Protection of Cultural Property in the Event of Armed Conflict

Jiri Toman

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9781855218000
• Edition: 1
• eBook ISBN:
  9781351908177
• Topic: Politics & International Relations
• Subtopic: Law Theory & Practice
• Index: Politics & International Relations

At the request of UNESCO, Jiri Toman, Acting Director of the Henry Dunant Institute in Geneva has written this detailed analysis of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict - still the only universal legal instrument in this field. The author has used the materials that emerged from the preparatory work for the Convention and has taken numerous examples from UNESCO's records about the application of the Convention in conflicts over the last 40 years to illustrate this article-by-article commentary on the Convention itself, the Regulations for its Execution, and its Protocol. The author establishes parallels with other international legal instruments such as the 1977 Protocols Additional to the 1949 Geneva Conventions or the other UNESCO conventions relating to cultural heritage and puts forward ideas for a more general study of the protection of cultural property in the event of armed conflict and the legal and practical ways of achieving this. This work should satisfy the expectations of politicians and those responsible for culture in the countries that are States Parties to the Convention, now numbering more than 80, and of those that are considering becoming parties to it, given the increasing calls being made for the international community to have greater powers to defend the cultural heritage from attacks to which it is too often exposed in armed conflicts today.

Part I
General Introduction

'Munches Herrliche der Welt ist
in Krieg und Streit zerronnen;
wer beschützt und erhält,
hat das schönste Los gewonnen."

(Goethe)

Armed conflict, whether international or not, destroys people and property. Humanity has struggled against war and has made great efforts to reduce its most destructive effects, of which the loss of cultural property constitutes but an infinitesimal part.

We have no statistics about how many works of art were destroyed in centuries past. It scarcely needs recalling that these belonged to a heritage shared by all mankind. No military necessity ought to warrant their destruction, just as there can be no justification for attacking the civilian population.

Professor Stanislaw Nahlik, an eminent specialist in the protection of cultural property, described the relationships between the protection of individuals and cultural and historical property in the following way: 'The human individual is mortal and generations follow one upon the other. It is nevertheless possible for every generation, however fleeting its existence, to leave here below an immortal trace of its genius, embodied in a work of art here, an historical monument there or cultural property in another case. We should never forget the relationship between what is fleeting and what, alone, can endow people and their works with perennial qualities. Vita brevis – Ars longa....'¹

Historical Development of the Rules of International Law Concerning the Protection of Cultural Property

Throughout history, war has gone hand in hand with widespread destruction and the 'right to booty'. War feeds on war. In antiquity, no rule prevented armed forces from devastating a country or from seizing the enemy's goods, the destruction of cultural property being then considered an inevitable consequence of war. The aim of war was booty. The general law had it that the property of the vanquished belonged to the conqueror: 'It is a universal and eternal law that, in a city captured by enemies in a state of war, everything, both persons and goods, shall belong to the conquerors.'²

Any opposition to practices of this kind was unusual. Respect for religious property and places was linked to their sacred nature and not to the artistic value of the temples and the property inside them. The Greek historian Polybius (202-120 BC) wrote: 'The city should not owe its beauty to embellishments brought from elsewhere but to the virtue of its inhabitants. ... Future conquerors should learn not to strip the towns that they subjugate and not to inflict misfortune on other peoples, the embellishment of their native land.' Elsewhere he says: 'The laws and the right of war oblige the victor to ruin and destroy fortresses, forts, towns, people, ships, resources and all other such like things belonging to the enemy in order to undermine his strength while increasing the victor's own. But although some advantage may be derived from that, no one can deny that to abandon oneself to the pointless destruction of temples, statues and other sacred objects is the action of a madman.'

The aim of warfare for the Romans was conquest, and conquest was accompanied by massacres, destruction and pillage. Regard was nevertheless often shown for sacred things out of respect of their hallowed nature. In addition, as pillage hindered the smooth conduct of military operations, voices were raised against pointless destruction: 'Ars servat patrum perpetuat populum'.³ Cicero did not condemn war but tried to allot to it aims and rules in accordance with the law. He thus recommended moderation and selflessness in pillage, saying that it was not right for people to pillage for themselves but only to enrich or embellish their motherland.⁴

The situation in the Middle Ages was not very different. Towns, villages, castles and even churches were destroyed. How many of these would today be considered as artistic or cultural property! The Germanic armies and the Crusaders laid everything waste as they went. There was little consistency in the way the rules of chivalry were applied. The Church attempted to mitigate the consequences of war but did not forbid it, even though Saint Augustine had preached that the taking of booty was a sin. The Synod of Charroux (989) proclaimed that places of worship and property were protected but this was due to their sacred nature and not to their quality as works of art. To protect churches, the Germanic emperor, Frederick I (1152-94) promulgated an edict in 1158 by which he forbade pillage. This edict and other prohibitions issued at the same time were little heeded. On the contrary, rules and customs concerning the division of booty multiplied.

The first stirrings of a wish to protect works of art were to be seen at the Renaissance. In the sixteenth and seventeenth centuries, the first references to the protection of cultural property appeared among the writers on international law, Jacob Przyluski, for example, put forward the idea that every belligerent should show regard for a work of art, but not solely because of its religious nature.⁵ Alberic and Justin Gentilis held similar ideas.⁶ Hugo Grotius, the 'father of international law', remained faithful to the old ideas: 'It is permitted to harm an enemy both in his person and in his property; that is, it is permissible not merely for him who wages war for a just cause, but for either side indiscriminately.'⁷ In this way, the burning of corn, the destruction of houses and the plunder of men and cattle were licit: 'the law of nations in itself does not exempt things that are sacred, that is, things dedicated to God or to the gods.⁸ By the law of nations ... in a public war anyone at all becomes owner, without limit or restriction, of what he has taken from the enemy.'⁹

Beginning with the Peace of Westphalia (1648), we find more and more clauses providing for the restoration of things to their places of origin, first of archives alone and then of works of art, displaced in the course of the fighting.¹⁰ In his famous work entitled The Law of Nations or the Principles of Natural Law, Emmerich de Vattel writes that 'for whatever cause a country be devastated, these buildings should be spared which are an honour to the human race and which do not add to the strength of the enemy, such as temples, tombs, public buildings and all edifices of remarkable beauty. What is gained by destroying them? It is the act of a declared enemy of the human race thus wantonly to deprive men of these monuments of art and models of architecture....'¹¹

Influenced by the concept developed by Jean-Jacques Rousseau,¹² there were possibly the beginnings of a distinction being made between public and private property. Public property belonging to the enemy State – particularly property which could assist the conduct of a war, such as arms, munitions, stores and public treasuries – could be sequestrated, seized and destroyed. 'The military authority may, within the limits of its power, seize the movable public property of the enemy to the extent that it may serve for the operations of war.'¹³ A measure of protection was thus accorded to public property which did not directly serve military interests. Regard was accordingly shown for temples and churches, schools, libraries, collections and laboratories. Again, in 1815, the allies provided for the restitution of works of art taken to France by Napoleon because, in the words of a memorandum circulated by Lord Castlereagh, the removal of works of art was 'contrary to every principle of justice and to the usages of modern warfare'.¹⁴

Such an approach was not foreign to other religions and civilizations in the world. The protection of cultural property is in fact universal in nature. It is not the product of one single civilization; quite the reverse. We find striking examples in all cultures, all religions and all political systems. In traditional and pre-colonial Africa, there were innumerable sacred places (trees, ancestral huts, shrines in which fetishes were kept, places where initiation ceremonies were held, and so on) that were all protected. There was therefore respect for places of a religious nature, of culture and art.¹⁵ The peoples of Tallensi strictly forbade any kind of pillage which would confer personal advantage. (There are also opposite examples, since the Fulani of northern Nigeria destroyed ancient buildings on the grounds that they belonged to non-believers.) In Japan, Emperor Go-Daigo, in 1339, sent his army to put down a rebellion but he strictly forbade setting fire to shrines and temples.¹⁶

Under Islamic law, 'the obligation to distinguish between civilian and military objects is clearly imperative and permits no exception. Caliph Abu Bakr gave orders never to destroy palm trees, burn dwellings or cornfields, cut down fruit trees, kill livestock unless constrained by hunger, and never to lay hands on monasteries. Attacks should therefore be strictly confined to military targets, that is to objects which by their nature or use are intended for the pursuit of hostilities. The nature, use and intended purpose of the objects are the criteria for distinguishing between military and civilian objects. The Islamic concept presumes all objects to be civilian unless proved otherwise. This is obvious from the instructions and orders given by Abu Bakr. It is worth adding that under this concept all destruction is "ugly and blameworthy" and can be tolerated only in exceptional circumstances. The scope of application of the protection of civilian goods is wider under the Islamic concept than in the provisions ofChapters III et seq. of Part IV of the First Additional Protocol to the Geneva Conventions of 1949, for it is more precise, more general and more humanitarian; however, the stipulations, criteria and details enunciated in the provisions of Articles 52-60 and 62-65 of the First Additional Protocol are, of course, in perfect harmony with the very essence of the Islamic concept and can therefore be regarded as forming an integral part of it.'¹⁷ This long quotation from a famous Egyptian lawyer shows that the protection of cultural property, as expressed in the Hague Convention of 1954, also corresponds to the Islamic tradition.

During the wars at the time of the French Revolution, the booty of war included objets d'art and scientific objects. There was thus, during that period, a return to the old customs of the sixteenth and seventeenth centuries, and those of the eighteenth century were abandoned. This was explained by the superiority of one of the belligerents, France, which, thanks to the Revolution, had reached a higher level of civilization and had thus become in some degree the intellectual centre of the human race. In the peace treaties that Bonaparte concluded with the Italian princes, it was stipulated that war reparations were payable partly in coin and partly in objets d'art. Care was therefore taken, at least sometimes, to legalize the operation by an ad hoc agreement and not in application of the right of warfare. Restitution was made in 1815 of some of the items received as booty, when the Duke of Wellington declared that these annexations had been contrary to the practice of war between civilized nations.

The Lieber Instructions (1863)

The 1863 instructions for the government of armies of the United States of America in the field, known after their author as the Lieber Instructions for the Government of Armies, had a great influence on the shaping and codification of the laws of war. They also provided an example for the codification, at the international level, of the law concerning cultural property. While recognizing, in Article 31, the appropriation of public money, Article 34 specifies that 'as a general rule, the property belonging to churches, to hospitals or other establishments of an exclusively charitable nature, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific character – such property is not to be considered public property in the sense of Article 31; but it may be taxed or used when the public service may require it.'¹⁸ According to Article 35, 'classical works of art, libraries, scientific collections or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded'. Article 36 indicates: 'If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace. In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured.' The Lieber Instructions also had repercussions on the development of military law in other countries, particularly on the service regulations for the field armies of France, Germany, Great Britain, Italy, Japan, Russia an...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• Acknowledgements
• Abbreviations
• PART I GENERAL INTRODUCTION
• PART II CONVENTION FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT, SIGNED AT THE HAGUE ON 14 MAY 1954 (INCLUDING THE REGULATIONS FOR ITS EXECUTION)
• PART III PROTOCOL FOR THE PROTECTION OF CULTURAL PROPERTY IN THE EVENT OF ARMED CONFLICT, SIGNED AT THE HAGUE ON 14 MAY 1954
• PART IV RESOLUTIONS ADOPTED BY THE 1954 HAGUE CONFERENCE
• PART V THE PROTECTION OF CULTURAL PROPERTY IN TIME OF ARMED CONFLICT AND THE CONVENTION ON THE MEANS OF PROHIBITING AND PREVENTING THE ILLICIT IMPORT, EXPORT AND TRANSFER OF OWNERSHIP OF CULTURAL PROPERTY (PARIS, 14 NOVEMBER 1970)
• PART VI THE PROTECTION OF CULTURAL PROPERTY IN TIME OF ARMED CONFLICT AND THE CONVENTION FOR THE PROTECTION OF THE WORLD CULTURAL AND NATURAL HERITAGE (PARIS, 16 NOVEMBER 1972)
• PART VII PROTOCOLS ADDITIONAL TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 AND RELATING TO THE PROTECTION OF VICTIMS OF INTERNATIONAL AND NON-INTERNATIONAL ARMED CONFLICTS, OF 8 JUNE 1977
• Annex I Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (Roerich Pact) Signed at Washington, 15 April 1935
• Annex II Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Time of War, Proposed by the International Museums Office (October 1936)
• Annex III Convention for the Protection of Cultural Property in the Event of Armed Conflict, Signed at The Hague, 14 May 1954
• Annex IV Protocol for the Protection of Cultural Property in the Event of Armed Conflict, Signed at The Hague, 14 May 1954
• Annex V Resolutions Adopted by the Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954)
• Annex VI Convention and Protocol for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 14 May 1954); List of the 87 States Parties to the Convention (74 States Parties to the Protocol) at 5 July 1995
• Annex VII Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Adopted by the General Conference at its Sixteenth Session, Paris, 14 November 1970
• Annex VIII Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (Paris, 14 November 1970); List of the 82 States Parties at 5 July 1995
• Annex IX Convention Concerning the Protection of the World Cultural and Natural Heritage, Adopted by the General Conference at its Seventeenth Session, Paris, 16 November 1972
• Annex X Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972); List of the 145 States Parties at 27 January 1996
• Annex XI Resolution 20 of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 7 June 1977
• Select Bibliography
• Index