Review of the Convention for the Protection of Cultural Property in

CHAP­TER 4
THE 1954 CONV­ENTIO­N'S CON­CEPTS OF PRO­TECTI­ON,

SAFE­GUARD­ING AND RESPECT FOR CUL­TURAL

PROP­ERTY

4. 1. The language of the 1954 Convention is very uncomplicated in relation to the second of the two key concepts of its title and purpose: that of `protection' of cultural property. This is simply defined as comprising `the safeguarding and respect for such property'¹³⁰.

4. 2. However, the subsidiary definitions (`safeguarding' and `respe­ct') are rather odd. `Safeguarding' is used not in the obvious sense of guarding and keeping safe that which is safeguarded (in this case cultural property) at all times, including the times of greatest danger, (e.g. in this case during armed conflicts). Instead, in the Convention `safeguarding' is explicitly defined as referring only to peac­etime prepara­tions for the possible effects of war or other armed conflicts:
The High Contracting Parties undertake to prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate.¹³¹
4. 3. Protection in times of war or internal armed conflict is instead merely termed `respect', a term that - at least in common Eng­lish parlance - falls far short of the term `protection' used in the overall definition. `Respect' is defined in some detail, though with the main emphasis on `refraining from' defined activities, rather than on the taking of active measures for `safeguarding' during actual hostilities:
The High Contracting Parties undertake to respect cultural property situ­ated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict, and by refraining from any act of hostility directed against such property.<sup>132</sup>
Under customary international law the general staff and individual field commanders of invading and occupying forces have an established responsibility not merely to refrain from unlawful acts (`respect') but to ensure adequate military and/or civil police etc. control over not only their own forces, but also irregular forces and civilians within the occupied territory so as to also `safeguard' (in the Hague Convention sense) both the lives and property of non-combatants. (Indeed, in the current discussions about possible war crime cases in ex-Yugoslavia, the issue of field command and control over irregular forces and civilians in relation to the wilful destruction of property is seen as an important issue. It therefore seems reasonable to require attacking and occupying forces not merely to `respect' but also to positively `safeguard' cultural property in so far as this is practicable.
4. 4. However, despite much discussion and counter-argument at the 1954 Hague Conference¹³³, all of these obligations were qual­ified by the retention of the long-established, but by then already controversial, doctrine of `military necessity' for the benefit of both the attacking and defending powers:
The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.¹³⁴
4. 5. The `military necessity' exception has, of course, a long history in interna­tional humanitarian law, being included in 1907 Hague Conventions, following most if not all of the 19th century texts, from the United States' Lieber Code of 1863, where it is defined as:
those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war.¹³⁵
4. 6. Few topics in relation to the humanitarian laws of war have attracted more comment and discussion than the exception for `military necessity', and the limitations that international law places on this. It is generally accepted that the doctrine of `military necessity' by no means gives unlimited and unre­strained power to either attacking or defending forces. For example in his comprehensive review of the Nuremberg Prin­ciples, O'Brien insists that `the attitude that there are no legal restrictions on "military necessity" as defined by the responsible commander or government official is clearly rejected by the Hague Conventions of 1899 and 1907 and by the four Geneva Conven­tions of 1949', by `numerous predecessors' of these and in the Nuremberg Principles.¹³⁶ He draws particu­lar attention to some explicit prohibitions and exceptions from the rights of `military necessity' including the Hague prohib­itions on attacks on `non-military' targets, and the London [War Crimes] Charter and Nuremberg Judgements rulings that war crimes include `wanton destruction of cities, towns or villages, not justified by military necessity'¹³⁷.
4. 7. There is a considerable danger of a circular argument here: prohibited acts cease to be prohibited simply because the military commander deems them necessary, so `anything goes' if the commander claims that it is a question of `military necessi­ty'. This is a question discussed at considerable length and in much detail by Adler in his study of the legal considerations of the choice of targets in war. In a key part of his analysis he argues:
Although military necessity was a primary consideration in the Hague Conventions [i.e. those of 1899 and 1907, not the 1954 Convention, and with reference particularly to the Hague 1907 Annex], it was implicitly limited to the use of force which is required to attain a given objective. The rights of belligerents to adopt means of injuring the enemy is not unlimited.¹³⁸
4. 8. Discussing the `military necessity' exception in the 1954 Hague Convention, Adler continues:
Cultural Property is immune, except where military necessity prevents such immunity. The necessity relates to the actual use of the property, physi­cal or tactical conditions of attack, and the capabilities and limitations of ordinance... an anomaly that would be removed by proper balancing of militarily necessary targeting with minimum incidental damage to nonmili­tary targets. Such an approach would legitimize, for instance, the dest­ruc­tion of Monte Cassino and the Citadel at Hué in the Vietnam War unless alternative means were available to neutralise the military use of such institutions.¹³⁹
4. 9. In more direct language, General Eisenhower had set out his view of `military necessity' in his Staff Orders of 29 December 1943 relating to the Italian mainland campaign:
Today we are fighting in a country which has contributed a great deal to our cultural inheritance, a country rich in monuments which by their creation helped and now in their old age illustrate the growth of the civilization which is ours.
If we have to choose between destroying a famous building and sacrificing our own men, then our men's lives count infinitely more and the buildings must go. But the choice is not always so clear-cut as that. In many cases the monuments can be spared without any detriment to operational needs. Nothing can stand against the argument of military necessity. That is an accepted principle. But the phrase `military necessity' is sometimes used where it would be more truthful to speak of military convenience or even of personal convenience. I do not want it to cloak slackness or indiffer­ence.¹⁴⁰
4.10. Referring to `military necessity' in relation to non-combatants rather than cultural property (though the principles seem equally applicable) Falk concludes:
The question at all times is one of balancing military advantage with accidental damage. If a prosecution for the action is forthcoming it should be directed at he who placed the military target in a populated area.<sup>141</sup>
4.11. This last point is a most important one in relation to the 1954 Convention protection (and indeed that under most codifications of international humanitarian law). The moment that the enemy uses an otherwise protected monument or other feature for a military purpose, or indeed places any form of the `apparatus of war' (in the widest sense) in proximity to a protected place, that protection is temporar­ily lost. Consequently the defend­ing power has to remove or effectively neutralise and demilitarise everything that could be a legitimate military, political or economic target within the vicinity of the monument or other protected feature. If any monument or other cultural feature is used for any kind of military purpose then the monument etc. immediately loses its protection under the 1954 Convention, and only regains protection when the military use ends. If this is not done then, no matter how important the feature, it becomes a legitimate military target.¹⁴²
4.12. However, over the past half-century or more there has been a growing weight of opinion across the legal, political, humani­tarian, and even military, spectrum that regardless of the conduct of the enemy, there have to be some absolutes in the conduct of war, which even the most pressing and urgent `mili­tary necessity' cannot never over-ride. Following the atroc­ities of the Second World War the 1949 Geneva Conventions placed absolute limits on the right of retaliation or counter-action against even the most heinous war crimes. A key Common Article<sup>143</sup> requires unconditional compliance with each Conven­tion regardless of the perceived perfidy or alleged war crimes of the enemy, with States Parties undertaking `to respect and ensure respect for the present Convention in all circumstance­s'¹⁴⁴, while the First Protocol of 1977 extends this absolute prohib­ition to reprisals against Cultural Property, with a specific cross-reference to the 1954 Hague Convention¹⁴⁵.
4.13. It is arguable that in comparison with the 1907 Hague Laws and Customs of War the abandonment of the universal `military necessity' exception in the Geneva Conventions was the most important single advance in codified international humanitarian law for more than forty years. Consequently, and having seen the widespread acceptance of the Geneva Conventions 4½ years earlier, those preparing the working draft for the 1954 Hague Intergovern­mental Conference followed the new principles established in Geneva, and therefore excluded the `military necessity' exemp­tion of the Fourth and Ninth Hague Conventions of 1907.
4.14. However, this issue became a major area of contention in the 1954 Conference. The military delegates of the United States of America and of the United Kingdom insisted on the addition of a `military necessity' exception clause as a fundamental condi­tion of their States' acceptance of the Convention. The posi­tion of the United States at the Conference seems particularly illogical since it was (and remains) a Party to the 1935 Washington Pan-American Treaty (`Roerich Pact'), which requires uncondi­tional `respect and protection'<sup>146</sup> with no hint of any `military necessity' exemption.
4.15. The proposed exception was opposed in a vote by not just by the USSR and all other States of the `socialist' block, but also by some western European countries, including France, Greece and Spain. Other States, while opposing the principle of the proposed exemption, considered that the acceptance of the final treaty by both the USA and UK was absolutely essential and, by a majority, the Confer­ence agreed to add the `military necessity' provisions, though with the qualifica­tion that this could in future only be invoked when `the military necessity imperatively requires such a waiver.' [my empha­sis]<sup>147</sup>. (Those who reluctantly voted for the `military necessity' concession in order - as they thought - to secure the adherence of the USA and the UK to the treaty were to be disappointed: despite this major weakening of its provisions at their insistence, though both signed it in 1965 neither has yet presented the Convention for ratification under national law.)
4.16. Bearing in mind the precedents of the 1949 Geneva Conventions the inclusion of the `military necessity' exemption was already inappropriate by the time of the 1954 Intergovernmental Con­ference. It is strongly RECOM­MENDED that in any revision of the 1954 Convention or in any new Additional Protocol to it, High Contracting Parties should renounce the provisions of Article 3 (2) allowing the waiving of the provisions of the Convention in the case of military necessity. Indeed, this should be seen as one of the highest priorities of the review process.
4.17. The general requirement of `respect' (subject of course to imperative `military necessity') was further clarified by two further clauses requiring effective measures against theft and pillage, and prohibiting reprisals against cultural prop­erty, respectively:
3. The High Contracting Parties further undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropri­ation of, and any acts of vandalism directed against, cultural property. They shall refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party.

4. They shall refrain from any act directed by way of reprisals against cultural property.¹⁴⁸

4.18. There is also an express prohibition of reprisals or otherwise prohibited acts: even if another High Contracting Party fails to comply with the Convention counter-action is still not allowed:
5. No High Contracting Party may evade the obligations incumbent upon it under the present Article, in respect of another High Contracting Party, by reason of the fact that the latter has not applied the measures of safeguard referred to in Article 3.
4.19. Other important obligations accepted by the States Parties to the Convention in relation to this part of it are the provisions relating to Occupation, and requiring any Contracting state in occupation of all or part of the territory of another Party to support so far as possible the estab­lished structure of cul­tural property protection in the occupied lands. However, should the competent national authorities be unable to handle the tasks the occupying power itself must `take the most nece­ssary measures of preservation'<sup>149</sup>.
4.20. This is followed by an obscurely worded provision that:
Any High Contracting Party whose government is considered their legitimate government by members of a resistance movement, shall, if possible, draw their attention to the obligation to comply with those provisions of the Convention dealing with respect for cultural property.<sup>150</sup>
The intention appears to be to require the legitimate authority for an occupied territory, such as a government-in-exile, to draw the terms of the 1954 Convention to the attention of any internal resistance forces under its control or influence within the occupied territory. Ideally, all States Parties in a position to influence the conduct of irregular forces in an enemy (or indeed third) country should accept at least a moral obligation to try to apply this provision. An obvious current example would be for the Belgrade government of the residual Yugoslav state (a High Contracting Party to the 1954 Convention) to try to influence both the regular and irregular forces of the self-declared Bosnian Serb administration, and for Croatia (a State Party, by declaration of succession) to try to influence the conduct of irregular forces in the areas of Bosnia controlled by ethnic Croatians. However, the extent to which this obligation is binding on States Parties which may be in a position to influence, but claim not to have effective control - in the strict legal sense - of irregular forces would be question of fact to be determined by appropriate legal process.
4.21. The other fundamental concept of the Convention is the obliga­tion of States Parties in respect of peacetime preparation for the protection of cultural property, defined as `safeguarding':
The High Contracting Parties undertake to prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate.¹⁵¹
4.22. UNESCO published in 1954 and 1958 (French and English editions respectively) a very substantial practical handbook on recom­mended measures to be taken in relation to peacetime prepara­tion, which was (and is) a valuable guide for action by both governments and individual cultural institutions and monu­ments¹⁵². Also, the text of the Convention provides (in Article 26) for the High Contract­ing Parties to report to UNESCO on the action taken under the Conven­tion,thus sharing information on the action each had taken in relation to, amongst other things, the peacetime preparation.
4.23. However, the wording of the undertaking in respect of `safegua­rding' is so weak that a High Contracting Party could perfectly well decide that they need do virtually nothing, should they decide that this is what `they consider appropriate', for any reason. For example, the government might believe (or may simply want its citizens and neighbouring States to believe) that there is no possibility of its involvement in any kind of armed conflict. This position, whether genuinely held or not, can of course be a serious barrier to the development of peacetime preparations for the possibility of war or other armed conflict in every area of national life, not solely in relation to the 1954 Convention. These issues are discussed in more detail in the following Chapter of this Report¹⁵³.