Review of the Convention for the
Protection of Cultural Property in
the Event of Armed Conflict
(The Hague Convention of 1954)
Patrick J. Boylan
Hugh and Christiana Boylan
Kingston upon Hull, England
7th/8th May 1941
© 1993. Patrick J. Boylan, Department of Arts Policy and Management, City University, Frobisher Crescent, Barbican, London EC2Y 8HB.
Executive Summary and Recommendations 7.
1. Introduction 19.
2. Evolution of concepts of cultural protection in times
of armed conflict 23.
3. The 1954 Convention's definition of Cultural Property 49.
4. The 1954 Convention's concepts of protection, safeguarding
and respect for Cultural Property 53.
5. Peacetime preparation for the application of the 1954
6. The concept and application of `Special Protection': the
International Register and Transport 75.
7. Practical application of the 1954 Convention: official
Emblem, scope and the roles of Protecting Powers,
UNESCO, and Commissioners-General 83.
8. Periodic Reports of High Contracting Parties 89.
9. Legal Enforcement and Sanctions 91.
10. Movable Property in times of armed conflict: the 1954
Hague Protocol and the 1970 UNESCO Convention 99.
11. Adoption of 1954 Convention and Protocol by States 103.
12. World Heritage Convention and List 109.
13. Non-international conflicts: national, regional,
ethnic and religious armed conflicts 115.
14. Role of UNESCO 127.
15. Role of the United Nations 133.
16. Role of both High Contracting parties and other States 137.
17. Role of Non-Governmental Organisations 141.
18. Possible future amendments to the 1954 Convention 143.
1. Appendix 1: Texts of 1954 Hague Convention, Protocol
and Hague Conference Resolutions 147.
2. Appendix II: Parties to 1954 Hague Convention and other
international treaties. 169.
3. Appendix III: Treaty on the Protection of Artistic and
Scientific Institutions and Historic Monuments (`Roerich
Pact'), Washington, 15 April 1935 177.
4. Appendix IV: Extracts from 1923 Convention for Rules
of Air Warfare drawn up by a Hague Conference of Jurists 179.
5. Appendix V: International Museums Office, October
1936: Preliminary Draft International Convention for
the Protection of Historic Buildings and Works of Art
in Time of War 181.
6. Appendix VI: Comparison of definitions of Cultural
Property in different international instruments 189.
7. Appendix VII: Periodic Reports of High Contracting Parties 199.
8. Appendix VIII: January 1993 report of Department of
Defense, United States of America, to Congress on
international policies and procedures regarding the
Protection of Natural and Cultural Resources during
Times of War 201.
9. Appendix IX: Government of the Netherlands: translation
of Handbook on Protecting the Cultural Heritage
in Emergencies, January 1991 207.
10. Appendix X: Outline of Recommended Composition and Role of
proposed Intergovernmental Advisory Committee on the
Protection of Cultural Property in the Event of Armed Conflict 219.
11. Appendix XI: Charles E. McConney, Los Angeles, 1992:
Draft Proposal for the Creation of a Permanent Monuments,
Fine Arts and Archives Unit within the U.N. Peace-
keeping Forces (Summary) 221.
12. Appendix XII: Parliamentary Assembly of the Council of Europe:
February 1993 Report on the destruction by war of the cultural
heritage in Croatia and Bosnia-Herzegovina 225.
Born just two weeks before the start of World War II in the English port city of Hull, Yorkshire, that was to suffer the most severe and sustained bomb damage of any town in the United Kingdom1, my earliest memories are of war: the destruction of our family home when I was only eighteen months old; a single but clear memory of my paternal grandparents before they were killed along with over sixty neighbours less than three months later in a communal shelter just two hundred metres from the main railway line to the docks of the country's third most important port. However, even the worst of those experiences left me unprepared for the vast areas of total destruction seen during my first visits to Rotterdam and Köln in the early 1950s.
As a young schoolchild I had been made aware the war destroys culture as well as family, neighbours, strangers, homes and workplaces through parental stories of the destruction of more than half of Hull's unique, and pioneering, system of museums created over a period of nearly forty years, and largely due to the genius and efforts of the City's founding museum director, Thomas Sheppard. In 1964 I obtained my first museum job, in that same museum service, still only a fraction of the size it had been in 1940, with special responsibility for helping to develop a new central museum to replace at least part of what had been lost between 1940 and 1944. Sadly, the war damage compensation received had been only nominal, and despite the best efforts of the City Council the proposal was finally abandoned in the economic crisis of the early 1970s.
However, my four years with the Hull Museums gave me a close insight into the effects of war on internationally important collections. The catalogues and indexes of the collections of all but two of the museums had also been totally lost in the fire bombing of the Central Museum in the summer of 1943. Consequently, one of my responsibilities, that of reconstructing for scientific publication lists of type and other published specimens meant painstaking searches through thousands of scientific papers and books covering areas known to have been represented in the collections. The same method had to be used in attempting to identify the few hundred specimens rescued by the fire service and museum staff during and in the days after the total destruction of the Central Museum, almost all of which had lost their labels in the fire or because of the water used to extinguish it, and some were heavily encrusted with the melted lead that had rained down from the burning roofs of the museum.
My first museums and arts directorship, from 1968 to 1972, took me to the ancient City of Exeter, the Roman capital of the south-west peninsula. Here too the memories of war were still strong, because in April 1942 it was the victim of the first of the so called `Baedeker Raids' (and of two more within the next three weeks). These destructive concentrated air attacks on the cathedral zones of some of England's most important historic (and undefended) towns, had been explicitly ordered by Hitler as reprisals for the British fire-storm experimental attack on the historic north German city of Lübeck, claiming that the British had acted in clear breach of the terms of engagement publicly exchanged between the belligerents, renouncing attacks on undefended historic centres and civilian populations unless the other side breached the undertaking first.
A more recent experience of the impact of war that I will never forget was my 1977 visit to Peter the Great's magnificent summer palace on the Baltic close to St Petersberg, deliberately blown up by the retreating German army at the end of the Seige of Leningrad, leaving only parts of two outside walls standing, but expertly and lovingly restored over a period of more than thirty years. Similarly, I still find it impossible to fully express in words the impact of my first visit to the great Saxon capital of Dresden, virtually untouched until the - frankly incomprehensible - thirty-six hours of almost continuous bombing raids in February 1945, barely a week before the arrival of the Red Army in the city, and less than three months before the end of the War in Europe.
Armed conflicts, in the form of both traditional wars and - increasingly internal inter-communal strife - has been, and remains one of the major causes of the lost of the cultural patrimony of the peoples of the areas ravaged by both international and civil conflicts. However, humanity's culture and patrimony cannot be defined in narrow nationalistic, religious, linguistic or ethnic terms. Members of the same species sharing a common genetic ancestry `We the peoples of the United Nations' (to use the opening words of the United Nations Charter - and the slogan for the U.N.'s forthcoming fiftieth anniversary celebrations in 1995) have a common culture and patrimony which in which the loss of the physical or spiritual cultural heritage of one people is a loss for the whole of humanity.
This loss is not just a loss for the people or community directly deprived of the evidence of their own past and present culture: the consequence is ultimately no less grave for those who may have deliberately brought it about, whether through the damage and destruction of historic buildings, monuments, sites, movable cultural property or of institutions of learning and education dedicated to them, whether through ignorance, neglect or by deliberate acts inspired by hatred.
Of course, though theologians and philosophers may well feel able to demonstrate that there is such a thing as a `just war' no armed conflict can be seen as a good thing. Despite the cynical definition by Clausewitz of war as no more than diplomacy continued by different means, war is a sign of failure. Inevitably and entirely justifiably in armed conflicts the primary concern is with its impact on people, especially the innocent non-combatants such as children, women and the elderly, over the centuries, and indeed the past millennia, war has cause great and irreparable losses. Without descending to the banal, contemptible even, sophistry of the old debate as to whether in a disaster you should save the life of a child who can be replaced through the human reproductive process, or the Rembrandt masterpiece which can never be replaced, it is not unreasonable for the world community to seek to protect its cultural inheritance, and pass it on to future generations, even in the most extreme emergencies of war. Indeed, the need to minimise the effect on both the spiritual and physical heritage has been recognised in a growing body of International Humanitarian Law during more than a century.
Thirty-nine years ago the governments representing many of the peoples of the world, meeting in The Hague, The Netherlands, reviewing the successes and failures of cultural protection in the Second World War and other recent armed conflicts, resolved to create a new world system for the protection of the physical patrimony of humanity in times of war and other armed conflict, the Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 1954. As the fortieth anniversary of that initiative approaches it is entirely appropriate that there should be a far-ranging debate on the future development and application of that key international treaty.
Patrick J. Boylan
London, 30 April 1993
EXECUTIVE SUMMARY AND RECOMMENDATIONS
A. TO UNESCO, OTHER INTER-GOVERNMENTAL INTERNATIONAL ORGANISATIONS, ALL STATES PARTY TO THE 1954 HAGUE CONVENTION, NON-SIGNATORY COUNTRIES, AND INTERESTED NON-GOVERNMENTAL ORGANISATIONS
A. 1. There have been many negative cases in more than one hundred wars and other armed conflicts that have occurred in different parts of the world since the adoption of the Convention on the Protection of Cultural Property in the Event of Armed Conflict and its supporting Protocol at The Hague in 1954, most recently in many parts of ex-Yugoslavia. In many of these wars and conflicts there have been serious losses of important cultural property and hence of the patrimony of all peoples. These losses have been due in most cases to the failure of parties in the various international and internal armed conflicts to comply with international law, and to both respect and positively safeguard physical evidence of the local, regional, national and international heritage.
A. 2. Nevertheless, despite these apparent failures over the past forty years, the Convention, Regulations and Protocol on the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 1954, are still entirely valid and realistic as international law, and remain fully applicable and relevant to present circumstances. The problem is essentially one of failure in the application of the Convention and Protocol rather than of inherent defects in the international instruments themselves.
A. 3. The 1954 Convention as so well established that it is now regarded as an integral part of Customary International Law2, and as falling within the category of International Humanitarian Law3, because of the intimate, and ever-closer, relationship between the physical evidence of the culture of a people and its national, culture, ethnic and spiritual identity.
A. 4. Technical improvements to the detailed provisions of the Convention and Protocol, may perhaps be desirable in the long term. However, these are a far lower priority at this time than the over-riding priority of achieving greater recognition, acceptance and application of their provisions. This is extremely urgent in view of the many cases, some highly-publicised, in which cultural property has been destroyed, damaged or looted in flagrant contravention of international law in both international and internal armed conflicts in recent years. Consequently, formal amendments to the Convention and Protocol are not recommended at the present time, though some points for possible future clarifications and improvements are identified in section G of these Recommendations.
A. 5. No reasonable interpretation of the 1954 Convention, which deals specifically and exclusively with cultural heritage property of importance to humanity, would permit its extension to include natural heritage property of similar importance, even though both are covered by the UNESCO World Heritage Convention of 1972 (Convention concerning the Protection of the World Cultural and Natural Heritage). Incorporating the natural heritage in the provisions would require fundamental amendments to its basic objectives or, more likely, a completely new treaty.
A. 6. As a first step in achieving greater recognition and more effective implementation of the 1954 Convention, it is essential that the number of States Party to it be greatly increased, since the effectiveness of any international law ultimately depends on the principle of universal acceptance4.
A. 7. However, some of the most important provisions of the 1954 Convention - those relating to the concept of pre-registered and internationally notified `special protection' of localities of pre-eminent world cultural importance - have clearly not been effective because of the almost total failure of High Contracting Parties to submit proposals for `special protection'. High priority must be given to making progress in this area, particularly (though by no means exclusively) by urging High Contracting Parties to the 1954 Convention to submit potentially eligible World Heritage Convention cultural sites for `special protection' designation as `centres containing monuments and other immovable cultural property of great importance'5.
A. 8. In armed conflicts, whether international, inter-community or otherwise internal to a single sovereign state, in addition to unlawful action against protected cultural property there are all too often large numbers of civilian casualties or other cases of abuse of other aspects of international law and of civilised values. It is inevitable that in such cases the human tragedies will usually attract greater international and media attention than the loss or damage of the physical patrimony. However, it is important that all parties recognise that in many recent cases the destruction of the physical evidence of the existence of the national, ethnic and/or religious community under attack has been an integral part of the various types and levels of humanitarian abuse of the civilian peoples, through to the level of alleged genocide, as legally defined6. Consequently it is most important that all parties take urgent action to increase understanding of, and respect for, the culture, symbols and values of all peoples, especially of minority peoples.
B. TO UNESCO
B. 1. 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 should be continued. In addition the Executive Board should immediately request Director-General to approach again every other non-signatory sovereign State 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.
B. 2. In addition to taking action in times of armed conflict either through the appointment of Commissioners-General or Special Representatives of the Director General, UNESCO should appoint or nominate experts to serve as liaison and advisory officers in the field to commanders of United Nations Peace-keeping Forces in support of UN peacekeeping and peacemaking operations;
B. 3. It is probably inevitable that in times of actual or threatened armed conflict international public opinion will focus attention on particularly famous and important sites: Angkor Wat in Cambodia, Dubrovnik in Croatia, Tyre in Lebanon. While World Heritage and other famous sites should certainly never be neglected, UNESCO and other international organisations, when under such pressure, should not restrict their actions and practical measures to such sites at the expense of more broadly based support for the wider cultural patrimony suffering serious damage or under threat in the region concerned.
B. 4. There is a considerable body of practical information and experience, dating from at least the period of the Spanish Civil War and the Second World War onwards, on practical measures for the protection of monuments, museums, libraries, archive repositories etc. in the face of the prospect of armed conflict. For example, the International Museums Office prepared for the International Institute of Intellectual Cooperation, (in many respects UNESCO's predecessor under the League of Nations system),a very substantial practical handbook in the Autumn of 1939, and - especially UNESCO's own substantial Museums and Monuments Series handbook by A. Noblecourt published in 1954 (French edition) and 1958 (English edition)7. UNESCO should commission and publish up-to-date research and advice on practical protection measures, integrating this advice with recommendations on necessary practical measures for the prevention and mitigation of natural and civil disasters.
B. 5. UNESCO should work closely with all relevant non-governmental international organisations, including all of the NGOs associated with UNESCO working in the field of material culture8, and with the International Committee of the Red Cross, in both developing and actively promoting such professional and technical advice.
B. 6. One of the highest priorities for all international and national bodies in relation to both immovable and movable cultural property, and especially for UNESCO, must be to develop greater understanding of, and respect for, the great many different cultures and traditions of the different peoples of the world. Work towards this should include additional programmes of education and information for peoples of all ages, and especially within multi-ethnic and multicultural societies. Some of the greatest losses in recent armed conflicts have been the result of deliberate damage and destruction of the cultural evidence of the existence of enemy, or indeed just different, peoples.
B.7. In times of war and other armed conflict UNESCO should put additional resources into attempting to counter by all practicable means the prevailing negative cultural propaganda, particularly through the presentation of unbiased radio and television programmes both from ground stations and satellite stations.9
B. 8. Pending any future revision or updating of the provisions of the 1954 Convention and Protocol, it is strongly recommended that the next General Conference of UNESCO should be asked to consider and adopt a substantial composite Resolution incorporating a series of practical Recommendations in relation to the Protection of Cultural Property in the Event of Armed Conflict, and in particular aimed at greatly improving the effectiveness and practical application of the 1954 Convention including:
1. a Recommendation urging all non-signatory Sovereign States of the world to adopt and implement in terms of national legislation and administrative procedures both the Convention on the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 1954, and its Protocol without delay;
2. a Resolution urging that in view of the alarming scale of loss of movable cultural property from monuments, museums, libraries, archives and other depositories of cultural property in times of both international and internal armed conflict, all High Contracting Parties to the 1954 Convention be urged to adopt both the 1954 Hague Protocol and the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and to institute effective national and international measures to prevent trafficking in cultural material from war zones;
3. a Resolution establishing a UNESCO Intergovernmental Advisory Committee on the Protection of Cultural Property in the Event of Armed Conflict, constituted under Category II (Articles 18 - 20) of the UNESCO Regulations for the general classification of the various categories of meetings convened by UNESCO10. The Committee should follow in general terms the model of the World Heritage Committee11, though it would not have executive powers. The main purpose would be keep under review the effectiveness and implementation of the 1954 Convention and Protocol, to advise the Director-General, the General Conference, States Party to the Convention, as well as non-signatory sovereign states, on appropriate practice in relation to all aspects of the implementation of the Convention and more generally on the Protection of Cultural Property in times of Armed Conflict. The Intergovernmental Advisory Committee would in particular receive, review and formally publish the periodic reports of High Contracting Parties specified in Article 26(2) of the 1954 Convention, and would assist the Director General in relation to the training and education programmes referred to below. Draft terms of reference and outline rules of procedure for the proposed Advisory Committee are proposed in Appendix X of this Report;
4. authorization of plans for UNESCO to establish a programme of regional intergovernmental information/training seminars for both High Contracting Parties and non-signatory States in different parts of the world (perhaps one per year for five or six years), as it is clear that many of the non-signatory Member States of UNESCO and some High Contracting Parties are uncertain about what adopting and implementing 1954 Convention would mean in practical terms. This is particularly true of the large number of States in the Americas which in 1954 were already parties to the 1935 `Roerich Pact'12, and of the many Member States in Africa, Asia and the Caribbean which became independent during the period of de-colonisation during the third quarter of the century;
5. a Resolution reminding all High Contracting Parties to the 1954 Convention of the importance of their obligation under Article 26 of the Convention to forward four-yearly reports to the Director-General on the `measures being taken, prepared or contemplated... in fulfilment of...' the Convention and Regulations.
6. a Recommendation proposing urgent new programmes of action to improve public understanding and tolerance in relation to the values of cultural property and cultural diversity, at both the international level through both UNESCO and relevant Non-Governmental Organisations, and at national, regional and local levels, through Member States, National Commissions for UNESCO, and educational and non-governmental organisations;
7. proposals for additions to UNESCO's Third Medium Term Plan, especially Programmes III.3 (Preservation and enhancement of the cultural heritage), VII.1 (Peace in the minds of men) and VII.2 (Human rights)13, to provide additional staff and financial resources for necessary urgent action to enable UNESCO to respond more effectively to current crises, and the establish the proposed new arrangements for increasing its activities in this field, including the proposed programmes of regional intergovernmental information/ training seminars and of public information and education;
8. authorization for UNESCO support of United Nations peacemaking and peacekeeping operations in areas of cultural importance through the appointment or nomination of appropriate experts to liaise with United Nations force commanders in the field;
9. a Resolution calling on the United Nations to take appropriate action through the General Assembly, Security Council, Military Staff Committee and Secretary-General respectively to adopt the policies and role proposed for the United Nations in Section C of these Recommendations.
C. TO THE UNITED NATIONS
C. 1. Historically, and even in recent times, disputes over issues relating to the physical evidence of the national, cultural and - especially - religious identities of peoples have been significant factors in the development and escalation of international disputes, and have even on occasion provided the final casus belli for international and civil wars. The United Nations should recognise that even in less extreme cases such issues can be potent factors in escalating conflicts, and in the promotion and spread of international and inter-community fear and hatred. They can therefore be a significant threat to the maintenance of peace and of both peacemaking and peace-keeping. Consequently, the implications of the possible threat to peace of such matters is an entirely proper consideration for the Security Council under its responsibilities relating to the `Pacific Settlement of Disputes' and `Threats to Peace' under Chapters VI and VII of the United Nations Charter, (see also the current Secretary-General's 1992 An Agenda for Peace)14.
C. 2. In accordance with these principles, the United Nations should continue to support the efforts of UNESCO and the High Contracting Parties to the 1954 Convention in relation to promoting the understanding and recognition of the cultural dimension in international relations and in both international and internal armed conflicts;
C. 3. In future the United Nations, should as a matter of routine, seek expert advice through UNESCO on the cultural protection implications of proposals for action under Chapters VI and VII of the Charter in relation to threats to international peace, armed conflicts and peacekeeping.
C. 4. In relation to the issue of possible `cultural' war crimes in the former Yugoslavia, 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.
C. 5. The United Nations is urged to develop and present to the proposed international War Crimes Tribunal on cases relating to ex-Yugoslavia15 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.
C. 6. The assistance of the United Nations in providing practical support to UNESCO official representatives undertaking duties in relation to the provisions of the 1954 Convention in some past peacekeeping (including Observer Mission) operations has been of great importance. The United Nations should in future provide such necessary facilities and logistical support for UNESCO-appointed or -nominated experts on a regular basis. In addition to undertaking their functions on behalf of UNESCO and in relation to the 1954 Convention, where appropriate such experts should also act as liaison and advisory officers in the field to commanders of United Nations Peace-keeping Forces, on the lines successfully pioneered in the later stages of the Second World War in western and central Europe.
C. 7. It is recognised that the training and other preparation for their missions of peacekeeping etc. forces allocated to the United Nations is primarily the responsibility of the military systems of the Member States providing the forces. However, it is most important that both officers and the ordinary troops engaged on peacekeeping missions should have adequate training in relevant international and national military and civilian law relating to cultural protection, (and indeed in respect of the cultural, ethnic and religious values of the peoples of the country of the operation in question). The United Nations should develop standard minimum requirements in terms of training, briefing and/or the applicable national military operations manual, including issues relating to the protection of cultural property. Participating Member States should then be requested to ensure that forces allocated to United Nations operations are adequately trained and briefed in such matters, and that appropriate military discipline is maintained in relation to both the respecting of monuments and other cultural property, and the enforcement of relevant cultural property export laws and codes.
C. 8. Because important cultural monuments and collections are frequently seen as amongst the clearest expressions of the identity and values of peoples, the United Nations should recognise as a form of humanitarian aid measures to provide emergency practical assistance, including the services of international experts and of essential measures such as the supply of specialised conservation materials and equipment required for the preservation of cultural property of international, national or other cultural importance damaged or threatened by armed conflict. Such essential assistance should not be subjected to undue restriction or delay under any United Nations sanctions regime.
C. 9. In the context of both the Universal Declaration of Human Rights (1948) and the 1992 Declaration of the United Nations in relation to the rights (including cultural rights) of minority peoples, and especially Articles 1, 4(2), and 4(4)16, the United Nations should support UNESCO and United Nations Member States in the development of programmes of public information and education about cultural and ethnic diversity and respect for the cultures of all peoples, especially within multi-ethnic, multi-religious and multicultural societies.
D. TO ALL HIGH CONTRACTING PARTIES TO THE 1954 CONVENTION
D. 1. Most High Contracting Parties to the 1954 Convention still have very much to do at the practical level to implement the solemn pledges they have given to the world community, and indeed to their own citizens, in their ratification of, or accession to, this important Treaty. Far more needs to be done at the practical level to meet the obligations that States Parties to the Convention have entered into in their acceptance of it. There are however some notable exceptions to this generalisation, though they number perhaps four or five at the most, for example, Austria, Switzerland and The Netherlands, (and indeed in some respects the former Yugoslavia). These examples of serious and successful application of the practical provisions of the Convention show that the task is not a very onerous one in terms of either money or resources. Information on the practical measures taken needs to be shared more widely, for example through the proposed new UNESCO training/information seminar and publications programmes.
D. 2. Particularly high priorities are the implementing of effective provisions within national military and civilian criminal law for the investigation and punishing of alleged `cultural' war crimes and other offences by nationals and other residents of the State, and of active programmes of military and public education and information intended to increase knowledge and understanding of, and respect for, the protection of the cultural property and cultural values of all peoples.
D. 3. In view of the grave losses of movable cultural property from areas affected by international wars and internal armed conflicts such as civil wars and inter-communal conflicts, high priority needs to be given to effective national administrative and criminal law measures to stop the international trafficking in stolen or otherwise illicitly acquired and transported cultural property from such war zones, in accordance with the spirit of the 1954 Protocol and the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.
D. 4. All High Contracting Parties should review their arrangements for the training of military personnel of all levels in relation to their obligations under the Convention and other relevant aspects of international law. Member States participating in United Nations operations should ensure that the forces allocated to particular operations are adequately and specifically re-trained and briefed in such matters, and that appropriate military discipline is maintained in relation to the respect of monuments and other cultural property, and relevant cultural property export laws and codes.
D. 5. All High Contracting Parties which are also parties to the 1972 World Heritage Convention should review each of the cultural localities within the State which are inscribed on the World Heritage List and consider whether they are eligible for the granting of `Special Protection' as `centres containing monuments' under Article 2(c) of the 1954 Convention.
D. 6. All High Contracting Parties should note that in the absence of specific provisions for the resolution or enforcement of inter-government disputes 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 Charter17.
D. 7. All High Contracting Parties should establish a national advisory committee to assist with the practical implementation of the 1954 Convention and Protocol, in accordance with Recommendation II of the 1954 Intergovernmental Conference.
E. TO ALL STATES WHICH ARE NOT YET PARTIES TO THE 1954 CONVENTION
E. 1. 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 as a matter or urgency, since such international instruments ultimately derive their authority from their universal acceptance by the world community.
E. 2. The principles of the 1954 Convention should nevertheless be respected as Customary International Law, and as the successor and supplementary provisions and clarification of the principles established in earlier International Instruments, particularly the 1899 and 1907 Hague Conventions and the 1935 Washington Treaty (`Roerich' Pact), and also as the applicable law in many parts of the world where their armed forces may be in action, eg. as part of a United Nations peacekeeping operation.
E. 3. Whether or not such States decide to ratify or accede to the 1954 Convention, they should take all necessary action to implement effective provisions within national military and civilian criminal law for the investigation and punishing of alleged `cultural' war crimes and other offences by nationals and other residents of the State. They should also establish active programmes of military and public education and information intended to increase knowledge and understanding of, and respect for, the protection of the cultural property and cultural values of all peoples.
E. 4. In particular, Member States participating in United Nations operations should ensure that the forces allocated to particular operations are adequately and specifically trained and briefed in their obligations under Customary International Law and in the 1954 Hague Convention (since this could very well be applicable law in the theatre of operations), and that appropriate military discipline is maintained in relation to the respect of monuments and other cultural property, and relevant cultural property export laws and codes.
F. TO NON-GOVERNMENTAL ORGANISATIONS
F. 1. All non-governmental organisations and especially international NGOs in relationship with UNESCO operating in the tangible culture sector, and relevant regional organisations, should recognise the important role they can play in developing both practical advice and training procedures in relation to the protection of monuments and collections etc. within their respective fields of interest in the face of the risk of both natural and civilian disasters as well as armed conflicts. They should work closely with UNESCO in both developing and actively promoting at the professional level the measures that it is recommended to undertake under Recommendations B.3 to B.7. above.
F. 2. 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 both the adoption and active implementation of their provisions, especially in countries which have not yet adopted the Convention and/or which have not yet taken the necessary legal and administrative measures required for its effective implementation.
F. 3. Non-governmental organisations have the potential to play a most important role in providing direct assistance in terms of professional and technical labour, specialised equipment and materials for protection and emergency conservation, and for assisting with the temporary evacuation of important movable cultural property in times of actual or threatened armed conflict. The role of the voluntary sector could be especially crucial in those cases where international and governmental organisations are unable to offer such assistance because of the (unavoidable) political consequences, eg. where the country is under a de facto government or administration which is not recognised as legitimate by the United Nations or other international organisations.
G. POSSIBLE FUTURE AMENDMENTS OF THE 1954 CONVENTION
G. 1. As indicated above, although technical improvements to the detailed provisions of the Convention and Protocol, are certainly desirable in the long term, these are less urgent at this time than the over-riding priority of achieving greater recognition, acceptance and application of their provisions in the face of current and continuing breaches on the one hand, and the comparatively low level of ratifications on the other. Nevertheless, in the course of this study significant issues have been raised, which ought to be incorporated into the provisions of the 1954 Hague Instruments as soon as circumstances permit, probably by means of an Additional Protocol, rather than by a revision of the Convention itself, though that may be desirable in the future.
G. 2. The present definition of `cultural property' in the 1954 Convention is rather out-of-date and very imprecise. Subsequent UNESCO international instruments, particularly the 1970 and 1972 Conventions, and various UNESCO Recommendations have adopted what are generally more comprehensive and explicit definitions (though these others are not at all consistent in their wording)18. In relation to future Instruments and policy statements it would be desirable for UNESCO to adopt a more consistent approach to definitions, subject of course to the special needs of the particular case. Also, in view of the growing importance of non-traditional catalogue and other record systems for both movable and immovable cultural property, in any future revision of, or Additional Protocol to, the 1954 Convention, the definition of `cultural property' in Article 1 (a) the phrase `or of reproductions of the property defined above' be replaced by `or of paper, microform or electronic catalogues, documentation, or copies of the property defined above'.
G. 3. In the 1954 Convention legal enforcement and action in respect of eg. alleged `cultural' war crimes, rests almost entirely with national governments and national legal systems. Further, there is no explicit provision in the Convention for the resolution of inter-governmental disputes about its application and interpretation19, and it would desirable to establish some appropriate, relatively simple and quick, means of arbitrating on inter-governmental disputes relating to the application of the 1954 Convention20.
G. 4. Bearing in mind the precedents of the 1949 Geneva Conventions the inclusion of the `military necessity' exemption was already inappropriate by the time of the 1954 Intergovernmental Conference. It is strongly recommended that in any revision of the primary text of the 1954 Convention or in any new Additional Protocol to it, High Contracting Parties should renounce the provisions of Article 3 (2) allowing the waiving of the provisions of the Convention in the case of military necessity.
G. 5. It seems clear that the concept of `Special Protection' in the Convention was devised primarily in order to protect a strictly limited number of permanent and temporary shelters and other `refuges', though it is also possible for High Contracting Parties to propose for `Special Protection' what are defined as `centres containing monuments and other immovable cultural property of very great importance'. However, neither definition covers even the most important museums, libraries, archive repositories etc., and `Special Protection' for these can only be applied for if these happen to be located in zones with outstanding immovable cultural property as well. Any future updating should revert to the precedents of the 1907 Hague Convention and the 1935 Washington (`Roerich') Pact and offer the possibility of `ordinary' protection for important cultural institutions such as museums, important reference libraries, archives etc., and also provide for the granting of `Special Protection' to the world's greatest museums and similar institutions on the basis of the pre-eminent importance of their collections, (providing, of course, it is possible to meet the other requirements for `Special Protection' - particularly the demilitarising of the surrounding area).
G. 6. The proposal that natural sites should be could be brought within a treaty which is explicitly defined (even within its title) as dealing only with `cultural' sites raises very important issues. There are also major differences in the size and nature of the territory that might e.g. be brought under `Special Protection': the examples of the two categories on the World Heritage List show that on average the geographical areas of territory involved are often of a quite different order of magnitude in many cases raising the very real possibility of serious military objections, which might in turn weaken the existing protection afforded by the 1954 Convention. It would seem more fruitful to try to reach agreement on a separate Convention for the protection of natural sites, with more appropriate provisions to meet the specialist requirements of natural sites.
G. 7. There are currently serious problems in relation to the procedures for the appointment of Commissioners-General for Cultural Property in times of armed conflict, both in general and particularly in relation to situations where there are no nominated Protecting Powers. Changes in this area are needed, with the aim of making the Commissioner-General provisions enforceable on both parties to an armed conflict. However, achieving this would require solutions to difficult problems of international law, and the matter therefore needs to be considered by appropriate legal experts.
G. 8. In order to improve the understanding and application of the Hague Convention there is a need for it to be supported by an Intergovernmental Advisory Committee on the Protection of Cultural Property in the Event of Armed Conflict, modelled on the World Heritage Committee. The proposed terms of reference and composition are outlined in Appendix X of this Report.
G. 9 In terms of the mechanism for making such changes, the first five of these - issues relating to the definitions in the Convention, to enforcement measures and the extension of the concept of `Special Protection', and the establishment of the proposed Advisory Committee could probably dealt with by means of the adoption of an Additional Protocol. However, the sixth, the suggested extension of the 1954 Convention to cover the natural heritage as well as the cultural heritage, would involve a fundamental change in its underlying purpose, and would probably require a completely new international instrument.
Share with your friends: