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Although it was commonplace in antiquity for victorious armies to loot items from a defeated enemy's territory, some such as the historian Polybius condemned the practice. His view that war should be waged according to generally accepted rules became the basis for international law from the 18th century on.
Scipio Aemilianus, or Scipio Africanus the Younger, was a leading general and politician during the Roman Republic and, as consul, commanded the final siege and destruction of Carthage in 146 BC. After his victory he arranged for the return of various works of art that Carthage had robbed from the Greek cities of Sicily to their owners.
In 70 BC, the Sicilians commissioned Cicero to prosecute the island's former governor, Gaius Verres, for corruption. After Cicero delivered a damning summary of his evidence, Verres went into exile rather than wait for the verdict. Cicero later published all of the speeches he had intended to deliver in five books known as Against Verres (In Verrem).
In 1625, Hugo Grotius (1583-1645), a Dutch scholar and jurist, published his legal masterpiece, De Jure Belli ac Pacis (On the Law of War and Peace). In it he raised the question of whether nations were justified in pillaging with impunity the wealth of other nations during times of war. His work contributed significantly to the formation of international law as a distinct discipline.
Treaties concluded by Napoleon with the states that he conquered specified works of art to be ceded to France. After the Battle of Waterloo, the Duke of Wellington pressured France to restore any art taken by French troops as spoils of war. This was the first time that the significance of national cultural property was invoked to justify a major restitution of art works.
The Lieber Code of 1863 incorporated the principle that monuments, places of worship, works of art, libraries and scientific collections must be spared from destruction in times of war. The code, commissioned during the Civil War by President Abraham Lincoln and written by Professor Francis Lieber, was published as a pamphlet that could be carried by Union soldiers. The Lieber Code also identified military necessity for the first time as a general legal principle whose purpose was to limit violence.
On 27 July 1874 the delegates of 15 European States met in Brussels to examine the draft of an international agreement concerning the laws and customs of war submitted to them by the Russian Government. The Conference adopted the draft with minor alterations. Not all the governments were willing to accept it as a binding convention, however, so it was not ratified. Nevertheless, the project formed an important step in the movement for the codification of the laws of war.
In 1874, the Institute of International Law appointed a committee to study the Brussels Declaration and to submit to the Institute its opinion and supplementary proposals on the subject. The efforts of the Institute led to the adoption of the Manual of the Laws and Customs of War at Oxford in 1880. Both the Brussels Declaration and the Oxford Manual formed the basis of the two Hague Conventions on land warfare and the Regulations annexed to them, adopted in 1899 and 1907.
In 1899 the first Hague Peace Conference was convened in order to revise the declaration set forth but never ratified by the Conference of Brussels in 1874 concerning the laws and customs of war. The 1899 Hague Convention on land warfare was adopted and subsequently ratified by fifty State Parties. Although the 1899 Convention was revised at the Second International Peace Conference in October 1907, only minor differences exist between it and the 1907 Convention. Because the provisions of these conventions are considered to be part of the rules of customary international law, today all states, even those not State Parties to either or both Conventions, are considered to be bound by their provisions.
The first convention dedicated exclusively to the protection of cultural property in times of war, the ‘Roerich Pact’, began as a private initiative by Nicholas Roerich, a Russian artist born in St. Petersburg. With the Red Cross as his model, Roerich proposed a treaty for the protection of cultural property during times of both war and peace. In 1933 the Seventh International Conference of American States recommended the adoption of the Roerich Pact. A flag, which Roerich called the ‘Banner of Peace’, was to mark places under the protection of the pact.
In 1942, a proposal was made to establish a government commission to protect and salvage European artistic and historical monuments. On 23 June 1943, President Franklin D. Roosevelt established the Roberts Commission, which cooperated with the U.S. Military program known as Monuments, Fine Arts, and Archives (MFAA) to protect cultural treasures, gather information about war damage to such treasures, and compile data on cultural property appropriated by the Axis Powers in order to encourage its return. The Commission was abolished on 30 June 1946.
The Monuments, Fine Arts and Archives program was established to protect cultural materials in war areas. Like all sections of the Allied military government, the MFAA was composed nearly equally of American and British officers whose backgrounds were not as military officers but as art historians, architects, artists, archaeologists and archivists.
In this order Eisenhower stated that military forces are bound to respect historical monuments so far as war allows. He added that nothing can stand against the accepted principle of military necessity, but asserted that the phrase is sometimes used where the more correct phrase would be “military convenience” or even “personal convenience”.
The second directive on the protection of cultural property admits that because the lives of men are paramount, commanders may order the destruction of an honored site when military necessity dictates. In cases where it cannot be justified centers of historical and cultural significance are to be preserved. Civil Affairs Staffs are to advise commanders of the locations of such historical monuments and the information is to be passed down through command channels to all echelons.
The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal were adopted in London on 8 August 1945, thereby establishing as a principle of international humanitarian law that the “plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity” are to be considered war crimes. Those involved in such crimes will be subject to trial and punishment by the International Military Tribunal.
In 1954 representatives from the United Nations met at The Hague 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 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.
The First Protocol for the Protection of Cultural Property in the Event of Armed Conflict has two unambiguous purposes. First, all High Contracting Parties must take active measures to prevent all exports of movable cultural property, as defined in the 1954 Hague Convention, from any territory that they might occupy during an armed conflict. Second, they must undertake to seize and hold, to the end of hostilities, any cultural property that was imported into their territory in contravention of the first principle of the Protocol. It also provides that such cultural property must never be retained as war reparations.
Article 48 of Protocol I requires that Parties to a conflict “shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” Article 53 requires that combatants not commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; not use such objects in support of the military effort; and not make such objects the object of reprisals.
The Second Protocol is not an amendment to the main Convention or its First Protocol but is a separate treaty that must be ratified by State Parties that choose to do so. However, only states that have ratified the main Convention can become parties to the Second Protocol. Moreover, the Protocol only applies to States that have ratified it. The Second Protocol provides more detail than the main Convention and its First Protocol regarding actions that State Parties must take during both peacetime and armed conflict.
At the first meeting of the founding members of the International Committee of the Blue Shield (ICBS) and representatives of various national Blue Shield Committees, it was recommended that all states parties to UNESCO and to the United Nations ratify the 1954 Hague Convention, the First Protocol of 1954 and the Second Protocol of 1999. They also urged, among other things, that governments and relevant organizations of the United Nations act to prevent looting and destruction of cultural heritage sites and buildings and illicit trade in cultural property.
USCBS is one of many national committees organized under the principles of the 1954 Hague Convention. It was incorporated in the State of Minnesotaon 9 January 2006 and formally recognized as a Blue Shield national committee by the International Committee of the Blue Shield (ICBS) in May 2007. USCBS is a 501(c)(3) corporation and as such is exempt from federal income taxes. All donations to USCBS are deductible within the limitations of the law.
Although the United States helped to draft the 1954 Hague Convention and signed it in the same year, the Senate Committee on Foreign Relations took no action on ratification of the treaty until 15 April 2008. The full Senate voted to give its advice and consent to ratification on 25 September 2008, and 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.