defense. It is the duty of the besieged to indicate the presence of such buildings by visible signs notified o the assailant beforehand.
Art. 53. The property of municipalities, and that of institutions devoted to religion. charity, education, art and sciences, cannot be seized. All destruc­tion or wilful damage to institutions of this character, historic monuments, archives, works of art, or science, is formally forbidden, save when urgently demanded by military necessity.40
However, neither Brussels, 1874, nor Oxford, 1880, were formally ratified as international treaties.
2.13. The first formal international treaty providing some protec­tion for cultural property was that produced by the first (1899) Hague Conference, which adopted the Brussels/Oxford principles as Article 56 of the Regulations Respecting the Laws and Customs of War on Land, while the parallel rules governing naval bombard­ment tried to afford some protection to churches and other important cultural monu­ments, including provision for marking such protected buildings with a distinctive flag41.
2.14. A more substantial international conference, convened jointly by the United States and Russia, and attended by forty-four sovereign states was held in The Hague in 1907, and this adopted a series of treaties relating to the Laws and Customs of War. Of these the Fourth Hague Convention on the Laws and Customs of War on Land was most directly relevant, though the Ninth Hague Convention Concerning Bombardment by Naval Forces in Time of War carried forward the Hague 1899 prohibition on the shelling from the sea of historic monuments etc.
2.15. The Regulations annexed to the Fourth Hague Convention took the attempted protection of cultural monuments and institutions in times of land warfare further than any of the nineteenth century codes, providing in Articles 25, 27, 28 and 56 respectively that:
25. The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.
27. In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science or charitable purposes, historic monuments ... provided that they are not being used at the time for military purposes. It is the duty of the besieged to indicate the presence of such buildings or places by distinc­tive and visible signs, which shall be notified to the enemy before hand.
28. The pillage of a town or place, even when taken by assault, is prohibited.
56. The property of municipalities, that if institutions dedicated to religion, charity and education, the arts and the sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings42.
2.16. However, despite the provisions of the Fourth Hague Convention there were grave losses of cathedrals, churches, other his­toric monuments, museums, libraries and collections across the various land battlefields of the First World War, leading to much concern about the effectiveness of the existing Laws of War. It was considered that the failures were partly due to claims of `military necessity' on the part of both attack­ing and defending forces, but there was also much concern about the development of new technol­ogies of war. There was special concern about the use of poisonous gases (some of which are, of course, highly corrosive and therefore capable of causing physical damage to many kinds of works of art and other cultural objects, and which were seen as presenting a further threat through the killing and disabling of cultural protection personnel), and the develop­ment of aerial bombard­ment. Although the use of poison gas was prohibited by the 1925 Geneva Protocol, there was less success with the planned development of rules to control aerial bombardment, which created unprecedented danger to cultural property. In 1923 a draft convention for Rules of Air Warfare was drawn up by a Hague Conference of jurists. However, though the latter was closely modelled on the established rules relating to military and naval bombard­ment (and in particular the Tenth Hague Convention of 1907 - with its specific prohibition of the bombard­ment of religious and other cultural buildings), it was never adopted as an inter­national instrument. The 1923 proposals included protection for all non-military populations and areas, and specific provi­sions aimed at protecting of cultural property in Articles 25 and 26:
Art. 25.
In bombardment by aircraft, all necessary steps must be taken by the commander to spare as far as possible buildings dedicated to public wor­ship, art, science or charitable purposes, historic monuments, hospital ships, hospitals and other places where the sick and wounded are collected, provided such buildings, objects or places are not at the time used for military purposes. Such buildings, objects and places must by day be indicated by marks visible to aircraft. The use of marks to indicate other buildings, objects, or places than those specified above is to be deemed an act of perfidy. The marks used as aforesaid shall be in the case of build­ings protected under the Geneva Convention the red cross on a white ground, and in the case of other protected buildings a large rectangular panel divided diagonally into two pointed triangular portions, one black and the other white.
A belligerent who desires to secure by night the protection for the hospi­tals and other privileged buildings above mentioned must take the necessary measures to render the special signs referred to sufficiently visible.
Art. 26.
The following special rules are adopted for the purpose of enabling states to obtain more efficient protection for important historic monuments situated within their territory, provided that they are willing to refrain from the use of such monuments and a surrounding zone for military pur­poses, and to accept a special regime for their intersection.
(1) A state shall be entitled, if it sees fit, to establish a zone of protection round such monuments situated in its territory. Such zones shall in time of war enjoy immunity from bombardment.
(2) The monuments round which a zone is to be established shall be notified to other Powers in peace time through the diplomatic channel; the notification shall also indicate the limits of the zones. The notification may not be withdrawn in time of war.
(3) The zone of protection may include, in addition to the area actually occupied by the monument or group of monuments, an outer zone, not exceeding 500 metres in width, measured from the circumfer­ence of the said area.
(4) Marks clearly visible from aircraft either by day or by night will be employed for the purpose of ensuring the identification by belligerent airmen of the limits of the zones.
(5) The marks on the monuments themselves will be those defined in Article 25. The marks employed for indicating the surrounding zones will be fixed by each state adopting the provisions of this article, and will be notified to other Powers at the same time as the monu­ments and zones are notified.
(6) Any abusive use of the marks indicating the zones referred to in paragraph 5 will be regarded as an act of perfidy.
(7) A state adopting the provisions of this article must abstain from using the monument and the surrounding zone for military pur­poses, or for the benefit in any way whatever of its military organiz­ation, or from committing within such monument or from any act with a military purpose in view.
(8) An inspection committee consisting of three neutral representatives accredited to the State adopting the provisions of this article, or their delegates, shall be appointed for the purpose of ensuring that no violation is committed of the provisions of paragraph 7. One of the members of the committee of inspection shall be the representa­tive (or his delegate) of the State to which has been entrusted the interests of the opposing belligerent43.
2.17. The next major development grew out of what was initially the private initiative and campaign of a remarkable individual, Nicholas K. Roerich44. Born in St Petersberg in 1874, Roerich trained as an artist and worked across Europe as an artist and designer, (the Paris premiere of the Diaghilev/Nijinsky ballet of Stravinsky's Le Sacre du Printemps was one of his theatre designs) before moving first to the United States and then to India and the Himalayas. Becoming increasingly committed to mysticism and oriental religion he used the Roerich Museum of his own paintings in New York as a base during his visits to the United States.
2.18. As early as 1904 he had developed proposals for an interna­tional pact for the protection of educational, scientific and artistic institutions and missions. In 1931 the first interna­tional conference was held in Bruges on the proposed `Roerich Pact' and his proposal for a `Banner of Peace' to be displayed to identify protected buildings and institutes of cultural import­ance. Soon afterwards the Montevideo conference of the Pan-American Union (the forerunner of the present-day Organisation of American States) passed a unanimous resolution urging all American states to sign the Pact.
2.19. Roerich soon had the patronage and support of both Eleanor Roosevelt and United States Secretary of Agriculture (and future presidential candidate) Henry Wallace. The result was the signing of the Roerich Pact as the Treaty of Washington on 15 April 1935 (Pan-American Day) by representa­tives of 21 American govern­ments, and the adoption of Roerich's Banner of Peace and official symbol of cultural protection. In presenting the Pact to the International Conference President Roosevelt stated that `This treaty pos­sesses a spiritual significance far deeper than the text of the instrument itself'45.
2.20. When it was submitted to the United States Congress the Roerich Pact was accom­panied by a detailed study by J. T. Schneider of issues relating to the protection of cultural property gen­erally. This included in addition to a comprehen­sive review of current USA position and of the Roerich Pact itself, a series of extremely valuable reviews of then current foreign legislations and structures - including among others detailed reviews of the situation in Belgium, France, Germany, Great Britain, Italy, Japan and Poland. Particularly interesting and important were the comments of Schneider on purpose of Washington Treaty itself:
A forward step of Pan-American as well as of international importance was consum­mated with the signing on April 15, 1935, of a treaty, popularly known as the `Roerich Pact', initiated by the Roerich Museum of New York in the United States, for the protection of artistic and scientific institu­tions and historic monuments. Its purpose is `that the treasures of culture be respected and protected in times of war and peace.' The univer­sal adopting of a flag is urged in order thereby to preserve in any time of danger `all nationally and privately owned immovable monuments which form the cultural treasures of the peoples.' It is hoped that this treaty will be broadened so as to include all nations as signatory parties46.
2.21. The text was in fact very simple and direct47, which may explain, at least in part, the remarkable speed with which it was processed and brought into force, (in the case of the United States all Senate and presidential procedures in less than three months).
2.22 The full text of the Treaty (which is still in effect across all of North America and in most countries of Central and South America) is reproduced as Appendix III of this report, but the essential elements are set out in the Preamble and the opening Articles:
The High Contracting Parties, animated by the purpose of giving conven­tional form to the postulates of the resolution approved on 16 December 1933, by all the States represented at the Seventh International Conference of American States, held at Montevideo, which recommended to `the Govern­ments of America which have not yet done so that they sign the `Roerich Pact', initiated by the `Roerich Museum' in the United States, and which has as its object the universal adoption of a flag, already designed and generally known, in order thereby to preserve in any time of danger all nationally and privately owned immovable monuments which form the cultural treasure of peoples,' have resolved to conclude a Treaty with that end in view and to the effect that the treasures of culture be respected and protected in time of war and in peace, have agreed upon the following Articles:
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