The historic monuments, museums, scientific, artistic, educational and cultural institutions shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well as in war.
The neutrality of, and protection and respect due to, the monuments and institutions mentioned in the preceding Article, shall be recognized in the entire expanse of territories subject to the sovereignty of each of the Signatory and Acceding States, without any discrimination as to the State allegiance of said monuments and institutions. The respective Governments agree to adopt the measures of internal legislation necessary to insure said protection and respect.
In order to identify the monuments and institutions mentioned in Article 1, use may be made of a distinctive flag (red circle with a triple red sphere in the circle on a white background) in accordance with the model attached to this Treaty.
2.23. However, despite the high ideals and explicit commitments of the Pact, most Parties to it did little or nothing to implement its provisions at the practical level. For example only Mexico prepared and registered internationally a list of monuments and institutions for which they wished to seek protection in accordance with Article IV of the Treaty. Also, this treaty was by definition a Pan-American one (though other countries including India were reported to have made declarations supporting and adopting Roerich's text), and of course despite the efforts of President Wilson at the end of the First World War the United States remained largely neutral and detached from the world scene and outside the then world body, the League of Nations.
2.24. In Europe, the storm clouds of approaching war were gathering. In 1936 there were many reports of clear breaches of the principles of the 1907 Hague Convention in the widespread cultural destruction in the Spanish Civil War, including anti-clerical acts such as attacks on church property by the Left, and extensive aerial bombing using new generations of German-designed heavy bombers and dive bombers by the forces of Franco48. As a consequence, the 6th Commission of the League of Nations, `following many requests from members of the [League's] International Commission for Intellectual Cooperation' commissioned the International Museums Office to re-examine `the problem of the protection of monuments and works of art in times of war or of civil disturbances'49. The ambition to add `civil disturbances' to the categories of conflicts regulated was a most important change from the long-established principles of the laws and customs of war, and indeed on the absolute internal sovereignty of States.
2.25. The Directory Board initiated work on the political, legal and technical issues involved, with the Professor of International Law at the University of Louvain, prof. Charles de Visscher leading the legal study. Meeting in October 1936 under the presidency of Sir Eric Maclagan (Director of the Victoria and Albert Museum, London), the Board reviewed, adopted and remitted to International Commission for Intellectual Cooperation a draft text intended to develop in far more detail the limited provisions of the 1907 Fourth and Ninth Hague Conventions and Regulations, and the more detailed proposals of the (unratified) 1923 Geneva draft Rules of Air Warfare.
2.26. The title proposed was the International Convention for the Protection of Historic Building and Works of Art in Time of War, the full text of which was published by the International Museums Office in both French and English50. (The English version is reproduced as Appendix IV of this report, since though it was never ratified it has a number of provisions not taken up in the postwar 1954 Hague Convention which would still be worth further consideration in preparing any future updating or additional Protocol of the Hague Convention).
2.27. The draft began by emphasising the obligation on `every Government' to prepare and arrange in peacetime for the protection of `historic buildings and works of art' in wartime51, including both physical arrangements and military training. All High Contracting Parties would refrain from any act of hostility against designated pre-notified refuges, though these were to be limited in number, open to international inspection and:
be situated at a distance of not less than 20 kilometres from the most likely theatres of military operations, from any military objective, from any main line of communication, and from any large industrial centre (this distance may be reduced in certain cases in countries with a very dense population and small area52.
2.28. So far as monuments or groups of monuments were concerned, pre-notified monuments or groups of monuments not used directly or indirectly for purposes of national defence and at least 500 metres from any military objective would be entitled to `special protection'53 though, on a reciprocal basis, Contracting Parties could enter into special agreements to protect monuments `of fundamental importance to the international community' which failed to meet the general criteria proposed54.
2.29. Other provisions included the use of a distinctive mark to identify cultural sites, the exemption of historic buildings and works of art from reprisals, and immunity during transport of works of art (including private collections) being transferred temporarily under international supervision to a third country for protection55. Further proposed Articles provided for International Commissions of Inspection, for the High Contracting Parties to meet in general conference to decided on implementation measures and to appoint a Standing Committee and Secretariat, and for the `Contracting States' together with the proposed Standing Committee having amongst its other functions the responsibility to work together with belligerents to resolve differences of interpretation and application.
2.30. The proposed Convention was to be supported by Regulations for Execution, covering issues such as the proposed International Verification Commission56, protection for national staff appointed to `preserve and guard' refuges, museums and monuments, (i.e. presumably including the curatorial and conservation staff) and practical aspects of the suggested temporary evacuation 57. There was a particularly detailed and comprehensive series of provisions for the proposed General Conference and Standing Committee including, for example, the possibility of removing the headquarters of the Secretariat to a neutral country in the event of the host country becoming a belligerent58.
2.31. The draft Convention was warmly received and endorsed by the League of Nations' International Commission for Intellectual Cooperation, and active efforts were made by the professional community to try to apply its principles in the rapidly escalating Spanish Civil War, while pressing at the same time for the convening of the Intergovernmental Conference needed to take the project forward.
2.32. The graphic demonstration of the implications of large-scale aerial bombardment using the new German warplanes of various types, including dive bombers and heavy bombers, together with other new types of heavy weapons, and the scale of the cultural (as well as human) atrocities in Spain, raised widespread alarm. In addition to protesting at the various Spanish attacks on historic cities and monuments, professionals and public authorities across much of Europe began to prepare air-raid precautions for many museums and monuments59, including plans for the physical evacuation to places of safety - along the lines proposed in the International Museums Office draft Convention.
2.33. As a second Europe-wide war appeared inevitable, on 1 September 1939 President Roosevelt of the United States of America sent messages to the governments of Germany, France, Poland and the United Kingdom. Clearly referring to recent outrages such those that had been happening in Spain, Roosevelt demanded explicit assurances from all potential combatants that in the event of armed hostilities breaking out there should be no air attacks on civilian populations nor on unarmed towns, in effect adherence to the requirements of the (unratified) 1925 Hague Rules of Air Warfare:
The cruel ariel bombardments of civilian populations in undefended centres, in the hostilities that have raged in different parts of the world in the course of recent years and of which the consequence has been the mutilation and death of thousands of defenceless women and children, has wounded the hearts of all civilised men and women and has profoundly shocked the conscience of humanity.... Consequently, I address this present appeal to the governments which could be engaged in the present hostilities that each one of them affirm publicly its determination to not proceed, in any case or circumstance, to an ariel bombing of civil populations or undefended towns, being understood that the same rules of war shall be scrupulously observed by all their adversaries. I ask you for an immediate response.60
2.34. The four potential belligerents replied positively giving clear assurances on these and related points, and - in effect - guaranteeing protection of non-military targets by the (ancient and traditional) means of mutual exchanges and guarantees of the respective rules of engagement for the forthcoming hostilities. For example, on 1 September the German Chancellor, Adolf Hitler insisted that:
The views expressed in the message of President Roosevelt, namely to refrain in all circumstances from bombing non-military targets... is a humanitarian principle, corresponding exactly to my own views, as I have already declared.... For my part, I presume that you have noted that, in my speech given today in the Reichstag, I announced that the German air force have received the order to limit their operations to military objectives. One obvious condition for the continuation of these instructions is that the air forces opposing us observe the same rules.61
2.35. The United Kingdom, French and Polish governments gave similar assurances on 1 September with Lord Halifax, the British Foreign Secretary, stating that:
His Majesty's Government welcomes the important and moving appeal of the President of the United States of America against the ariel bombing of civil populations or undefended towns. Profoundly impressed by the humanitarian considerations to which the proposals of the President refers, His Majesty's Government has, in advance, declared that its policy has will be, if it becomes involved in a conflict, to refrain from acts of this nature, and to strictly limit bombing to military targets, it being understood that the enemy scrupulously observes the same rules. His Majesty's Government has already deposited with certain governments the details of the rules that it has imposed on itself to be followed in case of conflicts, and which it will make public.62
2.36. With the start of the war on 3 September the British and French made public a Joint Declaration on aerial bombing which was much more detailed and explicit, including in addition to specific references to the avoidance of civilian populations and, `to preserve with all possible measures, monuments of human civilisation:
The Governments of France and of the United Kingdom, solemnly and publicly affirm, their intention to conduct the hostilities which have been imposed upon them, with the firm desire to protect the civilian populations and to preserve, with every possible measure, the monuments of human civilisation. In this spirit they have welcomed with a profound satisfaction the appeal of President Roosevelt, on the subject of ariel bombing. Therefore, they have already sent express instructions to the commanders of their armed forces, under which they shall only bombard, by ariel or maritime means or by terrestrial artillery, strictly military targets, in the strictest meaning of the term.63
Likewise, the Declaration continued, in the case of bombardment by ground artillery:
they will exclude objectives which do not present a clearly defined military objective, in particular, the large urban areas situated outside the battlefield and, similarly, will strive to avoid the destruction of areas and buildings of interest for civilisation.... A demand will be addressed to the German Government to ascertain if they are can give corresponding assurances. It goes without saying that if the enemy does not observe certain restrictions to which the governments of France and Great-Britain have imposed on the operations of their armed forces, these governments reserve the right to have recourse to all the action they consider appropriate.64
2.37. The International Museums Office also moved quickly on the outbreak of hostilities, and produced a very substantial (232 pages) handbook on the protection of monuments and works of art in time of war65. This had many practical examples of the recommended measures for protecting museum collections and monuments, in part using the Spanish Civil War experience. The book also included the texts (in both French and English) of the draft Convention, and French translations of the exchanges between the United States and the three principal belligerents for reference and information.
2.38. The successes and failures at the both the legal and practical levels to protect cultural property in the Second World War have been extensively recorded and studied.66 However, it is important to record that despite the lack of legally binding force, in many ways the exchanges of September 1939 of what amounted to the rules of engagement between the belligerents were very largely respected for the first 2½ years of the war, at least on the Western Front. It is of course true that there were very many civilian casualties during that period, but both sides seem to have endeavoured to restrict their air attacks to legitimate military, communications, and armaments-related industrial targets. The large number of human and cultural casualties were largely if not wholly the result of collateral damage of areas in close proximity to legitimate military or economic targets as a result the lack of accurate navigation and bomb-aiming aids, especially for night bombing.
2.39. To take just two English examples, losses of civilian lives and of cultural property (especially historic churches and other historic public buildings) was very severe in the historic City of London. However, at a time when long distance night bombing on dark nights rarely achieved an accuracy of plus or minus five kilometres, no part of the `Square Mile' was much more than 1 km. from the vitally important Pool of London between Tower and London Bridges, and contained three of the main railway terminals serving east coast ports. In the case of the most severely damaged British town of all, Hull, East Yorkshire, few residential or commercial areas were even 1 km. from the city's 12 km. of docks and quays along the Humber estuary and the River Hull at right angles to it, or of the more than 30 route km. of railways serving the docks of the Kingdom's third port. In such cases air bombardment, if accepted as a lawful means of war at all, was inevitably going to result in unintended damage over large areas surrounding any legitimate military or communications target located in densely populated areas.
2.40. The fundamental change of strategy came at the end of March 1942 with the British firestorm test-bombing of the undefended historic city of Lübeck, which lead directly to German reprisal bombings, (what were termed in England the `Baedeker Raids') of April and May 1942 on the English cathedral cities of Exeter, Norwich, York and Canterbury. Describing the Lübeck attack in his post-war memoirs, the creator of both the United Kingdom's Bomber Command, and the `strategic bombing' strategy, Sir Arthur (`Bomber') Harris was very open about his motives:
On the night of March 28th-29th  the first German city went up in flames. This was Lübeck, a rather distant target on the Baltic coast ... from the nature of its buildings easier than most cities to set on fire.... It was not a vital target, but it seemed to me better to destroy an industrial town of moderate importance than to fail to destroy a large industrial city. However, the main object of the attack was to learn to what extent a first wave of aircraft could guide a second wave to the aiming point by starting a conflagration... In all, 234 aircraft were dispatched and dropped 144 tons of incendiaries and 160 tons of high explosives. At least half of the town was destroyed, mainly by fire. it was conclusively proved that even the small force I had then could destroy the greater part of a town of secondary importance.67
2.41. In his post-war memoirs, Harris defended his actions (highly criticised at the time, not least by the American military, and more widely ever since) in switching the air attack to the German cities and hence the civilian population, making the astonishing claim that:
International law can always be argued pro and con, but in this matter of the use of aircraft in war there is, it so happens, no international law at all. There was never any agreement about it, with the single exception that about the time of the seige of Paris in the war of 1870 the French and Germans came to an agreement between themselves that neither side should drop explosives from free balloons.68
2.42. In making this claim Harris many have been right in relation to the stalled attempts to establish a specific international treaty concerning aerial bombing. However, his claim that `there was never any agreement about it' ignores totally the mutual exchanges through the mediation of President Roosevelt in September 1939 agreeing severe restrictions on aerial bombing, and which clearly constituted a de facto exchange of the rules of engagement. Arguably the unilateral breach without prior notice of such agreed terms comes within the definition of `perfidy' under customary law, allowing the other side to respond in kind without notice. This point was certainly not lost on the German military command which immediately exercised its reserved right of retaliation and publicly presented its action in these terms. The response was in the form of a deliberate attack on the Roman and medieval capital of the English West Country, the cathedral city of Exeter, followed over the next three weeks with heavy attacks on the historic hearts of the cathedral cities of Norwich, York and Canterbury (the latter two being the seats of the two Provinces of the Church of England), plus two more heavy raids on the centre of Exeter.
2.43. This escalation of the war lead to a revival of concern about the need to protect important monuments and collections, and these worries grew as the western allies began to prepare for the liberation of continental Europe. Also, by this time alarming information was beginning to emerge about the scale of German destruction and looting on the eastern front, especially in Poland and Russia, and later of state-organised looting in France and the other occupied territories.
2.44. In the 1943 Italian mainland campaign the Allied Supreme Commander in Europe, General Dwight D. Eisenhower, issued clear directions requiring his forces to respect and preserve cultural property69. However, following widespread criticism of the destruction of the Monastery of Monte Cassino in February 1944, Eisenhower promulgated even more explicit rules of engagement on 26 May 1944 in advance of the Normandy landings:
Shortly we will be fighting out way across the Continent of Europe in battles designed to preserve our civilization. Inevitably, in the path of our advance will be found historical monuments and cultural centers which symbolize to the world all that we are fighting to preserve. It is the responsibility of every commander to protect and respect these symbols whenever possible.... [After referring to enemy's use of Cassino to "shield his defense" continues]: ... where military necessity dictates, commanders may order the required action even though it involves destruction of some honored site. But there are many circumstances in which damage and destruction are not necessary and cannot be justified. In such cases, through the exercise of restraint and discipline, commanders will preserve cultural centers and objects of historical and cultural significance. Civil Affairs Staffs and higher echelons will advise commanders of locations of historical monuments of this type, both in advance of the front lines and in occupied areas. This information, together with the necessary instruction, will be passed down through command channels to all levels.70
2.45. The final years of the Second World War in Europe saw a further major development within the military command structure aimed at protecting cultural property, with the establishment of posts of Monuments, Fine Arts and Archives (M. F.A. &. A.) officers attached to the United States, United Kingdom and Free French forces. Although very small in number these, usually academic experts or professionals in the field in civilian life, played a vitally important part in minimising both direct war damage (through assisting in identifying areas to be protected (more that 400 were pre-listed in advance of the May 1944 invasion of Normandy, for example), and in supervising the protection of both buildings and collection during and after the battles. With achievement of peace, the M., F.A., & A. Units switched their attention to the recovery and restitution of looted and otherwise illegally transferred cultural property. In support of this one of the earliest pieces of martial law legislation adopted in occupied Germany was Military Government of Germany Law No. 52 which provided that:
... no person shall import, acquire or receive, deal in, sell, lease, transfer, expert, hypothecate or otherwise dispose of, destroy or surrender possession, custody or control of any property ... which is a work of art or cultural material of value or importance, regardless of the ownership or control thereof.71
2.46. First hand accounts have been given by officers of all three nations, and detailed reports sector by sector on the war damages were published by all three allies: particularly valuable are those of the art historians Capt. James Rorimer, the first American M., F.A., & A. officer, and Rose Valland, the Parisian curator, and of the distinguished archaeologist, Sir Leonard Woolley, who headed the United Kingdom M., F.A., &. A. efforts72. The Los Angeles lawyer, Charles McConney, who has made a special study of this has recently proposed the re-establishment of expert teams of this kind on standby to assist in United Nations peace-keeping operations.73
2.47. The five years between 1944 and 1949 saw a series of extremely important world developments and events which, though not specifically relating to the legal protection of cultural property at the international level were to lay the foundations for the post-war world, for good or ill. On the negative side were the rapid escalation of the potential power and destructiveness of armaments. Most notable were the advances in aerial bombardment, first with the mass bombings using the new generation of heavy bombers creating unprecedented area devastation, culminating in the total destruction in February 1945 of the historic heart of Dresden, and then the first use of atomic weapons, first on Hiroshima and then on Nagasaki. On the positive side was the creation of new international organisations with supporting international law, and major new developments in international humanitarian law drawing on the negative experiences of the Second World War.
2.48. Moves to lay the foundations for the new post-war world order began with the Dumbarton Oaks international conference in 1944 , and these aspirations were expressed in detailed form in the San Francisco Treaty of 26 June 1945 - the Charter of the United Nations. Though this introduced no new provisions specifically relating to culture it had two major effects which were directly relevant. The first was the new structure for the making and maintenance of peace and of establishing pacific relations between states74, and second for were the provisions for the creation of additional intergovernmental organisations, which led directly to the establishment of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) on 16 November 1945.
2.49. In the same year (on 8 August 1945) the London Charter established the rules for the war crimes tribunals, particularly those held over the next three years in Nuremberg. This declared that the states of the United Nations had the right to investigate, try and punish `violations of the international law of war' as representatives of the world community, while in addition the occupying powers, as the victorious belligerents as exercising supreme power in Germany were entitled to exercise domestic jurisdiction over German nationals in place of the deposed German State. The London Treaty also established the rules for the investigation of war crimes - defined as (a) crimes against peace, (b) war crimes [contrary to both customary international humanitarian law and specific treaties, especially the Hague Conventions], and (c) `crimes against humanity... whether or not in violation of domestic law'75.
2.50. The subsequent Nuremberg war crimes trials clarified some issues relating to cultural property, particularly the cases brought against Goering and Rosenberg alleging both direct and indirect complicity in the direct looting and forced sales of tens of thousands of works of art and other items of movable cultural property76. Of particular importance was the explicit statement of the Nuremberg Tribunal in the key general rulings concerning applicable law in the `Nazi Conspiracy and Aggression' in 1947 and in relation to property in the `I.G. Farben' case respectively:
The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. This law is not static but by continual adaptation follows the needs of a changing world.77
... we are unable to find that there has been a change in the basic concept of respect for property rights during belligerent occupation of a character to give legal protection to the widespread acts of plunder and spoliation committed by Nazi Germany during the course of World War II.78
2.51. In 1948, drawing on the revelations of the Holocaust that had emerged at the end of the Second World War, and particularly in the Nuremberg war crimes trials, the United Nations formally declared genocide to be a grave international crime. This was implemented in the Genocide Convention of 9 December 1948, which came into force in January 1951, and is equally applicable to situations of international armed conflict, civil wars, other internal armed conflicts and peacetime. This declared that:
the Contracting Parties confirm that genocide, whether committed in time of peace or time of war, is a crime under international law which they undertake to prevent and punish.79
2.52. The following day, 10 December 1948 the General Assembly of the United Nations adopted the Universal Declaration of Human Rights which included provisions in relation to cultural rights:
Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.80
2.53. The following year, on the initiative of the International Committee of the Red Cross the four Geneva Conventions were adopted. The First, Second and Third Geneva Conventions of 1949 dealt were in many ways a continuation of the by then already long tradition of international law of war, especially the Hague Conventions of 1899 and 1907, and amplified the customary international law in relation to (amongst other things) the protection of non-combatants. Also, following the principles established in the 1945 London treaty and the Nuremberg proceedings, under the common provisions to all four Geneva Conventions (now accepted by virtually all independent states of the world, and in any case now regarded as binding customary law) all High Contracting Parties undertake to seek out and prosecute, regardless of their nationality, all persons alleged to have committed or order defined `grave breaches' of the Geneva Conventions81.
2.54. However, the Fourth Geneva Convention broke new ground in that it covered specifically the international humanitarian law relating to the protection of civilians82. Although there were no specific provisions relating to the protection of cultural property in Geneva IV, the Hague principles prohibiting the targeting of non-combatant populations and civilian property were reinforced83. Also one specific new provision which might be called in aid of the protection of cultural symbols, in so far as these are expressions of religious or cultural values, was adopted under the`General Protection' provisions of the Fourth Geneva Convention:
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs...84.
2.55. In the aftermath of the Second World War there were many reviews of the effectiveness or otherwise of both the practical and legal measures taken to protect cultural property, including monuments, historic areas, museums, libraries, archive repositories etc.85, (discussed further in the Second World War case study, Chapter 14).
2.56. In relation to international law, the pre-war work of the International Museums Office for the League of Nations was taken up again by the Italian government initially, but the lead responsibility was then passed to UNESCO. Following a considerable period of preparatory work a diplomatic conference was convened at The Hague. The verbatim record of the complex series of negotiations in both plenary sessions and specialised commissions was eventually published as the formal record of the Conference, and has recently been analyzed in great detail, and compared with the final text, by Dr Jiri Toman86.
2.57. The result was the adoption on 14 May 1954 of The Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 1954, detailed Regulations for the practical implementation of the Convention (which form an integral part of it), and a separate Protocol for the Protection of Cultural Property in the Event of Armed Conflict. Despite much debate and many differences of opinion on the details - particularly at the practical level - the 1954 Conference was clearly agreed on a number of important principles, particularly the concept of a valid international interest of the world community as cultural property as part of `the cultural heritage of all mankind', requiring special legal measures at the international level for its safeguarding. In addition the Conference adopted three formal Resolutions87. The first of these:
expresses the hope that the competent organs of the United Nations should decide, in the event of military action being taken in implementation of the Charter, to ensure application of the provisions of the Convention by the armed forces taking part in such action.88
2.58. The second Resolution recommended the establishment by each High Contracting Party of a National Advisory Committee for the application of the Convention and the third Resolution asked the Director-General of UNESCO to convene a meeting of the High Contracting Parties, (though this did not in fact take place until 1962).
2.59. The full text of both the Convention and the Protocol are given in Appendix I of this Report, and each major element is analyzed in turn in the next eight chapters of this Report, so only an outline of their structure and content is necessary at this point.
2.60. The background and objectives to the Convention and Protocol are set out clearly at the beginning:
The High Contracting Parties,
Recognizing that cultural property has suffered grave damage during recent armed conflicts and that, by reason of the developments in the technique of warfare, it is in increasing danger of destruction;
Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world;
Considering that the preservation of the cultural heritage is of great importance for all peoples of the world and that it is important that this heritage should receive international protection;
Guided by the principles concerning the protection of cultural property during armed conflict, as established in the Conventions of The Hague of 1899 and of 1907 and in the Washington Pact of 15 April, 1935;
Being of the opinion that such protection cannot be effective unless both national and international measures have been taken to organize it in time of peace;
Being determined to take all possible steps to protect cultural property;
Have agreed upon the following provisions:89
2.61. The Convention itself first defines within the single term `cultural property' (`biens culturels' in the French version) three different conceptual categories: (1) both immovable and movable items which are themselves of intrinsic artistic, historic, scientific or other cultural value such as historic monuments, works of art or scientific collections, (2) premises used for the housing of movable cultural property, such as museums, libraries and archive premises, and (3) `centres containing monuments' such as important historic cities or archaeological zones. Protection is also offered by the Convention to temporary wartime shelters, to authorised means of emergency transport in times of hostilities, and to authorized specialist personnel: concepts derived directly from the protection for civilian air-raid shelters, hospitals and ambulances in relation to humanitarian protection in the Geneva Conventions90. The implications of these provisions are discussed in Chapter 3 below, while the subsequent definitions of and rules for the Convention's concepts and interpretations of `protection', `safeguarding' and `respect' for cultural property, and for its public identification by means of an official symbol are detailed and discussed in Chapter 4 of this report.
2.62. The Convention also deals with the question of occupied territories, placing explicit obligations on any High Contracting Party occupying all or part of the territory of any other Party to take measures `as far as possible' to safeguard and preserve cultural property, and are required to support and co-operate with the competent national authorities (and official experts) in this91. Chapter I of the Convention concludes with important provisions requiring the peace-time training of the armed forces:
1. The High Contracting Parties undertake to introduce in time of peace into their military regulations or instructions such provisions as may ensure observance of the present Convention, and to foster in the members of their armed forces a spirit of respect for the culture and cultural property of all peoples.
2. The High Contracting Parties undertake to plan or establish in peace time, within their armed forces, services or specialist personnel whose purpose will be to secure respect for cultural property and to co operate with the civilian authorities responsible for safeguarding it.92
However, the terms of this Article are very imprecise and more detailed guidance, at least in respect of good practice, are needed, and it does not deal with the necessity to develop understanding and respect for cultural property amongst the general, civilian, population. These points are discussed in detail in Chapter 5 below.
2.63. Chapter II93 of the Convention introduces and regulates the concept of `Special Protection'. Under this UNESCO, after consulting all High Contracting Parties may place on a special list at the request of the state concerned, a limited number of temporary refuges or shelters for movable cultural property, and also `centres containing monuments and other immovable property of very great importance', and subject to the defending State being both able and willing to demilitarise the location and its surroundings. This aspect of the Convention is discussed in Chapter 6 of this Report.
2.64. Chapter III provides protection and immunity, modelled closely on that granted to ambulances under the Hague and Geneva Conventions, for official transport used in both internal and international transfers of cultural property, subject to prior authorization and international supervision of the movement94. These issues are reviewed in Chapter 7 of this Report.
2.65. Chapters IV - VII cover a wide range of provisions relating to the protection of personnel engaged in the protection of cultural property95, details relating to the use of the official emblem of Hague Convention ( a blue and white shield), and issues relating to the interpretation and application of the Convention96: again all of these are closely modelled on the Geneva Conventions.
2.66. Of particular, and growing, importance was the decision of the 1954 Intergovernmental Conference to follow Common Article 3 of the 1949 Geneva Conventions, and extend the protection of cultural property beyond the traditional definition of `war' into the difficult area of internal armed conflicts, such as civil wars, `liberation' wars and armed independence campaigns, and - probably - to major armed terrorist campaigns:
1. In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to Protection of cultural property in the event of armed conflict the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property.
2. The parties to the conflict shall endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
3. The United Nations Educational, Scientific and Cultural Organization may offer its services to the parties to the conflict.
4. The application of the preceding provisions shall not affect the legal status of the parties to the conflict97.
2.67. In the years since the adoption of the 1954 Convention non-international armed conflicts, particularly those relating to internal strife along national, regional, ethnic, linguistic or religious lines, have become an increasingly common feature of the world order and in losses of monuments, museums, libraries and other cultural repositories. The issues relating to these are very difficult and complex, and are discussed in some detail in Chapter 13 below.
2.68. So far as dissemination of the Convention is concerned the High Contracting Parties undertake to so widely within their countries, certainly among the military, and if possible to the civilian population98, to communicate their national translations (beyond the French, English, Russian and Spanish texts of the 1954 Hague Conference) to other Parties (through UNESCO), and to submit periodic reports to UNESCO at least once every four years on the measures being taken to implement the Convention99. In fact it is evident that only a small minority of High Contracting Parties have made serious efforts to disseminate knowledge of the Convention more widely within their countries, and the same is true of the submission of the required periodic reports100.
2.69. Bearing in mind the importance of measures for enforcement, and indeed the Nuremberg War Crimes Tribunal rulings, the provisions for enforcement action and sanctions were remarkably weak and rather vague:
The High Contracting Parties undertake to take. within the framework of their ordinary criminal jurisdiction. all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons. of whatever nationality,who commit or order to be committed a breach of the present Convention101.
2.70. The Convention provides no explicit mechanism for resolving disputes about enforcement between States Parties to it nor for any form of specific international legal or extra territorial action of the kind undertaken against eg. Rosenberg in the Nuremberg war crimes trials. However, it must be stressed that the weakness of the Convention in this respect are the result of decisions of the Hague Conference to water down the original draft text, as is clear from both the procès-verbal of the Conference and Dr Jiri Toman's forthcoming analysis102.
2.71. The concluding Articles of the Convention dealt with a range of mainly legal issues, including a provision permitting the application of the Convention to colonies and other dependent territories, formalising the relationship of the new Convention to the 1899 and 1907 Hague Conventions and the 1935 Washington (`Roerich') Pact, and provisions relating to both individual denunciation by a High Contracting Party and for inter-governmental revision of the Convention and Regulations103
2.72. The 1954 Hague Regulations, which form an integral part of the Convention, set out first (in Chapter I) the practical procedures to be followed in relation to the compiling by the Director-General of UNESCO of an international list of persons qualified to carry out the functions of Commissioners-General, and procedures to be followed in the event of armed conflict, including the arrangements for the appointment of cultural representatives, Commissioners-General and the responsibilities of the Protecting Powers (appointed in accordance with the Hague 1907 and Geneva 1949 principles)104.
2.73. The second part (Chapter II) of the Regulations deals with the practical arrangements and procedures for the granting and registration of `Special Protection', including the notification of all proposals to every High Contracting Party and arrangements for the submitting of objections and for eventual arbitration on these if necessary, as well as provisions for the cancelling of `Special Protection' where appropriate105.
2.74. Chapter III of the Regulations sets out in some detail the procedures for the transport of movable cultural property to a place of safety, (possibly abroad), for protection, with the approval of the Commissioner-General106, while the final part, Chapter IV, regulate the use of the Official Emblem and the identity cards and other identifying markers of persons duly authorised to undertake official duties in relation to the implementation of the Convention107.
2.75. The Protocol for the Protection of Cultural Property in the Event of Armed Conflict has two unambiguous purposes. First, a State Party to the Protocol undertakes to take active measures to prevent the all exports of movable cultural property as defined in the Hague Convention from any territory which it may occupy during an armed conflict. Second, all High Contracting Parties undertake to seize and hold to the end of hostilities any cultural property from war zones which has been exported in contravention of the first principle of the Protocol. It also provides that such cultural property shall never be retained as war reparations108.
2.76. The 1954 Intergovernmental Conference was attended by official delegates of a majority of the Sovereign States in membership of the United Nations at that date, and most participating States signed the Final Act over the following months. However the number of States that have formally ratified the Convention and Protocol is disappointing. A list of States Parties to these as at the beginning of June 1993 (showing also their relationship to the United Nations, UNESCO and the two other relevant UNESCO Conventions) is given as Appendix II of this Report, and the issue of acceptance and ratification is discussed in detail in Chapter 11 of the main text.
2.77. Following long and difficult negotiations the 1970 General Conference of UNESCO adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which aimed to outlaw the widespread trafficking in both smuggled and stolen works of art and other cultural property. Curiously, it includes no explicit reference to the 1954 Hague Convention and - especially - the Hague Protocol, even though it is widely recognised for centuries that the risk of cultural losses through theft and smuggling are probably at their greatest during times of armed conflict and disorder, whether international or internal. In the 1970 Convention UNESCO adopted a far more detailed definition of the term `cultural property' than in the 1954 Hague Convention109, and in the longer term it would be desirable for UNESCO to adopt common definitions for both wartime and peacetime protection of movable cultural property.
2.78. Two years later UNESCO adopted the World Heritage Convention (1972), which provided for the designation of sites and zones of pre-eminent world importance as `World Heritage Sites'. This Convention covers both cultural and - for the first time - natural sites. Once again the definitions adopted were quite different from those in the 1954 Convention, adding further to the difficulties and possibility of confusion110. However, the World Heritage Convention offers a number of valuable models for any updating of the 1954 Hague Convention, including the undertakings of States Parties to it to actively promote respect for the national and international patrimony throughout the population, and to establish and maintain adequate systems and organisational structures for the necessary practical measures111.
2.79. Eighteen years after the adoption of the original 1949 Geneva Conventions, in 1977, an International Conference to review these and called by the International Committee of the Red Cross, and completed its work by consensus, ie. without a formal vote112. The result was that the provisions of the Fourth Geneva Convention of 1949 were substantially widened by the First Additional Protocol (relating to international armed conflicts) and the Second Additional Protocol (relating to non-international armed conflicts and serious civil disturbances).
2.80. In parallel provisions, each Protocol prohibits attacks on cultural or religious property `which constitute the cultural and spiritual heritage of peoples' and the use of this for military purposes by either attacking or defending regular or irregular forces113. However, the 1977 Additional Protocols have not yet gained the universal acceptance of the 1949 Conventions114, and a number of major powers (including the United States of America) still maintain objections to some aspects, particularly what is perceived to be an implied constraint in Protocol I on the use of nuclear weapons. More widely, the principles of Protocol II in relation to internal armed conflict are seen as by some governments as limiting a State's powers in putting down internal revolutions and other attacks on the integrity and hence the very survival of the State itself115.
2.81. More recently, on the proposal again of the International Committee of the Red Cross, a further Geneva Convention on prohibitions or restrictions on the use of certain conventional weapons which may de deemed to be excessively injurious or to have indiscriminate effects was approved (in October 1980). The Second Protocol to the 1980 Convention116, includes specific prohibitions on the use of booby-traps on, amongst other cases, cultural property: