Review of the Convention for the Protection of Cultural Property in

Download 1.6 Mb.
Date conversion29.04.2016
Size1.6 Mb.
1   2   3   4   5   6   7   8   9   10   ...   21

Article 17. Use of the emblem
1. The distinctive emblem repeated three times may be used only as a means of identification of:
(a) immovable cultural property under special protection;

(b) the transport of cultural property under the conditions provided for in Articles 12 and 13;

(c) improvised refuges, under the conditions provided for in the Regula­tions for the execution of the Convention.
2. The distinctive emblem may be used alone only as a means of identifica­tion of:
(a) cultural property not under special protection;

(b) the persons responsible for the duties of control in accordance with the Regula­tions for the execution of the Convention;

(c) the personnel engaged in the protection of cultural property;

(d) the identity cards mentioned in the Regulations for the execution of the Conven­tion.

3. During an armed conflict, the use of the distinctive emblem in any other cases than those mentioned in the preceding paragraphs of the present Article, and the use for any purpose whatever of a sign resembling the distinctive emblem, shall be forbidden.
4. The distinctive emblem may not be placed on any immovable cultural property unless at the same time there is displayed an authorization duly dated and signed by the competent authority of the High Contracting Party.
7. 2. In the case of `ordinary' cultural property, including monuments, archae­ological and historic sites, and buildings such as museums, libraries and archives holding collections of cultural property, the official emblem is to be displayed singly, while in the case of buildings and locations under Special Protection the emblem is to be repeated three times in the form of a triangle. The Regulations offer a wide choice of options for the displaying of the official emblem: the possibilities suggested include painting it directly on the building, or display on flags or on armlets of authorized cultural protection personnel. In the case of the military action in Croatia in 1991 and 1992 a standard pattern of painted shield approximately two metres high manufac­tured from wooden board was used on many hundreds of monuments and institutions protected under national laws.
7. 3. Whether the property in marked in times of peace is a matter for the discretion of the Contracting Party. However, the Regulations provide that in times of armed conflict:
However, without prejudice to any possible fuller markings, the emblem shall, in the event of armed conflict and in the cases mentioned in Articles 12 and 13 of the Convention, be placed on the vehicles of transport so as to be clearly visible in daylight from the air as well as from the ground. The emblem shall be visible from the ground:
(a) at regular intervals sufficient to indicate clearly the perimeter of a centre containing monuments under special protection;
(b) at the entrance to other immovable cultural property under special protec­tion.202
7. 4. Again there seem to be no problems of principle in relation to this aspect of the Convention and Regulations. However, it is very desirable that the emblem should be widely used in order to make both specialists and non-specialists (including not least military personnel of all ranks) familiar with it in peacetime, and hence to engender curiosity and understanding. In this, as in other respects, the current programme of the Netherlands to affix the emblem to all protected monuments and major museums is a commendable model for other countries.
7. 5. There is a clear assumption within the 1954 Convention that in the event of a war between two or more High Contracting Parties the general laws and procedures of war would be in operation, and in particular that each party would have designated a Protecting Power in accordance with the principles of the Hague and Geneva Conventions. It was envisaged that the designated Protecting Power for each party would generally represent and safeguard the interests of that State throughout the armed conflict, and would help with negotiations and conciliation whether initiated by one or more of the Parties themselves, by a Protecting Power on its own initiative, or by the Director-general of UNESCO203. There is however a limited reserve provision which provides that:
a neutral State may be asked to undertake those functions of a Protecting Power which concerns the appointment of a Commissioner-General for Cultural Property...204
but this is completely silent on the question of who is to ask the neutral State to take on this role. In practice, it is extremely difficult if not impossible to make progress with the formal procedures of the Convention where one or both of the belligerents declines to nominate Protecting Powers. This seems to have been very much the case in, for example, the 1980s Iran - Iraq War, in which each side appeared to claim that the conflict was a matter of armed border incursions, and refused to concede that they were fighting a true war within the normal conven­tions of international war. Consequently, all efforts by UNESCO to try to arrange the appointment of Commissioners-General were rebuffed. Similarly, no Protecting Powers have been appointed in any of the recent and current conflicts in the former Yugoslavia. (One obvious reason for this was that these were regarded technically internal conflicts within Yugoslavia when they began, only becoming international conflicts when the world community recognised the independence of first Croatia and then Bosnia. It is not clear whether either Croatia or Bosnia have attempted to initiate the appointment of Protecting Powers, but even if they have this would presumably be a fruitless exercise while the administrations of the residual Yugo­slavia/Serbia refuses to recognise the new States as independent.)
7. 6. The Regulations provide for the Director-General of UNESCO to draw up an international list of experts, each nominated by a High Contracting Party, suitable and appropriately qualified to serve as a Commissioner-General for Cultural Property, in order to supervise the practical arrangements for the protection of cultural property in accordance with the obligations of the respective States Parties to the Convention and to act as a mediator in the event of disputes205. The arrange­ments are detailed in the Regulations and are quite clear and straightfor­ward:
Article 2. Organization of control
As soon as any High Contracting Party is engaged in an armed conflict to which Article 18 of the Convention applies:

(a) It shall appoint a representative for cultural property situated in its territory; if it is in occupation of another territory, it shall appoint a special representa­tive for cultural property situated in that territory;

(b) The Protecting Power acting for each of the Parties in conflict with such High Contracting Party shall appoint delegates accredited to the latter in conformity with Article 3 below;
(c) A Commissioner General for Cultural Property shall be appointed to such High Contracting Party in accordance with Article 4.
Article 3. Appointment of delegates of Protecting Powers
The Protecting Power shall appoint its delegates from among the members of its diplomatic or consular staff or, with the approval of the Party to which they will be accredited, from among other persons.
Article 4. Appointment of Commissioner General
1. The Commissioner General for Cultural Property shall be chosen from the interna­tional list of persons by joint agreement between the Party to which he will be accredited and the Protecting Powers acting on behalf of the opposing Parties.
2. Should the Parties fail to reach agreement within three weeks from the beginning of their discussions on this point, they shall request the President of the International Court of Justice to appoint the Commissioner General, who shall not take up his duties until the Party to which he is accredited has approved his appointment.
Article 5. Functions of delegates
The delegates of the Protecting Powers shall take note of violations of the Convention, investigate, with the approval of the Party to which they are accredited, the circum­stances in which they have occurred, make represen­ta­tions locally to secure their cessation and, if necessary, notify the Commissioner General of such violations. They shall keep him informed of their activities.

Article 6. Functions of the Commissioner General
1. The Commissioner General for Cultural Property shall deal with all matters referred to him in connection with the application of the Convention, in conjunc­tion with the representa­tive of the Party to which he is accredited and with the delegates concerned.
2. He shall have powers of decision and appointment in the cases specified in the present Regulations.
3. With the agreement of the Party to which he is accredited, he shall have the right to order an investigation or to conduct it himself.
4. He shall make any representations to the Parties to the conflict or to their Protecting Powers which he deems useful for the application of the Convention.
5. He shall draw up such reports as may be necessary on the applica­tion of the Convention and communicate them to the Parties concerned and to their Protecting Powers. He shall send copies to the Director General of the United Nations Educational, Scientific and Cultural Organization, who may make use only of their technical contents.
6. If there is no Protecting Power, the Commissioner General shall exercise the functions of the Protecting Power as laid down in Articles 21 and 22 of the Conven­tion.206

7. 7. The practical procedures and arrangements for the work of Commissioners-General and the representatives (delegates) of the Protecting Powers seem entirely logical and reasonable, though there has been hardly any testing of them in practice, because in only one case (the Arab - Israeli conflict of 1967207) has an appointment been made. In no other armed conflicts involving High contracting Parties it has not proved possible to reach agreement on the appointment of Commissioners-General. It is RECOM­MENDED that in any revision of the 1954 Convention, or any Additional Protocol to it, the legal provisions and arrangements for the appointing of Commissioners-General be reviewed, in order to make these more effective. On the other hand it has to be recognised that in times of armed conflict for all practical purposes it is impossible for any outside power (with the possible exception of the United Nations Security Council) to impose on a High Contracting State any Commis­sioner-General which the belligerent party is unwilling to recognise and cooperate with.

7. 8. A much more successful course of action over the past decades has been the practice of UNESCO to intervene through the offices of a Special Representa­tive of the Director-General, under the provisions of the Convention:
1. The High Contracting Parties may call upon the United Nations Educational, Scientific and Cultural Organization for technical assistance in organizing the protection of their cultural property, or in connection with any other problem arising out of the application of the present Convention or the Regulations for its execution. The Organization shall accord such assistance within the limits fixed by its programme and by its resources.
2. The Organization is authorized to make, on its own initiative, proposals on this matter to the High Contracting Parties.208
7. 9. Indeed in the case of situations where there is not a clear and unambiguous international conflict between two well defined States with well organised and controlled military forces there is in practical terms no alternative. The provisions for the appointment of Commissioners-General working with Protecting Powers do not apply at all in the case of irregular internal wars, so less formal methods are necessary in this case. Good examples of initiatives by successive Directors-General include the fact-finding efforts in Cyprus both in advance of and after the de facto partitioning of 1972, action to promote the safeguarding of the historic Mediterra­nean city of Tyre following the Israeli occupation of southern Lebanon in 1982209, and most recently UNESCO's various initiatives in relation to ex-Yugoslavia and especially the World Heritage List city of Dubrovnik, Croatia.
7.10. UNESCO has also a long tradition of taking an active moral lead of the world community through effective publicity and public relations in times of conflict. For example, between 17 September 1991 and the end of the year the Director-General intervene publicly or at the diplomatic level at least nine times, including making a public joint appeal with the Secretary-General of the United Nations, Mr Boutros-Ghali, and arranged two missions of UNESCO officials and other experts as observers and personal representatives, while the General Conference of UNESCO, meeting in October and November passed two resolutions appealing for all parties to comply with the requirements of the 1954 Convention.

8. 1. An apparently very minor, but in fact highly important, part of the 1954 Hague Convention is the provision that:

... at least once every four years, they [the High Contracting Parties] shall forward to the Director General a report giving whatever information they think suitable concerning any measures being taken, prepared or contem­plated by their respective administrations in fulfilment of the present Convention and of the Regula­tions for its execution.210
8. 2. As indicated above, these reports are of considerable importance and value and it is RECOMMENDED that all High Contacting Parties be reminded of their undertaking to present periodic reports, and asked to ensure their submission.
8. 3. Although technically these reports are submitted to the Director-General only, and publication is not required, all have been placed in the public domain by UNESCO. The first set of reports, with the Director-General's analysis of these, was not produced until July 1962211 - eight years after the 1954 Intergovernmental Confer­ence, and six years after the Convention came into effect with the depositing of the fifth ratification - and was then only presented in the form of a working paper for the first (and only) periodic Conference of the High Contracting Parties212. The cycle of reporting continued to be somewhat erratic, with - apparently - no further reports being received by the Director-General until 1967, followed then by some in 1970, then nothing until 1979, followed by more in 1984 and 1989.213
8. 4. The purpose and value of these reports is two-fold. First, they enable the Director-General to present an analysis and overview of the progress of implementing the Convention both in peacetime and any recent or current armed conflicts. Second, as they are distributed to all States Parties and made available more widely, they are an extremely valuable means of sharing the experience of different States with many very different circum­stances, and hence to offer useful models of practice to other High Contract­ing Parties on successful ways of meeting the obligations under the Convention.
8. 5. On the negative side, the submission of periodic reports by States Parties has been very uneven and erratic. An analysis of the six periodic report compilations shows that not one High Contracting Parties has submitted reports each time. Germany (Federal Republic) is the only State with a 100% record (i.e. it has contributed to each of the five reports compiled and used since it ratified the Convention in 1967. Poland has also submitted five reports (out of a possible six), the Holy See, The Netherlands, Switzerland and Syria have each submitted four (out of a possible six).
8. 6. On the other hand thirty-nine States have never submitted a report (though it should be noted that several of these have become parties to the Conven­tion by accession or succession since the last compilation of national reports was prepared in 1989). It is difficult to calculate the exact number of periodic reports that should have been submitted, because of the different rates of completion of the ratification process, but it appears that only about 20% of those that should have been prepared by States Parties according to the requirements of the Convention have actually been submitted.

8. 7. Details of the submission of periodic reports by High Contracting Parties has been analyzed, and this is presented in Appendix VIII of this Report.

8. 8. It is further RECOMMENDED that means be found to ensure the wider dissemina­tion and publicising of these reports, and for their more detailed consideration, particularly by the proposed new Intergov­ern­mental Advi­sory Com­mittee on the Protection of Cultural Property in the Event of Armed Conflict.214


9. 1. In relation to implementing international humanitarian law Sadoz argues very persuasively that this has to be based on balancing `means of prevention' - preparation and avoidance measures in peacetime etc., `means of control' - constant supervision to ensure compliance in times of conflict, and `means of repression' - which he describes as `important because penalties are an integral part of any sound legal system, and mainly because they should be an valuable deterrent'215. It is now well established that deliberate or reckless destruction or damage of cultural property, and the looting or theft of such property, in the course of war constitute war crimes within all international definitions. If there was any doubt about this the issue was resolved in the 1945 London Treaty principles, based on the Hague Conven­tions of 1907 and on Customary Interna­tional Law, and the subsequent Nuremberg War Crimes trials. Further, such offences are now regarded by the world community as falling clearly within the mainstream of war crimes, and are not merely some form of extension of breaches of property law216. This position has been substan­tially reinforced by the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and by the subse­quent explicit incorpor­ation of offences under this within the into the detailing of breaches of Interna­tional Humanitarian Law in the First Additional Geneva Protocol of 1977217.

9. 2. Most recently in February 1993 the United Nations Commission of Experts appointed under U.N. Security Council resolution 780 (1992) to investigate and report on `the evidence of grave breaches of the Geneva Conventions and other violation of international humanitarian law committed in the territory of former Yugoslavia' issued its first report through the Secretary-General to the Security Council. In this, the Commission of Experts discuss in detail the applicable rules of international law, defining these as having:
... the same meaning as `rules of international law applicable in armed conflict' as defined in article 2 (h) of Additional Protocol I to the Geneva Conventions.218
9. 3. The Commission of Experts also specifically list the 1954 Hague Convention as part of applicable `customary international law'219, and later again specifically identify both the 1949 Geneva Conventions and the 1954 Hague Convention as `applicable to the entirety of the conflicts in ex-Yugoslavia'220.
9. 4. The Security Council had previously (on 13 July 1992) re-stated the established position in relation to individual responsibility:
Reaffirms that all parties are bound to comply with the obligations under international humanitarian law and in particular the Geneva |Conventions of 12 August 1949, and that persons who commit or order the commission of grave breaches of the Convention are individually responsible in respect of such breaches.221
9. 5. The Commission of Experts further reviewed and re-affirmed the customary international law in relation to individual responsibil­ity as confirmed by the Nuremberg principles, and they confirmed that command responsibility applies not just to the person giving explicit orders, but:
52. Superiors are moreover individually responsible for a war crime or a crime against humanity committed by a subordinate if they knew, or had information which should have enabled them to conclude, in the circumstances of the time, that the subordinate was committing or was going to commit such an act, and that they did not take all feasible measures within their power to prevent or repress the act.
53. Military commanders are under a special obligation with respect to members of the armed forces under their control, to prevent and, where necessary, to suppress such acts and to report them to competent author­ities.222

9. 5. The Commission also discussed the activities which have become known as `ethnic cleansing', and among the list of activities which they define as `ethnic cleansing', they include the `wanton destruction of property', continuing:

These practices constitute crimes against humanity and can be assimilated to specific war crimes. Furthermore such acts could also fall within the meaning of the Genocide Conven­tion223.
9. 6. The Interim Report of the Commission of Experts was adopted by the Security Council in its Resolution 808 (1993)224, thus giving even greater weight to its position, not least since these principles will be incorporated into the applicable rules of law to be applied in any future war crimes trials relating to recent events in the former Yugoslavia.
9. 7. In relation to the application of the 1954 Hague Convention specifically, the issue of interna­tional jurisdiction, even in civil cases let alone criminal ones, was and remains extremely difficult and controver­sial. Though an international war crimes tribunal under the authority of the Security Council is now being contemplated in relation to ex-Yugoslavia this is the first such proposal to be pursued at an international level since the Nuremberg and Tokyo trials of German and Japanese war criminals at the end of the Second World War. It is important that there is close liaison between the United Nations and UNESCO in relation to the investigation and preparation of the cases for the proposed war crimes trials. As a first step, the United Nations should accept the offer of the Director-General of UNESCO to nominate an appropriate expert in cultural property law relating to armed conflicts to assist in the war crimes investigations.
9. 8. It seems clear that the States repre­sented at the 1954 Intergovern­mental Conference were reluctant to create a precedent by developing any explicit international criminal measures. Consequently, in the 1954 Convention, the High Contracting Parties entered into an obligation in relation to breaches in very general, and imprecise, terms:
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 Convention.225

9. 9. One of the most obvious weaknesses is that while the provision `of what ever nationality' is a good one, the text is completely silent as to jurisdiction in relation to the geographical location where the offence is alleged to have taken place. The usual criminal jurisdiction for offences of destruction of or damage to property would be either that of the country where the alleged offence took place, or of either the military or civilian criminal system of the country of nationality of the accused person. (The latter is the usual arrangement in respect of serving armed forces, whether fighting over an other territory, operating as part of an occupying or peace-keeping force, and frequently even in the case of friendly visits. Such arrangements may even extend to the families of service personnel abroad through bilateral agreements, as in the case of the residual British, French and United States forces in the former West German occupation zones).

9.10. In a strongly decentralised federal state the constitution may even provide that offences of this category are the exclusive responsibil­ity of decentralised regional criminal justice systems, and constitutionally outside the jurisdiction of the federal courts, as for example in the United States of America where even homicide and its punishment is a crime of State rather than Federal jurisdiction. Even in unitary states without such internal complications of jurisdiction, can a Contracting Party bring a criminal prosecution against even one of its own national for an offence alleged to have been committed in another country, let alone bring before its own courts a foreign national accused of `cultural war crimes' in a third, unconnected, coun­try? The 1948 Genocide Convention and 1949 Geneva Conventions both adopted substantially wider provisions in respect of the obligations of States Parties in relation to jurisdiction and prosecution. In particular the Geneva Conventions define as `grave breaches' a wide range of actions, including (amongst other things), wilful killing, torture or inhuman treatment, and the destruction and the large-scale illegal appropriation of property not justified by military necessity. This is very much a matter for expert legal investigation and negotiation.
9.11. However, the crucial need is to ensure that in all appropriate cases there is proper and effective prosecution through some appropriate legal process, not least in order to send clear signals to both military personnel and civilians throughout the world that there are clear limits to both personal and collective conduct. In the case of any of the defined `grave breaches', States Parties undertake to provide effective penal sanctions, to search out alleged transgressors (including those who fail to act to prevent war crimes when under an obligation to do so), and to positively assist in bringing them to trial wherever the alleged crimes took place and regardless of the current domicile or location of the person accused. In practice, criminal proceed­ings could be brought in and by any State holding the alleged war crime regardless of the place where this took place. If proceedings are not instituted by the State, it would be required to assist with extradition to a jurisdiction willing to bring the case to trial226.
9.12. It is clear that the weak wording of the 1954 Convention was the result of the reluctance of the States at the 1954 Intergovernmental Conference to bring in tougher sanctions in relation to crimes against cultural property. Despite the undertaking to do so in Article 22 of the Convention few of the High Contracting Parties have subsequently legislated within national law for specific criminal action in relation to crimes against cultural property in times of armed conflict, though many have included provisions in national military regulations and codes. (For example, those of the United States Army ultimately derive from the original Lieber Code of 1963). Where this is not the case, or in the case of action by civilians and irregular forces, any action might have to reply on general criminal provisions against damage to property, or against nationally protected monuments and collections. However, the latter frequently carry only nominal penalties as a breach of administra­tive law - often just a fine, or at the most a short period of imprison­ment227.
9.13. However, more effective action in terms of both jurisdiction and the level of penalties may be possible in the case of States which have enacted specific war crimes law, especially those which have ratified the 1977 Geneva Protocols and supported these with national penal legislation. On the other hand the view of the United Nations and United States of America (and other) military law experts that the 1954 Convention is now so well established in international humanitarian law as to be customary interna­tional law, binding on even non-Parties to the Convention in general principle (if not in specific administrative detail) is a particularly important advance in terms of enforcement.
9.14. The United States and other Member States are known to be gathering evidence on a number of specific cases concerning specific field commanders and other named individuals, and Dr Colin Kaiser's detailed report to the Council of Europe Parliamentary Assembly228 also names individuals reported to have been respon­sible for various serious atrocities. Other obvious cases deserving detailed investigation are those of the commanding officers of the two Yugoslav Navy vessels responsible for the notorious heavy shelling of the undefended historic (and World Heritage Site) Old Town of Dubrovnik on St. Nicholas Day (26 December) 1991, in breach of every relevant international humanitarian law from the 1899 Hague Naval Bombardment treaty onwards.
9.15. The moves of the Security Council in Resolution 808 of 22 February 1993 to institute an international war crimes tribunal to investigate and prosecute war crimes alleged to have been committed since 1991 in the former Yugoslavia is a most important step, as is the decision of the Commission of Experts to seek to include what could be highly important test cases in relation to the application of the 1954 Hague Convention.
9.16. In relation to the issue of possible `cultural' war crimes in the former Yugoslavia, it is RECOMMENDED that the Secretary-General of the United Nations should accept the offer of the Director-General of UNESCO to assist in this investigation of possible war crimes. In particular it is most desirable that the United Nations' team of experts investigating the complaints and allegations in respect of ex-Yugoslavia should be augmented by the appointment of at least one expert in relevant cultural property issues.
9.17. It is RECOMMENDED that the United Nations be urged to develop and pres­ent to the proposed international War Crimes Tribunal on cases relating to the former Yugosl­avia229 some test cases in rela­tion to war crimes against cul­tural property in violation of the provi­sions of the 1954 Conven­tion, in order to determine the extent of the application and effectiveness of international law in such matters, and to establish precedents and examples in this respect.
9.18. One other significant problem raised by representatives of some High Contracting Parties is that the 1954 Convention has no effective provision for resolving serious differences between States Parties in relation to the application of either the Convention or the Protocol.230 Over the centuries, in cases where wars have ended with a formal peace treaty, issues relating to important appropriated, looted, destroyed or damaged cultural property have often been the subject of specific provisions and conditions of the peace. Examples have included the restitution and reparations at the end of the adventures of Napoleon I and in the Treaty of Versailles of 1919.
9.19. Most recently the Security Council's ceasefire conditions accepted by Iraq at the end of the Second Gulf War (1990 - 1991) included express conditions for the return of cultural property removed to Baghdad and the payment of reparations in respect of other destroyed and damaged cultural property. However, in the frequent case of a less decisive victory or defeat - perhaps involving long-term de facto occupation and annexation of territory with important monuments and collections, which is not generally recognised by the international community there cane easily be a situation of indefinite stalemate.
9.20. Where there are Protecting Powers there is the possibility for concili­ation between the belligerents under the 1954 Convention:
1. The Protecting Powers shall lend their good offices in all cases where they may deem it useful in the interests of cultural property, particularly if there is disagreement between the Parties to the conflict as to the applica­tion or interpretation of the provisions of the present Convention or the Regulations for its execution.
2. For this purpose, each of the Protecting Powers may, either at the invitation of one Party, of the Director General of the United Nations Educational, Scientific and Cultural Organization, or on its own initiative, propose to the Parties to the conflict a meeting of their representatives, and in particular of the authorities responsible for the protection of cultural property, if considered appropriate on suitably chosen neutral territory. The Parties to the conflict shall be bound to give effect to the proposals for meeting made to them. The Protecting Powers shall propose for approval by the Parties to the conflict a person belonging to a neutral Power or a person presented by the Director General of the United Nations Educational, Scientific and Cultural Organiz­ation, which person shall be invited to take part in such a meeting in the capacity of Chairman.231
9.21. Where for any reason there are no Protecting Powers it would seem to be difficult if not impossible to make progress under the 1954 Convention itself even with concili­ation, let alone any form of binding arbitration. However, the 1977 Additional Protocol I to the Geneva Conven­tions in effect incorpor­ates the 1954 Hague Convention through its Article 53. Thus, in the case of international armed conflicts where both parties have ratified Additional Protocol I but conciliation under the 1954 Convention is rejected, it may be possible to make progress in resolving the dispute through the appointment of a fact-finding commission established under the Additional Protocol232. However, this does not provide binding resolution or arbitration of interna­tional disputes. Perhaps the nearest that current international law comes to offering a possible route for binding action in respect of what are termed `serious violations of the Conventions of this Protocol' is the obligation of High Contracting Parties to the 1977 Protocol I:
to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter.233
9.22. However, the wording of this Article is extraordinarily delphic, with no explana­tion of what kind of action or co-operation is envisaged, as Sandoz has com­mented234. Presumably in the absence of a negotiated bilateral resolution of the dispute, the only way forward would be by means of a formal Security Council Resolution, binding on the High Contracting Parties (assuming that they are members on the United Nations) under the terms of the U.N. Charter, so it is difficult to see how this adds to the general provisions of international law.
9.23. All High Contracting Parties should note that in the absence of specific provisions for the resolution or enforcement of disputes between States Parties or complaints concerning the interpreta­tion and application of the 1954 Convention and Protocol, such matters may be referred to the International Court of Justice under Chapter XIV of the Charter of the United Nations, and specifically under Chapter II of the Statutes of the International Court of Justice annexed to the United Nations Charter relating to the role of the International Court in determining the interpretation of international treaties and conventions, and cases deriving from these235. Even here there may be problems, since despite their clear obligations under the United Nations Charter historically not all States have been prepared to accept the jurisdiction of the International Court in such issues. For example, during the Cold War the socialist countries routinely refused to recognise or cooperate with the International Court, while in 1987 the United States of America attempted to denounce its acceptance of the Court's jurisdiction when the Sandinista government of Nicaragua initiated proceedings against it in the International Court of Justice over the laying of sea mines in Nicaraguan waters.
9.24. A key requirement for the effective application of the 1954 Hague Convention is the establishment of realistic practical measures for its enforcement, in terms of both the criminal jurisdiction, i.e. the prosecution of `cultural' war crimes, and the international civil jurisdiction, i.e. the resolution of complaints by aggrieved parties, both States and individuals. A leading academic discussion of the legal issues by Prof. M. Cherif Bassiouni criticises both the 1949 Geneva Conventions and the 1954 Hague Convention for their lack of explicit provisions concerning their jurisdictional bases:
Therefore states-parties [sic] to these conventions are left with whatever guidance customary international law and private international law may offer in that respect. This leaves the potential for jurisdictional conflict without effective sources of resolution.236
Bassiouni comes down firmly on the side of the right of jurisdiction and prosecu­tion being universal, i.e. that any State may bring both civil and criminal proceedings in respect of alleged breaches regardless of the place of the alleged breach, and regardless also of the citizenship of those accused:
The historical development of the law of armed conflict makes it clear that damage and confiscation of cultural property is a war crime. Such conduct was prosecuted under the universality theory at the Nuremberg trials.237
9.25. However, there is no established single view on these issues, and the problem of enforcement still involves unresolved issues as to jurisdiction and enforcement which are common to most if not all international criminal offences and civil disputes between States. From the time of the 1945 London Treaty on German Second World War crimes and through the Nuremberg trials there was concern within at least parts of the English Bar (and more widely) at the dominant role of specialists in international law (in the strict sense) rather than criminal law and military law, and of the English and American Common Law tradition, in relation to allegations of straightforward criminal behaviour (by individuals and within territories traditionally subject to Roman Law principles). There were of course a number of distinguished experts in criminal law involved at Nuremberg as prosecutors, but the overall balance of legal expertise in the Nuremberg process (and perhaps even more so in respect of the parallel Tokyo war crimes trials) has continued to be a matter of adverse comment from time to time subsequently. The issues of appropriate balance of law and jurisdictional systems need to be studied closely by experts in both international and criminal law before proposals could be made for a text to give competence to a court to prosecute offenders specifically under the provisions of the 1954 Convention.238 CHAPTER 10.
1   2   3   4   5   6   7   8   9   10   ...   21

The database is protected by copyright © 2016
send message

    Main page