In 1954 representatives from the United Nations met at The Hague in the Netherlands under the auspices of UNESCO where they wrote and adopted the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Preamble to the Convention sets forth the principle that because “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind,” it is incumbent upon the international community to enact special legal measures for its safeguarding. The main convention then defines the term ‘cultural property’ for the first time and, in contrast to the Hague Conventions of 1899 and 1907, includes both moveable and immovable property in that category.
Article 1 of the Convention defines ‘cultural property’ as: (1) both moveable and immovable property of great importance to the cultural heritage of every people, including historic monuments, archaeological sites, and works of art, as well as scientific collections and important collections of books or archives; (2) buildings whose purpose is to preserve or exhibit moveable cultural property, and (3) centres containing a large amount of cultural property such as historic cities or archaeological zones. Article 3 sets forth the requirement that High Contracting Parties “prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict. ”And articles 8-14 provide protection for temporary shelters housing cultural objects, their emergency transport, and authorized specialist personnel during times of hostilities, concepts directly mirroring those for humanitarian protection set forth in the Geneva Conventions.
The High Contracting Parties must refrain from using cultural property and its immediate surroundings in such a way to expose it to destruction and damage in the event of armed conflict (Article 4). Furthermore, they must avoid acts of hostility against another state’s cultural property except when ‘military necessity imperatively requires such a waiver’ (Article 4.2). The only circumstance in which ‘imperative military necessity” can be claimed is when the enemy uses cultural property for military purposes. This exception has a long history, beginning with the 1863 Lieber Code (Article 14) and continuing in the 1907 Hague Convention (Article 23g) where the destruction or seizure of an enemy’s property was limited to that which was demanded by the necessities of war. (The 1935 Roerich Pact, on the other hand, makes no mention of military necessity.) Despite these restrictions, the destruction inflicted during WWII on cultural property, and even on entire cities, provided insufficient support to those who desired to eliminate the doctrine of ‘imperative military necessity’ from the 1954 Hague Convention. (For subsequent clarification of the waiver provided by ‘imperative military necessity’, see Article 6 of the Second Protocol to the 1954 Hague Convention, where imperative military necessity was limited to an attack on cultural property that has been converted to a military objective, “by its function.”). Article 4 also forbids reprisals against cultural property and commits State Parties to prevent theft or pillage of cultural objects.
The obligations of occupying powers are set forth in Article 5. Such obligations include cooperation with the country's national authorities, as far as possible, to safeguard and preserve their cultural property. Where such authorities are unable to take preservation measures, the Occupying Power shall take those measures in close co-operation with the national authorities.
Article 7 concludes Chapter I of the Convention by declaring that, in times of peace, High Contracting Parties, with respect to their militaries, are required to introduce regulations that ensure observance of the Convention, foster respect for cultural property among their members, and establish preservation specialists.
In addition to dealing with international armed conflicts, Article 19 the 1954 Hague Convention extends protection of cultural property to internal armed conflicts such as civil wars, ‘liberation’ wars and armed campaigns for independence. Yet attacks on cultural property have become commonplace in such conflicts in recent years.
Although Article 25 requires the High Contracting Parties to disseminate knowledge of the Convention to their military and if possible to their civilian population, and Article 26 requires them to make periodic reports (at least every four years) to UNESCO on their efforts to implement the Convention, few have regularly complied as the sanctions for not doing so are vague.
Special Protection represents a higher level of protection in comparison with the general protection derived from Article 1 of the 1954 Convention. According to Articles 8-11 of the 1954 Convention, Special Protection may be granted in three instances:
1. to a limited number of refuges intended to shelter movable cultural property in the event of armed conflict;
2. to centers containing monuments;
3. and, to other immovable cultural property of very great importance.
The granting of special protection is subject to two conditions:
1. the cultural property in question must be situated at an adequate distance from any large industrial center or from any important military objective constituting a vulnerable point; and
2. such property may not be used for military purposes.
The granting of special protection is not automatic. The State on whose territory the cultural property is found must submit a request to the Director-General of UNESCO, and no other State Party may object to the request (Regulations, Article 11).
Special Protection is granted by entry of the property in the ‘International Register of Cultural Property under Special Protection’ (Article 8.6).
Property under Special Protection is marked by three distinctive emblems whose form and use are detailed in Articles 16-17 of the 1954 Convention. This form of the symbol designates:
1. cultural property under special protection;
2. vehicles or personnel used in the transport of cultural property; or
3. improvised or emergency refuges or safe locations where cultural property may be stored during armed conflict.
Today only one site is listed on the International Register of Cultural Property under Special Protection: the entire territory of the Vatican City State.
Although the United States helped to draft the 1954 Hague Convention and signed it in the same year, the Executive Branch decided not to transmit the treaty to the Senate for ratification due to military concerns about how it might affect policy at the height of the Cold War. At the end of the Cold War, the Department of Defense withdrew its objections and, in 1995, the U.S. Joint Chiefs of Staff unanimously recommended that the U.S. Senate ratify the Convention. In 1999, President Bill Clinton transmitted the 1954 Hague Convention and a part of the First Protocol to the U.S. Senate Committee on Foreign Relations with his support for ratification by the full Senate, along with a detailed report on its importance written by the Department of State.
The Senate Committee on Foreign Relations took no action until the looting of the Iraq Museum in Baghdad in April 2003 and the looting of archaeological sites in southern Iraq during the ensuing years received public attention and revived interest in the Convention. The U.S. Committee of the Blue Shield, the Lawyers’ Committee for Cultural Heritage Preservation, and the Archaeological Institute of America formed a coalition of preservation organizations that submitted testimony to the Senate Committee on Foreign Relations in support of ratification and worked with members of the Senate to promote ratification.
The Senate Foreign Relations Committee held a hearing on the 1954 Hague Convention and several other Law of War treaties on 15 April 2008, and the full Senate voted to give its advice and consent to ratification on 25 September 2008. The U.S. deposited its instrument of ratification with UNESCO on 13 March 2009, making the United States the 123rd nation to become a party to this historic treaty. By taking this significant step, the U.S. has demonstrated its commitment to the preservation of the world’s cultural, artistic, religious and historic legacy.
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