MOVABLE PROPERTY IN TIMES OF ARMED CONFLICT:
THE 1954 HAGUE PROTOCOL AND THE 1970 UNESCO
10. 1. There is not the slightest doubt that the instability and confusion that is inevitable in times of both international war and serious internal armed conflict adds greatly to the risk of smuggling and other criminal activity against both movable cultural property and removable features of monuments and other immovable cultural property, such as important architectural details, affixed sculptures and works of art etc.
10. 2. The breakdown of normal law and order can also lead to the necessary diversion of both expert and security personnel to other duties, or may make it impossible (or at least too dangerous) for them to travel to their normal place of work. Also, quite apart from any organised looting or other misappropriation of cultural property by the invading or occupying military force239, there is a much greater opportunity for both freelance operations by members of the armed forces, whether regular or irregular, and by both organised and opportunist criminal elements.
10. 3. Recognising this, the 1954 Intergovernmental Conference wanted to incorporate firm action in the Hague Convention to prohibit all trafficking of movable cultural property from occupied territories. However, a number of States objected strongly to this240, and the matter was finally dealt with in the form of a separate Protocol241.
10. 4. The key provisions of this were very clear, with each Party to the Protocol pledging to `prevent' exportation for occupied territories, to seize temporarily anything imported from such territories, and to guarantee the eventual return of such cultural property at the end of hostilities:
1. Each High Contracting Party undertakes to prevent the exportation, from a territory occupied by it during an armed conflict, of cultural property as defined in Article I of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague on 14 May, 1954,
2. Each High Contracting Party undertakes to take into its custody cultural property imported into its territory either directly or indirectly from any occupied territory, This shall either be effected automatically upon the importation of the property or, failing this, at the request of the authorities of that territory.
3. Each High Contracting Party undertakes to return, at the close of hostilities, to the competent authorities of the territory previously occupied, cultural property which is in its territory, if such property has been exported in contravention of the principle laid down in the first paragraph. Such property shall never be retained as war reparations.242
10. 5. Though the terms are rather imprecise, the intention is very straightforward. However, there are potential problems in the wording, especially in relation to the interpretation and definition of the word `occupied', and no protection is offered to movable cultural property in the event of internal armed conflict. Unfortunately all the evidence suggests that the provisions are almost totally ineffective in practice. The haemorrhage of cultural property of all kinds from areas both international and civil war zones has been on an enormous scale for decades. Obvious examples have included much of Indo-China through the 1960s and 1970s, and the `leakage' of archaeological material, antiquities and works of art from occupied north Cyprus. There are also persistent reports of large-scale losses from both public collections and protected monuments during both the Iran - Iraq War of the 1980s, and in the Shiite cultural regions of southern Iraq in the internal offensive of 1991 and still continuing. Few identifiable items have appeared in the international art markets so far, but this may simply be due to stock-piling in intermediate countries with short statute of limitation periods, after which the rightful owner can no longer reclaim their stolen or smuggled property243.
10. 6. The Protocol also provides a guarantee of the return of cultural property removed to another State for protection during, or in anticipation of, a conflict:
Cultural property coming from the territory of a High Contracting Party and deposited by it in the territory of another High Contracting Party for the purpose of protecting such property against the dangers of an armed conflict, shall be returned by the latter, at the end of hostilities, to the competent authorities of the territory from which it came.244
10. 7. There is also a provision requiring the payment of compensation by the occupying State in the event of the recovery of illicitly exported from an innocent third party:
The High Contracting Party whose obligation it was to prevent the exportation of cultural property from the territory occupied by it, shall pay an indemnity to the holders in good faith of any cultural property which has to be returned in accordance with the preceding paragraph.245
10. 8. In 1970, after many years of discussion at both the professional and inter-governmental levels, the General Conference of UNESCO adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property246. This does not have any cross-reference at all to the Hague Protocol's provisions in relation to the illicit exports and imports from war zones which are prohibited by the 1954 Protocol, though the 1970 Convention does provide that:
The export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power shall be regarded as illicit.247
However, this falls well short of the freeze of almost all movements of cultural property required by the Hague Protocol: this weakness should be remedied in any future revision of the 1970 Convention, by including specific provisions in the same terms as those of the 1954 Protocol.
10. 9. Although I may have missed some positive examples, during the course of this study I have not seen or received evidence of a single example of States Parties to the Protocol taking action of any kind in order to bring its provisions into practical effect in order to `freeze' trade in, or other transfers or movements of, cultural property from areas affected by either international or internal armed conflicts. On the contrary, regularly over the past few decades the showrooms of dealers and auction salerooms on the major art `importing' nations have seemed to be full of material that should have raised grave suspicions that they had originated from countries and regions of the world afflicted by international and civil wars. The almost universal ignoring by actual or potential `importing' countries of the principles of the 1954 Hague Protocol is one of the most serious breaches of the fundamental principles and objectives of the 1954 Convention, and all High Contracting Parties should be asked to review their policy and practice in this respect. In particular as a very minimum all States Parties to the Protocol ought to impose an almost automatic embargo on all imports of cultural property from, or reasonably suspected to be from, countries and regions suffering armed conflicts248.
10.10. Indeed, in cases where the United Nations becomes involved in conflicts in a peace-keeping or peace-making role, serious consideration should be given to including a ban on outwards movement of cultural property as part of an Security Council sanctions or authorization Resolution. Similarly, the Security Council's action in relation to the restitution of Kuwaiti cultural property transferred to Iraq in 1990 was an important modern precedent, (re-establishing the principles last used in the Treaty of Versailles)249. Such restitutions should in future be routinely required in Security Council Resolutions imposing, or confirming, peace settlements.
ADOPTION OF THE 1954 CONVENTION AND PROTOCOL
11. 1. Appendix II of this Report lists the 180 members of the United Nations as at April 1993 (plus 12 non-U.N. member States which are nevertheless members of UNESCO and/or States Parties to one or more of the UNESCO Conventions), and indicates for each their position in relation to the 1954 Convention, Protocol, the 1970 Illicit Import, Export and Transfer of Ownership Convention, and the World Heritage Convention. This shows that currently there are currently 82 States Parties to the Hague Convention and 68 States Parties to the Protocol.
11. 2. Ultimately the credibility of any international instrument or programme of action depends very largely on it having the widest possible degree of acceptance - the principle of universality. Against that test the original 1954 Intergovernmental Conference which drew up the 1954 Hague Convention and Hague Protocol achieved a more than satisfactory degree of support, since it was attended by a high proportion of the independent States of the world at that time.
11. 3. The one region of the world that was significantly under-represented at the 1954 Conference was Latin America, though the reason for this is not clear. Possibly most States in central and south America considered that with the Washington (`Roerich') regional Pact in operation a further international instrument in the form of the proposed Hague Convention was not a particularly high priority. Also, with the long-standing informal agreement amongst Latin-American States to retain and respect former colonial frontiers throughout the region, States presumably considered that there was only a very low probability of their being involved in international armed conflicts, while few governments anywhere in the world are happy about even the vaguest speculation that their State might one day face serious internal armed conflict.
11. 4. In terms of the influence of the Convention on the world scale, however, a more serious blow to the principle of universality and progress with ratifications occurred in 1958, when the United States of America, the United Kingdom and Canada, decided against ratification. The United States of America had signed the Convention (only, i.e., excluding the Protocol) at the closing ceremony of the Intergovernmental Conference on 14 May 1954, and the United Kingdom had followed suit on 30 December 1954, though Canada never signed either.
11. 5. Now that the United States internal documentation of the period is available for study the sequence of events which led to this turn-about are at known at last, and confirm what has long been suspected. In accordance with normal United States practice the Convention was sent to all the appropriate arms of government, including the Joint Chiefs of Staff, for consideration before submission by the Secretary of State to the Senate for approval.
11. 6. The Army Chief of Staff of the time is believe to have reported to his fellow members of the Joint Chiefs of Staff that the Army saw no serious problem with the Convention. The fundamental principles of the it were already binding on the United States through the formal ratification of the Washington (`Roerich') Pact in 1935. (This was certainly applicable to any armed conflict within the Americas, but in fact included no territorial or bilateral limitations - nor even a `military necessity' exception - so it was at least arguable that the Roerich Pact was universally binding on the United States government and military.) Of even greater immediate significance the principles of 1954 Hague Convention are very much in line with the widely circulated and published Staff Orders of December 1943 and May 1944250, still in force, and issued by General Eisenhower, who was by now the President. However, the other Chiefs of Staff were hostile to the Convention. Consequently, as the Joint Chiefs of Staff could not present a unanimous position, the Secretary of State decided that no further progress could be made with ratification. It also appears that the United Kingdom and Canada also refuse to ratify the Convention at the request of the United States251.
11. 6. The exact details of the objections of the Chiefs of the other United States services are apparently not explicitly recorded. However, there seems little doubt that the Convention's attempt to protect `centres containing large amounts of cultural property' was regarded by the Strategic Air Command in particular as threatening an unacceptable constraint on the use of the high yield nuclear weapons of mass destruction then being introduced252. It is also conceivable that the possible conflict between the outstanding historic interest versus the politico-military use of the extremely important architectural complex of the Moscow Kremlin may also have been an issue, or at least a psychological factor. In the 1950s the area within the walls of the Kremlin was being extensively developed for as the political and administrative heart of the U.S.S.R., and as a consequence the Kremlin was certain to have been a key primary target in any nuclear exchange. However, if that was a factor in the Strategic Air Command's position this was a serious misunderstanding: the Kremlin would not have been eligible for protection under the Hague Convention unless all of its politico-military functions use had been totally neutralised or transferred elsewhere in advance of the hostilities.)
11. 7. Nevertheless, despite the failure to formally ratify it, both the principles and detailed obligations of the 1954 Hague Convention have for many years been actively taught and promoted within United States military training and field command practice. It has long been recognised by the U.S. military as the applicable international humanitarian law for most of the territory of the potential theatres of war for which the various United States defence forces are prepared, particularly the majority of NATO and Warsaw Pact countries, and as applicable law for the defence forces of most of the United States' most important allies, as well as for the Warsaw Pact armed forces.
11. 8. The current legal position of the U.S. military authorities in their training programmes is that the provisions of the Hague Convention are now so well established as to be Customary International Law, and hence binding on all States and military personnel, whether or not their own country is formally a party to the Convention. The United States has also attempted to apply the 1954 Convention principles in its own military operations, even in the absence of the publication or exchange of data on protected monuments and other sites of cultural importance from the defending governments. For example, during the Second Indo-China (Vietnam) War, the outstanding historic zone of Angkor Wat in Cambodia was declared by the United States High Command to be absolutely `off limits' for both aerial and land operations of any kind, while the historic Citadel at Hué, Vietnam, was to be similarly protected.
11. 9. More recently, in 1990, in preparation for the `Desert Storm' campaign to expel Iraq from occupied Kuwait, the Defense Department consulted many leading academic experts on the region, including for example the Secretary of the Smithsonian Institution - a leading academic authority on Mesopotamian archaeology, in carrying out extremely detailed assessments of many thousands of sites, monuments and museums across Iraq and Kuwait. From this information very many areas and locations of cultural importance were identified for explicit protection in both the air target and ground attack plans. Further, the protection of these key areas was maintained even when reconnaissance revealed that Iraq had located what were legitimate military targets within these, as in the case of the identification of anti-aircraft defences on the fortification of Ninevah and of two MiG aircraft placed inside the walls of Ur253. The United States also has very closely defined systems in relation to both target selection and identification in relation to air attacks aimed at avoiding both direct and accidental damage to historic monuments and other cultural property, (as well as other protected and non-military localities within the target area254).
11.10. However, even though the United States, which has never ratified the 1954 Convention, appears to have done more to comply with its principles and requirements than many States that have ratified it, there was much academic, public, and some political, concern within the United States during the 1991 Desert Storm campaign that whilst the great majority of combatants (including Iraq) were Parties to it, the United States was not. Consequently, the Senate requested:
that the Department of Defense, in conjunction with the Department of State, convene a panel to examine `international policies and procedures regarding the protection of natural and cultural resources during times of war.' The Senate Report also requested that specific recommendations be provided to the Secretary of Defense and to the House and Senate Committees on Appropriations as to ways in which `collateral damage to natural and cultural resources can continue to be minimized.'255
11.11. An informal review of the various Services carried out in 1992 showed that the 1958 objections are no longer considered to be applicable, and this change of view has also been communicated at an informal level to the United Kingdom Ministry of Defence256. Following this, in the joint report of 19 January 1993 of the Defense and State Departments to the Appropriation Committees of the Senate and the House of Representatives a more formal review by the Joint Chief of Staff of the question of ratification of the 1954 Hague Convention is now promised.
11.12. Consequently, there now seems to be a very real possibility that the United States will consider ratifying it within the foreseeable future - a move that would have enormous significance in terms of achieving the vitally needed universality of acceptance in view of the importance of the United States in the new world order in political, economic and military terms.
11.13. However, one very important note of caution must be sounded. In the course of a briefing in connection with this study and Report, the Assistant Legal Adviser, Politico-Legal Affairs, of the United States Department of State reported that successive Administrations and the U.S. Senate (which must approve any proposal for ratification), have been very reluctant to proceed during period of uncertainty about the future of any International Instrument to which it is not yet a Party, and tends to stand back from any review or revision process and await the outcome of this. Consequently, in the State Department's view, any proposal of UNESCO and/or the present High Contracting Parties to initiate a formal revision of the 1954 Hague Convention at the present time could very well result in the current moves towards ratification being stalled indefinitely in the U.S. Senate awaiting the outcome of any such review257.
11.14. The large gap between the 82 States Parties to the 1954 Convention and the 180 Member States of the United Nations is by no means accounted for by the substantial under-representation of Latin American countries among the signatories, and the non-ratification of the 1954 Convention by the United States, United Kingdom and Canada (nor by China - another nuclear power)258.
11.15. As is noted above, the level of adoption of the Convention amongst Latin American countries is low, and hence a matter for concern. However, much the largest number of States that are not Parties to the Convention is found amongst those countries of Africa, Asia, the Caribbean and the Pacific Islands which achieved independence through decolonisation from the mid 1950s onwards - more than doubling the membership of the United Nations and UNESCO.
11.16. In recent years when welcoming new States into membership of UNESCO it has been the invariable practice of the Director-General on behalf of the Executive Board to invite them to adopt the 1954 Convention and Protocol, and the other key UNESCO Conventions (including the 1970 Convention on illicit traffic etc. in cultural property and the 1972 World Heritage Convention). The response of recently admitted new member States has been quite encouraging, especially in the case of the newly independent States of the former Soviet Union and Yugoslavia, some which have already adopted the Hague Convention and Protocol by succession. These are Azerbaijan, Georgia, Tadjikistan and Russia, while Belarus and Ukraine, which had the constitutional right to enter into international treaties in their own right under the USSR constitution were already parties to the Convention). However, eight of the former Soviet Union republics, within several of which there are significant internal tensions and conflicts, are still considering the Director-General's request.259
11.17. However, for reasons that are not clear, during a period of at least two decades, perhaps longer, there seems to have been much less effort to try to persuade new Member States of UNESCO to adopt the Hague Convention and Protocol. Some close observers of UNESCO during the period in question have pointed to the times in the 1960s in particular when the Convention became a highly contentious political issue among certain groups of Member States, and between some States and UNESCO itself, particularly with Israel, many Arab States and United States over Jerusalem and the Occupied Territories during and after the 1967 Arab - Israeli War, and with the Socialist states in relation to Indo-China, and particularly the proposal from the Cambodian Government for the designation of Angkor Wat under the provisions for Special Protection. There is therefore some speculation that UNESCO drew back from actively promoting a Convention that was seen as exacerbating these differences and which, it was felt, might damage the wider interests of UNESCO and its relations with Member States260.
11.18. The current policy of the Director-General of urging newly admitted Member States to adopt without delay (inter alia) the 1954 Hague Convention and Protocol is welcomed, and it is STRONGLY RECOMMENDED that this should be continued.
11.19. In addition, as more than 100 Member States have still not formally adopted them, it is RECOMMENDED that the Executive Board should immediately request Director-General to approach again every other non-signatory sovereign States recognised by the United Nations and/or UNESCO, whether or not they are UNESCO members, in accordance with Articles 31 and 32 of the Convention, urging them to adopt the Convention and Protocol.
11.20. It is also RECOMMENDED that since such international instruments ultimately derive their authority from their universal acceptance by the world community, all States which previously decided not to ratify or accede to the 1954 Convention and Protocol, or which have so far not considered accession to it should review their position in relation to the Convention and Protocol as a matter or urgency.
11.21. It is further RECOMMENDED that the relevant international, regional and national non-governmental organisations, together with National Commissions of UNESCO, should take an active role in promoting knowledge and acceptance of the 1954 Convention and Protocol among their members and their governments, urging their adoption and active implementation in countries which have not yet adopted both the Convention and Protocol.