The Hague Convention of 1954 and its supplements

The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 relates to all movable and immovable property of great importance to the cultural heritage of every people, regardless of origin and ownership (Article 1).39 The guideline to be followed by the parties to any conflict is to safeguard and respect cultural property (Article 2). The Convention therefore requires the contracting parties to prohibit, prevent, and, if necessary, put a stop to any form of theft, pillage, or unlawful misappropriation of cultural objects, as well as vandalism against those objects (Article 4(3)). Reprisals against cultural objects are wholly excluded (Article 4(4)). Moreover, the defending party in a conflict is required to keep its distance from cultural property, subject to overriding military necessity, in order to avoid provoking attacks (Article 4 (1)). Members of the military are to be instructed with regard to all of these requirements (Article 7). In addition, those who violate the Convention or order acts that violate the Convention are to be penalized or disciplined (Article 28). These requirements apply regardless of a formal declaration of war and remain in effect even in cases of uncontested occupation (Article 18). Cultural property is to be respected even in armed conflicts that are not of an international nature (Article 19(1)), a rule that deserves attention now because Iraq and Syria are both signatories of the Convention.40

No less important for the debate on the protection of cultural objects is the First Protocol, which was negotiated at the same time and was separated only for tactical reasons. By ratifying this Protocol, the contracting states agreed to prevent the exportation of cultural property from occupied territories, to take into custody any cultural objects that nevertheless make their way into their sovereign territory, to refrain from using such goods for purposes of reparations, and to return such property once hostilities have closed (Additional Protocol (AP) I Articles 1-4).4i Important supplements to the Hague Convention are provided by the two Additional Protocols of 8 June 1977 to the Geneva Conventions. These Protocols prohibit hostile actions against historical monuments, artworks, and places of worship that constitute the cultural or spiritual heritage of peoples (Article 53 AP I, Article 16 AP II). Moreover, they may not be used in support of military efforts or made the subject of reprisals. These Protocols were attached to the Geneva Convention because a larger number of states could be expected to ratify that Convention. In fact, the two Additional Protocols have been ratified by 174 (AP I) and 168 states (AP II) while the Hague Convention has now been ratified by 127 states, and the First Protocol to the Hague Convention by 104 states^2

The Convention is completed by the Second Protocol of 26 March 1999, which has been ratified by just sixty-eight states (none of them a major military power). Of or reproductions, to buildings preserving and exhibiting such cultural assets, such as museums and archives, and to monument centres.

  • 40 Moreover, the Convention deals to a great extent with special protection zones and the safe transport and identification of cultural objects, which are addressed in the Regulations for the Execution of the Convention. This was done in light of the experiences from the Second World War, with warfare in extended areas in mind.
  • 41 Of course, the situation remains fragile: in the course of the Turkish invasion of Cyprus (1974), for example, Orthodox cultural objects were destroyed and plundered in a highly systematic fashion and brought to the world market via middlemen, even though Turkey has been a member of both the Convention and the Protocol since 1965.
  • 42 Upon the signing of the Additional Protocols to the Geneva Conventions, only sixty-four states became a party to the Hague Convention and only fifty-five states acceded to its Protocol. It should be pointed out that, of these four texts, only the Convention of 1954 has been ratified by the USA (and only in 2009, as until then accession to this widely respected Convention was rejected in order to keep open the nuclear option).

substantive importance are the definition of military objectives (Article 1(f)) and the detailing of imperative military necessity (Article 6), with the goal of affording the highest possible degree of protection.[1] [2] [3] The Protocol prohibits the illicit export, other removal, or transfer of ownership of cultural property, as well as archeological excavations (except in cases of emergency) and any alteration to or change of use of cultural property intended to conceal or destroy cultural, historical, or scientific evidence (Article 9(1)). The Protocol also applies to armed conflicts that are not of an international character (Article 22(1) and (2)).

Of interest from the point of view of criminal law is the fact that, under the Protocol, a person commits an offence by making cultural property under enhanced protection the object of attack or using cultural property under enhanced protection or its immediate surroundings in support of military action (Article 15(1)(a) and (b)).44 The same applies to those who engage in extensive destruction or appropriation of protected cultural property (15(1)(c)), who make protected cultural property the object of an attack (15(1)(d)), or engage in theft, pillage, or misappropriation, or acts of vandalism directed against cultural property protected under the Convention (15(1)(e)). When it comes to implementing these enforcement obligations, the contracting states must keep in mind the principles of international law (Article 15(2)). The contracting states are to have jurisdiction at least over offences that are committed in their territory and where the alleged offender is a national of that state, as well as over the acts mentioned above within sub-paragraphs (a)-(c), in which case extradition is to be facilitated as well (Article 18), even where the offender is a national of the state in question (Article 16(1)). In addition, any intentional use of cultural property in violation of the Convention and the Protocol, as well as any illicit export, other removal, or transfer of ownership of cultural property from occupied territories is to be penalized (Article 21).

  • [1] The Protocol only deems an act of hostility against cultural property to be in conformance withthe Convention if such an act brings a clear military advantage and if there is no other way of achievinga comparable result (Art. 6(a)); furthermore, cultural property may only be used for purposes that arelikely to expose it to destruction or damage when and for as long as no other feasible method exists toachieve a similar military advantage (6(b)), in addition, the decision to invoke imperative military necessity is reserved to officers commanding a force the equivalent of a battalion in size or larger (6(c)) andeffective advance warning must be given whenever circumstances permit (6(d)). During an attack, allfeasible precautions should be taken to ensure that protected cultural property is not the subject of attackand to avoid or minimize damage to cultural property; under certain circumstances, the attack must besuspended or cancelled entirely (for details, see Article 7).
  • [2] This is in view of the fact that, under certain circumstances, cultural heritage of the greatest importance may be afforded enhanced protection (Art. 10ff.), in order to ensure immunity (Art. 12).
  • [3] The Regulations were attached to the Convention (II) of 1899 (Hague Convention with Respect tothe Laws and Customs of War on Land) and the Convention (IV) of 1907 (Hague Convention respectingthe Laws and Customs of War on Land). Most of the states that ratified the 1899 Convention also ratified
 
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