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Protection of cultural property in time of armed conflict*

Published online by Cambridge University Press:  07 July 2009

Maja Seršić
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Extract

The extent of destruction and appropriation of cultural property in recent armed conflicts, especially those in Croatia and Bosnia and Herzegovina, questions the adequacy of international rules aimed at the protection of cultural property in armed conflicts. This article seeks to examine that problem by analysing the basic international rules devoted to the protection of cultural property in the event of armed conflict.

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Articles
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Netherlands Yearbook of International Law , Volume 27 , December 1996 , pp. 2 - 38
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Copyright © T.M.C. Asser Press 1996

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References

1. See Council of Europe, Parliamentary Assembly, Information Report on the destruction by war of the cultural heritage in Croatia and Bosnia and Herzegovina, Doc. No. 6756, Strasbourg, 2 February 1993, partly reproduced in Boylan, P.J., Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954), UNESCO (1993) Appendix XII, p. 225Google Scholar. See also Institute for Protection of Cultural Monuments, the Croatian Ministry of Culture and Education, Cultural Heritage of Croatia (1993) p. 3 et seq.Google Scholar

2. See Boylan, op. cit. n. 1, at p. 19; Toman, J., ‘La protection des biens culturels dans les conflits armés internationaux; cadre juridique et institutionnel’, in Swinarski, C., ed., Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (1984) pp. 579–580.Google Scholar

3. See e.g., Merryman, J.H., ‘Two Ways of Thinking about Cultural Property’, 80 AJIL (1986) p. 838 et seqCrossRefGoogle Scholar; Nahlik, S.E., ‘On Some Deficiencies of the Hague Convention of 1954 on the Protection of Cultural Property in the Event of Armed Conflict’, 44 YB AAA (1974) p. 103 et seq.Google Scholar

4. See in more detail Nahlik, S.E., ‘La protection internationale des biens culturels en cas de conflit armé‘, 120 Hague Recueil (1967-I) pp. 66–89Google Scholar. See also Verri, P., ‘The Condition of Cultural Property in Armed Conflict’, 25 Int. Rev. Red Cross (1985) nos. 244–245, pp. 67–85.CrossRefGoogle Scholar

5. Arts. 34–36 of the Instructions. Text in Schindler, D. and Toman, J., eds., 3rd edn., The Laws of Armed Conflict, A Collection of Conventions, Resolutions and Other Documents (1988) p. 3.Google Scholar

6. Art. 8. Text in ibid., p. 27. See also Art. 17.

7. Art. 53. Text in ibid., p. 37.

8. Text in ibid., p. 69. The 1907 Convention and appended Regulations represent a revised version of the 1899 Convention and Regulations. In general the two versions differ only slightly and as far as provisions on the protection of cultural property are concerned (Arts. 27 and 56), there is practically no difference between the two versions. See infra, n. 9.

9. Common Art. 27. The only difference between the 1899 and 1907 versions is the inclusion in the 1907 regulations of ‘historic monuments’ in the category of the protected objects.

10. Common Art. 23(g).

11. Common Art. 56.

12. Text in Schindler and Toman, eds., op. cit. n. 5, at p. 812.

13. Art. 5, para. 1.

14. Text in 167 LNTS (1936) No. 3874, p. 289. The Treaty is still in force for ten American States, see Schindler and Toman, eds., op. cit. n. 5, at p. 740.

15. See in more detail Boylan, op. cit. n. 1, at pp. 30–34; Nahlik, loc. cit. n. 4, at pp. 98–105. See also Merryman, loc. cit. n. 3, at p. 835; Toman, loc. cit. n. 2, at pp. 566–568; Verri, loc. cit. n. 4, at pp. 135–136. For the text of the 1936 Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Time of War see Boylan, op. cit. n. 1, Appendix V, at p. 181.

16. See Solf, W.A., ‘Cultural Property, Protection in Armed Conflict’, EPIL, Instalment 9 (1986) pp. 64–65.Google Scholar

17. Text in 249 UNTS p. 240 and p. 358. At present (15 May 1996) 87 States are parties to the Convention and 74 to its Protocol; see UNESCO, Convention and Protocol for the Protection of Cultural Property in the Event of Armed Conflict, List of the 87 States Parties (74 States Parties to the Protocol) as at 5 July 1995. There has been no change since 3 July 1995 when the Kyrghyz Republic deposited its instrument of accession to the Convention.

18. On their customary nature see for example, Oppenheim, L., International Law, Lauterpacht, H., ed., 7th edn., Vol. II, ‘Disputes, War and Neutrality’ (1952) pp. 234–235Google Scholar; Post, H.H.G., ‘Some Curiosities in the Sources of the Law of Armed Conflict Conceived in a General International Legal Perspective’, 25 NYIL (1994) p. 108CrossRefGoogle Scholar; Schwarzenberger, G., International Law as Applied by International Courts and Tribunals, Vol. II, ‘The Law of Armed Conflict’ (1968) p. 78 et seqGoogle Scholar. See also International Criminal Tribunal for the Former Yugoslavia, The Appeals Chamber, Decision of 2 October 1995 in The Prosecutor v. Dusko Tadić, reprinted in 35 ILM (1996) para. 87, p. 60. As a treaty law the 1907 Convention and appended Regulations is in force for 49 States Parties or their successors, see Schindler and Toman, eds., op. cit. n. 5, at pp. 96–97. The 1899 Convention and annexed Regulations remain in force for 17 States which did not ratify the 1907 version.

19. Thus, the provisions of the 1907 Hague Conventions remain applicable for the parties of the 1954 Convention in respect of property which is not ‘of great importance for the cultural heritage of peoples’. See infra, section 3.

20. On the concept of cultural internationalism introduced by this provision, see Merryman, loc. cit. n. 3, at pp. 836–837 et seq.

21. See Solf, loc. cit. n. 16, at p. 67.

22. On this obligation see infra, section 3.1.2.

23. I.e., by the party which has the object under its control as well as by its adversary.

24. See Pilloud, C. et al. , Commentary on the Additional Protocols of 8 June 1977to the Geneva Conventions of 12 August 1949, Sandoz, Y., Swinarski, Ch., Zimmermann, B., eds., (1987) p. 647.Google Scholar

25. The Convention provides for two exceptions to the distance criteria. A refuge for movable cultural property may be placed under special protection regardless of its location, if it is so constructed that, in all probability, it will not be damaged by bombardment (Art. 8, para. 2). Other cultural property situated near important military objectives may nevertheless be placed under special protection if the Contracting Party requesting such protection undertakes, in the event of armed conflict, not to make any use of the facility and, particularly in a case of ports, railway stations or airfields, to divert all traffic therefrom. Such diversions must be prepared in peacetime (Art. 8, para. 5).

26. Paras. 3 and 4 of Art. 8 explain in more detail what is meant by utilization for military purposes. A centre containing monuments shall be deemed to be used for military purposes whenever it is used for the movement of military personnel or material, even in transit. The same shall apply whenever activities directly connected with military operations, the stationing of military personnel, or the production of war material are carried out within the centre.

27. The Convention contains a detailed set of procedural rules providing a system of special protection, see Arts. 8–11 and Arts. 11–17 of the Regulations for the Execution of the Convention for the Protection of Cultural Property in the Event of Armed Conflict. The requirements for establishing special protection are so rigorous that only the Vatican City and a few special establishments to shelter movable cultural property in remote parts of Austria, the Netherlands and Germany have been registered, see ‘Information on the Implementation of the Convention for the Protection of Cultural Property in the Event of Armed Conflict’, The Hague 1954, 1984 Reports, UNESCO, CLT/MD/3, Paris 1984, p. 6 et seq. See also ‘Protection of Cultural Property in the Event of Armed Conflict’, Information on the Implementation of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, The Hague 1954, 1989 Reports, UNESCO, CC/MD-11, Paris, December 1989, p. 6 et seq.

28. See supra, Art. 4, para. 1.

29. Arts. 12–14; Arts. 17–19 of the Regulations for the Execution of the Convention for the Protection of Cultural Property in the Event of Armed Conflict.

30. See Nahlik, loc. cit. n. 4, at p. 128.

31. On the customary law principle of proportionality, which is a guiding principle in establishing the equitable balance between the necessities of war and humanitarian requirements, see Delbrueck, J., ‘Proportionality’, EPIL, Instalment 7 (1984) p. 398Google Scholar; Huber, M., ‘Quelques Considérations sur une revision éventuelle des Conventions de la Haye relatives a la guerre’, 37 RICR (1955) no. 439 p. 423.Google Scholar

32. On the functions of the Commissioner-General for Cultural Property see infra, section 3.1.4.

33. Fora more detailed analysis of the conditions of Art. 11, paras. 2 and 3, see Nahlik, loc. cit. n. 3, at p. 104.

34. For a detailed analysis of the concept of military necessity and its historical evolution see Andrassy, J., ‘Vojna potreba i ratno pravo’, Jugoslavenska akademija znanosti i umjetnosti, Odjel zafilozofiju i društvene nauke, Rad 321 (1960) pp. 163–200Google Scholar; Downey, W.G., ‘The Law of War and Military Necessity’, 47 AJIL (1953) no. 2, pp. 251–262CrossRefGoogle Scholar; Dunbar, N.H.C., ‘Military Necessity in War Crimes Trials’, 29 BYIL (1952) pp. 442–452Google Scholar; Rauch, E., ‘Le concept de nécessité militaire dans le droit de la guerre’, Revue de droit pénal militaire et le droit de la guerre (1980) p. 205.Google Scholar

35. See Downey, loc. cit. n. 34, at p. 253 and the authors there cited.

36. On the doctrine Kriegsraison geht vor Kriegsmanier see Andrassy, loc. cit. n. 34, at p. 174 et seq.; Dunbar, loc. cit. n. 34, at pp. 445–446; Oppenheim, op. cit. n. 18, at pp. 231–233.

37. See Andrassy, loc. cit. n. 34, at p. 182 et seq.; Schwarzenberger, op. cit. n. 18, at p.136 et seq. See also Dunbar, loc. cit. n. 34, at p. 445.

38. See Dinstein, Y., ‘Military Necessity’, EPIL, Instalment 3 (1982) p. 275Google Scholar; Dunbar, loc. cit. n. 34; Schafer, B.K., ‘The Relationship between the International Laws of Armed Conflict and Environmental Protection: The Need to Reevaluate what Types of Conduct are Permissible during Hostilities’, 18 Calif. Western ILJ (1988-1989) p. 314Google Scholar. For an interesting view that the existence of aggression undermines the ability of the destroying power to appropriately invoke military necessity as a basis for justifying the destruction, see Zedalis, R.J., ‘Military Necessity and Iraqi Destruction of Kuwaiti Oil’, 23 Rev. Belge (1990) pp. 333–349.Google Scholar

39. Art. 23(g) of the 1899/1907 Regulations, Art. 53 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War.

40. ‘The Hostages Case’, Military Tribunal V, Case 7, USA v. Wilhelm List et al., Judgement, Trials of War Criminals before the Nuerenberg Military Tribunals under Control Council Law No. 10, Vol. XI (1950) pp. 1253–1254.Google Scholar

41. See Downey, loc. cit. n. 34, at p. 256.

42. See Dunbar, loc. cit. n. 34, at pp. 446–452.

43. Merryman, loc. cit. n. 3, at p. 841. See also Nahlik, loc. cit. n. 4, at p. 147.

44. See Nahlik, loc. cit. n. 3, at p. 105.

45. The military necessity exception was included in the Convention on the insistence of Turkey, the United Kingdom and the United States, in spite of strong opposition by many States (e.g., Greece, Spain, the USSR), see Nahlik, loc. cit. n. 4, at pp. 128–131. It should be noted that the strongest proponents of the military necessity exception at the Conference, i.e., the United Kingdom and the United States have never become parties to the Convention.

46. See Nahlik, loc. cit. n. 3, at p. 104.

47. Arts. 18 and 19.

48. Art. 19, paras. 1 and 2. While analysing the international rules governing internal armed conflicts, the International Criminal Tribunal for the Former Yugoslavia in its Decision of 2 October 1995 in the Tadić case points to Art. 19 as one of treaty rules which has become part of customary international law, see supra, n. 18, para. 98, p. 63. See also infra, section 4.2. Thus, the Tribunal considers the provisions of the Convention relating to respect for cultural property as reflecting the rules of customary international law governing internal conflicts. If it is the minimum applicable, on the customary legal basis, to internal armed conflict, it may be argued that the same rules constitute customary international law as regards international armed conflicts.

49. Art. 34.

50. Art. 25.

51. Art. 7.

52. Provisions on international control are contained in Arts. 1–10 of the Regulations for the Execution of the Convention for the Protection of Cultural Property in the Event of Armed Conflict.

53. See in more detail Nahlik, loc. cit. n. 4, at p. 135.

54. On jurisdictional questions regarding the international protection of cultural property and the deficiencies of the 1954 Convention see Bassiouni, M.C., ‘Reflections on Criminal Jurisdiction in International Protection of Cultural Property’, 40 Syracuse JIL & Com. (1983) pp. 311–316Google Scholar. On the proposed revision of this Article see infra, section 6.

55. See Nahlik, loc. cit. n. 4, at p. 137.

56. Art. I, paras. 1–4. See Boylan, op. cit. n. 1, at pp. 99–101.

57. Text in 1125 UNTS p. 3. As at 30 April 1996 144 States were parties to the Protocol, see International Committee of the Red Cross, Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977, Ratifications, Accessions and Successions as at 30 April 1996.

58. See Art. 2, para. 1 common to the 1949 Geneva Conventions.

59. See Art. 2, para. 2 common to 1949 Geneva Conventions.

60. For the conditions for the application of the 1949 Geneva Conventions, supplemented by Protocol, to the national liberation movements, see Art. 96, para. 3 of the Protocol.

61. See Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts (hereinafter: Official Records), Geneva 1974-1977, III, p. 213.Google Scholar

62. The definition of military objectives is clearly influenced by Art. 24.1 and 24.2 of the 1923 Hague Rules on Air Warfare (text in Schindler and Toman, eds., op. cit. n. 5, at p. 139) and by the definition proposed by the Institute of International Law in its Resolution adopted at its session in Edinburgh in 1969, see the text in 66 AJIL (1972) p. 470.

63. This presumption, which constitutes an important step forward in the protection of the civilian population and civilian objects, was criticized by some authors who argued that such a provision was not operationally practicable, see e.g., Roberts, G.B., ‘The New Rules for Waging War: the Case against Ratification of Additional Protocol I’, 26 Virginia JIL (1985) pp. 150–151Google Scholar. For the opposite view, pointing out the practical advantages of such a presumption which directs commanders to make decisions responsibly, see Aldrich, G.A., ‘Progressive Development of the Laws of War: “A Reply to Criticism of the 1977 Geneva Protocol I”’, 26 Virginia JIL (1986) pp. 712–713.Google Scholar

64. Art. 51, paras. 4 and 5.

65. Art. 57, para. 2(a)(iii) and (b). The same wording is used in Art. 51, para. 5(b) relating to the incidental loss of civilian life.

66. According to some commentators the objects which qualify for special protection under Art. 53 of the Protocol are substantially those which qualify for special protection under Art. 8 of the 1954 Hague Convention, see Bothe, M., Partsch, K.J., Solf, W.A., New Rules for Victims of Armed Conflicts, Commentary on the Two Protocols Additional to the Geneva Conventions of 1949 (1982) p. 333Google Scholar; Solf, loc. cit. n. 16, at p. 67.

67. Art. 4, para. 1 and Art. 9. See supra, section 3.1.2.

68. This is due to the ‘without prejudice’ clause in Art. 53 of the Protocol, see supra, section 4.1.2.

69. See Pilloud et al., op. cit. n. 24, at p. 647.

70. Ibid. at p. 648; Bothe et al., op. cit. n. 66, at p. 333.

71. See Pilloud et al., op. cit. n. 24, at p. 648.

72. Arts. 49–54 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949 (hereinafter: First Convention), text in 75 UNTS p. 31; Arts. 50–53 of the Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949 (hereinafter: Second Convention), text in ibid. p. 85; Arts. 129–132 of the Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 (hereinafter: Third Convention), text in ibid. p. 135; Arts. 146–149 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (hereinafter: Fourth Convention), text in ibid. p. 287.

73. Art. 85, para. 1 of the Protocol.

74. See the First Convention, Art. 50; Second Convention, Art. 51; Third Convention, Art. 130; Fourth Convention, Art. 147.

75. First Convention, Art. 49, para. 1; Second Convention, Art. 50, para. 1; Third Convention, Art. 129, para. 1 and Fourth Convention, Art. 146, para. 1.

76. See Pictet, J., Commentary, The Geneva Conventions of 12 August 1949, Vol. III (1960) p. 624Google Scholar. For the opposite view see Draper, G.I.A.D., ‘The Implementation and Enforcement of the Geneva Conventions of 1949 and of the Two Additional Protocols of 1977’, 164 RC (1979-III) pp. 38, 41–42Google Scholar. See also Nahlik, S.E., ‘Le problème des sanctions en droit international humanitaire‘, in Swinarski, , ed., op. cit. n. 2, at pp. 480–481Google Scholar; Schwarzenberger, op. cit. n. 18, at pp. 542–543 et seq.

77. Art. 85, para. 5.

78. First Convention, Art. 49, para. 2; Second Convention, Art. 50, para. 2; Third Convention, Art. 129, para. 2; Fourth Convention, Art. 146, para. 2. See more on jurisdictional questions arising from the provisions of the Geneva Conventions and Protocol in Bassiouni, loc. cit. n. 54, pp. 294–296 et seq.; Draper, loc. cit. n. 76, at pp. 35–42; Fernández Flores, J.L., ‘La répression des infractiones individuelles au droit de la guerre’, 73 RICR (1991) no. 789, pp. 296, 302–303 et seq.Google Scholar; Green, L.C., ‘The Law of Armed Conflict and the Enforcement of International Criminal Law’, 22 Can. YIL (1984) pp. 19–22Google Scholar; Kussbach, E., ‘The International Humanitarian Fact-Finding Commission’, 43 ICLQ (1994)pp. 177–178CrossRefGoogle Scholar; Roucounas, E.J., ‘Les infractiones graves aux droit humanitaire (Article 85 du Protocole additionnel I aux Conventions de Genève)’, 31 Rev. Helénique (1978) p. 57 et seq.Google Scholar

79. First Convention, Art. 49, para. 3; Second Convention, Art. 50, para. 3; Third Convention, Art. 129, para. 3; Fourth Convention, Art. 146, para. 3.

80. Bothe et al., op. cit. n. 66, p. 515; Fernández Flores, loc. cit. n. 78, at pp. 282, 294–296, 298 et seq.; Pilloud et al., op. cit. n. 24, at p. 976.

81. See more on the Commission in Kussbach, loc. cit. n. 78, at pp. 174–185.

82. The destruction and appropriation of cultural property could be regarded as a grave breach under Art. 147 of the Fourth Convention which considers extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly as a grave breach of the Convention.

83. The inclusion of this provision was proposed by Italy, see Levie, H.S., Protection of War Victims, Protocol I to the 1949 Geneva Conventions, Vol. 4 (1981) pp. 269, 290 et seq.Google Scholar

84. Besides special protection within the framework of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (see supra, section 3.1), the 1972 UNESCO Convention concerning the Protection of World Cultural and Natural Heritage (see infra, section 5) could also constitute a special arrangement within the meaning of Art. 85, para. 4(d), see Roucounas, loc. cit. n. 78, at pp. 113–114.

85. See Bothe et al., op. cit. n. 66, at p. 519.

86. Ibid. The authors rightly state that it is difficult to imagine how the elements of para. 4(d) of Art. 85 can be transposed into a national penal code or into instructions for the armed forces, ibid.

87. See the Report of the International Law Commission on the work of its forty-third session, 29 April-19 July 1991, GAOR, 46th Session, Supp. No. 10, Doc. A/46/10 (1991) p. 274.

88. Text in 1125 UNTS p. 609. As at 30 April 1996 136 States were parties to the Protocol, see International Committee of the Red Cross, Geneva Conventions of 12 August 1949 and Additional Protocols of 8 June 1977, Ratifications, Accessions and Successions as at 30 April 1996.

89. See Boylan, op. cit. n. 1, at p. 116 and the authors cited therein.

90. It is widely considered that common Art. 3 of the Geneva Conventions reflects customary norms, see the Nicaragua case, ICJ Rep. (1986) pp. 113–114. See also the Decision of 2 October 1995 of the International Criminal Tribunal for the former Yugoslavia in the Tadić case, supra, n. 18, para. 98, p. 63. Some authors go further, considering that common Art. 3 constitutes jus cogens, see e.g., Schwarzenberger, op. cit. n. 18, at p. 718. See also infra, n. 92.

91. See Pilloud et al., op. cit. n. 24, at p. 1350.

92. The International Criminal Tribunal for the Former Yugoslavia stated in its Decision of 2 October 1995 in the Tadić case that ‘the core of Additional Protocol II of 1977’ has become part of customary international law (supra, n. 18, para. 98, p. 63 and para. 117, p. 69). Some authors point to the customary legal nature of all the provisions contained in the 1977 Protocol II, see e.g., Plattner, D., ‘La protection des personnes déplacées lors d'un conflit armé non international’, 74 RICR (1992) no. 798, pp. 595–596Google Scholar. Some authors hold that not only can Art. 3 common to the 1949 Convention be considered as jus cogens but all the provisions of the 1977 Protocol II can also be so considered, see e.g., Andrassy, J., Bakotić, B., Vukas, B., Medunarodno pravo 1 (1995) p. 83.Google Scholar

93. Text of the 1973 draft in Official Record I, Part III, pp. 33–46.

94. See Levie, H.S., The Law of Non-International Armed Conflict, Protocol II to the 1949 Geneva Conventions (1987) p. 509 et seq.Google Scholar

95. See the views expressed by the delegations of Finland, Norway and the United Kingdom, ibid. pp. 519, 523, 525–526.

96. See the views of the delegation of the United Kingdom, ibid. p. 526.

97. See ibid. pp. 521–522.

98. The International Criminal Tribunal for the Former Yugoslavia considers Art. 19 of the 1954 Convention as reflecting a customary rule, see supra, section 3.1.4 and fn. 48.

99. See Pilloud et al., op. cit. n. 24, p. 1467. See also the statement of the Netherlands delegation during the Conference, in Levie, op. cit. n. 94, at p. 524–525.

100. See Pilloud et al., op. cit. n. 24, at p. 1470. See also Toman, loc. cit. n. 2, at p. 565.

101. For the conditions under which the 1954 Hague Convention allows a loss of immunity in a case of abuse of protected status see supra, section 3.1.3.

102. See the Decision of 2 October 1995 by the International Criminal Tribunal for the former Yugoslavia in the Tadić case, supra, n. 18, para. 71 at p. 55, paras. 79–80 at pp. 58–59 et seq. As to the recent trends in both State practice and human rights literature, see ibid. para. 83, p. 59.

103. See the Report of the International Law Commission, supra, n. 87, pp. 269–270.

104. The following existing European regional conventions: the 1954 European Cultural Convention (218 UNTS p. 139), the 1969 European Convention on the Protection of the Archaeological Heritage (ETS no. 66) and the 1985 European Convention on Offences Relating to Cultural Property (ibid. no. 119), do not provide mechanisms for protection during armed conflicts. The Unidroit Convention on the International Return of Stolen or Illegally Exported Cultural Objects, adopted at Rome on 24 June 1995, does not contain any explicit provision on cultural objects acquired by armed conflict, although the delegation of Croatia proposed the inclusion of such a provision, see Doc. CONF.8/C.1/S.R.1, 13 June 1995, p. 11.

105. Text in 823 UNTS p. 231.

106. A detailed definition of the term ‘cultural property’ for the purposes of the Convention is contained in Art. 1.

107. For an extensive discussion of the Convention, see Gordon, J., ‘The UNESCO Convention on the Illicit Movement of Art Treasures‘, 12 Harvard ILJ (1971) p. 537Google Scholar; Merryman, loc. cit. n. 3, p. 842 et seq.; Prott, L.V. and O'Keefe, P.J., Law and the Cultural Heritage, Vol. 3: ‘Movement’ (1989) Ch. 14 et seqGoogle Scholar. See also Boylan, op. cit. n. 1, at pp. 100–101; de Jager, K.M., ‘Claims to Cultural Property under International Law’, 1 LJIL (1988) pp. 187–188CrossRefGoogle Scholar; Nahlik, S., ‘International Co-operation to Prevent Illicit Traffic of Cultural Property’, YB AAA (1984) pp. 73–81.Google Scholar

108. Boylan points out that this obligation is weaker than the obligations under the 1954 Protocol (see supra, section 3.2), which, in addition to the obligation to prevent the exportation of cultural property from an occupied territory, provides for the obligation of its parties to take into custody cultural property imported into its territory either directly or indirectly from any occupied territory and to return it (Art. I, paras. 2 and 3), see Boylan, op. cit. n. 1, p. 101.

109. Text in 1037 UNTS, p. 151.

110. For definitions of cultural and natural heritage for the purposes of the Convention, see Arts. 1 and 2.

111. See Boylan, op. cit. n. 1, at pp. 109–113; Toman, loc. cit. n. 2, at pp. 561–565.

112. The text of the General Framework Agreement is reproduced in 35 ILM (1996) p. 89. The Agreement on the Commission to Preserve National Monuments is contained in Annex 8, see ibid. p. 142.

113. Art. 4. According to Art. 2 the Commission will be composed of five members: three of them appointed by the parties to the Agreement and two by the Director General of UNESCO.

114. Art. 5, para. 5.

115. See in more detail on the activities within UNESCO and the role of the Dutch Government in the revision process, Tanja, G.J., ‘Recent Developments Concerning the Law for the Protection of Cultural Property in the Event of Armed Conflict’, 7 LJIL (1994) pp. 116–119.CrossRefGoogle Scholar

116. See Resolution 3.5 adopted by the General Assembly of UNESCO at its 27th session (1993), para. 1.

117. See The Second Expert Meeting on the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, Lauswolt – The Netherlands, 9–11 February 1994, Doc.CLT/95/CONF/009/2 (hereinafter: the Lauswolt draft); Expert Meeting on the Review of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, Paris, UNESCO Headquarters, 28 November-2 December 1994, Doc. CLT/CH/94/608/2, Final report (hereinafter: the Paris document). See also Expert Meeting on the Review of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, Paris, 28 November-2 December 1994, A working document prepared by the Secretariat, 28 November 1994, Doc. CLT/94/608/1, 28 November 1994 (hereinafter: the Secretariat's commentary).

118. See Art. 3 of the Lauswolt draft; Paris document, p. 6; the Secretariat's commentary, pp. 5–7. See also Boylan, op. cit. n. 1, at p. 17 et seq.; Tanja, loc. cit. n. 115, at pp. 121–122.

119. See Art. 13 of the Lauswolt draft.

120. See Arts. 14–18 of the Lauswolt draft; Paris document, pp. 5, 7; the Secretariat's commentary, pp. 19–22. See also Boylan, op. cit. n. 1, at pp. 17, 130 et seq.; Tanja, loc. cit. n. 115, at pp. 123–124.

121. Art. 1 of the Lauswolt draft mentions no waiver in cases of military necessity. See Paris document, p. 3. Boylan strongly recommends the renunciation of the provisions of the Convention which allow the waiving of the provisions of the Convention in the case of military necessity, see Boylan, op. cit. n. 1, at pp. 17, 57.

122. See Paris document, p. 3.

123. Ibid.

124. In this connection reference was made to the ILC Draft Statute for an International Criminal Court, see the Secretariat's commentary, pp. 11–12; Paris document, p. 5.

125. See the Secretariat's commentary, p. 15.

126. See the Resolution adopted by the Meeting of the States Parties to the 1954 Hague Convention, Paris, 13 November 1995, para. 4.

127. See Resolution 827 of 25 May 1993, preambular paras. 4–6, 10; reproduced in 32 ILM (1993) p. 1203. See also the Report of the Secretary-General pursuant to Paragraph 2 of the Security Council Resolution 808 (1993), Doc. S/25704 of 3 May 1993 (hereinafter: Report of the Secretary-General), p. 8; reprinted in ibid. p. 1163.

128. For the text of the Statute see the Report of the Secretary-General, supra, n. 127, Annex, p. 36; reproduced in 32 ILM (1993) p. 1192.

129. Supra, n. 127.

130. According to the Report of the Secretary-General the instruments which indisputably embody customary international law are: four Geneva Conventions for the Protection of War Victims of 1949; the Hague Convention (IV) Respecting the Laws and Customs of War and Annexed Regulations of 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 and the Charter of the International Military Tribunal of 1945; see the Report of the Secretary-General, supra, n. 127, pp. 10–11.

131. Ibid. p. 9.

132. See in more detail Meron, T., ‘War Crimes in Yugoslavia and the Development of International Law’, 88 AJIL (1994) pp. 80, 82CrossRefGoogle Scholar; O'Brien, J.C., “The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia’, 87 AJIL (1993) p. 646CrossRefGoogle Scholar. Referring to the judgement of the ICJ in the Nicaragua case (supra, n. 100) in which the Court interpreted obligations imposed by a General Assembly resolution in the light of statements of a State at the time of voting for the resolution (ibid. p. 107), O'Brien holds that the Tribunal should treat statements made in the Security Council as an integral part of the Statute, see ibid. p. 658.

133. Some authors criticized the restriction of the Tribunal's subject-matter jurisdiction to the customary law of war, arguing that the former Yugoslavia was a party to all relevant treaties on the laws of war concluded after World War II, that it included all breaches of those treaties in its penal law and that all its successor States had looked at the provisions of the former federal penal law in their national legislations, see Josipović, I., ‘Medunarodni sud za zločine počinjene na području bivše SFRJ’, Judex (1993) no. 3(1), pp. 179–180.Google Scholar

134. See supra, n. 18, para. 143, p. 73.

135. See ‘Declaration: Destruction by War of the Cultural Heritage in Croatia and Bosnia and Herzegovina’, in Salle, J. and Wade, J., Effects of War on the Environment, The Proceedings of an International Conference on ‘Effects of War on the Environment’Google Scholar, Zagreb, Croatia, 15–17 April, 1993, p. 163.