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New rules for the protection of cultural property in armed conflict

30-09-1999 Article, International Review of the Red Cross, No. 835, by Jean-Marie Henckaerts

 The significance of the Second Protocol to the 1954 Hague Convention for the  

 Protection of Cultural Property in the Event of Armed Conflict  

 Alles van waarde is weerloos.[1]  

 Jean-Marie Henckaerts is legal advisor at the ICRC Legal Division. He followed, on behalf of the ICRC (which had observer status at the Diplomatic Conference in the Hague), the negotiation and adoption of the Second Protocol. This article reflects the views of the author and not necessarily those of the ICRC.  

The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereafter: the 1954 Convention) is the paramount international instrument for the protection of cultural property during armed conflicts [2 ] . Cultural property includes museums, libraries, archives, archaeological sites and monuments of architecture, art or history, whether religious or secular. The 1954 Convention has to date been ratified by 95 States, but the basic principles concerning respect for cultural property enshrined in it have become part of customary international law. A Protocol dealing mainly with the protection of cultural property in occupied territory was adopted at the same time as the Convention, and 79 States are party thereto [3 ] . The s pecific content of the Convention will be explained in brief under each of the substantive sections of this article.

The effectiveness of the 1954 Convention became a subject of general concern in the early nineties, during the second Gulf War and the war in the former Yugoslavia. As this article goes to press, that effectiveness is sadly still being tested in the continued war in the Balkans.

In 1991, the Government of the Netherlands decided to include a review of the 1954 Convention as part of its contribution to the United Nations Decade of International Law. As a result, The Netherlands and the United Nations Educational, Scientific and Cultural Organization (UNESCO) jointly commissioned and funded “a review of the objectives and operation of the Convention and Protocol with a view to identifying measures for improving its application and effectiveness and to see whether some revision of the Convention itself might be needed, perhaps by means of an Additional Protocol” [4 ] . That review was published in 1993 by Professor Patrick Boylan.

In the following years, the Government of the Netherlands continued to be the driving force behind the review process, and three expert meetings were organized which resulted in the “Lauswolt document”, named after the Dutch town where it was drafted. The Lauswolt document was a new draft treaty based on the findings of the Boylan review.

In March 1997, twenty government experts met at UNESCO headquarters in Paris to review the Lauswolt document. On the basis of their discussions, the UNESCO Secretariat drew up a revised Lauswolt document which it submitted to all States party to the 1954 Convention at a meeting in Paris on 13 November 1997. It was decided that a final preparatory meeting would be convened to discuss certain legal questions further, and the proposal by the Netherlands to convene a diplomatic conference in 1999 to transform the Lauswolt docume nt into an international treaty was welcomed.

The final preparatory meeting was hosted in Vienna in May 1998 by the Austrian Government. The meeting identified five main areas that needed to be addressed in the Second Protocol :

  • the exception of military,

  • precautionary measures,

  • the system of special protection,

  • individual criminal responsibility,

  • institutional aspects.

After the meeting, a Preliminary Draft Second Protocol to the 1954 Convention was drawn up [5 ] . States and relevant organizations were invited to submit comments on the draft, in particular with respect to the five areas mentioned above [6 ] . On the basis of those comments, the UNESCO Secretariat and the Government of the Netherlands together drew up the final draft Second Protocol [7 ] .

The Diplomatic Conference on the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict took place in The Hague from 15 to 26 March 1999. On 26 March 1999, the Conference adopted the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (hereafter : the Second Protocol) without a vote [8 ] . It was opened for signature in The Hague on 17 May 1999 in the framework of the Centennial celebrations of the First International Peace Conference and signed by 27 States on that date. It remains open for signature at the Hague until 31 December 1999.

The Second Protocol is additional to the 1954 Convention, which remains the basic text. A State can only become a party to the Second Protocol if it has ratified the 1954 Convention. During the entire review process, four options were kept open regarding the treaty technique to be used for improving the 1954 Convention. The first consisted in amending the 1954 Hague Convention; however, any amendments would have required unanimous adoption by all States party to the Convention [9 ] . Since this was virtually impossible, this option was discarded even though some States had supported it. The second option consisted in the adoption of a new, separate convention. This would have required substantial negotiations and would have had the disadvantage of creating two separate systems. As a result, this option was never really considered.

The third option consisted in the adoption of a Protocol aimed at revising the 1954 Convention. Several delegations strongly advocated this option, but because unanimity would again have been required, it was rejected by the majority of delegations. In the end, the fourth option prevailed, namely that the new treaty would be an additional protocol which would in no way amend the 1954 Convention but would supplement it and would only apply to the States who ratified it. The 1977 Protocols additional to the 1949 Geneva Conventions served as a useful precedent. As a result, every effort was made to make sure that each provision of the Second Protocol was indeed additional to the 1954 Convention.

The purpose of this article is to highlight the major developments embodied in the Second Protocol and to mention certain points of common understanding that were acknowledged at the Diplomatic Conference but not reflected as such in the text of the Protocol itself nor in the Conference’s Final Act.

 Peacetime measures  

Pursuant to Article 3 of the 1954 Convention, States undertake to prepare in time of peace for the safeguarding of cultural property against the foreseeable effects of an armed conflict “by taking such measures as they consider appropriate”. But the Convention does not provide any further details on measures States s hould take.

The Second Protocol aims to provide more guidance in this respect, as it provides specific examples of concrete measures to be taken in time of peace : [10 ]

  • the preparation of inventories,

  • the planning of emergency measures for protection against fire or structural collapse,

  • the preparation for the removal of movable cultural property or the provision of adequate in situ protection of such property,

  • the designation of competent authorities responsible for the safeguarding of cultural property.

These measures are of great practical importance for the protection of cultural property in the event of armed conflict.

Clearly, they also require financial resources and know-how. With these requirements in mind, the Second Protocol provides for the setting up of a Fund for the protection of cultural property in the event of armed conflict [11 ] . The Fund was specifically established to provide financial or other assistance in support of preparatory or other measures to be taken in peacetime. It will be managed by the Committee for the Protection of Cultural Property in the Event of Armed Conflict, which is to be set up pursuant to the Second Protocol [12 ] . The resources of the Fund shall consist inter alia of voluntary contributions made by States party to the Second Protocol [13 ] . Some States had sought the inclusion of compulsory contributions, but in the end that proposal was rejected.

In addition, the Second Protocol expands on the rather general provision concerning dissemination contained in the 1954 Convention [14 ] . Again, specific examples of concrete dissemination measures are listed, especially for the military and civilian authorities who assume responsibilities with respect to the application of the Second Protocol. They are to be fully acquainted with the Protocol, and to that end States party sha ll, as appropriate : [15 ]

  • incorporate guidelines and instructions on the protection of cultural property in their military regulations,

  • develop and implement, in cooperation with UNESCO and relevant governmental and non-governmental organizations, peacetime training and educational programmes,

  • communicate to one another, through the Director-General of UNESCO, information on laws, administrative provisions and measures taken under the preceding paragraphs,

  • communicate to one another, as soon as possible, through the Director-General, the laws and administrative provisions which they may adopt to ensure the application of the Protocol.

The experience of the International Committee of the Red Cross provides ample evidence of the essential role of dissemination when it comes to ensuring respect for international humanitarian law.

 Respect for cultural property  

 A. All cultural property  

Article 4 of the 1954 Convention provides that cultural property shall not be subject to any act of hostility nor used for purposes which are likely to expose it to destruction or damage in the event of armed conflict. It immediately adds, however, that both obligations may be waived in case of “imperative military necessity”. Professor Boylan’s review identified the lack of a clear definition of this exception as a serious weakness with respect to the basic principle of protection contained in the 1954 Convention. [16 ]

Although the origins of the principle of military necessity can be traced back to the Lieber Code [17 ] , the restriction of imperative military necessity was first codified in international law in the 1907 Hague Regulations limiting the destruction or seizure of the enemy’ s property to that which was imperatively demanded by the necessities of war [18 ] . The 1954 Convention borrowed this notion as there were few other established limits applicable to the conduct of hostilities. [19 ]

As history shows, however, the concept of military necessity has not limited warfare in any significant way. The Second World War, for example, was fought under the restriction that no property could be destroyed unless there was an imperative military necessity to do so. Yet entire cities were destroyed.

It appears that the notion of imperative military necessity is too vague to constitute an effective limitation on warfare. Even military lawyers at the Diplomatic Conference admitted that it was difficult to teach their troops how to interpret and work with the concept. In general, matters left to discretionary clauses based on military necessity are those which could not be regulated; and matters which are not regulated provide a field for the law to develop. In order to do so, the military philosophy behind the maxim “Have confidence in the wisdom of the generals” [20 ] had to be replaced with objective criteria that were binding on the military. The goal of the Diplomatic Conference was to give a content to the notion of imperative military necessity with a view to enhancing its meaning and effect.

 Imperative military necessity to commit acts of hostility  

Limiting attacks to military objectives would in large part achieve that goal. One should not forget that the 1954 Convention was adopted well before the 1977 Protocols additional to the 1949 Geneva Conventions. It was drafted against the background of the Second World War, at a time when it was still considered acceptable that entire cities would be attacked. In the midst of such a war, the 1954 Convention sought to protect valuable cultural property.

In 1977, the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) did away with this approach [21 ] . Henceforth, only military objectives — more clearly defined and more carefully selected — were to be made the object of attack. Civilians and civilian objects were not to be made the object of a direct attack. This approach is a clear example of how international humanitarian law balances military necessity and humanitarian needs : it allows attacks that are necessary but establishes strict humanitarian limits.

It was therefore obvious that any improvement of the 1954 Convention should reflect this modern approach : cultural property is generally civilian property and as such should not be attacked; it may be atacked only if and when it becomes a military objective. This approach also has the advantage of providing a clearer answer to the question of when cultural property may be attacked.

The definition of military objective in Article 52(2) of Additional Protocol I was one of the major achievements of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (CDDH), which was convened by the Swiss Government in 1974 and adopted Additional Protocol I on 8 June 1977. States not party to Additional Protocol I, such as the United States, Turkey and India, confirmed the customary law nature of this provision during the 1999 Diplomatic Conference that adopted the Second Protocol. This illustrates how the Diplomatic Conference also sought to reaffirm certain rules of humanitarian law while developing others.

The definition of military objective contains two criteria which have to be fulfilled cumulatively before objects can be destroyed, captured or neutralized. They deal with the nature, location, purpose or use of objects and with the military advantage to be gained by destroying, capturing or neutralizing them. The nature, location, purpose or use of the object has to be such that it makes an “effective contribution to military action”. The military advantage has to be “definite, in the circumstances ruling at the time”. These criteria were as clear as it was possible to negotiate during the CDDH and they are fairly strict.

As such, the notion of military objective incorporates the idea of military necessity. Once an object has become a military objective it can be destroyed, captured or neutralized, subject to certain exceptions. This simple rule recognizes the military necessity of attacking certain objects during war. By limiting those objects to those which are military objectives it incorporates the notion that war has limits. As a result, the concept of military objective embodies the balance that humanitarian law establishes between military interests and humanitarian concerns.

The requirement of the 1954 Convention that the military necessity has to be “imperative” is made sufficiently clear in Article 4 of the Second Protocol by the second condition, namely that no other alternative is available. Military necessity could therefore virtually never be invoked to justify an attack on cultural property standing in the way of an advancing army, as there are almost always alternatives to circumvent the property. This means that when there is a choice between several military objectives and one of them is a cultural property, the latter shall not be attacked. In fact, this provision adds cultural property to the military objectives which, under Article 57(3) of Protocol I, should not be attacked. [22 ]

The protection of cultural property is enhanced in that the concept of military objective — so widely recognized and used that it has become part of customary international law — is used to define the exception of military necessity. The rule that only military objectives can be target ed is now part and parcel of military manuals and military training worldwide. As many delegates stated at the Diplomatic Conference, it is important to have a simple text which is easy to use and to teach. The concept of military objective fulfils these requirements far better than the vague notion of military necessity.

The final text of Article 4 of the Second Protocol is based on proposals submitted by Austria and the ICRC. The Austrian proposal read: “Imperative military necessity under Article 4, paragraph 2 of the Convention may only be invoked when there is no other feasible alternative for fulfilling the mission and for as long as the reasons for its invocation prevail”. The ICRC proposal read : “Objects constituting cultural property lose their general protection from the moment they become military objectives, i.e. when they are used to make an effective contribution to military action and when their total or partial destruction, capture or neutralization offers a definite military advantage in the circumstances ruling at the time”.

A Working Group on Chapter 2 was set up under the chairmanship of Austria. Its task was to combine both proposals as the delegates felt both had merit and were in fact complementary. The Austrian proposal sought to define the “imperative” character of military necessity whereas the ICRC proposal sought to use the concept of military objective to give content to the principle of military necessity. A criticism of the ICRC proposal was that it singled out the use of cultural property that could make an effective contribution to military action, whereas Article 52(2) of Additional Protocol I specifies that the nature, location, purpose or use of objects can make an effective contribution to military action. Many delegates, mostly from NATO countries, observed that any definition of military objective had to correspond exactly to the definition given in Article 52(2) of Protocol I.

As a re sult, the Working Group decided to provide a definition of military objective at the beginning of the Protocol, while Article 4 would limit acts of hostility against cultural property to property “which, by its use, has become a military objective”. But even in the Working Group several delegations expressed concern about the restriction “by its use”, whereby cultural property could become a military objective by its use only and not by its location, for example. When the draft prepared by the Working Group on Chapter 2 came back to the plenary, the issue of use and location was clearly too controversial and the text was not acceptable to a significant number of delegations.

The Egyptian and Greek delegations were the most active in supporting the restriction whereby cultural property could become a military objective by its use only. The argument was that cultural property which was not used in any way for military action should never be the object of attack. If mere location could turn a cultural property into a military objective, the protection of cultural property would be greatly diminished. Some positive action should be required from the holder of the property before it could become a military objective. The ICRC supported this approach.

Since it was agreed that the nature and purpose of cultural property could never turn it into a military objective, the entire debate centered around the issue of location. The ICRC Commentary to 1977 Protocol I notes that the Working Group of Committee III introduced the location criterion without giving reasons [23 ] . The same thing could be said of the Second Protocol. No real reasons were given why location had to be included.

One example commonly cited at the Diplomatic Conference was that of historic bridges. This example is misleading, however, because it is really the use of such bridges that can make an effective contribution to military action.

The Canadian delegation offered another specific example : the retreat of troops could be blocked by a historic wall and there might be no way around the wall if it was located in a valley or a mountain pass. To go around the wall would take too much time, and the commander would therefore either have to take casualties or break through the wall. In such case, the historic wall would not be used for military action and would become a military objective merely because of its location. This example does not seem realistic as such walls are not usually built in valleys or mountain passes. The need for the criterion of location was not well explained, yet several delegations, mostly from NATO countries, strongly insisted on it.

The ICRC Commentary on Additional Protocol I gives the following examples of objects which by virtue of their location make an effective contribution to military action : a bridge or other construction or a site which is of special importance for military operations in view of its location, either because it is a site that must be seized or because it is important to prevent the enemy from seizing it, or otherwise because it is a matter of forcing the enemy to retreat from it. [24 ]

As mentioned above with respect to historic bridges, it is really the use of a construction or site that turns it into a military objective. With regard to sites that must be seized because of their location, the question arose at the CDDH what the situation would be if a belligerent in a combat area wished to prevent the enemy army from establishing itself in a particular area or from passing through that area, for example, by means of barrage fire [25 ] . There can be little doubt, according to the Commentary, that in such a case the area must be considered as a military objective and treated as such [26 ] . Of course, such a situation could only concern limited areas and not vast stretches of territory. It applies primarily to narrow passages, bridgeheads or strategic points such as hills or mountain passes. [27 ]

None of these examples constitute convincing evidence of the need to target cultural property because of its location. There is convincing legal evidence, on the other hand, to say that what turns cultural property into a military objective is ultimately its use. In 1907, Article 27 of the Regulations Respecting the Laws and Customs of War on Land already stipulated that “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, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes” (emphasis added). This text confirms that it is their use which makes these objects lose their protection.

The ICRC Commentary on Article 53 of Additional Protocol I confirms this view. Article 53 prohibits the use of cultural property in support of the military effort [28 ] . The Commentary notes that “if protected objects were used in support of the military effort, this would obviously constitute a violation of Article 53 of the Protocol, though it would not necessarily justify attacking them. To the extent that it is admitted that the right to do so does exist with regard to objects of exceptional value, such a right would depend on their being a military objective, or not, as defined in Article 52, paragraph 2” [29 ] . For example, “it is not permitted to destroy a cultural object whose use does not make any contribution to military action, nor a cultural object which has temporarily served as a refuge for combatants, but is no longer used as such”. [30 ]

As a compromise, the sentence “which, by their use, have become military objects” was changed to “which, by their function, have been made into military objects” in the Second Protocol. This represents a twofold change. First, the word “use” was replaced by “function”, which does not appear in the definition of a military objective. Secondly, “become” was replaced by the words “been made into”.

With regard to the new text, there was a clear understanding that the word “function” referred at the same time to something that was in fact functioning. For example, an old fortification which was not functioning as a fortification could not be considered a military objective. In addition, the new text sought to convey the requirement of an active role on the part of the holder of the cultural property in that the holder made the property into a military objective. This could only happen through use.

It is only by a stretch of imagination that function could cover location: the example of the historic wall blocking retreating soldiers could fall under the new text in that the circumstances make the wall, which functions to block a retreat, into a military objective. But in real life this is not the problem faced by cultural property on the battlefield. In real life the problem is that cultural property is attacked even when it is not used for any military action or is attacked indiscriminately. In real life the rule should be simple : cultural property which is not used to make an effective contribution to military action and whose destruction, seizure or neutralization does not offer a definite military advantage cannot be attacked. It is difficult to imagine how military commanders could teach their soldiers anything else.

It s remarkable that military lawyers who call for texts that are simple to teach and apply argue at such length about a minor difference that will be difficult to apply and teach. The reason why some delegates strongly argued for use only was clear. The mere location of pyramids in Egypt or temples on Greek islands should never serve as a pretext to attack those objects. The insistence on changing use to function is difficult to understand if the o nly example that could be given was that of an ancient wall blocking a pass. This example could easily have been dealt with under the exception of the prohibition on use of cultural property, thus leaving the overall system consistent, clear and simple. It is to be hoped that it will be taught and applied in that way.

 Imperative military necessity to use cultural property  

The 1954 Convention also allows the use of cultural property for military action if such use is required for reasons of imperative military necessity. The same problem as explained above applies to the exception with respect to use of cultural property : the content of the exception is not very clear and the protection of cultural property would be enhanced by greater precision.

An absolute prohibition of the use of cultural property for military action is difficult to imagine, as there may indeed be situations in which the military need to avail themselves of cultural property for good reason. A classic example is the case of retreating troops who need to take shelter in a cultural property for defence purposes. Because the exception is limited to cases of “imperative” military necessity, such use can only be made when there is no alternative available. Hence, the Second Protocol provides that a waiver on the basis of imperative military necessity may only be invoked to use cultural property for military action “when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage”.[31 ]

Finally, it should be noted that the decision to attack or use cultural property on the basis of the exceptions explained above shall only be taken by an officer commanding a force equivalent to a battalion or a smaller force where circumstances do not permit otherwise. [32 ]

 B. Cultural property under enhanced protection  

The 1954 Convention establishes a system of special protection. This system was designed for a limited number of refuges intended to shelter movable cultural property, centres containing monuments and other immovable cultural property of very great importance [33 ] . Special protection is granted by entry in the International Register of Cultural Property under Special Protection [34 ] . The system is intended to safeguard cultural property like the Versailles Palace in France or the Taj Mahal in India.

Unfortunately, the system of special protection has had very limited success. Only one centre containing monuments and eight refuges have been listed in the Register.35 As three refuges were withdrawn from the list in 1994, only one centre containing monuments and five refuges remain. There are a number of reasons why so few objects have been listed. The first is that entry in the list is conditional on the property being situated at an adequate distance from any large industrial centre or from any important military objective [36 ] . In many cases it is almost impossible to fulfil this condition as so much valuable cultural property is located in the heart of cities surrounded by potential military objectives. In addition, there is no agreement on what constitutes an adequate distance and, as a result, it is difficult to prepare an application for entry or to judge a request. This is yet another indication that the 1954 Convention was adopted well before the developments in humanitarian law reflected in the 1977 Additional Protocols and well before the technological evolution that has lead to means and methods of warfare that allow for more accurate targeting.

Political motivations have also stood in the way of registration. States can object to the entry in the Register and have done so on grounds such as the fact that the requesting authori ty was not the legitimate representative of the country in question. [37 ]

As a result, the Second Protocol has done away with the distance criterion and has strictly limited the possibility of lodging objections. Under the new system, three criteria have to be met in order for an object to be listed in the newly established List of Cultural Property under Enhanced Protection (the List) : [38 ]

  • the object must be a cultural heritage of the greatest importance for humanity ;

  • it must be protected by adequate domestic legal and administrative measures recognising its exceptional cultural and historic value and ensuring the highest level of protection ;

  • it must not be used for military purposes or to shield military sites and a declaration must have been made by the Party which has control over the cultural property, confirming that it will not be so used.

A decision to grant or deny enhanced protection may only be made on the basis of those criteria. In addition, objections against such grant shall be specific and related to facts [39 ] . This is a clear response to the shortcomings of the previous system.

The fact that the World Heritage List established under the 1972 Paris Convention concerning the protection of the world cultural and natural heritage is widely used — 582 sites are listed — constituted an incentive to try and make the International Register of Cultural Property under Special Protection work. But past efforts showed that this could only happen if the conditions and procedures were adjusted to redress previous shortcomings [40 ] . The usefulness of such a list lies in its world-wide renown: its mere existence should constitute an effective tool of prevention and protection. UNESCO would remind warring parties of the list and point out that any military use of or attack against any property on the list would constitute a serious war crime (see below). The commission of such acts would also have severe negative political implications. When no wartime list was available, as in the case of the attacks on Dubrovnik, UNESCO availed itself of the World Heritage List, which had not necessarily been established for wartime purposes. As a result, Dubrovnik was more or less spared. This example has strengthened the conviction that it would be useful to have a list of exceptionally valuable cultural property to be protected in time of armed conflict. This conviction was clearly articulated by the States represented at the Preparatory Meeting in Vienna in May 1998.

As the Second Protocol is additional to the 1954 Convention, and does not amend it, the existing system of special protection could not be touched and an entirely new system had to be established. As the existing system has had only very limited success, the intention is clearly to start using the new system. States wanting to register any property should start using the new List of Cultural Property under Enhanced Protection established by the Second Protocol, and States that have registered property in the previous list should request a transfer to the new list.

The fact that a new system had to be set up also explains why a new name had to be used. Continued use of the designation “special protection” would have implied an amendment of the existing special protection system. As the Protocol was clearly supplementary, a new name had to be used and a separate and new system had to be set up.

Under the 1954 Convention special protection consists of the fact that the immunity of such property can only be withdrawn “in exceptional cases of unavoidable military necessity” [41 ] . The wording implied a stricter standard than for other cultural property, where a waiver on the basis of “imperative military necessity” was in place. In practice, however, it was not clear what “exceptional cases of unavoidable military necessity” w ere.

The Second Protocol has clarified the law by establishing more clearly when cultural property under enhanced protection loses its protection, namely “if, and for as long as, the property has, by its use , become a military objective”, and an “attack is the only feasible means of terminating the use of the property” that made it a military objective. [42 ]

Loss of enhanced protection is conditional on use of the cultural property so that it becomes a military objective.“Use” was not replaced by “function” as was the case for the general protection system for all cultural property, on the strength of the argument that the quid pro quo of enhanced protection was non-use in exchange for enhanced protection. As indicated above, one of the conditions for registration of cultural property for enhanced protection is abstention from its use for military purposes and a declaration confirming that it will not be so used. The argument was that since there is a promise not to use, enhanced protection can only be lost through use. It was further argued that limiting loss of protection for cultural property under enhanced protection to instances of use only was an essential part of the “enhanced” level of protection offered by enhanced protection system. This argument is, however, mistaken.

A common misunderstanding is that there is a difference in the levels of protection afforded cultural property under general and enhanced protection — and the names indeed do suggest that such a difference exists. But there is, in fact, no lower or higher level of protection. The basic protection is the same : the object cannot be destroyed, captured or neutralized. Once protection is lost, it is lost for good : “you use, you lose”. There are minor differences in the level of command at which an attack has to be ordered, the warning to be given and the require ment that a reasonable time be given to the opposing forces to redress the situation (see below), but these differences do not change the basic loss of protection.

There is no difference in the level of protection and there is no need to differentiate between two different ways in which cultural property can become a military objective. What is the difference then between enhanced protection and general protection ? The main difference lies not in the obligations of the attacker but in the obligations of the holder of the cultural property. In the case of general protection, the holder of the property has the right, if need be, to convert the property into a military objective, by using it for military action. In the case of enhanced protection, the holder of the property has absolutely no right ever to convert the property into a military objective by using it for military action. Registration on the List therefore requires the State party seriously to study whether it would ever be in need of that property for military purposes and to answer in the negative.

Using property on the List for military purposes would amount to a serious violation of the Second Protocol, and the offender would be liable to criminal sanction as a war criminal (see below). The term “enhanced protection” is therefore misleading. The essence of the system is that it concerns some form of “registered” or “certified protection”. The holder of the property registers or certifies his promise that the property will never be used for military purposes. As a result, the property can never become the object of an attack. The advantage of putting property on the List is that an adversary will be particularly aware of it and any attack on the property will have serious consequences for the perpetrator (see below).

The registration of an object on the List of Cultural Property under Enhanced Protection can be compared to an internationally recognized declarati on establishing a non-defended locality [43 ] . It is best to make such declaration in peacetime as it guarantees that everything is in place if and when an armed conflict breaks out.

 Conditions for attack  

 A. All cultural property  

Once cultural property has, by its function, become a military objective and there is no feasible alternative, it has lost its protection against attack. Yet the Second Protocol adds a further condition for attack, providing for an extra level of protection for cultural property which has thus become a military objective, beyond the protection enjoyed by all civilian objects. In case of attack, an effective advance warning shall be given whenever circumstances permit [44 ] . This duty did not exist under the 1954 Convention. The duty to issue an effective advance warning also exists for attacks which may affect the civilian population [45 ] . This demonstrates how the protection of cultural property in some respects approximates the protection of the civilian population as such and goes beyond the protection of other civilian objects.

In addition, an attack can only be ordered by an officer commanding a force equivalent to a battalion or a smaller force where circumstances do not permit otherwise. [46 ]

 B. Cultural property under enhanced protection  

Under the 1954 Convention, an attack on cultural property under special protection can only be ordered by “an officer commanding a force the equivalent of a division in size or larger and whenever circumstances permit, the opposing Party shall be notified, a reasonable time in advance, of the decision to attack”.[47 ]

The Second Protocol seeks to tighten these conditions, but an effort to change the relative duty of notice into an absolute duty and a concomitant effort, supported by the ICRC, to have the decision to attack taken at the highest level of government failed. It would indeed make sense to have the decision taken at the highest level of government because of the political implications thereof. Several delegates, however, argued against this proposal. While they recognized that in some countries such a decision would probably be taken at the highest level of government, for example if the Head of State is the Commander-in-Chief of the armed forces, they felt that the political structures of countries around the world were too diverse to impose such an obligation. Hence, the Second Protocol requires that an attack be ordered at the highest operational level of command.

In addition, a proposal to make it an absolute obligation to order the attack at such level, to give effective advance warning and to give reasonable time to the opposing forces to redress the situation, was rejected. Several delegates argued that if their troops came under fire from cultural property under enhanced protection they would deem it excessive to have to comply with those conditions without being able to return fire immediately. Hence, the three obligations are waived if circumstances do not permit “due to requirements of immediate self-defence” [48 ] . This still represents progress over the 1954 Convention, as the level at which the attack has to be ordered is much higher and as the vague “whenever circumstances permit” has been narrowed considerably. In addition, the requirement that a reasonable time be given to the opposing forces to redress the situation is new and adds an extra layer of protection.

An earlier ICRC proposal to approximate the protection of cultural property under enhanced protection to that given to medical units was not considered. Under Article 21 of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, the protection to which medical units are entitled shall not cease “unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded”. It was felt that hospitals deserved an exceptional level of protection, beyond that enjoyed by other civilian objects.

 Precautions in attack  

By introducing the notion of military objective, other rules on the conduct of hostilities contained in Additional Protocol I of 1977 could also be included. The Second Protocol therefore incorporates the rules contained in Article 57 of Protocol I and applies them specifically to cultural property. In fact, Article 57 already covers cultural property, as it applies to civilian objects and all cultural property is, in principle, civilian in nature. Nevertheless, it was deemed useful to reaffirm those rules and to spell them out more clearly with respect to cultural property in particular.

 Precautions against the effect of hostilities  

The same can be said of Article 58 of Additional Protocol I dealing with precautions against the effects of attacks, the so-called passive precautions to be taken by the defender (in parallel with the active precautions to be taken by the attacker). Article 8 of the Second Protocol applies the rules contained in Article 58 of Protocol I in a way appropriate for cultural property.

 Individual criminal responsibility  

Article 28 of the 1954 Convention requires States “to take, within the framework of their ordinary jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the [... ] Convention”.[49 ]

This provision has largely remained a dead letter, mainly because it does not list the violations which require a criminal sanction. The experience of the ICRC Advisory Service on International Humanitarian Law proves that such a list is essential if a coherent and complete system of criminal repression of war crimes is to be institued worldwide.

This is one of the main areas in which the Second Protocol clarifies and develops humanitarian law with respect to cultural property. Building on Additional Protocol I and the Rome Statute of the International Criminal Court, Article 15 defines five acts which constitute serious violations requiring a criminal sanction if committed intentionally and in violation of the 1954 Convention or the Second Protocol :

  • making cultural property under enhanced protection the object of attack,

  • using cultural property under enhanced protection or its immediate surroundings in support of military action,

  • extensive destruction or appropriation of cultural property protected under the Convention and [the Second ] Protocol,

  • making cultural property protected under the Convention and [the Second ] Protocol the object of attack,

  • theft, pillage or misappropriation of, or acts of vandalism directed against, cultural property protected under the Convention.

But the definition of serious violations is not in itself sufficient to ensure that persons committing such violations are actually punished. To achieve this would still require effective enforcement at the national level. In order to arrive at effective national enforcement, implementing legislation has to be adopted covering two aspects : (a) criminalizing violations, and (b) est ablishing jurisdiction to try or extradite.

 Criminalizing violations  

As far as the need to criminalize violations under domestic law is concerned, States have the specific duty, under the Second Protocol, to adopt whatever measures are necessary to establish the abovementioned five serious violations as criminal offences under their domestic law and to make the offences punishable by appropriate penalties. Such legislation would ensure that the prohibition to commit any of the serious violations of the Second Protocol is, in practice, enforced.

With regard to the issues of auxiliary crimes (e.g. aiding and abetting), command responsibility and defences, the original proposal to set out these rules was discarded in favor of an obligation to comply with general principles of law and international law in this respect [50 ] . These rules have been authoritatively restated in the Rome Statute of the International Criminal Court, and many delegates felt there was no need to repeat them in a “mini criminal code”.

 Jurisdiction  

The list of serious violations is based on proposals submitted by Austria and the ICRC to the Working Group on Chapter 4. This explains why it contains two types of violations.

a) The first three violations correspond to what are called “grave breaches” under the Geneva Conventions and Additional Protocol I, and are based on a proposal by Austria. States have a duty to try or extradite anyone charged with having committed any of these violations on the basis of universal jurisdiction. Specific and detailed provisions regulate the prosecution and extradition of offenders [51 ] . According to the Chairman of the Working Group, from the point of view of international criminal law, these provisions are a major achievement as all elemen ts to form a coherent system of prosecution and extradition are included. [52 ]

With respect to the specific violations included in this category, it is interesting to note that the first two violations concern cultural property under enhanced protection, and that both an attack on and the use of such property are established as serious violations. Under Protocol I of 1977, only an attack on such property is defined as a grave breach and only in so far as it causes extensive destruction [53 ] . The Second Protocol establishes a balance between the criminal responsibility of both the attacker and the defender.

A proposal by the delegate from China to prohibit collateral damage to cultural property under enhanced protection was not acted upon. This would have been a significant improvement of the existing system. Since the Second Protocol requires parties to a conflict to refrain from any use of such property or its immediate surroundings in support of military action, such a rule could have fitted into the Second Protocol.

The third serious violation concerns the destruction or appropriation of all cultural property, but the extensive nature of such acts make them serious violations on a par with grave breaches.

States have to establish universal jurisdiction over such violations. This means they have to establish jurisdiction not only when the offence is committed in the territory of the State or when the alleged offender is a national of the State, but also when the offence is committed abroad by a non-national [54 ] . This reflects the principle of mandatory universal jurisdiction for grave breaches, which implies that all States have to establish jurisdiction to try or extradite non-nationals for war crimes committed abroad who are present in their territory.

At the request of the United States, a provision was included that excludes nationals of States not party to t he Second Protocol from the regime of mandatory universal jurisdiction [55 ] . This would mean that States have no obligation to try or extradite such persons. The extent of this exception is greatly diminished, however, by the acknowledgement that States may establish jurisdiction over such persons under applicable national or international law, including customary international law [56 ] , by the statement of the Chairman of the Working Group on Chapter 4 that nothing in the Second Protocol in any way limits the ability of States to legislate, criminalize or otherwise deal with any offence under the Protocol [57 ] , and by the fact that the entire jurisdictional regime is without prejudice to Article 28 of the 1954 Convention. [58 ]

Article 28 of the 1954 Convention was in fact already intended to provide for mandatory universal jurisdiction. According to Toman, “[t ] he representative of one government raised the question of whether a Party to the Convention was obliged to prosecute and impose penal sanctions upon persons having committed breaches outside the territory subject to the criminal jurisdiction of the State in question. The answer is yes, because that is the aim of this provision. It may reasonably be assumed that the country has at its disposal general legislation concerning the protection of its own cultural property and that the criminal act directed against that property would, in any event, be covered by those provisions. What remains to be done — according to Article 28 of the Convention — is to prosecute those who have committed criminal acts outside the territorial jurisdiction of the State ”. [59 ]

b) The last two serious violations were added to the list at the suggestion of the ICRC. The reason for this was that these acts had been recognized as war crimes subject to criminal sanction in the Rome Statute of the International Criminal Court. As such, they could not be included in a general provis ion on “other violations” which would only require States to suppress such acts without specifying the means of doing so. As indicated above, the experience of the ICRC has shown that the vagueness of the category of “other violations” makes it very difficult to convince States that certain of those other violations are indeed war crimes which have to be penalized with a criminal sanction under domestic law.

These two serious violations amount to war crimes, but States only have the obligation to repress them by criminal sanctions using the most common grounds for jurisdiction, namely when the offence is committed in the territory of the State or when the alleged offender is a national of the State. There is no obligation to establish jurisdiction over cases where the alleged offence was committed abroad by a non-national, although States may exercise such jurisdiction [60 ] . This reflects the principle of permissive universal jurisdiction for war crimes, according to which all States have jurisdiction to try non-nationals for war crimes committed abroad but are under no obligation to do so if the crimes do not amount to grave breaches. This also follows clearly from the acknowledgement that States may establish jurisdiction over such persons under applicable national or international law, including customary international law [61 ] , and from the statement by the Chairman of the Working Group on Chapter 4, referred to above, that nothing in the Protocol limits in any way the ability of the State to legislate, criminalize or otherwise deal with any of the serious violations of the Protocol. [62 ]

 The scope of application  

The Second Protocol applies equally to international and non-international armed conflicts [63 ] . The extension of the application of the Second Protocol to non-international armed conflicts is essential. Most modern armed conflicts are non-international, and histor y has shown that the protection of cultural property in such conflicts can be problematic.

Furthermore, developments since the adoption of the Hague Convention in 1954 should not be forgotten. Additional Protocol I establishes a coherent system of criminal repression but only as far as international armed conflicts are concerned. It is of particular importance, as a result, that the entire Second Protocol, including the section on criminal repression, apply to non-international armed conflicts. This reflects the modern tendency of legislation, for example, no longer to distinguish between international and non-international armed conflict when it comes to repression of violations of international humanitarian law. In addition, under its Statute, the International Criminal Court has jurisdiction over war crimes committed against cultural property in both international and non-international armed conflict.

At the request of China and India, a phrase was added to the effect that nothing in the Protocol shall prejudice “the primary jurisdiction” of a State in whose territory a non-international armed conflict occurs over the serious violations of the Protocol. This means, in reality, that the territorial State has the primary responsibility to exercise jurisdiction over such violations: to investigate, prosecute and punish the offenders. It clearly implies, however, that if such jurisdiction is not exercised, jurisdiction may be exercised by other States or by international criminal tribunals with the competence to do so.

Although Article 22 of the Second Protocol does not spell it out as clearly as it could have, the Protocol applies to all parties to a non-international armed conflict, whether governmental or insurgent forces. This was clearly acknowledged at the final plenary session. A certain confusion arose because Article 1 of the Protocol defines the word “Party” as a State Party to the Second Protocol. However, the unde rstanding was that throughout the text the word “Party” in the phrase “Party to the conflict” includes rebel groups of States party to the Second Protocol but not third States which have not ratified the Second Protocol [64 ] . The reasoning was that non-governmental forces involved in a non-international armed conflict within a State party to the Protocol are bound by the Protocol through the ratification of the State concerned. [65 ]

 Conclusion  

The adoption of the Second Protocol is an important step forward in the legal protection of cultural property in armed conflict. The Protocol addresses the weaknesses of the 1954 Convention and offers adequate solutions. Its main achievements are that it :

  • clarifies the obligations to take precautionary measures and disseminate the Convention and the Second Protocol ;

  • updates the 1954 Convention by introducing concepts contained in Additional Protocol I of 1977 ;

  • offers the opportunity to make the regime of “special protection” effective by replacing it with a new and improved system of “enhanced protection” ;

  • improves the enforcement mechanism by defining serious violations which have to be punished with a criminal sanction and by imposing a duty upon States to establish jurisdiction over those violations ;

  • develops humanitarian law by defining those serious violations and by extending the scope of application to non-international armed conflicts.

Another beneficial effect of the Second Protocol is that more attention has been given to the 1954 Convention itself. As a result, a considerable number of States have ratified the 1954 Convention since the review process started and more are in the process of ratification. Much remains to be done, especially as far as marking of cultural property and dissemination are concerned, but at least awareness of the problems has been heightened.

While human life is still more important than objects, it is nevertheless essential to have rules protecting cultural property, as such objects constitute the collective memory of humanity, examples of its greatest achievements, and symbolize human life itself. If cultural property is destroyed, civilian life suffers greatly as well.

 Notes  

 1. “All things of value are defenceless.” A famous line by the Dutch poet Lucebert (author’s translation).

 2. Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague, 14 May 1954, reprinted in Dietrich Schindler and Jiri Toman (Eds.), The laws of armed conflicts: A collection of conventions, resolutions and other documents , 3rd ed., Martinus Nijhoff/Henry Dunant Institute, Dordrecht/ Geneva, 1988, pp. 745-759.

    

 3. Protocol for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague, 14 May 1954, ibid ., pp. 777-782.

 4. Patrick J. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954) , UNESCO, Paris, 1993, p. 19.

 5. UNESCO Doc. HC/1999/1, 9 October 1998.

 6. See Synoptic report with its Addendum and Corrigendum of comments on the Preliminary Draft Second Protocol to the 1954 Hague Convention received from High Contracting Parties to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954, other UNESCO Member States and international organizations, UNESCO Docs. HC/1999/4, 15 January 1999, HC/1999/4/Add.1, March 1999, and HC/1999/4/Add.1/Corr.1, 18 March 1999. Military and legal aspects of the preliminary draft were further discussed in the light of modern humanitarian law at an Expert Meeting on the Improvement of the 1954 Hague Convention, Leiden (Netherlands), 17-18 December 1998.

 7. Draft Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO Doc. HC/1999/1/rev.1, February 1999.

 8. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague, 17 May 1999, UNESCO Doc. HC/1999/7, 26 March 1999.

 9. 1954 Convention, Article 39(5).

 10. Second Protocol, Article 5.

 11.  Ibid ., Article 29.

 12.  Ibid ., Article 24.

 13.  Ibid ., Article 29(4).

 14. 1954 Conv ention, Article 25.

 15. Second Protocol, Article 30.

 16. Boylan, op. cit. (note 4), pp. 54-57.

 17. See Burrus M. Carnahan, “Lincoln. Lieber and the laws of war: The origins and limits of the principle of military necessity”, American Journal of International Law , Vol. 92, 1998, 213, and Horace B. Robertson, Jr., “The principle of military objective in the law of armed conflict”, in Michael N. Schmitt (Ed.), The Law of Military Operations — Liber Amicorum Professor Jack Grunawalt, International Law Studies, Vol. 72, Naval War College Press, Newport, Rhode Island, 1998, p. 197.

 18. Regulations Respecting the Laws and Customs of War on Land, signed at The Hague, 18 October 1907, Article 23(g), in Schindler/ Toman, op. cit. (note 2), p. 83.

 19. This was in part because some documents which had identified such limits had failed to become binding treaty law. See, e.g., Article 24(1) of the Hague Rules of Air Warfare, drafted by a Commission of Jurists at The Hague, Dec. 1922 - Feb. 1923, in Schindler/Toman, op. cit. (note 2), p. 210 : “Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent”.

 20. Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 , ICRC/Martinus Nijhoff, Dordrecht/Geneva, 1987, p. 395, quoting Éric David, La protection des populations civiles pendant les conflits armés , International Institute for Human Rights, VIIIth Teaching Session, July 1977, Strasbourg, p. 52.

 21. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), in Schindler/Toman, op. cit. (note 2), pp. 621-688.

 22.  Ibid ., Article 57(3) which provides that “when a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack of which may be expected to cause the least danger to civilian lives and to civilian objects [and which is not cultural property ] .” The text in brackets shows how Arti-

cle 57(3) would read for States having adopted both Additional Protocol I and the Second Protocol.

 23. ICRC Commentary, op. cit. (note 20), p. 636, para. 2021.

 24.  Ibid ., p. 636, para. 2021.

 25.  Ibid ., p. 621, para. 1955.

 26.  Ibid .

 27.  Ibid .

 28. Even though Article 53 deals with the use of very special cultural property only, for example cultural property on the International Register of Cultural Property under Special Protection or the new List of Cultural Property under Enhanced Protection, the author will argue below that there is no need to differentiate between the ways in which special or enhanced protection, on the one hand, and general protection, on the other, is lost.

 29. ICRC Commentary, op. cit. (note 20), p. 648, para. 2079.

 30.  Ibid . (emphasis added). — See also Michael Bothe, Karl Josef Partsch, Waldemar A. Solf, New Rules for Victims of Armed Conflicts, Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff, The Hague/Boston/London, 1982, p. 334, para. 2.6.

 31. Second Protocol, Article 6(b). It is noteworthy that the Protocol speaks of “a waiver on the basis of imperative military necessity”, because that is the language used in Article 4(2) of the 1954 Convention. The Second Protocol is additional to the 1954 Convention.

 32.  Ibid ., Article 6(c).

 33. 1954 Convention, Article 8(1).

 34.  Ibid ., Article 8(6).

 35. These are: Vatican City (18 January 1960), a refuge at Alt-Aussee in Austria (17 November 1967), six refuges in the Netherlands (Zandvoort (2), Heemskerk (2, cancelled on 22 September 1994), Steenwijkerwold (cancelled on 22 September 1994), Maastricht (12 May 1969)) and the central Oberrieder Stollen refuge in Germany (22 April 1978). See International Register of Cultural Property under Special Protection, UNESCO Doc. CLT-97/WS/12, August 1997.

 36. 1954 Convention, Article 8(1)(a).

 37. Jiri Toman, The Protection of Cultural Property in the Event of Armed Conflict, Dartmouth/Unesco, Aldershot/Paris, 1996, pp. 108-109.

 38. Second Protocol, Article 10.

 39.  Ibid ., Articles 11(5) and 11(7).

 40. See Toman, op. cit. (note 37), pp. 108-111, for examples of important cultural property that, for one reason or another, has not been included in the International Register of Cultural Property under Special Protection.

 41. 1954 Convention, Article 11(2).

 42. Second Protocol, Article 13 (emphasis added).

 43. See Additional Protocol I, Article 59.

 44. Second Protocol, Article 6(d).

 45. Additional Protocol I, Article 57(2)(c).

 46.  Supra , note 32.

 47. 1954 Convention, Article 11(2).

 48. Second Protocol, Article 13(2)(c).

 49. 1954 Convention, Article 28.

 50. Second Protocol, Article 18(2)

 51.  Ibid ., Articles 17.20.

    

 52. Horst Fischer, Presentation of the Results of the Working Group on Chapter 4, UNESCO Doc. HC/1999/INF.5, 25 March 1999, p. 2.

 53. Additional Protocol I, Article 85(4)(d).

 54. Second Protocol, Article 16(1).

 55.  Ibid ., Article 16(2)(b).

 56.  Ibid ., Article 16(2)(a).

 57. Fischer, op. cit. (note 52), p. 3.

 58. Second Protocol, Article 16(2)(chapeau).

 59. Toman, op. cit. (note 37), p. 294 (emphasis in original).

    

 60. Second Protocol, Article 16(2)(a).

 61.  Ibid ., Article 16(2)(a).

 62. Fischer, op. cit. (note 52), p. 3.

    

 63. Second Protocol, Articles 3 and 22.

 64. Third States which have not ratified the Second Protocol are generally referred to as “party” (in lower case).

    

 65. It is unfortunate that recognition of the potential confusion of the definition of “Party” and the use of the term “Party to the conflict” came only in the last hours of the Diplomatic Conference. As a result, there was no discussion on whether the general understanding that the Second Protocol applies to governmental forces and rebel groups in a non-international armed conflict is also valid for Article 11(9). It is difficult to say whether this was indeed the intention of States, as the Working Group on Chapter 3 (Enhanced Protection) did not discuss the issu e.

 
Abstract in French  


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