Books and reviews: presentation of four books on the protection of cultural property
30-09-1998 Article, International Review of the Red Cross, No. 324
Jean-Marie Henckaerts , ICRC Legal Division
JiÍí Toman, La protection des biens culturels en cas de conflit armé , Paris, Éditions Unesco, 1994, 490 pages
JiÍí Toman, The Protection of Cultural Property in the Event of Armed Conflict, Dartmouth Publishing Company, Aldershot / Unesco Publishing, Paris, 1996, 525 pages
Emmanuelle Stavraki, La Convention pour la protection des biens culturels en cas de conflit armé , Athènes, Éditions Ant. N. Sakkoulas, 1996, 306 pages
Jean A. Konopka (ed.), La Protection des biens culturels en temps de guerre et de paix d’après les conventions internationales (multilatérales), Genève, Imprimeries de Versoix, 1997, 163 pages
The extensive damage done to cultural property — ranging from places of worship and monuments to libraries and museums — during the confli ct in the former Yugoslavia has reminded us once again of the particular vulnerability of cultural property during war. These books are evidence of the renewed interest in this subject and help focus worldwide attention on the legal and diplomatic tools available to protect cultural property.
The foremost of these is the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. It therefore comes as no surprise that this treaty has once again been placed in the academic spotlight. It appears that the Hague Convention, as it currently stands, would provide adequate protection to cultural property if applied in good faith by the States party to it. However, the war in the former Yugoslavia proved that the protection afforded by the Convention is not sufficient in practice and that there is a need to improve the mechanisms for its enforcement. For even though the Convention has “only” 88 States Parties, the former Yugoslavia and the warring successor States were all bound by that instrument throughout the armed conflict there. The same is true for Lebanon, which though party to the Convention nevertheless suffered great damage to its cultural property during its recent civil war.
These shortcomings explain the current international initiative to review the 1954 Convention and to convene a diplomatic conference in The Hague in 1999 to adopt a new, improved treaty. This conference would fit nicely into the series of activities celebrating the centenary of the First Hague Peace Conference (1899). Whether it will come about cannot yet be predicted with absolute certainty. The 1954 Hague Convention nevertheless warrants our close attention, understanding and promotion, notwithstanding the possibility of an improved regime in future.
Toman’s book on the Convention (there is a French and an English version) meets the need for an article-by-article commentary on it that has existed since the treaty was adopted. T he author has made an invaluable contribution to the understanding and interpretation of humanitarian law. The fact that the French original of 1994 was translated and published in English in 1996 is no luxury. Other commentaries on humanitarian law, such as the ICRC commentaries on the four Geneva Conventions of 1949 and their two Additional Protocols, have become much-used standard works and are now the point of departure for those seeking to interpret these treaties. Toman’s commentary will undoubtedly assume the same position with regard to the international rules on the protection of cultural property in wartime.
The first part of Toman’s work describes the historical development of international law in this realm, the intergovernmental conference on the protection of cultural property in the event of armed conflict (held in The Hague from 21 April to 14 May 1954) and events since the adoption of the 1954 Convention.
Part II discusses the Convention’s various provisions, including the regulations for its execution. The commentary on each provision contains the text itself, references to relevant parts of the official records of the diplomatic conference, a bibliography relating to the legal issues involved, an outline of the historical background and of the preparatory work where appropriat e and, finally, a generally detailed paragraph-by-paragraph commentary.
But Toman goes into even greater detail, as suggested by the subtitle of his book: “Commentary on the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocol, signed on 14 May 1954 in The Hague, and on other instruments of international law concerning such protection.” In addition to an analysis of the 1954 Convention, the book contains the following: a commentary on the Protocol for the Protection of Cultural Property in the Event of Armed Conflict, which deals with the export of cultural property from occupied territor y and with the placing of endangered items from one State party in the custody of another State party; a description, with reference to the official records, of the resolutions adopted by the 1954 conference; and finally a commentary on the relevant provisions of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970), the Convention for the Protection of the World Cultural and Natural Heritage (Paris, 16 November 1972), and the Protocols additional to the Geneva Conventions.
The 11 annexes, containing all relevant documents, together with the select bibliography and the index, ensure that this book contains the information necessary for anyone seeking an explanation of the law on the protection of cultural property in wartime. Being a commentary, Toman’s book is naturally a handbook for use when needed rather than a work to be read from cover to cover.
Emmanuelle Stavraki’s book, by contrast, can be read from beginning to end. It is the published version of a doctoral thesis defended in 1988 at the University of Paris and deals exclusively with the 1954 Hague Convention. That this 1988 thesis was published only in 1996 is not surprising given the resurgence of interest in the subject. The strength of Stavraki’s book is that she not only sets out the legal regime for the protection of cultural property — including the protection of its transport of the personnel appointed to protect it and of its emblem — but that she devotes equal attention to the legal regime for the implementation of the Convention. And she does so in a very clear and systematic way. For this is the challenge of most if not all of humanitarian law today: effective implementation of existing law (as opposed to the creation of new law). It shows that, while there is room for improvement, the 1954 Hague Convention does in fact contain various mechanisms to achieve its implementation Each one of these mechanisms is described by Stavraki: international supervision, repression of breaches, prevention (including the establishment of consultative committees, dissemination, translation, reporting, meetings of States parties and the conclusion of special agreements).
All in all, Toman’s commentary and Stavraki’s treatise are complementary publications. Both deserve a place in every law library and every collection on international humanitarian law.
Jean Konopka’s collection of documents, finally, deals with the protection of cultural property both in time of war and peace. No less than 22 conventions are included in this collection, which not only highlights the renewed interest in the subject but also provides evidence of the wide scope of international law on cultural property in general.