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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 12 |
NEERU CHADHA[*]
One of the major causes of destruction and looting of cultural property over the ages has been armed conflict. The efforts to regulate the conduct of war have therefore invariably included provisions for safeguarding cultural property.
The relevant modern international humanitarian law concerning protection of cultural property can be traced back to Leiber Code published in 1863 (Instructions for the Governance of the Army of the United States in the Field). This Code stressed that inter-alia works of arts must be protected from injury even in fortified places while these were being bombarded. Thereafter the 1874 Declaration of Brussels, the 1880 Oxford Code, Regulations Respecting the Laws and Customs of War on Land (1899 Hague Conference), Fourth Hague Convention on Laws and Customs of War and the Ninth Hague Convention concerning Bombardment by Naval Forces in times of war (1907) carried forward these principles prohibiting inter-alia bombardment or wilful damage to historical monuments or works of art.[1]
The destruction of numerous historic monuments during the Second World War and the weakness of legal procedures for the protection of cultural property led the initiative to improve such protection. The four Geneva Conventions adopted in 1949 on Protection of War Victims contained no specific provision for the protection of cultural property, but they reinforced already existing provisions of customary international law and the Hague Conventions of 1899 and 1907 on civilian population and civilian property by prohibiting any destruction by the Occupying Power of real and personal property belonging to private persons, or to the state, except where such destruction is rendered absolutely necessary by military operations. [2]
The two Additional Protocols to the Geneva Conventions contain specific prohibition on attacks on cultural or religious property which constitutes the cultural and spiritual heritage of people and the use of this for military purposes by either attacking or defending regular or irregular forces.
Protection of cultural property is achieved under these instruments by means of two complementary rules, each involving a prohibition. It is prohibited to commit any act of hostility against the protected objects and it is prohibited to use protected objects in support of the military effort.[3]
However, more extensive provision is made by the 1954 Hague Convention for the Protection of Cultural Property during armed conflict.[4] 1977 Additional Protocol-I is expressly stated to be without prejudice to the 1954 Convention.[5] Thus, in the present-day international law the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflicts, the Regulations for its execution and the Protocol annexed to it comprise the most important instruments for the protection of cultural property.
Under the 1954 Convention the obligation to safeguard and respect cultural property is placed on both the Party in whose territory it is situated and upon adverse or occupying powers. In the former case the obligation is to refrain from any use of the property for purposes which are likely to expose it to destruction or damage in the event of armed conflicts and in the latter case is to refrain from any act of hostility directed against such property.[6]This obligation can be waived only in cases of imperative military necessity.[7] The Contracting Parties have further undertaken to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against cultural property.[8] This limitation can not be waived even for reasons of imperative military necessity.
The 1954 Convention also affords special protection to certain designated properties, e.g. refuges intended to shelter movable cultural property, centres containing monuments and other movable cultural property of very great importance. For the special protection of a cultural property a party to the armed conflict is permitted to setup a ‘limited number’ of shelters for important movable cultural property. Such a centre is designated as under special protection so long it is situated at an adequate distance from any large industrial centres or important military objectives such as an aerodrome, broadcasting station, a port or railway station of relative importance or a main line of communications. It should also not be used for military purpose and so constructed as to be immune from bomb damage.[9]
This arrangement enjoyed only a limited success and only very few applications were received for registration because of the stringent requirements and practical difficulties. The concept of special protection was devised primarily in order to protect a strictly limited number of permanent and temporary shelters and refuges. One of the weaknesses of this provision is that it offers no possibility of according special protection for even the greatest museums of undisputed world importance.[10]
The necessity to enhance and reinforce the protection of cultural property assumed urgency in early 1990s in view of the events of the last few years in Cambodia, the Gulf war and the war in former Yugoslavia. It was felt that the 1954 Convention requires to be strengthened particularly because of lack of any provision for legal enforcement of cultural war crimes beyond national jurisdictions, the cumbersome procedure and conditions for according special protection to cultural property and the military necessity defence which weakened such protection. UNESCO in a joint effort with the Netherlands commissioned a study with a view to identifying measures for improving the implementation of the 1954 Convention and to see whether any revision of the Convention was required. Prof. Patrick Boylan conducted the review.[11] On the basis of Prof. Boylan’s recommendations, three meetings of ‘independent experts’ were convened to consider the Convention and Prof. Boylan’s Report. This resulted in identification of the issues requiring examination and adoption of the “Lauswolt Document”. Thereafter, this document was discussed and developed by the ‘government experts’ and was finally adopted at a Diplomatic Conference in 1999 as the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflicts.[12]
The main provisions under the Second Protocol relate to simplifying the procedure for the grant of special protection, tightening the concept of military necessity, establishing individual criminal responsibility, and establishment of an institutional mechanism to promote respect for cultural property and monitor its implementation.
The conditions listed in the 1954 Hague Convention for grant of special protection were considered to be too restrictive and accordingly experts were of the opinion that conditions for obtaining special protection should be more liberal. It was also felt that more objective criteria and simpler registration procedure were necessary for this purpose. Accordingly, the Protocol lists out the criteria for placing a cultural property under “enhanced protection” and procedure for its registration. The term ‘enhanced protection’ has been used to distinguish it from “special protection” as the 1954 Hague Convention continues to remain in force for parties who do not sign the Second Protocol.[13]
The following criteria were agreed for placing a cultural property under enhanced protection - a) cultural heritage of greatest importance for humanity; b) protected by adequate domestic, legal and administrative measures recognising its exceptional cultural and historical value ensuring the highest level of protection; and c) not used for military purposes or to shield military sites. The Party which has control over such cultural property has also to make a declaration that it will not be so used.[14]
Article 11 lists out the procedures for grant of enhanced protection. The right to request for grant of enhanced protection has been given to the party which has jurisdiction or control over the cultural property. Other parties and NGOs with relevant expertise may also recommend to the Committee to include specific cultural property under enhanced protection. In such cases, the Committee may invite a Party to request inclusion of such cultural property in the list.
The Committee is required to inform all Parties about the requests for inclusion of a specific cultural property in the list. Parties may submit representations regarding such a request within sixty days. The decision for inclusion in the list would be taken by the Committee by a majority of four-fifths of the members present and voting. A provision has also been made for grant of a provisional enhanced protection on an emergency basis.
The obligation to ensure the immunity of a cultural property under enhanced protection is placed both on the attacker and the attacked. The parties to a conflict are required, as appropriate, to refrain from making such property the objective of attack or from any use of such property or its immediate surrounding in support of military action.[15]
Cultural property placed under enhanced protection shall lose its protection, if by its use, it becomes a military objective or such protection is cancelled or suspended in accordance with provisions of Article 14.[16]
Over the years, there was growing weight of opinion that regardless of the conduct of the enemy there has to be some element of absolutes in the conduct of war, therefore one of the highest priorities of the review process of the 1954 Hague Convention was to renounce Article 4(2) which allows waiving of the provisions of this Convention in case of military necessity. However, military experts were unwilling to relinquish it as, in their opinion, it would place insurmountable obstacles in the path of military missions. However, it was agreed that this concept did not give unlimited and unreserved power to either attacking or defending forces and accordingly the compromise was that its application would be limited to specific situations.[17]
The Second Protocol seeks to limit the doctrine of military necessity by outlining the circumstances under which this concept can be invoked to attack a cultural property. There is a slight difference in provisions regarding the conditions under which the defence of military necessity can be invoked against ‘cultural property in general’ and ‘cultural property under enhanced protection’.
Under the Second Protocol the concept of ‘military necessity’ has been linked to the concept of ‘military objective’ as it was felt that cultural property loses its protection from the moment it becomes a military objective. The definition of military objective has been adopted from Article 52(2) of the Additional Protocol-I.[18] Thus the Second Protocol limits acts of hostility against cultural property to only a situation where it becomes a military objective.
An act of hostility against cultural property is permitted if a cultural property by its ‘function’ becomes a military objective and no feasible alternative is available to obtain a similar military advantage to that offered by directing an act of hostility against that objective.[19] A waiver to ‘use’ cultural property for purposes which are likely to expose it to destruction or damage on the ground of imperative military necessity can only be invoked when and so long as no choice is available between such use of cultural property and another feasible method for obtaining a similar military advantage.[20] The Protocol also lays down certain safeguards which are required to be followed – the decision to invoke military necessity is to be taken of by an officer commanding a force equivalent to a battalion and giving of advance warning, wherever circumstances permit.[21]
Cultural property under enhanced protection inter alia loses its protection if such protection is suspended or cancelled or such property by its ‘use’ has become a military objective. In these circumstances such property can be made the object of attack if such attack is the only feasible means of terminating the impugned use of the property; all feasible precautions are taken as to the means and methods of attack with a view to terminate such use and avoiding or minimizing damage to the cultural property; or due to requirement of immediate self-defence. At the operational level, such an attack is to be ordered at the highest level of command; giving of effective advance warning requiring termination of the impugned use and after giving reasonable time to redress the situation. In case a cultural property under enhanced protection is used in support of military action, the committee may suspend its enhanced protection status.[22]
Under the International Humanitarian Law instruments, for example, Additional Protocol-I,[23] Statute of the International Tribunal for former Yugoslavia[24] and Rome Statute of the International Criminal Court,[25] wilful destruction of cultural property is treated as a war crime and commands universal jurisdiction.[26] The obligation in such case is to ‘either try or extradite’. The 1954 Hague Convention however only puts an obligation on High Contracting Parties to take all necessary steps under their criminal jurisdiction to prosecute and impose penal or disciplinary sanctions upon those persons who commit or order to be committed a breach of the Convention.[27] Therefore one of the weaknesses of the 1954 Convention is considered to be the lack of ‘universal jurisdiction’ to try offences committed under this Convention. To remedy this lacuna the Second Protocol regards ‘making of cultural property under enhanced protection the object of attack’ and ‘using such property or its immediate surrounding in support of military action’ as a serious violation[28] which is subject to universal jurisdiction.[29]
It can be seen that a new sanction under the Second Protocol not provided till now in any other humanitarian law instrument relates to the use of ‘cultural property under enhanced protection’ in support of military action. This is considered as a serious violation of the Protocol and has been made subject to universal jurisdiction. This sanction was considered essential, as declaration on non-use of such property for military purposes is one of the condition precedents for grant of enhanced protection, and since any such use makes it into a military objective, thereby giving a right to the other party to invoke waiver on the basis of military necessity.
As regards cultural property in general, its extensive destruction, making it an object of attack and acts of theft, pillage and vandalism against it are considered as serious violations.[30] However only extensive destruction of such property commands universal jurisdiction.[31] In respect of all serious violations of the Protocol the Parties are required to establish these as criminal offences under its domestic law and to make such offences punishable with appropriate penalties.[32] In respect of intentional use of cultural property in violation of provisions of the Convention and the Protocol and illicit export or removal of cultural property from occupied territories, the Contracting Parties are required to take such legislative, administrative or disciplinary measures as are necessary to suppress these acts.[33]
Depending on the seriousness of the offence, the Protocol thus creates three types of enforcement mechanisms entailing as appropriate the applicability of universal jurisdiction, national penal measures, or administrative or disciplinary measures.
The Protocol also lays down the rules for extradition in cases of offences involving universal jurisdiction,[34] mutual legal assistance[35] and grounds for refusal[36] thus making it into comprehensive instrument.
All the provisions of the Protocol also extend to non-international armed conflicts.[37] The crucial point here is that the grave breach regime also extends to non-international armed conflicts. This would essentially involve an obligation to try or extradite persons accused of offences having universal jurisdiction, i.e., use of cultural property under enhanced protection in support of military action, making such property the object of the attack, or extensive destruction of any other cultural property. However, there are number of safeguard clauses affirming the principle of inviolability of sovereignty of states, non-intervention and non-recognition of status of insurgents. Another safeguard was included which reiterates the primary jurisdiction of the territorial state over violations set forth in Article 15. Though this provision merely reiterates the general principle of territorial jurisdiction, its inclusion was insisted in view of the difference of opinion as to the threshold for defining an internal armed conflict situation and the recent incidents relating to the humanitarian intervention.
The Protocol establishes a Committee for the Protection of Cultural Property in the Event of Armed Conflict comprising of 12 members representing different regions and cultures in the world.[38]
The Committee has been charged with the responsibility to develop guidelines for the implementation of this Protocol; grant, suspend or cancel enhanced protection for cultural property; maintain the list of cultural property under enhanced protection; monitor and supervise the implementation of the Protocol and to consider comments on the reports of the parties. The Committee is also required to submit a report of its activities to the meeting of the Parties. The functions of the committee are to be performed in cooperation with the Director General of UNESCO. There is a provision for the representatives of International Committee of the Blue Shield (ICBS) and International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) to attend the sessions of the Committee in an advisory capacity.[39]
This inter-governmental institutional mechanism is the first one to be created under any international humanitarian law instrument. It represents a major step forward in ensuring respect for cultural property and supervision of its implementation.
A trust fund with voluntary contribution has been setup to provide financial and other assistance to state parties in support of preparatory measures to be taken in peace time or for dissemination, or for contributions to certain programmes or projects with the approval of the Committee.[40]
The State Parties are required to submit a report to the Committee every four years on implementation of the Protocol. They are also required to transmit official translation of the Protocol to each other through the Director General of UNESCO.[41]
The Second Protocol aimed at providing a simple procedure for granting enhanced protection to cultural property and succeeded in providing a liberalised system of registration of such property. It provides strict sanctions for both the parties to the conflict by prohibiting the use of such property for military purposes or making it into an object of attack. This will result in its better protection both in peacetime and during armed conflict.
However, the initial objective of dispensing with the defence of military necessity could not be achieved. The final form of this provision is much weaker than originally intended and still gives adequate leeway for military action against cultural property. The Protocol improves to a great extent the enforcement mechanism by specifying a set of serious violations over which states are obliged to establish their jurisdiction. On the whole, the objective of bringing back into public focus the need for protection of cultural property during armed conflict and securing such protection through an effective legal regime has been achieved.
[*] Legal Officer, Gr. I., Legal & Treaties Division, Ministry of External Affairs, Govt. of India, New Delhi.
[1] For historical development of the rule of international law concerning the protection of cultural property, see J. Toman, The Protection of Cultural Property in the Event of Armed Conflict, (1996), p. 3-27.
[2] Article 54, Geneva Convention Relating to the Protection of Civilian Persons in Times of War of August 12, 1949.
[3] Article 53, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977; Article 16, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977.
[4] Hereinafter referred to as the 1954 Convention.
[5] Ibid. Protocol I.
[6] Article 4(1), Convention for Protection of Cultural Property in the Event of Armed Conflict (1954).
7 Ibid., Article 4(2).
[8] Ibid., Article 4(3).
[9] Ibid., Article 8
[10] Patrick J. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1993), p. 76.
[11] Ibid.
[12] Hereinafter referred to as the Second Protocol.
[13] This Protocol supplements the Convention in relation between the Parties.
[14] Article 10, Second Protocol.
[15] Article 12, Second Protocol.
[16] Article 13(1); the committee may suspend or cancel the enhanced protection status of a cultural property if it no longer meets any one of the criteria in Article 10 or in case of serious violation of Article 12 by using such property in support of military action.
[17] See generally J. Toman, supra note 1 at p. 72 et al; P. Boylan, supra note 9 at p. 56-57.
[18] Article 1(f) of the Second Protocol defines military objective as an object which by its nature, location, purpose, or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.
[19] Article 6(a), Second Protocol.
[20] Article 6(b), Second Protocol.
[21] Article 6(c) (d), Second Protocol.
[22] Article 13, Second Protocol.
[23] Article 85(4)(d), Protocol II.
[24] Article 3(d).
[25] Article 8(b)(ix).
[26] Under the concept of universal jurisdiction a State Party can establish its jurisdiction over a war crime on the basis of nationality, territoriality or presence of the accused in its territory.
[27] Article 28, 1954 Convention.
[28] Article 15(1) (a) & (b), Second Protocol.
[29] Articles 17 & 18, Second Protocol.
[30] Article 15(1)(c), (d) & (e), Second Protocol.
[31] Supra note 26.
[32] Article 15(2), Second Protocol.
[33] Article 21, Second Protocol.
[34] Article 18, Second Protocol.
[35] Article 19, Second Protocol.
[36] Article 20, Second Protocol.
[37] Article 22, Second Protocol.
[38] Article 24, Second Protocol.
[39] Article 27, Second Protocol.
[40] Article 29, Second Protocol.
[41] Article 37, Second Protocol.
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