Tubb, K. B., & Brodie, N. (editors), 2001. Illicit Antiquities



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Tubb, K.B., & Brodie, N. (editors), 2001. Illicit Antiquities (London: Routledge)

The Concept of Cultural Protection in Times of Armed Conflict: from the Crusades to the New Millennium
Patrick J. Boylan
EARLY CONCERN WITH THE PROTECTION OF CULTURAL PROPERTY IN TIMES OF WAR
Historically, the fate and treatment of cultural property have often been important issues in both international wars and in many kinds of internal armed conflicts, such as civil, religious and liberation wars. The taking of important movable cultural symbols of invaded and conquered states and peoples as trophies of war (or merely for their economic value), and the defacing or destruction of their monuments as marks of victory, have been important parts of the culture of the waging of war for millennia: see for example the general historical reviews of cultural damage and destruction of Treue (1960: 32-40) and of Chamberlin (1983: 139-41).
One of the best known of many thousands of well-recorded examples that could be cited are the famous gilded bronze horses of St Mark's, Venice. The horses of St. Mark’s (themselves assumed to have been removed from either Rome or Greece to Constantinople, probably in doubtful circumstances, many centuries earlier) were reputedly captured from Constantinople in the sacking of the city by the Venetians following its fall to the Fourth Crusade on 13 April 1204. The Pope of the day, shocked at the earlier occupation and sack of the City of Zara, which had further damaged the already seriously strained relations between Rome and the Orthodox Church, ordered that the holy city of Constantinople, seat of the Eastern Church, should not even be entered by the Crusaders let alone sacked (under threat of excommunication). Despite this, as the Orthodox cleric, Nicetas Choniates, recorded in his account of the Sack of Constantinople:
Nor can the violation of the Great Church [Hagia Sophia] be listened to with equanimity. For the sacred altar, formed of all kinds of precious materials and admired by the whole world, was broken into bits and distributed among the soldiers, as was all the other sacred wealth of so great and infinite splendor. When the sacred vases and utensils of unsurpassable art and grace and rare material, and the fine silver, wrought with gold, which encircled the screen of the tribunal and the ambo, of admirable workmanship, and the door and many other ornaments, were to be borne away as booty, mules and saddled horses were led to the very sanctuary of the temple.

(Translation by Munro 1912: 15-16)


The Crusaders own chronicler, Geoffrey de Villhardouin, reported that after extensive burning of the City and a veritable orgy of looting:
The spoils and booty were collected together, and you must know that all was not brought into the common stock, for not a few kept things back, maugre the excommunication of the Pope. That which was brought to the churches was collected together and divided, in equal parts, between the Franks and the Venetians, according to the sworn covenant. And you must know further that the pilgrims, after the division had been made, paid out of their share fifty thousand marks of silver to the Venetians, and then divided at least one hundred thousand marks between themselves, among their own people.

(Villehardouin 1908: 67)


After being for almost six centuries among the best known features of Venice, the four horses were in turn seized by France on the orders of Napoleon I and taken to Paris in 1798, only to be returned under the detailed terms of the peace treaty of the Congress of Vienna of 1815 (Treue 1960: 195-198). (During World War II they were again to become a key State target for art looting – this time as part of the ‘wants’ list of Hitler's art collecting squads.)
However, the destruction, defacing or conversion to a deliberately inappropriate use of monuments of special cultural value to the identity and spiritual values of a conquered people – such as religious buildings and national historic sites – has been widely used throughout history as a sign of conquest and subjugation. Such actions were if anything even more common in non-international strife, such as the internal religious wars in northern and central Europe during the Protestant Reformation of the sixteenth and seventeenth centuries, in which there were enormous losses of both building complexes such as churches and monasteries, and of cultural objects of religious significance, such as works of art, reliquaries and sacred vessels.
>From the Renaissance there was a growing debate about the obligations of belligerents in conflicts towards cultural buildings and objects. In his more general examination of the emergence of concepts of international humanitarian law protection, Nahlik (1988: 203–4) briefly refers to successive discussions on an implied fundamental obligation to respect and protect works of art and religious and other cultural property by the Polish jurist, Jacob Przyluski in 1553, and German jurists Justin Gentilis in 1690 and Emer de Vattel in 1758. In the same study Nahlik also outlines the important precedent set by the Peace of Westphalia, 1648, otherwise known as the Treaty of Münster, which ended the Thirty Years War, with its explicit provisions for the restitution of looted cultural and other private property, while codifying, probably for the first time, the still applicable distinction in the laws of war between private and civil property which is protected from seizure to looting, and the right of the victorious forces to retain captured military materiel, including weapons and military supplies:

CXIV. That the Records, Writings and Documents, and other Moveables be also restor'd;... But they shall be allow'd to carry off with them, and cause to be carry'd off, such as have been brought thither from other parts after the taking of the Places, or have been taken in Battels, with all the Carriages of War, and what belongs thereunto.



(Treaty of Westphalia, 1648)
Much destruction and looting of cultural property took place in the political revolutions of the eighteenth centuries and more recent times, beginning with the French Revolution, though – alarmed by the scale of iconoclastic devastation of both buildings and collections of the first two years of the revolutionary period – the French Convention soon took urgent legislative action in the Quatres Instructions Initiales of 1791 to try to halt such destruction (for which the new word 'vandalisme' was coined), (Boylan 1992).
THE EARLY NINETEENTH CENTURY
During the Napoleonic Wars the traditional understanding of the rights of booty and prize-taking in war began to be questioned, at least in relation to museum collections. For example, in the 1812 War the British Navy captured a ship, the Marquis de Somereuils, the cargo of which included works of art belonging to the Philadelphia Museum of Art, and both the vessel and all its cargo were claimed these as war prize in accordance with the usual practice of the day. However, in a subsequent action under British law in the Vice-Admiralty Court, sitting in the colony of Nova Scotia, the Court held that objects of artistic value on the ship are part of the common heritage of all mankind and hence exempt from the normal law of possession and reward for captured enemy vessels and thus seizure during war. Consequently, the Court ordered, the works of art had to be returned to the Museum, and this was done when hostilities ceased (Stewart's Vice-Admiralty Reports for Nova Scotia, 1803–1813: 482; cited by Bassiouni, 1983: 288, note 19).
The history of Van Eyck's famous Adoration of the Mystic Lamb polyptych altarpiece, commissioned for St Bavon's Church, Ghent, in 1432, is famous in the history of state looting and forced returns. The altarpiece was seized by France in the Napoleonic Wars, and was part of the large number of items (along with the Horses of St. Mark's already mentioned) that was returned to its country of origin under the decisions of the 1815 Congress of Vienna.
However, as in many other areas of the laws or customs of war, the relevant modern international humanitarian law can be traced back to the classic five volume Vom Kreige [On War] of Carl von Clausewitz, published in 1832, followed by the United States of America War Department's General Orders No. 100: Instructions for the Governance of the Armies of the United States in the Field, drafted by Francis Lieber (and hence known as the Lieber Code) first published during the Civil War in April 1863, and which still forms a core element of US military law.
In Book V Chapter III(B) von Clausewitz stressed the principle of proportionality in relation to the conduct of war, and on the need to restrict the war effort to genuine military targets and imperatives:
In this manner, he who undertakes War is brought back again into a middle course, in which he acts to a certain extent upon the principle of only applying so much force and aiming at such an object in War as is just sufficient for the attainment of the political object.

(1968: 374–75)


Cultural property was explicitly protected for the first time in Lieber's Code drawn up for the United States Federal Army. Following a general prohibition on the seizure or destruction of private property, this continued by stressing that works of art, scientific collections, libraries and hospitals must be protected from injury even in fortified places whilst these were being besieged or bombarded. If necessary they could be removed (for their own safety) but they could not be given away or injured. The Code also stressed that the ultimate ownership of such material after the war was a matter for including in the terms of the eventual treaty of peace:
34. As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of fine arts, or of a scientific character – such property is not to be considered public property...
35. Classical works of art, libraries, scientific collections, or precise instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded.
36. If such works of art, libraries, collections, or instruments belonging to a hostile nation or government can be removed without injury, the ruler of the conquered state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace. In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured.

(Quoted by Wright 1971: 64-66)


Further, Article 44 of the Lieber Code declared that unauthorized destruction or damage of property was `prohibited under penalty of death or other severe penalty adequate for the gravity of the offense’ (Wright 1971: 69).
The first international codifications of wartime protection for cultural property followed closely the Lieber Code. These were in the Declaration of Brussels – drawn up by the 1874 international conference, and which provided as Article 8:
The property of parishes (communes), or establishments devoted to religion, charity, education, arts and sciences, although belonging to the State, shall be treated as private property. Every seizure, destruction of, or wilful damage to, such establishments, historical monuments, or works of art or science, shall be prosecuted by the competent authorities.

(Quoted in Merryman 1986: 834)


The `Oxford Code' of 1880, drawn up at a conference of the Institute of International Law adopted similar terms in its Articles 34 and 53:
Art. 34. In the case of bombardment, all necessary steps must be taken to spare, if it can be done, buildings dedicated to religion, art, science and charitable purposes, hospitals and places where the sick are gathered on the condition that they are not being utilised at the time, directly or indirectly, for defense. It is the duty of the besieged to indicate the presence of such buildings by visible signs notified to the assailant beforehand.
Art. 53. The property of municipalities, and that of institutions devoted to religion. charity, education, art and sciences, cannot be seized. All destruction or wilful damage to institutions of this character, historic monuments, archives, works of art, or science, is formally forbidden, save when urgently demanded by military necessity.

(Oxford Manual 1880)


However, neither Brussels, 1874, nor Oxford, 1880, were formally ratified by sufficient numbers of countries to become official international treaties.
FROM THE FIRST HAGUE CONVENTION, 1899 TO THE ROERICH PACT, 1935
The first formal international treaty providing some protection for cultural property was that actually came into force was that adopted by the first (1899) Hague Peace Conference. As was stressed in the May 1999 centenary celebrations held in the Peace Palace in The Hague, this measure not only remains in force a century later (though in practice it has been largely superseded by subsequent international Conventions), but its terms are by now considered to be Customary International Law, binding on all States and persons, whether or not they are formal signatories to Hague 1899 as such. The States drafting the Convention in effect adopted the principles of the earlier unratified Brussels/Oxford proposals as Article 56 of the Regulations Respecting the Laws and Customs of War on Land, while the parallel rules governing naval bombardment which tried to afford some protection to churches and other important cultural monuments, including provision for marking such protected buildings with a distinctive flag, were included as Article 27 of the Convention.
A much larger international conference, convened jointly by the United States and Russia and attended by 44 sovereign states, was held in 1907, again in The Hague. After much debate and consideration this finally adopted a series of interrelated treaties relating to the Laws and Customs of War (and incorporating the earlier provisions of the 1899 Hague Conventions). Of the 1907 provisions, the Fourth Hague Convention on the Laws and Customs of War on Land was most directly relevant to cultural protection, though the Ninth Hague Convention Concerning Bombardment by Naval Forces in Time of War carried forward the Hague 1899 prohibition on the shelling from the sea of historic monuments etc.
The Regulations annexed to the Fourth Hague Convention took the attempted protection of cultural monuments and institutions in times of land warfare further than any of the nineteenth century codes, providing in Articles 25, 27, 28 and 56 respectively that:
25. The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.
27. In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science or charitable purposes, historic monuments ... provided that they are not being used at the time for military purposes. It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy before hand.
28. The pillage of a town or place, even when taken by assault, is prohibited…
56. The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and the sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.

(International Committee of the Red Cross 1989: 25, 30)



However, despite the provisions of the Fourth Hague Convention of 1907 there were grave losses of cathedrals, churches, other historic monuments, museums, libraries and collections across the various land battlefields of World War One, leading to much concern and debate about the effectiveness of the existing Laws of War. It was considered that the failures were partly due to claims of ‘military necessity' on the part of both attacking and defending forces. The damage was particularly severe across the mainly low-lying battlefields of Flanders and north-eastern France. In this flat countryside any relatively high building, such as a church, cathedral, medieval or later town hall tower or important country house, was almost automatically regarded as a legitimate target under the then current interpretation of 'military necessity'. (The argument used was that if not 'neutralised' such high points could be used by the enemy as observation points for directing shelling or by snipers.)
There was also much concern about the development of new technologies of war. Some of the poison gases used extensively for the first time in World War One, such as chlorine and phosgene, are highly corrosive and therefore capable of causing physical damage to many kinds of works of art and other cultural objects themselves, (while further threatening the lives and health of non-combatant cultural protection personnel such as civilian library and museum personnel). The war also saw the rapid development of aerial bombardment first from airships and then from increasingly sophisticated and ever larger aircraft.
State-ordered looting and seizure of important works of art and other cultural property were also a major problem in World War One. The Ghent Altarpiece by Van Eyck, coveted and removed to Paris by Napoleon a century earlier, was taken again by the Germans, (and was also to be seized again in the Second World War, this time with the Michelangelo Madonna and Child from the nearby Bruges Cathedral as well), (see, for example, Treue 1960; Chamberlin 1983). The restitution of the Van Eyck, the Dirk Bouts’ Last Supper from the Church of St. Peter in Louvain, and of books and manuscripts from the University of Louvain Library were among a number of specific reparations conditions of the 1919 Treaty of Versailles. These also insisted on the return of important cultural property seized by the Germans from the Franco-Prussian War of 1870 onwards, not just World War One booty. The terms followed the principles established in the Hague Conventions of 1899 and 1907, the requirements being detailed in the Treaty of Versailles in the following terms:
ARTICLE 245.
Within six months after the coming into force of the present Treaty the German Government must restore to the French Government the trophies, archives, historical souvenirs or works of art carried away from France by the German authorities in the course of the war of 1870-1871 and during this last war, in accordance with a list which will be communicated to it by the French Government; particularly the French flags taken in the course of the war of 1870-1871 and all the political papers taken by the German authorities on October 10, 1870, at the chateau of Cercay, near Brunoy (Seine-et-Oise) belonging at the time to Mr. Rouher, formerly Minister of State.
ARTICLE 246.
Within six months from the coming into force of the present Treaty, Germany will restore to His Majesty the King of the Hedjaz the original Koran of the Caliph Othman, which was removed from Medina by the Turkish authorities and is stated to

have been presented to the ex-Emperor William II. Within the same period Germany will hand over to His Britannic Majesty's Government the skull of the Sultan Mkwawa which was removed from the Protectorate of German East Africa and taken to Germany. The delivery of the articles above referred to will be effected in such place and in such conditions as may be laid down by the Governments to which they are to be restored.


ARTICLE 247.
Germany undertakes to furnish to the University of Louvain, within three months after a request made by it and transmitted through the intervention of the Reparation Commission, manuscripts, incunabula, printed books, maps and objects of collection corresponding in number and value to those destroyed in the burning by Germany of the Library of Louvain. All details regarding such replacement will be determined by the Reparation Commission.
Germany undertakes to deliver to Belgium, through the Reparation Commission, within six months of the coming into force of the present Treaty, in order to enable Belgium to reconstitute two great artistic works:
(1) The leaves of the triptych of the Mystic Lamb painted by the Van Eyck brothers, formerly in the Church of St. Bavon at Ghent, now in the Berlin Museum;
(2) The leaves of the triptych of the Last Supper, painted by Dierick Bouts, formerly in the Church of St. Peter at Louvain, two of which are now in the Berlin Museum and two in the Old Pinakothek at Munich.

(Treaty of Versailles 1919)


The Louvain Library terms in Article 247 created a further interesting, and potentially valuable, precedent, as it provided for the return of comparable items in terms of type and value, not solely in specie, where the original object could not be traced and recovered. Under the terms of this, the Reparations Commission eventually ruled that substantial financial compensation should be paid to the University in respect of both items that could be neither recovered nor replaced by, for example, copies of the same works from German public collections, and for the serious damage to the library building itself.
Although the use of poison gas was prohibited by the 1925 Geneva Protocol, proposals to develop rules to control aerial bombardment, which by then was beginning to emerge as a potential unprecedented danger to cultural property, failed. In 1923 a draft convention for Rules of Air Warfare was drawn up by a further Hague Conference of jurists representing a large number of countries. However, though the latter was closely modelled on the established rules relating to military and naval bombardment (and in particular the Tenth Hague Convention of 1907 – with its specific prohibition of the bombardment of religious and other cultural buildings), it was never adopted as an international instrument. The 1923 proposals included protection for all non-military populations and areas, and specific provisions aimed at protecting of cultural property in Articles 25 and 26:
Art. 25. In bombardment by aircraft, all necessary steps must be taken by the commander to spare as far as possible buildings dedicated to public worship, art, science or charitable purposes, historic monuments, hospital ships, hospitals and other places where the sick and wounded are collected, provided such buildings, objects or places are not at the time used for military purposes. Such buildings, objects and places must by day be indicated by marks visible to aircraft. The use of marks to indicate other buildings, objects, or places than those specified above is to be deemed an act of perfidy. The marks used as aforesaid shall be in the case of buildings protected under the Geneva Convention the red cross on a white ground, and in the case of other protected buildings a large rectangular panel divided diagonally into two pointed triangular portions, one black and the other white. A belligerent who desires to secure by night the protection for the hospitals and other privileged buildings above mentioned must take the necessary measures to render the special signs referred to sufficiently visible.

(International Committee of the Red Cross 1989: 127–39)


These principles were to have been amplified in considerable detail in the following Article, which provided for the establishment, international notification, and clear marking by both day and night, of 'zones of protection', around important historic monuments, including a protective outer area up to 500 metres in width beyond the actual boundaries of the historic site. Such designated and notified localities would thereby enjoy immunity from bombardment under all circumstances other than 'perfidy', (i.e. the misuse of either the location or the official identification marks or signs for military purposes - paralleling the perfidy provisions in the Hague and Geneva Conventions relating to the misuse for illegal military purposes of the Red Cross symbol or, for example, hospitals or prisoner of war camps). Had it been adopted, the protective regime established by the 1923 Instrument would have been backed-up and enforced by an international inspection committee of persons from neutral states, including a representative of the neutral Protecting Power representing the interests of the belligerent State. (International Committee of the Red Cross 1989: 127-139).
The next major development grew out of what was initially the private initiative and campaign of a remarkable individual, Nicholas K. Roerich, (Elbinger 1990; Brenner 1990). Born in St Petersburg in 1874, Roerich trained as an artist and worked across Europe as an artist and designer, (the Paris première of the Diaghilev/Nijinsky ballet of Stravinsky's Le Sacre du Printemps was one of his theatre designs), before moving first to the United States and then to India and the Himalayas. Becoming increasingly committed to mysticism and oriental religion he used the Roerich Museum of his own paintings in New York as a base during his visits to the United States.
As early as 1904 Roerich had developed proposals for an international pact for the protection of educational, scientific and artistic institutions and missions. In 1931 the first international conference was held in Bruges on the proposed ‘Roerich Pact' and his proposal for a ‘Banner of Peace' to be displayed to identify protected buildings and institutes of cultural importance. Soon afterwards the Montevideo conference of the Pan-American Union (the forerunner of the present-day Organization of American States) passed a unanimous resolution urging all American states to sign the Pact.
Roerich soon had the patronage and support of both Eleanor Roosevelt and United States Secretary of Agriculture (and future presidential candidate) Henry Wallace. The result was the signing of the Roerich Pact as the Treaty of Washington on 15 April 1935 (Pan-American Day) by representatives of 21 American governments, and the adoption of Roerich's Banner of Peace as the official symbol of cultural protection. In presenting the Pact to the International Conference President Roosevelt stated that `This treaty possesses a spiritual significance far deeper than the text of the instrument itself' (Elbinger 1990).
When it was submitted to the United States Congress, the Roerich Pact was accompanied by a detailed study by J. T. Schneider of issues relating to the protection of cultural property generally. This included in addition to a comprehensive review of the current USA position and of the Roerich Pact itself, a series of extremely valuable reviews of then current foreign legislations and structures – including, among others, detailed reviews of the situation in Belgium, France, Germany, Great Britain, Italy, Japan and Poland. Particularly interesting and important were the comments of Schneider on the purpose of the Washington Treaty itself:
A forward step of Pan-American as well as of international importance was consummated with the signing on April 15, 1935, of a treaty, popularly known as the `Roerich Pact', initiated by the Roerich Museum of New York in the United States, for the protection of artistic and scientific institutions and historic monuments. Its purpose is `that the treasures of culture be respected and protected in times of war and peace.' The universal adopting of a flag is urged in order thereby to preserve in any time of danger `all nationally and privately owned immovable monuments which form the cultural treasures of the peoples.' It is hoped that this treaty will be broadened so as to include all nations as signatory parties.

(Schneider 1935: 31)


Roerich’s text was in fact very simple and direct, which may explain, at least in part, the remarkable speed with which it was processed and brought into force. (In the case of the United States all the Senate and presidential procedures needed for adoption of a new treaty, which can typically take several years, were completed in less than three months). The full text of the Treaty (which is still in effect across all of North America and in most countries of Central and South America) sets out its essential elements in its opening Articles:
Article 1. The historic monuments, museums, scientific, artistic, educational and cultural institutions shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well as in war.
Article 2. The neutrality of, and protection and respect due to, the monuments and institutions mentioned in the preceding Article, shall be recognized in the entire expanse of territories subject to the sovereignty of each of the Signatory and Acceding States, without any discrimination as to the State allegiance of said monuments and institutions. The respective Governments agree to adopt the measures of internal legislation necessary to insure said protection and respect.
Article 3. In order to identify the monuments and institutions mentioned in Article 1, use may be made of a distinctive flag (red circle – with a triple red sphere in the circle on a white background) in accordance with the model attached to this Treaty.

(International Committee of the Red Cross 1989: 31–2)


However, despite the high ideals and explicit commitments of the Pact, most States adopting the Washington Treaty did little or nothing to implement its provisions at the practical level. For example only Mexico prepared and registered internationally a list of monuments and institutions for which they wished to seek protection in accordance with Article 4 of the Treaty. Also, this treaty was by definition only a Pan-American one not a global initiative (although some non-American countries, e.g. India shortly after it gained independence in 1947, made declarations supporting and adopting Roerich's text).
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