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The Review Process of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Impact on International Humanitarian Law*

Published online by Cambridge University Press:  17 February 2009

Jan Hladik
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Extract

The end of the Cold War and the disappearance of bipolarity have resulted in a recrudescence of a number of armed conflicts in the world, in particular in the ex-Yugoslavia and the former Soviet Union. Such conflicts have demonstrated a blatant disregard for the law of armed conflicts and a loss of respect for human lives and cultural heritage. They have also demonstrated deficiencies in the implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict — the only comprehensive international agreement aimed specifically at protecting movable and immovable cultural heritage in the event of armed conflict.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 1 , December 1998 , pp. 313 - 322
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1998

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References

1. 249 UNTS p. 240 et seq.Google Scholar; text available from UNESCO, references in this paper are made to UNESCO publication Conventions and Recommendations of UNESCO concerning the protection of cultural heritage, UNESCO (1985) p. 27Google Scholar.

2. Boylan, Patrick J., Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954), UNESCO Doc. CLT-93/WS/12 (Paris 1993)Google Scholar; Patrick J. Boylan, ‘Réexamen de la Convention pour la protection des biens culturels en cas de conflit armé (Convention de La Hayede 1954)’, UNESCO CLT-93/WS/12, (Paris 1993).

3. Toman, Jiří, La protection des biens culturels en cas de conflit armé (Commentaire de la Convention et du Protocole de La Haye du 14 mai 1954 pour la protection des biens culturels en cas de conflit armé ainsi que d'autres instruments de droit international relatifs à cette protection) (Paris, Editions UNESCO 1994)Google Scholar.

4. Toman, Jiří, The Protection of Cultural Property in the Event of Armed Conflict (Commentary on the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocol, signed on 14 May 1954 in The Hague, and on other instruments of international law concerning such protection), (Hampshire, Dartmouth Publishing Company Limited and UNESCO 1996)Google Scholar.

5. The Hague — July 1993; Lauswolt — February 1994; Paris — November/December 1994; and again Paris — March 1997.

6. Paris, 13 November 1995 and 1997, respectively.

7. Greenspan, Morris, The Modern Law of Land Warfare (Berkeley and Los Angeles, University of California Press, 1959) pp. 313–314Google Scholar.

8. Arts. 8, 34 and 50 of the First Geneva Convention; Art. 126 of the Third Geneva Convention; Arts. 49, 55, 108 and 143 of the Fourth Geneva Convention; and Arts. 54(5), 62, 67 and 71 of the First Additional Protocol of 1977 to the Geneva Conventions.

9. Records of the Conference convened by the United Nations Educational, Scientific and Cultural Organization held at The Hague from 21 April to 14 May 1954 (published by the Government of the Netherlands, The Hague, Sdu 1961), p. 151.

10. Records, ibid., at p. 141.

11. Art. 4, Respect for cultural property provides:

1. The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflicts; and by refraining from any act of hostility directed against such property.

2. The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.

(…)

12. Art. 11, Withdrawal of immunity, provides:

1. If one of the High Contracting Parties commits, in respect of any item of cultural property under special protection, a violation of the obligations under Article 9 [defining the immunity of cultural property under special protection], the opposing Party shall, so long as this violation persists, be released from the obligation to ensure the immunity of the property concerned. Nevertheless, whenever possible, the latter Party shall first request the cessation of such violation within a reasonable time.

2. Apart from the case provided for in paragraph 1 of the present Article, immunity shall be withdrawn from cultural property under special protection only in exceptional cases of unavoidable military necessity, and only for such time as that necessity continues. Such necessity can be established only by the officer commanding a force the equivalent of a division in size or larger. Whenever circumstances permit, the opposing Party shall be notified, a reasonable time in advance, of the decision to withdraw immunity.

13. UNESCO Doc. CLT-96/CONF.603/INF.4 (Paris, December 1996) pp. 2–4.

14. Austria; Belarus; Belgium; the former Czechoslovakia; India; the Federal Republic of Germany; Hungary; die Islamic Republic of Iran; Italy; Mexico; Netherlands; Poland; Slovenia; Ukraine; and Yugoslavia.

15. Art. 9, Individual criminal responsibility, of the new draft provides:

1. The commission of any violation of a provision of this instrument entails individual criminal responsibility.

2. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a grave breach [any violation of] this instrument, shall be individually responsible.

3. Any attempt in respect of acts referred to in paras. (1) and (2) of this Article entails individual criminal responsibility.

4. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve mat person of criminal responsibility nor mitigate punishment for any grave breach under this instrument.

5. The commission of any act prohibited under this instrument by a subordinate shall not relieve a superior of criminal responsibility if the superior knew or had reason to know that the subordinate was about to commit the act or had done so and the superior failed to take the necessary and reasonable measures to prevent the act or to punish the perpetrators.

6. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve that person of criminal responsibility but may be considered in mitigation of punishment.

7. Prosecution of an individual for [a grave breach] [an act] under Article [s] [….] of this instrument shall not relieve a State Party of any responsibility under international law for an act or omission attributable to it. Draft provisions for the revision of the 1954 Hague Convention and commentary from the UNESCO Secretariat, UNESCO Doc.CLT-97/CONF.208/2 (Paris, October 1997), p. 12.

16. Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 of 3 05 1993, p. 15Google Scholar.

17. Art. 8, Responsibility of States, provides:

1. States Parties are responsible for any violation of their obligations under this instrument.

2. States Parties are responsible for any [serious] violation of a provision of this instrument which is attributable to a State under international law.

[3. This responsibility entails the duty to provide reparation in accordance with international law, including i.a. compensation and restitution, as the case may be.]

Draft provisions for the revision of the 1954 Hague Convention and commentary from the UNESCO Secretariat, UNESCO Doc. CLT-97/CONF.208/2 (Paris, 10 1997) p. 11Google Scholar.

18. Art. 91, Responsibility, provides:

‘A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.’ In International Red Cross Handbook, 12th edn. (Geneva, 07 1983) p. 269Google Scholar.

19. Art. 10, Jurisdiction, provides:

1. States Parties undertake to prosecute, bring to trial and punish persons present in their territory responsible for, or accused of, [the acts] defined in Article[s] [….] of this instrument.

2. To that end States Parties shall adopt, whenever necessary, appropriate legislative and administrative measures.

3. Persons charged with [the acts] enumerated in Article [s] [….] of this instrument may be tried by a competent court of any State Party which may acquire jurisdiction over the accused or by any international tribunal which may have jurisdiction. This does not preclude the jurisdiction of any international tribunal which may be established.

4. A State Party in whose territory a person alleged to have committed a grave breach under Article[s] [….] of this instrument is present shall either try or extradite that person.

Draft provisions for the revision of the 1954 Hague Convention and commentary from the UNESCO Secretariat, UNESCO Doc. CLT-97/CONF.208/2 (Paris, 10 1997) p. 14Google Scholar.

20. Art. 14 (Option I), Committee, provides:

1. A Committee is hereby established within UNESCO. It shall be composed of [….] States Parties to this instrument which shall be elected by the States Parties during the ordinary session of the General Conference of UNESCO in accordance with the Rules of Procedure as referred to in Article […] of this instrument.

2. Election of members of the Committee shall ensure an equitable representation of the different regions and cultures of the world.

[3. States members of the Committee shall choose as their representatives persons qualified in the fields of defence, international law or culture.]

4. Representatives of intergovernmental or non-governmental organizations may attend the meeting of the Committee in an advisory capacity upon invitation of die Committee.

Draft provisions for the revision of the 1954 Hague Convention and commentary from the UNESCO Secretariat, UNESCO Doc. CLT-97/CONF.208/2 (Paris, 10 1997) p. 18Google Scholar.

21. Art. 17 (Option I), Functions, provides:

1. The Committee shall have the following functions and tasks without limiting UNESCO's competence to offer its services under Article 19 of the Convention and to initiate proposals under Article 23 of the Convention:

(a) to identify and formulate criteria on the basis of which cultural property will be specially protected;

(b) to receive requests from States Parties for the entry into the Register established in accordance with Article (….) of this instrument of cultural property (protected by the Convention) (as defined in Article 1 of the Convention), situated in its territory and suitable for inclusion in the Register provided for in Article (…) of this instrument. This request shall include information and documentation about the exact location, significance and nature of the cultural property;

(c) to establish, keep up to date, publish and distribute every two years the Register;

(d) to monitor and supervise the implementation of this instrument;

(e) to cooperate with the Director-General of UNESCO in fulfilling the functions provided for in Article (…) of this instrument and in his performance of the mission of control according to the Regulations for the Execution of the Convention;

[(f) to decide on the use of the resources of the [Fund] established in accordance with Article (17A) of this instrument;]

(g) to perform any other function which may be attributed to it under this instrument or by States Parties;

[(h) to receive and study requests for international assistance formulated by States Parties under Article (…) of this draft with respect to ….];

[(i) to decide on the action to be taken with regard to requests for international assistance under Article (…) of this instrument, determine where appropriate, the nature and extent of its assistance, and authorize the conclusion, on its behalf, of the necessary arrangements with the government concerned;]

[(j) to draw up, keep up to date and publicize a list of projects and programmes under Article (….) of this instrument for which international assistance has been granted;]

[(k) to define the procedure by which requests to it for international assistance shall be considered;]

(l) to submit to the General Conference of UNESCO at each of the ordinary sessions a report on its activities;

2. The Committee shall cooperate with international and national governmental and non-governmental organizations having objectives similar to those of the Convention, its 1954 Protocol and this instrument and also may call upon individual experts.

[2. Representatives of the International Committee of the Blue Shield (ICBS) shall attend the Committee in an advisory capacity. A representative of the International Centre for the Study of the Preservation and Restoration of Cultural Property (Rome Centre) (ICCROM) shall also be invited to attend.].

Draft provisions for the revision of the 1954 Hague Convention and commentary from the UNESCO Secretariat, UNESCO Doc. CLT-97/CONF.208/2 (Paris, 10 1997) pp. 19–20Google Scholar.

22. Art. 14 (Option II), Bureau, provides:

(a) The Director-General will call a meeting of States Parties to the Convention to be held at the same time as the General Conference of UNESCO.

(b) The meeting shall elect a Bureau, consisting of 6 States party to the Convention, with due regard to equitable representation of the different regions and cultures of the world. It shall elect a President and Rapporteur.

(c) The Bureau shall hold office for two years and shall hold at least one meeting each year. The Director-General of UNESCO may call the Bureau into session at any other time as he considers necessary.

(d) The Bureau shall adopt its own rules of procedure.

(e) Representatives of the International Committee of the Blue Shield (ICBS) shall attend the Bureau in an advisory capacity. A representative of the International Centre for the Study of the Preservation and Restoration of Cultural Property (Rome Centre) (ICCROM) shall be also invited to attend.

Draft provisions for the revision of the 1954 Hague Convention and commentary from the UNESCO Secretariat, UNESCO Doc. CLT-97/CONF.208/ (Paris, 10 1997) p. 23Google Scholar.

23. The most recent meeting of the governmental experts on the revision of the Convention was held in Vienna from 11–13 May 1998. See Year in Review pp. 135–136.