Abstract
The author stresses the importance of protecting cultural property from the effects of armed conflict as its damage or destruction destroys a community’s identity and its links with its past, present and future, as well as diminishes the cultural heritage of humankind. The author draws attention to the recent destruction of cultural property in the civil war in Syria and the activities of the so-called Islamic State (ISIL) in Iraq. This chapter analyses the provisions of the principal legal instruments dealing with the protection of cultural property in armed conflict, namely the Convention on the Protection of Cultural Property in the Event of Armed Conflict (The 1954 Hague Convention), the 1954 Protocol for the Protection of Cultural Property in the Event of Armed Conflict and the 1999 Second Protocol to The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, as well as other relevant instruments of international law. While the existing legal instruments may be adequate, the problem, as with international law generally, lies in their effective enforcement, particularly in situations of non-international armed conflict where the parties to the conflict have no regard for the dictates of international humanitarian law. But once hostilities have come to an end, it will be possible to bring offenders to justice, if necessary before the International Criminal Court. In the meantime, it is important that there should be widespread adherence to The 1954 Hague Convention and its two Protocols.
The author is a Barrister, former Deputy Legal Adviser Foreign and Commonwealth Office, author of War and Cultural Heritage: A Commentary on the Hague Convention 1954 and Its Two Protocols (Institute of Art and Law, Leicester).
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Notes
- 1.
UNESCO’s website—www.unesco.org—Frequently asked questions on Armed Conflict and Heritage http://www.unesco.org/new/en/culture/themes/armed-conflict-and-heritage/frequently-asked-questions/.
- 2.
Iraq accused of sheltering behind antiquities, The Age, 2 April 2003.
- 3.
‘Lost and Found in Iraq’, The Times, 16 June 2003.
- 4.
They include the ancient city of Damascus, the ancient city of Bosra, the site of Palmyra, the ancient city of Aleppo, the castles of Krac des Chevaliers and Qal-at Salah El-Din, and about 40 ancient villages situated in north-western Syria. See: http://whc.unesco.org/en/list/21. See also: Article 11(4), 1972 World Heritage Convention, which explicitly mentions ‘the outbreak or threat of an armed conflict’ as a serious and specific danger for cultural heritage.
- 5.
See the UNESCO press release of 7 June 2013, at: http://www.unesco.org/new/en/unesco/resources/unesco-expert-mission-evaluates-damage-to-malis-cultural-heritage/. See also the UN press release, at: http://www.un.org/apps/news/story.asp/html/story.asp?NewsID=45118&Cr=+mali+&Cr1. See further Zwaagstra 2013.
- 6.
See UNESCO, ‘Damage to Timbuktu’s cultural heritage worse than first estimated reports UNESCO mission’, Press release, 7 June 2013, at: http://tinyurl.com/m72fc26.
- 7.
- 8.
- 9.
http://news.usni.org/2014/10/27/isis-funds-terror-black-market-antiquities-trade. See also UN Security Council Resolution 2199 of 12 February 2015 (S/RES/2199 (2015) which condemned the looting and smuggling of Iraqi and Syrian Cultural Property by ISIL and others in order to fund their activities and extended the prohibition on trade in illegally removed Iraqi cultural property under UN Security/Council Resolution 1483 to trade in illegally removed Syrian cultural property (paras 16 and 17).
- 10.
Article 34.
- 11.
Article 35.
- 12.
See Articles 27 and 56.
- 13.
The symbol consisted of a large stiff rectangular panel divided diagonally into two coloured portions, the upper portion black and the lower portion white.
- 14.
Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare. Drafted by a Commission of Jurists at The Hague, December 1922—February 1923, Part II Articles 25 and 26.
- 15.
Article I.
- 16.
Article III.
- 17.
The use of a distinctive symbol to protect cultural property is not new. See Convention No. IX respecting bombardment by naval forces in time of war 1907, The Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare. Drafted by a Commission of Jurists at The Hague, December 1922—February 1923, Part II Article 26 and the Treaty of Washington 1935 referred to above. But neither symbols attracted as widespread acceptance as the blue and white shield.
- 18.
See for example Rules 38–40 of the ICRC Study on Customary International Humanitarian Law: Henckaerts and Doswald-Beck 2005 pp. 127–135.
- 19.
See preamble.
- 20.
Article 3.
- 21.
Article 18.
- 22.
Article 19.
- 23.
- 24.
International Register of Property under Special Protection UNESCO Doc. 13 April 2014 CLT/CEM/CHP.
- 25.
See Chamberlain 2013, pp. 37–38 and 139.
- 26.
See Articles 49, 50, 129, 146 of Geneva Convention I, II, III and IV respectively.
- 27.
This wording has been carried forward to Article 22(2) of the Second Protocol to the 1954 Convention.
- 28.
See Pictet 1958, pp. 35–36.
- 29.
See Toman 1996, pp. 213–215. The Second Protocol now makes no distinction between international and non-international armed conflicts (see Article 3(1)).
- 30.
See Articles 8, 13 and 14 of the Statute of the International Criminal Court.
- 31.
Japan qualified its acceptance of the Protocol with the following reservation, ‘In applying the provisions of para 3 of I of the Protocol, Japan will fulfil the obligation under those provisions in a manner consistent with its domestic laws including the civil code. Japan will be, therefore, bound by the provisions of Section I of the Protocol to the extent that their fulfilment is compatible with the above-mentioned domestic laws.’
- 32.
This provision should be compared with Article 11 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property which states, ‘The export and transfer of ownership of cultural property under compulsion arsing directly or indirectly from the occupation of a country by a foreign power shall be regarded as illicit’.
- 33.
There have in fact been very few examples of the operation of para 5 in practice. At the commencement of World War II a number of objects of cultural importance were removed from Wawel Castle in Cracow Poland and eventually found their way to Canada. Just before the end of the war St Stephen’s Crown and coronation regalia were sent from Hungary to the United States for safekeeping. With the advent of the Cold War there was a reluctance on the part of both Governments to return these objects. Canada argued that it had never accepted responsibility for these objects in the first place and informed the Polish Government that if it wanted these objects back then it could bring proceedings in the Canadian courts. After lengthy negotiations the last of these objects were returned in 1961. It was not until 1978 that the United States and Hungarian Governments reached agreement on the return of St Stephen’s Crown and coronation regalia but even then an unsuccessful attempt was made to block their return through proceedings in the US courts (see O’Keefe 2004, pp. 111–112).
- 34.
- 35.
See Henckaerts and Doswald-Beck 2005, pp. 135–137.
- 36.
Articles 40, 41 and 42 of the Protocol restrict signature, ratification, acceptance or approval and accession to ‘High Contracting Parties’ defined in Article 1 as States Parties to the 1954 Convention.
- 37.
For a detailed analysis of the improvements introduced by the Second Protocol see Toman 2009.
- 38.
See Van Woudenberg and Lijnzaad 2010, pp. 45–47.
- 39.
Article 10.
- 40.
UNESCO List of Cultural Property under Enhanced Protection 20/03/2014.
- 41.
Article 16.2(b).
- 42.
Article 16.2(a).
- 43.
Article 85.4(d) defines as a ‘grave breach’ of the Protocol when committed wilfully and in violation of the Conventions and Protocol, ‘making the clearly recognised historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organisation, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of article 53, subparagraph (b) (using such objects in support of the military effort), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives’.
- 44.
Article 8 confers jurisdiction on the International Criminal Court for ‘War Crimes’. This includes under Article 8(2)(b)(ix) (international armed conflicts) and under Article 8(2)(e)(iv) (non-international armed conflicts) ‘intentionally directing attacks against buildings dedicated to religion, education, arts, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected provided they are military objectives’.
- 45.
See Note 44 above.
- 46.
See Article 13 of the Rome Statute. As already noted (see note 9 above) the Security Council in Resolution 2199 of 12 February 2015 has already taken some action by condemning the destruction of Iraqi and Syrian cultural heritage and prohibiting trade in illegally removed Iraqi and Syrian cultural objects (Articles 15–17).
- 47.
See Article 14 of the Rome Statute.
- 48.
Although both Iraq and Syria are Parties to the 1954 Convention and the First Protocol, neither are Parties to the Second Protocol.
- 49.
Cm 7298.
References
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Chamberlain, K. (2016). Casualties of Armed Conflict: Protecting Cultural Property. In: Gill, T., Geiß, R., Krieger, H., McCormack, T., Paulussen, C., Dorsey, J. (eds) Yearbook of International Humanitarian Law Volume 17, 2014. Yearbook of International Humanitarian Law, vol 17. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-091-6_11
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