The origins and development of the legal protection of cultural property in the event of armed conflict
14-11-2004 Article, by François Bugnion
50th anniversary of the 1954 Hague Convention for the protection of cultural property in the event of armed conflict.
One understands easily the amazement of the poet, seeing that man, the frailest of all creatures, succeeded in dominating all others. But the greatest wonder may be the fact that man, as soon as he was able to rise above the daily fight against hunger, gave a free rein to his creative spirit and invented forms that are beautiful and that speak to us even today. Long before they knew how to build huts, let alone houses, our first ancestors adorned the walls of their caves with splendid paintings, which no one can gaze at without emotion. The first ceramists took care to decorate their pots, the first blacksmiths smelted jewels in bronze or gold, which our museums are proud to display, the first men carved bamboo or bone to make flutes. We will never hear their music, but we know they played.
This creative spirit can be traced through all periods, and every generation, every continent enriched the cultural heritage which is the pride of humanity today. Art is a universal language and culture allows us to communicate across borders.
But all too often, culture is also manipulated by those who believe that the protection of their identity or interests implies rejecting others. Far from uniting peoples, culture is then used – or misused – to separate and divide.
Under such conditions, it is hardly surprising that wars lead to the destruction of monuments, places of worship and works of art numbered among the most precious creations of the human spirit.
Some of this destruction is accidental. In other cases, belligerents have used the argument of military necessity to justify the destruction of cultural property. That was the argument advanced by the United States for the shelling in February 1944 of the famous abbey of Monte Cassino, in the heart of the German defence system that was blocking the Allied advance on Rome .
But in most cases, such destruction is deliberate. When monuments, places of worship and works of art are attacked, the aim is to destroy the enemy’s identity, his history, his culture and his faith, so as to eradicate all trace of his presence and, in some cases, his very existence.
“Delenda est C artago” – “Carthage must be destroyed”, Cato kept repeating. And that proud city was indeed destroyed. Not a monument, not a temple, not a tomb was spared. Tradition has it that salt was spread on the ruins, so that the very grass would never return. Even today, when one strolls through the ruins of this ancient city – which once ruled half the Mediterranean and rivalled Rome – one cannot help but be struck by how little is left, evidence of the savagery with which it was destroyed.The same fate befell Warsaw at the end of the Second World War. Not a monument, not a church, not a building was left standing. And we could quote n umerous recent examples. We all remember the countless churches, mosques, monasteries and even cemeteries that were destroyed during the conflicts in the former Yugoslavia. And we all remember how the Buddhas of Bamiyan were destroyed in March 2001  . In each case, the target was not just the monument, it was also and above all the collective consciousness of the people concerned.
Similar tenets can be found in other cultures as well, since limits to violence is the very essence of civilisation.
However, these ancient rules, generally based on religion, were respected by peoples who shared the same culture and honoured the same gods. Where war s involved peoples of different cultures, such rules were often ignored. We all know what destruction took place during the Crusades and the wars of religion. In reality, attempts to draw up rules of law protecting cultural property in war are a comparatively recent phenomenon.These rules are founded on the basic principle of distinguishing between military objectives, on the one hand, and civilian persons and objects, on the other. Jean-Jacques Rousseau (1712-1778) deserves credit for having been the first to express this distinction clearly: “War is not, therefore, a relationship between man and man, but between State and State, in which individuals become enemies only by accident, not as men, nor even as citizens, but as soldiers; not even as members of their own nation, but as its defenders.”  The principle of distinction between military objectives and civilians or civilian property underlies all the laws and customs of war, and in particular the rules regarding the conduct of hostilities. Under the Hague Conventions of 1899 and 1907, it is forbidden “to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.”  “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”  “The pillage of a town or place, even when taken by assault, is prohibited.”  Alarmed by the development of air bombardment during the First World War, the Conference on the Limitation of Armament, convened in 1922, mandated a commission of jurists to draft rules on air warfare. The commission met from 11 December 1922 to 19 February 1923 and drew up a set of rules aimed at restricting air bombardment to military objectives.  Unfortunately, these rules were never ratified and we know the extent of destruction wrought from the air during the Second World War. The 1949 Diplomatic Conference, which drafted the Geneva Conventions now in force, updated the rules protecting wounded, sick and shipwrecked military personnel, army medical services, prisoners of war and civilians in the hands of the adversary, but hardly revised the rules on the conduct of hostilities. It is thus primarily through the adoption, on 8 June 1977, of the Protocols additional to the Geneva Conventions of 12 August 1949 that rules governing the conduct of hostilities and the protection of civilians and civilian property against the effects of hostilities were reaffirmed and developed.  It is generally agreed that the majority of the provisions of Additional Protocol I regarding the conduct of hostilities are an expression of customary rules which, as such, apply to all belligerents, whether or not they are bound by the Protocol. It is also agreed that these rules apply to all armed conflicts, international or non-international. 
Cultural objects are civilian property, and as such are protected by all these provisions. It is forbidden to use them for military purposes or to attack them intentionally. Every precaution must be taken in both attack and defence to avoid endangering them. Furthermore, it is forbidden to pillage them.
However, this general protection, which applies to all civilian property, does not always suffice to ensure the protection of those cultural objects that constitute the heritage of humanity. In view of their nature, and of what such objects represent for humanity, it was decided to accord them special protection.As early as the mid-eighteen century, Emer de Vattel (1714-1767) put forward the principle of respecting sanctuaries, tombs and other buildings of cultural significance. In his major treatise, The Law of Nations or the Principles of Natural Law , he writes: “For whatever reason a belligerent plunders a country, he should spare buildings that are the pride of mankind and do not strengthen the enemy. Temples, tombstones, public buildings, and all other works of art distinguished for their beauty; what can be the advantage of destroying them? Only an enemy of mankind can thoughtlessly deprive humanity of those monuments of art, the exemplars of artistry.”  At the end of the Napoleonic wars, the Allies demanded the return of countless works of art pillaged by Napoleon’s armies as they conquered various countries, because the removal of works of art was deemed “contrary to every principle of justice and to the usages of modern warfare.” 
Article 17 of the Brussels Declaration of 27 August 1874 stipulated that if a defended town, fortress or village were to be bombarded, all necessary steps must be taken to spare, as far as possible, buildings dedicated to worship, art and science.Similarly, the Hague Convention Respecting the Laws and Customs of War on Land of 18 October 1907 established the principle of immunity for cultural objects, even in case of siege or bombardment: “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.”  In occupied territory, the Convention prohibited the seizure or destruction of, or the inflicting of wilful damage to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art, even if they were State property. 
Sadly, these provisions failed to prevent widespread damage to cultural objects during the First World War and, on an even greater scale, the Second World War.
The States therefore decided that preventing the recurrence of such destruction demanded a convention specifically directed at the protection of cultural property. This was the origin of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, of which we are celebrating the 50th anniversary.
As not all States are bound by this Convention, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, which met in Geneva from 1974 to 1977, inserted an article protecting cultural property in the two Protocols additional to the Geneva Conventions.
Article 53 of Protocol I contains the following provision:
“Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited:
(a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;
(b) to use such objects in support of the military effort;(c) to make such objects the object of reprisals.” 
Article 16 of Additional Protocol II, which applies to non-international armed conflicts, also prohibits any acts of hostility directed against cultural property and its use in support of the military effort.
It is generally agreed that these provisions are an expression of customary rules which, as such, apply to all belligerents, whether or not they are bound by the Additional Protocols.Finally, the Statute of the International Criminal Court, adopted in Rome on 17 July 1998, classes as war crimes: " ... Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, [... ] provided they are not military objectives.” 
This somewhat hasty review of the main instruments applicable to the protection of cultural property in the event of armed conflict does allow us to make certain comments.
Cultural property hence enjoys twofold protection:
it is protected by virtue of being civilian property, and all the provisions regarding the protection of civilian property and objects apply;
it is protected more specifically under the provisions on the protection of cultural property in the event of armed conflict.
The two types of protection are not mutually exclusive. Rather, they overlap.
Regarding the sources of the protection regime, we note that both Article 53 of Protocol I and Article 16 of Protocol II stipulate that they are without prejudice to the provisions of the Hague Convention of 14 May 1954. The provisions of the Protocols additional to the Geneva Conventions and those of the Hague Convention, far from being mutually exclusive, complement one another.
Two questions remain:
Does the protection of cultural property fall under the heading of international humanitarian law?
Should the International Red Cross and Red Crescent Movement concern itself with the matter?
Let us start with the first question: Does the protection of cultural property fall under the heading of international humanitarian law? Of this there can be no doubt. The destruction of cultural property is not aimed just at the object in question. When a cultural object is destroyed, it is always people who are the real target. The object itself does not provoke hostility.
Conversely, by protecting cultural property, one is attempting to protect not only monuments and objects, but a people’s memory, its collective consciousness and its identity, and indeed the memory, consciousness and identity of all the individuals who make up that people. Ultimately, we do not exist outside of our families and the social frameworks to which we belong.
Close your eyes and imagine Paris without Notre Dame, Athens without the Parthenon, Giza without the pyramids, Jerusalem without the Dome of the Rock, the Al-Aqsa Mosque and the Wailing Wall, India without the Taj Mahal, Cambodia without Angkor Wat and the Bayon, Peking without the Forbidden City, New York without the Statue of Liberty, Moscow without Red Square and St. Basil’s Cathedral or Samarkand without the Registan and the Gur Emir, would we not all have lost part of our identities?
There can therefore be no doubt that the protection of cultural property is part and parcel of international hum anitarian law. Furthermore, the correlations between the 1954 Hague Convention and the 1949 Geneva Conventions are too numerous for anyone to question their closeness. Finally, the essential provisions of the 1954 Convention are reiterated in Article 53 of Additional Protocol I and Article 16 of Additional Protocol II.
To consider the protection of cultural property as part of humanitarian law is also justified in that the protection of cultural property is closely linked with other issues of international humanitarian law that are high on the agenda today, such as the prohibition or restriction of certain means and methods of warfare, the definition of military objectives, and the principle of proportionality between incidental damage and the military interest of a target.
This brings us to the second question: Should the Red Cross and Red Crescent concern themselves with the matter?The 1954 Hague Convention entrusts the supervision of its implementation to the protecting powers responsible for safeguarding the interests of the parties to the conflict, and to UNESCO.  The Convention does not give the International Committee of the Red Cross a specific mandate to ensure compliance with its provisions. However, there is no doubt that the ICRC is expected to work for the faithful application of Article 53 of Additional Protocol I and Article 16 of Additional Protocol II, just as it is expected to work for the respect of all other provisions of the Geneva Conventions and their Additional Protocols.
National Red Cross and Red Crescent Societies share our concern for the protection of cultural property in the event of armed conflict. In November 2001, the Council of Delegates, in which all the National Societies are represented, adopted an important resolution on this issue. With this resolution, the Council recognized that cultural objects are essent ial to the identity of all peoples. It also noted with appreciation the increasing role played by the ICRC, in cooperation with UNESCO, in encouraging ratification and implementation of the 1954 Hague Convention and its two Protocols. Lastly, it encouraged National Societies to include the Hague Convention and its Protocols in their activities to promote, disseminate and implement international humanitarian law, and invited the States that have not yet done so to become party to those instruments. Many concrete steps have already been taken to implement this resolution. It is thus fitting that one of the first studies on the 1954 Convention was published under the evocative title: “The Red Cross for monuments.” 
1. Sophocles, Antigone , verses 332-333 (the Greek word “Üíèrùðïò” used by Sophocles designates the human being, male or female).
2. Located on a rocky hilltop dominating the Liri and Rapido rivers, the old monastery of Monte Casino, founded in 529 by St Benedict of Nursia, was at the heart of the German defensive line blocking the Allied advance on Rome in the winter of 1944. Beginning on 18 January of that year, the Allies launched a series of offensives in order to force their way through, but they met with fierce resistance by the Wehrmacht . Erroneously believing that the Germans had occupied and fortified the monastery, the Allies bombed and dest royed it on 15 February. The Germans then occupied and fortified the ruins. It was not until 18 May 1944 that the Allies finally broke through German lines. Within a few says, they were able to capture Rome. The monks and the precious collections of books and manuscripts had been evacuated before the bombing. After the war, the monastery was reconstructed with American assistance.
3. Under the pretext of eliminating all traces of idolatry, Mullah Muhammad Omar, the spiritual leader of the theocratic Taliban regime that had ruled Afghanistan since September 1996, issued on 26 February 2001 a decree ordering the destruction of all pre-Islamic sculptures, including the two monumental statues of Buddha carved in the cliffs facing Bamiyan. Despite worldwide protest, Taliban troops destroyed the statues on 8 March 2001. Keesing's Record of World Events , February and March 2001, pp. 44003 and 44053.
4. Thus, le Nazi regime ordered the systematic destruction of all synagogues, Jewish schools and cultural centres, monuments and even cemeteries that could testify to the Jewish presence on the territory of the Reich and in occupied Europe. Books and works of art produced by Jewish scientists, writers and artists were taken from the libraries or museums and destroyed. Only in Prague did the Nazis preserve the synagogues, the Jewish cemetery and the Jewish town hall (also called Josephov town hall), because they planned, by an ultimate act of cynicism, to create a “museum of the extinct Jewish race,” which would have testified, by contrast, to the extent of the destruction of all traces of Judaism across Europe.
5. Pierre Ducrey, Le traitement des prisonniers de guerre dans la Grèce antique, Des origines à la conquête romaine , Éditions E. de Boccard, Paris, 1968, pp. 295-300.
6. Henry Coursier, “Étude sur la formation du droit humanitaire”, Revue internationale de la Croix-Rouge , No. 389, May 1951, pp. 370-389; No. 391, July 1951, pp. 558-578; No. 396, December 1951, pp. 937-968, ad pp. 377 and 562 (in French only).
7. Quoted in Muhammad ibn al-Hasan al-Shaybani, Kitab al-Siyar al-Kabir , with commentary by Sarakshi, pub. A. A. Al-Munajjid, Vol. I, Institute of manuscripts of the Arab League, Cairo, 1971, pp. 43 ff.; S. H. Hashmi, “Interpreting the Islamic Ethics of War and Peace,” in : The Ethics of War and Peace , Terry Nardin, Princeton University Press, Princeton, 1998, p. 61.
8. Abu Yusuf Yakub, The Book of Land Tax , quoted in Letters of Hadrat Abu Bakr Siddiq , translated by Hafiz Muhammad Adil, International Islamic Publishers, Karachi, 1984, pp. 31-32. We are grateful to our colleague Zidane Meriboute, who provided us with precious indications on the protection of cultural heritage in Islamic law.9. For a general study of the Hindu law of armed conflicts in ancient India, see H. S. Bhatia, International Law and Practice in Ancient India, 1977; Hiralal Chatterjee, International Law and Inter-state Relations in Ancient India, 1958; V. S. Mani, “International humanitarian law: An Indo-Asian perspective,” International Review of the Red Cross, Vol. 83, No. 841, March 2001, pp. 59-76; Nagendra Singh, India and International Law , Vol. 1, 1973; S. V. Viswanatha, International Law in Ancient India, 1925. For an illustrated expos ition on the law of war in ancient India, see “ War in ancient India ” in A Tribute to Hinduism – [104 pages, 23 April 2004 ] .
10. Lakshmikanth R. Penna, “Written and customary provisions relating to the conduct of hostilities and treatment of victims of armed conflicts in ancient India”, International Review of the Red Cross, No. 271, July-August 1989, pp. 333-348. The Upanishads, one of the sources of Hindu Law, consist of 112 speculative and mystical scriptures of Hinduism. They are best known for their doctrine of brahman , the ultimate and universal reality of pure being and consciousness, and the identification of brahman with atman (the inner-self, or soul), by whose realisation man transcends joy, sorrow, life and death, and is wholly freed from transmigration (Penna, loc. cit. , p. 335).
11. In the words of Megasthenes, the Greek ambassador of Seleucus Nicator at the Court of Emperor Chandragupta Maurya: “Whereas among other nations it is usual, in the contests of war, to ravage the soil, and thus reduce it to an uncultivated waste, it is the contrary among Indians, by whom husbandsmen are regarded as a class that is sacred and inviolable, the tillers of the soil, even when the battle is raging in their neighbourhood, are undisturbed by any sense of danger, for the combatants of either side in waging the conflict make carnage of each other but allow those engaged in husbandry to rema in quite unmolested. Beside, they neither ravage an enemy’s land with fire, nor cut down its trees.” Cited by Penna, loc. cit. (note 10), pp. 338-339 , who refers to J. W. McCrindle, Ancient India as described by Megasthenes , 1926, p. 33.
12. N. Singh, op. cit . (note 9), pp. 72 ff.
13. Penna, loc. cit . (note 10), p. 338. Puranas , another source of Hindu Law, are a compendium of legends and religious instructions.
14. We are most grateful to Mr Lakshmikanth Rao Penna, Professor at the Faculty of Law of the National University of Singapore, who provided us with precious indications on the protection of cultural heritage in the law of ancient India.
15. We are most grateful to Mr Jun-ichi Kato, Associate Professor at the Faculty of Care and Rehabilitation, Seijoh University, who provided us with precious indications on the protection of cultural property in Japanese tradition. We are also grateful to Mr Kentaro Nagazumi, Deputy Director, and Mrs Akiko Harasawa, staff member, Planning and Coordination Division of the International Relations Department of the Japanese Red Cross Society, who established contact with Professor Jun-ichi Kato.
16. Jean-Jacques Rousseau, The Social Contract , translated by Christopher Betts, Book I, Chapter IV, The World's Classics, Oxford University Press, Oxford, 1998, p. 51 (original French, Du contrat social, first edition, 1762).
17. Hague Regulations, Article 23 (g).
18. Hague Regulations, Article 25.
19. Hague Regulations, A rticle 28.
20. “ Rules concerning the control of wireless telegraphy in time of war and air warfare” drafted by a commission of jurists tasked with studying and reporting on the revision of the laws of war, which met at The Hague between 11 December 1922 and 19 February 1923, American Journal of International Law , Vol. 17, 1923, Supplement, pp. 245-60, and Vol. 32, 1938, Supplement, pp. 1-56. ICRC website (http://www.icrc.org/IHL).
21. Articles 35 to 67 of Protocol I; Articles 13 to 17 of Protocol II.
22. The Intergovernmental Group of Experts for the Protection of War Victims, which met in Geneva from 23 to 27 January 1995, recommended that the ICRC be invited to prepare, with the assistance of experts on international humanitarian law representing various geographical regions and different legal systems, and in consultation with experts from governments and international organizations, a report on customary rules of international humanitarian law applicable in international and non-international armed conflicts. The 26th International Conference of the Red Cross and Red Crescent, held in Geneva in December 1995, endorsed this recommendation. More than 100 experts contributed to the study by carrying out in-depth research to establish the practices of States and belligerents during international and non-international armed conflicts. The ICRC report is currently under print.
23. Emer de Vattel, The Law of Nations or the Principles of Natural Law , Vol. II, Book III, Chapter IX, Geneva, Henry Dunant Institute, 1983, p. 139 (original french: Le Droit des gens ou principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains , first published in 1758), english translation by Charles G. Fenwick, in The Classics of International Law , Geneva, Slatkine Reprints, Henry Dunant Institute, 1983, Vol. III, p. 293 (our translation).
24. Stanislaw-Edward Nahlik, “Protection of cultural property”, in International Dimensions of Humanitarian Law , Henry Dunant Institute, Geneva, UNESCO, Paris, Martinus Nijhoff Publishers, Dordrecht, 1988, pp. 203-215, ad p. 204, citing G. F. de Martens, Nouveau Recueil de Traités , vol. II, p. 632 ff.
25. Regulations Concerning the Laws and Customs of War on Land, annexed to the Hague Convention (IV) Respecting the Laws and Customs of War on Land of 18 October 1907, Article 27.
26. Ibid ., Article 56.
27. The article does not mention the prohibition on pillaging cultural property. This is not surprising, however, as the Additional Protocol complements the Geneva Conventions and Article 33 of the Fourth Convention already states: “Pillage is prohibited.” This provision applies to all civilian property, including cultural property.
28. Statute of the International Criminal Court, adopted in Rome on 17 July 1998, Articles 8, 2, b, ix and 8, 2, e, iv. This prohibition applies to acts committed in connection with both national and international armed conflict. International Review of the Red Cross , No. 325, December 1998, pp. 679 and 681.
29. Articles 21, 22 and 23 of the 1954 Hague Convention.
30. Council of Delegates, Geneva, 11-14 November 2001, Protection of cultural property in the event of armed conflict , document drawn up by the British and German Red Cross Societies in consultation with the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies, September 2001; Council of Delegates, Geneva, 11-14 November 2001, Resolution 11, “Protection of cultural property in the event of armed conflict,” International Review of the Red Cross , No. 845, March 2002, pp. 284-285.31. René-Jean Wilhelm, “La Croix-Rouge des Monuments,” Revue internationale de la Croix-Rouge , No. 430, October 1954, pp. 793-815 (in French only).