by Siorna McFarlane

Culture and Conflict: Legislation to protect cultural property in times of war.

An overview of the 1954 Hague Act and 1999 Second Protocol.

Theft, looting and destruction of an invaded country’s heritage have been the facts of war for centuries. The history books and quite a few museums are a testimony to this. It was only in the 18^th to 19^th centuries that these activities were seen to be ‘contrary to the usage of modern war’ (Chamberlain.2004:8) and where international musings on the consequences and ethics behind the plunder turned into real legislation.

Why do we need this?

Many may rightly ask why, in a time of war, legislation is needed to protect inanimate objects when people’s lives are being destroyed. For this we have the 1949 Geneva Convention and yet,

“Someday the war will be over…..somehow shattered lives should be rebuilt. The Cultural Heritage reflects identity. Its preservation helps to rebuild broken communities, re-establish their identities and link their past with their present in the future (UNESCO quoted in Chamberlain.2004:2).

In a sense the laws to protect cultural property are laws to protect people, or the ‘memory’ of people (Chamberlain.2004:6), as monuments, archaeology and other tangible cultural forms are evidence of human activity in the past. What lies at the heart of protecting cultural heritage is the idea that archaeological sites and objects are a non-renewable resource (Hotlof.2001:286) and take on a universal value. Humanity should protect cultural property for the benefit of all societies and future generations.

Legislation involved

The lead up to the First World War saw two pieces of legislation set out to determine how cultural property would be protected in times of conflict.

The Hague Conventions of 1899 and 1907

These determined the conventions of war on land which prohibited pillaging and required armies to spare edifice of religion, art, and hospitals which were not being used for military purposes. Article 27 of 1899 stated that these constructions should all have a visible sign to distinguish them. The 1907 Convention hammered out further conditions, notably that it was now forbidden to wilfully destroy cultural property and defined a penalty of legal proceedings (Chamberlain.2004:13).

The massive destruction of heritage during the World Wars demonstrated that the legislation from 1899 and 1907 was not adequate to protect the past. No prosecutions for the destruction of cultural property were made after WWI (Nafziger.2003) and it was only after the Nuremburg trials in 1945-1946 that the first international precedent of enforcing cultural property law made its way into the court room, with the ‘confiscation, destruction and damage to cultural property’ on the list of war crimes (ibid).

1954 Hague Convention and the First Protocol

From world developments it was quite clear that a new form of protection was needed and on the 21^st April to the 14^th May 1954, fifty six States sat down to devise the legislation which would become the Hague Act of 1954.

Based on the premise that cultural property is important to all humanity, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict aimed to provide special protection to all immovable and movable objects in times of war, regardless of their origin or current owner so long as they were examples of great significance to all people. 

These cultural properties were to be listed on an international registry at UNESCO and participating states were obligated to safeguard them from foreseeable effects of armed conflict by taking such measures as they deemed appropriate in peacetime and during war.

Some examples of the cultural property that was extended this protection included:

● Monuments of architecture, art or history

● Archaeological sites

● Works of art

● Manuscripts, books and other objects of artistic, historical or archaeological interest

● Scientific collections and important collections of books or archives

(Chamberlain.2004:31)

Some measures of protection:

• Refugee centers
• A register
• Transport in special circumstances
• A distinctive emblem or an identifying marks on cultural sites
• Inventory lists

A few problems:

During the forty years from 1954 to 1994 only one centre containing monuments and eight refuges were listed on the international register (Chamberlain.2004:192). There are several good reasons for this.

• Distance

For an application to be successfully registered on the list, the cultural property had to be an adequate distance from industry or military buildings (Chamberlain.2004:49). The ‘distance’ was not qualified and effectively ruled out all cultural property in city centres.

•      Adequate measures in peace time

The legislation offered suggestions for protective measures which a State should carry out in peacetime to safe guard the cultural property such as: protection against collapse or fire, and providing refuge locations for cultural property. Some States found that these provisions were too intrusive, with the UK and France both asserting that this activity was the responsibility of the State’s government (Records quoted in Chamberlain.2004:34).

• Funding

The cost of these provisions was also seen as a deterrent as no funding was available to implement them (Chamberlain. 2004:35).

• Imperative military necessity

As with the 1899, 1907 and the 1949 Geneva Convention the clause “imperative military necessity” (Article 4.2) acted as an override to the legislation and waived legal authority to protect cultural property if it was being used for military purposes (Chamberlain.2005:37). This article caused controversy at the time as the definitions of ‘necessity’ were not defined and left the article open to the interpretation of attacking states and the commander in charge.

• Political motivations

Cultural property entered on to the special protection registrar can be challenged by other member States and the requirement to sign up did become politically charged (www.mch.govt.nz). 

 A number of countries, including the UK, did not ratify the 1954 legislation, with only thirty seven states out of fifty six actually signing up. The general feeling was that the new act did not offer an effective method of protecting cultural property, and there are plenty of examples which back this up, such as the destruction of the World Heritage site Mostar Bridge in 1993 during the Bosnian War (http://whc.unesco.org/en/list/946). The old bridge was destroyed not because military tanks occupied its space, but for its symbolic meaning of literally bridging the gap between the ethnically divided town of Mostar.

The 1954 Act to provide ‘special protection’ had proven to be an almost fruitless endeavor and with further criminal, humanitarian and other international legislation in the intervening years, the Netherlands Government and UNESCO actively worked towards enhancing the legislation to combat some of the problems.

It should be noted that the First Protocol’s concern for the theft of cultural property was superseded by the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This Convention requires States Parties to regard as 'illicit' the export and transfer of ownership of cultural property under compulsion from a territory under occupation.

Second Protocol 1999

In March 1999 the second protocol was put in place as a supplement to the 1954 Hague Act, rather than an amendment, with States only becoming parties to this protocol once they had ratified the 1954 Act (Chamberlain. 2004:171-172).

Five main areas were addressed:

1)       Imperative military necessity.

The Second Protocol used the 1977 Addition to the Geneva Convention to expound on the type of military objective which could legitimize the destruction of cultural property in times of war (Chamberlain.2004:180). Under the 1977 Addition, cultural property was grouped with civilian property and as such could only be attacked if it became a ‘military objective’ (ibid). For cultural property to be deemed a military objective it would have to:

• Be functioning at the time as a military threat.
• Have no feasible alternatives available to obtain a similar military advantage

(Chamberlain.2004:181).

In practice this has lead to a briefing sheet given to Junior ranks in the military on the Protection of Cultural Property in the Event of Armed Conflict in the hope that incorporating these principles in regular field training will ensure they ‘become an automatic and accepted way of behaving in action’ (http://www.unesco.org/culture/____OLD/legalprotection/war/html_eng/index_en.shtml).

Although clarifications and compromises have now been made, the subjective nature of this provision remains intact and it is questionable whether a commanding officer can really offer an objective view of cultural heritage in wartime.

2)       Precautionary measures.

Under the amending protocol in Article 29 a fund was set up to help States take precautionary measures in peace time such as inventorying and documenting the cultural property (Chamberlain. 204:179).

3)        Enhanced protection.

The system of special protection was overridden by an enhanced protection list. In addition, the problem of proximity to industrial and military locations was replaced by asking a question of the cultural property’s use. The cultural property would be immune from attack so long as it was not used to shield military purposes (Chamberlain.2004: 193). Enhanced protection also expanded the definition of cultural property beyond movable objects and monuments to include museums and other institutions.

Three criteria were set in place to enable a State to put forward their cultural property onto the enhanced protection list.

a)      It had to be of the ‘greatest importance for humanity.’ The similarity to the UNESCO World Heritage List, established in 1972, is extremely clear, with this criterion almost identical to ‘outstanding universal value’.

b)      The property must be protected by the country’s legal and administrative measures, which recognize this importance.

c)      The property must not be used for military purposes, or as a shield for these activities.

(Chamberlain.2004: 193)

By agreeing to these terms a State would be creating international law.

4)       Individual criminal responsibility.

The second protocol took stronger action than any previous piece of legislation to create an effective framework for building a case against crimes against cultural property. To do this it defined five acts which would contravene international and internal armed conflict law if the offender(s) acted with conscious intention (Chamberlain.2004:206). This duality of international and internal law, which was previously absent in the first protocol, reflects the trend set in the Statute of the International Criminal Court (ICC) (Chamberlain.2004.239).

The five acts are to:

a)      Attack an enhanced protected cultural property.

b)      Use enhanced protected cultural property, or the surrounding area, to support military action.

c)      Extensively destroy cultural property under Convention protection.

d)      Make enhanced protected cultural property the object of an attack.

e)      Pillage, thieve, or commit acts of vandalism against cultural property under the Convention’s protection.

(Chamberlain.2004:205).

Although the legislation here is clear, committing one of the five acts does not automatically mean that a prosecution will occur. This action must be taken up at a national level and it is up to the discretion of the domestic laws that govern the State as to how legal procedures, if at all, will be carried out (Chamberlain.2004:208). However, there is the option to transfer the case to the International Criminal Tribunal (Chamberlain.204:212), or to ask for mutual legal assistance from other countries (Chamberlain.204:214). Important problems to highlight are that no criminal prosecutions may occur, or that the punishment, be it the death penalty or a term in jail, depends entirely on which State the crime occurs in. 

The second protocol also established individual criminal responsibility for acts against heritage, taking as its point of reference existing laws from the ICC, which describes action not just against the individual who committed the crime, but anyone who helped or was party to the alleged offence (Chamberlain.2004:209).

It also required each state to set up a ‘universal jurisdiction’ in Article 16 so that there were provisions:

1)      For acts of violence occurring in the territory.

2)      For when an alleged offender is a national of the State.

3)      For when the offence is committed abroad by a non national, but present in the State.

(Chamberlain.2004:210)

The US requested a sub clause for this article, in Article 16b, which aimed to exclude nationals of States, or members of the military, who were not party to The Hague Act, or the second protocol from universal jurisdiction (ibid). This would effectively exempt the US from criminal justice if they committed any of the five acts listed above. However, it is believed that Article 16a sufficiently negates the severity of the US’s request as it reads ‘States may establish jurisdiction over such persons under applicable national or international law, including customary international law’ (Chamberlain.2004.211), which identifies that the non member States, such as the US are still subject to the laws identified in the ICC.

5)       Institutional aspects.

Previously, meetings between member States were initially sporadic (Chamberlain.2004:85) and the Second Protocol put in place a ‘Meeting of the Parties’ organized every two years to coincide with the General Conference of UNESCO and also set up a committee for the ‘Protection of Cultural Property in the Event of Armed Conflict’ (Chamberlain.2004.221, 222). This committee includes twelve members elected at the former meeting. Members are actually States, rather than individuals, with each Member State electing a representative for four years, with a maximum of two terms available (Chamberlain.2004.223). This Committee rules on decisions such as: the enhanced protection list, funding for precautionary measures, and international assistance when this is considered necessary (Chamberlain.2004.226).

Looking at the number of parties that have accepted or ratified The Hague Act after the second protocol (http://erc.unesco.org/cp/convention.asp?KO=15207&language=E ) it is clear that it has succeeded in rectifying some of the major problems of the original documents from the 1954 Act. However, the legislation is still unable to prevent the destruction of heritage in the event of armed conflict.

In 2001 and again in 2007, the Taliban attacked the Bamiyan Buddhas, an act described as a ‘crime against culture’ by the UNESCO Director-General Koïchiro Matsuura (www.unesco.org/bpi/eng/unescopress/2001/01-38e.shtml). These magnificent ancient art rock carvings are still on the World Heritage in Danger list and the example proves that marking a cultural property as valuable and worth protecting highlights it for attackers wishing to make a statement of power. This should not diminish the principles that The Hague Act, along with the second protocol, sets out to achieve. The fact that the US and the UK have not ratified the convention does belittle the power that the act can have because, for it to work properly, as many States as possible need to agree to its principles.

 Alternative views may argue that the loss of tangible heritage is not as catastrophic as a western historian or archaeologist might suppose, with some societies using the opposite approach to create identity. In Brazil cultural property is purposefully destroyed to make way for modernity (Funari.2001: 93-101). Yet the reaction to the reconstruction of the Mostar Bridge in 2004 demonstrated the emotional link humanity has with heritage (http://news.bbc.co.uk/1/hi/world/europe/3919047.stm). It established a reconnection with Bosnia’s past identity, which was one of unification for Muslims and Croats, not one of division and hate.

The international reaction to the conflict in Baghdad, where the Iraq Museum was looted of 12,000 artefacts (Gibson.2003) and the Iraq National Library and Archives was burnt down (Biggs.2003), also suggests that there is still an overwhelming universal emphasis on protecting heritage, regardless of which nation it currently resides in. It goes against approaches such as Carman who advocates that ‘archaeological material is not protected because it is valued, but rather it is valued because it is protected’ (Carman quoted in Hotlof.2001: 289). The legislative developments were created because the knowledge gleaned from past objects is important for understanding humanity’s evolution and should be safeguarded for present and future generations.  

Bibliography

Biggs, R. 2003. ‘Cuneiform Inscription in the looted Iraq Museum’ in Art Loss in Iraq IFAR Journal Vol 6, Nos1&2.

Chamberlain, K.2004. War and Cultural Heritage. An analysis of the 1954 Convention for the protection of Cultural Property in the Event of Armed Conflict and its Two Protocols. Institute of Art and Law.

Gibson, M. 2003 ‘Cultural tragedy in Iraq: A report on the looting of Museums, archives and sites’ In Art Loss in Iraq IFAR Journal Vol 6, Nos1&2.

Funari, P.P.A, 2001. Destruction and Conservation of Cultural Property in Brazil: Academic and Practical challenges. In (eds.) Layton, R. Stone, P.G. and Thomas, J. Destruction and Conservation of Cultural Property. Routledge: London. 93-101.

Holtorf, C.J. 2001. ‘Is the Past a non-Renewable Resource?’ In (eds.) Layton, R. Stone, P.G. and Thomas, J. Destruction and Conservation of Cultural Property. Routledge: London. 286-294.

Nafziger, J.A. 2003. ‘Protection of cultural heritage in time of war and its aftermath’. In Art Loss in Iraq IFAR Journal Vol 6, Nos1&2.

Web Sites

BBC News ‘Mostar Bridge Opens with Splash’.

http://news.bbc.co.uk/1/hi/world/europe/3919047.stm (23/07/04)

Consultation Paper on Ratification of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and accession to its two Protocols.

 http://www.mch.govt.nz/publications/hague/consultation-paper.html

Director-General Condemns Taliban’s Crime against Culture.

http://www.unesco.org/bpi/eng/unescopress/2001/01-38e.shtml

List of Member States to Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict.

http://erc.unesco.org/cp/convention.asp?KO=15207&language=E 

Old Bridge Area of the Old City of Mostar.

http://whc.unesco.org/en/list/946

The Protection of Cultural Property - Soldiers Rules.

http://www.unesco.org/culture/____OLD/legalprotection/war/html_eng/index_en.shtml

Further reading

Henckaerts, J. 1999. The significance of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.http://www.help.cicr.org/web/eng/siteeng0.nsf/html/57JQ37

The International Committee of the Blue Shield.

http://www.ifla.org/VI/4/admin/protect.htm

Meetings of the High Contracting Parties to the 1954 Hague Convention

http://portal.unesco.org/culture/en/ev.php-URL_ID=36651&URL_DO=DO_TOPIC&URL_SECTION=201.html

The Getty: Cultural Property at War: Protecting Heritage during Armed Conflict.

http://www.getty.edu/conservation/publications/newsletters/23_1/feature.html

The Hague Act: Convention for the Protection of Cultural Property in the Event of Armed Conflict.

http://www.icomos.org/hague/

UK Consultation papers: The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols of 1954 and 1999

http://www.culture.gov.uk/images/consultations/HagueConvention.pdf

UNESCO Hague Act information.

http://portal.unesco.org/culture/en/ev.php-URL_ID=35744&URL_DO=DO_TOPIC&URL_SECTION=201.html

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