THE CONCEPT AND APPLICATION OF
`SPECIAL PROTECTION' AND ITS
6. 1. The earlier ratified International Instruments, particularly the 1899 and 1907 Hague Conventions and the 1935 Washington (Roerich) Pact, relied on the principle of absolute protection for all monuments and cultural institutions, (as defined - in practice - by the defending States Parties) providing these were not being used for any military purpose, and subject to the doctrine of `military necessity'.
6. 2. The 1936 International Museums Office draft convention had proposed in addition arrangements for the designation, special identification and international inspection of temporary refuges or shelters for movable cultural property, located at least 20 km. from likely theatres of military operations, from any military, economic or communications target. In addition to its proposed absolute obligation to `spare' all monuments of artistic or historic interest in time of war, it introduced the term `Special Protection' for all monuments or groups of monuments at least 500 metres from any military objective, providing there has been prior notification of these, that they were not being used for any direct or indirect defence purpose, and that they were open to international inspection during hostilities188.
6. 3. The final version of the 1954 Hague Convention merged the two separate concepts (and Articles) of the Washington Pact - the remote temporary shelters or refuges for movable cultural property and `centres containing monuments...' into a single provision for `Special Protection':
1. There may be placed under special protection a limited number of refuges intended to shelter movable cultural property in the event of armed conflict, of centres containing monuments and other immovable cultural property of very great importance, provided that they:
(a) are situated at an adequate distance from any large industrial centre or from any important military objective constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station, establishment engaged upon work of national defence, a port or railway station of relative importance or a main line of communication;
(b) are not used for military purposes.
2. A refuge for movable cultural property may also be placed under special protection, whatever its location, if it is so constructed that, in all probability, it will not be damaged by bombs.
3. A centre containing monuments shall be deemed to be used for military purposes whenever it is used for the movement of military personnel or material, even in transit. The same shall apply whenever activities directly connected with military operations. the stationing of military personnel, or the production of war material are carried on within the centre.
4. The guarding of cultural property mentioned in paragraph I above by armed custodians specially empowered to do so, or the presence, in the vicinity of such cultural property, of police forces normally responsible for the maintenance of public order shall not be deemed to be used for military purposes. Protection of cultural property in the event of armed conflict
5. If any cultural property mentioned in paragraph I of the present Article is situated near an important military objective as defined in the said paragraph, it may nevertheless be placed under special protection if the High Contracting Party asking for that protection undertakes, in the event of armed conflict, to make no use of the objective and particularly. in the case of a port, railway station or aerodrome, to divert all traffic therefrom. In that event, such diversion shall be prepared in time of peace.189
6. 4. Even accepting the problems involved in trying to deal with two very different concepts within a single definition of Special Protection and a single set of rules, one other very obvious weakness is that it offers no possibility of Special Protection for even the greatest museums of undisputable world importance. Their collections can be given Special Protection if evacuated from the museum itself to a shelter or refuge under Special Protection but museums as integrated, working, institutions in their own premises cannot achieve this, unless by chance they themselves occupy `monuments' of great importance which are themselves located in a `centre' containing immovable property of very great importance.
6. 5. With such a narrow definition it is not surprising that in the thirty-seven years since the Convention came into effect, the only museum in the world to achieve designation for Special Protection is the Vatican Museum, and only then because of its location within the designated Vatican City `centre containing monuments and other immovable property of very great importance'.
6. 6. It is RECOMMENDED that in any future updating of, or Additional Protocol to, the 1954 Hague Convention, provision should be made for the granting of Special Protection, under the procedures laid down in the Convention, to the most important museums, galleries, special libraries and archive repositories, on the basis of an assessment of the quality and international importance of their collections, regardless of the nature of the museum building and its situation in location relative to `centres containing monuments of great importance'.
6. 7. Special Protection is granted to cultural property when it is entered in the official, and publicly accessible, `International Register of Cultural Property under Special Protection', which is maintained on behalf of the High Contracting Parties by the Director-General of UNESCO, and in a form specified in practical rules laid down by the Director-General190. All entries in Register this are communicated to each High Contracting Party, (and, in practice, to the Secretary-General of the United Nations though this is not a specific provision of the Convention itself).
6. 8. The normal procedure for entry on the Register is through an application to the Director-General, which is circulated to all other States Parties for consultation, each of which has the right to object on specified grounds. In essence these are: either that the subject of the requested entry is not cultural property (or a bona fide refuge or shelter for the purpose of protecting cultural property, or that it is too close to a legitimate non-neutralised military etc. target191. However, there is also provision for a Commissioner-General appointed under the Convention to authorize immediate `special protection' of a temporary refuge, but the Protecting Power for any of the belligerents may order the Convention's official emblem to be removed immediately if it considers that there is a valid objection to this192.
6. 9. The Director-General formally approved the required practical rules for the form of the International Register on 18 August 1956, requiring the registering of each entry under the name of the High Contracting Party, and sub-divided into three categories: (1) Refuges, (2) Centres containing monuments and (3) Other immovable cultural property. These rules were promulgated to High Contracting Parties (and, of course, more widely) the following month193.
6.10. In the thirty-six years since the establishment of the International Register only three High Contracting Parties have registered `Refuges'. On 12 May 1969, on the application of The Netherlands and after the required consultation, a total of six shelters and refuges for movable cultural property in the Provinces of North Holland (four), Overijssel (one) and Limburg (one). On 17 November 1969 the Alt-Aussee complex of five disused salt mines near Steinberg in Upper Austria was registered as a national refuge, and on 24 April 1978 the West German `Central Refuge', comprising about half a kilometre of underground galleries quarried out of crystalline gneiss near Oberried in the Black Forest was added.194
6.10. Since 1978 no proposals for the registration of refuges have been proposed. This is clearly in part because many - probably the majority - of High Contracting Parties have made little or no progress in establishing shelters and refuges for their movable cultural property at all. In some cases - especially in some European States belonging to one or other of the Cold War alliances - it may have been felt that the threatened use by each side of high yield thermonuclear weapons, capable of devastating many tens of square kilometres under the M.A.D. (Mutually Assured Destruction) defence strategy would make such protection measures pointless. In particular, especially in densely populated States, it may be felt that faced with such weapons there are no areas of the country that could reasonably be considered sufficiently remote from legitimate military, industrial or communications targets.
6. 11. However, as recent discussions about new the generation of `smart weapons' have stressed, probably more than 97% of recent (and foreseeable) armed conflict is based on weapons technology several weapons generations older - often of the generation of the Second World War - or even earlier. Consequently in most countries there is still an entirely valid role for comparatively traditional means of protection such as the use of shelters, refuges and temporary strengthening, as developed in the Spanish Civil War and - especially - during the Second World War.
6.12. Another, and perhaps more significant, problem is that several States Parties to the Convention which are known to have established refuges and shelters and plans for the evacuation of the most important movable national treasures to these regard the location of these and the plans for their use as important state secrets. Such States argue that despite the protection in international law given by registration for Special Protection, it is highly undesirable - absurd even - to provide a potential enemy (or even national or international criminal or terrorist organisations) with details of such refuges (including the location to the nearest second of latitude and longitude, and with full descriptions for the access routes and the means of identifying eg. the surface entrance to an underground shelter or refuge).
6.13. In the course of the study for this Report it has been argued forcibly by senior officials from such States that past experience over many centuries demonstrates that attacking and occupying forces are very likely to deliberately target collections of especially important movable national treasures and collections. In past armed conflicts such crimes have been all too common - whether in order to destroy (or remove) symbols of national, cultural and religious identity, as State organised and authorised looting (as in Napoleon's campaigns across Europe and into Egypt or the more recent experience of the Nazi ransacking of the art collections of most of continental Europe), or as straightforward criminal theft and looting under cover of the inevitable disorder of war. The rise of both international and internal terrorism also give added force to this argument.
6.14. The position of States unwilling to identify their emergency plans and refuges appears to have been reinforced by what is reported to have occurred in the recent armed conflicts within the former Yugoslavia. In at least some areas of Federal (and strongly decentralised) Yugoslavia there were extensive programmes for protecting both movable and immovable cultural property in the event of armed conflict195. (This may well be true of all areas of the country, though information is no longer readily available centrally, as the implementation of this was primarily a responsibility of the individual Republics). Though not publicised or registered internationally the full details of the permanent emergency shelters and refuges for important museum, library and archive collections in each Republic were, of course, registered with the national defence forces and cultural organisations.
6.15. Unfortunately, it appears that this information has definitely been used improperly by belligerent forces on at least one occasion - on the fall of Vukovar, Croatia, in November 1991. The City had, amongst many other items of important cultural property, the internationally important collections of the famous medieval library of Vukovar, and the national collection of 20th century Croatian art donated by the distinguished scholar, Dr Antun Bauer, to his native city. Each of these is regarded as outstandingly important parts of the Croatian cultural patrimony, and both collections are believed to have survived the long siege of the City undamaged in their designated refuges. However, on the day that Vukovar was taken by the attacking Serb forces the shelter was immediately identified from the official records. The contents are reported to have been removed to Belgrade the same day, and the Croatian authorities have received no information about either collection196.
6.16. Despite such understandable worries the principle of registering refuges and shelters for Special Protection appears to be well worth retaining. However, in practical terms the facility is likely to be particularly valuable in respect of temporary refuges and other evacuation measures taken during (or immediately before) armed conflicts, as the locations of these would probably not be known to the attacking force, and hence unintended damage or destruction could easily occur. On the other hand, almost by definition most permanent shelters or refuges are likely to be located in areas remote from any likely military, industrial or communications target, and so are unlikely to be the subject of heavy air attacks. However, in the event of a land campaign, particularly one using heavy armour and artillery, the mutual agreement under the Special Protection rules by the attacking and defending forces to avoid any form of fighting in the vicinity of the refuge could be a valuable additional safeguard.
6.17. Much less understandable is the failure of High Contracting Parties to submit proposals for Special Protection under categories (2): centres containing monuments) or (3) other immovable cultural property of great importance. No proposals have been submitted in respect of the third category, and only one has been registered in respect of the second category.
6.18. This one case of a `centre' achieving Special Protection is Vatican City, registered on 18 January 1960. The boundaries of the protected zone are defined as the frontiers of the State of the Holy See (Vatican City), and the area protected extends to approx. 4.4 hectares. The principal examples of important cultural property protected by the zone are stated in the International Register to include the Basilica of St Peter's and its archaeological remains, the Vatican Palace with its museums, the Vatican Library and the Archivi Segreti (Secret Archives of the Holy See)197.
6.19 This is a particularly interesting case on two counts. First, although widely recognised internationally as a political entity, the Holy See is not a member of either the United Nations or UNESCO, but nevertheless was allowed to become a Party to the 1954 Hague Convention, and hence the Vatican could be registered for Special Protection by consent of the High Contracting Parties. Second, because the territory of the State of Vatican City is so small, any protection under the 1954 Convention, if actually invoked, would probably have a far greater effect on the surrounding State (i.e. Italy) that the Vatican City itself. Consequently formal consultation with Italy on the implications of this and on the measures for implementation in the even of armed conflict was necessary. Italy's support for the Vatican's application was formally registered with UNESCO on 18 September 1959. Similar consultations and arrangements would clearly be needed in the event of any future proposals for registering under Special Protection any of the very many important monuments and historic zones which are close to land or river frontiers.
6.20. There was in fact a second proposal for the granting of Special Protection to an important cultural complex. As the Second Indo-China War (Vietnam War) threatened to spill over into neighbouring countries, the government of Cambodia (a Party to the 1954 Convention from April 1962 onwards) initiated a proposal for the registering under Special Protection of the archaeological and historic monument zone of Angkor Wat. The only legitimate questions that should have been considered by the High Contacting Parties during the consultation process were those specified in Article 14 of the Regulations, ie. that either: `(a) the property is not cultural property' or `(b) the property does not comply with the conditions mentioned in Article 8 of the Convention' [i.e. adequate separation from a military, economic or communications centre, or use for military purposes - see quotation in para. 6.3 above].
6.21. There could be no doubt about the outstanding international cultural value of Angkor Wat, and it was common ground that there were no legitimate military etc. targets in the vicinity, so its entry on the International Register should have been almost automatic. Unfortunately the socialist countries objected on grounds quite outside the terms of the Convention - in effect that they did not recognise the legitimacy of the then Cambodian government which had made the application.
6.22. As the application was submitted by the government currently recognised by the United Nations, and hence by UNESCO, this was clearly not an admissible ground for objection, but most regrettably the then Director-General of UNESCO decided to suspend indefinitely (in practice, permanently) all proceedings in relation to the Cambodian application. In fact, despite the failure of the 1954 Convention Special Protection procedure, when the Indo-China War spread to Cambodia the United States military authorities sought advice from American experts on the archaeology and monuments of the region, and as a result issued command orders strictly prohibiting both air and ground operations throughout a protection zone defined by the United States military authorities around the Angkor complex.198
6.23. Since the failed proposal in relation to Angkor Wat there appear to have been no formal proposals for the granting of Special Protection. This seems strange, as many of the subsequent periodic reports from States Parties refer to work on the preparation of Schedule 2 lists, and it is clear that many such lists are now in use at the national level, especially in relation to decisions on matters such as urban planning, conservation and restoration programmes etc. Even The Netherlands, probably the most active High Contracting Party at the national level, has not yet initiated Special Protection listing in respect of its defined `Top 100' monuments199, even though a significant proportion of these would probably meet the criteria in respect of both their cultural importance and their distance from legitimate military targets.
6.24. It may well be that some States Parties chose to switch their priority to the promotion of their proposals for the World Heritage List following the adoption UNESCO of the World Heritage Convention at the 1972 General Conference of UNESCO - a point discussed further in Chapter 12 of this Report (below). However, the concept of Special Protection remains a valid and valuable one in relation to outstanding individual monuments, `centres containing monuments or other immovable cultural property...' and indeed outstanding museums, (if this category is added in a future amendment or addition to the Convention (as proposed in 6.4 - 6.6 of this Report).
6.25. Consequently, all High Contracting Parties are RECOMMENDED to review their policies and priorities, particularly in the light of existing national schedules and lists for the protection of important cultural property, and to submit to the Director-General of UNESCO proposals for additions to the International Register of Cultural Property under Special Protection.
6.26. The Special Protection concept and practical arrangements also apply in respect of one other area - the authorised and externally supervised transport of cultural property, e.g. to or from national refuges, shelters etc. or even to a foreign place of safety - provided for in the Convention and detailed further in Regulations:
1. Transport exclusively engaged in the transfer of cultural property, whether within a territory or to another territory, may, at the request of the High Contracting Party concerned, take place under special protection in accordance with the conditions specified in the Regulations for the execution of the Convention.
2. Transport under special protection shall take place under the international supervision provided for in the aforesaid Regulations and shall display the distinctive emblem described in Article 16.
3. The High Contracting Parties shall refrain from any act of hostility directed against transport under special protection.200
6.27. There is also provision for the claiming of `Special Protection' in cases of special urgency, and for the right of searching of the transport etc., and prohibiting the seizure, capture or prize of all cultural property granted immunity under the Transport provisions.201
6.28. There are no obvious problems with either the principles or the details of the provisions for `special protection' of the transport of cultural property, though appears to have been no case in which these have been invoked. Perhaps the nearest case was the transport of the collections of the Kuwait National Museum to Baghdad by the Iraqi authorities in 1990. Kuwait condemned this, claiming that Iraq had engaged in state-inspired looting. Iraq, a High Contracting Party to both the Hague Convention and Protocol, defended itself with a counter-claim that faced with the very real prospect of military action to expel Iraq from the capture territory, it was under a clear obligation under the 1954 Convention to take necessary measures to protect these collections, and hence had moved them to a place of safety, outside the likely zone of future military operations should the counter-invasion take place. Iraq's claimed objective is in fact a defendable position under the Convention, but the actual method and timing of the removal failed to comply with the provisions of the Convention. In particular there were no moves to appoint a Commissioner-General (or representative for cultural property) - the normal first preliminary to any such transfer of cultural property, nor to involve the Director-General of UNESCO as an alternative, in the absence of a Commissioner-General appointment.
PRACTICAL APPLICATION OF THE 1954 CONVENTION:
OFFICIAL EMBLEM, SCOPE AND ROLE OF PROTECTING
POWERS, UNESCO, AND COMMISSIONERS-GENERAL
7. 1. The provisions in relation to the new blue and white shield emblem, as the successor to the official emblems of the Hague Conventions and the Roerich Pact are set out in Chapter V of the Convention itself:
Article 16. Emblem of the Convention
1. The distinctive emblem of the Convention shall take the form of a shield, pointed below, per saltire blue and white (a shield consisting of a royal blue square, one of the angles of which forms the point of the shield. and of a royal blue triangle above the square, the space on either side being taken up by a white triangle).
2. The emblem shall be used alone, or repeated three times in a triangular formation (one shield below), under the conditions provided for in Article 17.