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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
JlRiTOMAN
LONDON YORK
UNESCO
Publishing
First published 1996 by Ashgate Publishing
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Preface xi
Acknowledgements xiv
Abbreviations xv
v
vi The Protection of Cultural Property in the Event of Armed Conflict
Preamble 39
War is the enemy of man. It is also the enemy of the best that man has
made - art, culture, monuments and the whole cultural and historic
heritage. Many works of art have been destroyed over the centuries,
works that we have never known and that we shall never see again.
In the course of 5000 years of history, some 14 000 wars have afflicted
humanity, causing close on 5000 million deaths. In the twentieth
century, two great world wars exceeded in volume and extent all the
destruction that humanity had hitherto experienced. The conflicts
that have followed these two wars have continued this work of de-
struction, and we have only to think of the Iran-Iraq War, the Gulf
War, the destruction of the national library in Bucharest during the
civil war in Romania and, on top of that, the devastation of the
historic towns of Dubrovnik, Sarajevo and many others besides in
the former Yugoslavia.
Confronted by the horrors of war, people have not stayed silent.
Countless efforts have been made to do something about them. Dur-
ing the twentieth century, restrictions on recourse to warfare were
introduced mainly by the Covenant of the League of Nations and
Kellogg-Briand Pact, before war was outlawed by the Charter of the
United Nations. Unhappily, prohibiting wars has not prevented them
from breaking out in the world. Being unable to eliminate wars,
people have thus attempted, throughout history, to mitigate their
most destructive effects. This is how international humanitarian law
came into being. Humanitarian law is part of international law and
seeks to protect victims of war and regulate hostilities. Legal provi-
sions thus came into being which were designed first of all to protect
the life of individuals. Shaken by the experience of the Second World
War, the international community adopted the 1949 Geneva Conven-
tions to protect the victims of war such as the wounded, the sick, the
shipwrecked, prisoners of war and the civilian population.
Codification of the protection of the cultural heritage, begun under
the auspices of the League of Nations, fell after 1945 to UNESCO.
From its very beginnings, UNESCO was given a special mandate in
the application of standards relating to the protection of cultural
xi
xii The Protection of Cultural Property in the Event of Armed Conflict
Editor's note
References in the present text to Byelorussian SSR, Czechoslovakia, Federal Repub-
lic of Germany, German Democratic Republic, Ukrainian SSR, USSR and Yugosla-
via refer to those states prior to the changes of recent years.
xiv
Abbreviations
xv.
xvi The Protection of Cultural Property in the Event of Armed Conflict
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 com, 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.IO 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 deft rive men of these monuments of art and
models of architecture ....' 1
Influenced by the concept developed by Jean-Jacques Rousseau,12
there were possibly the beginnings of a distinction being made be-
tween 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 ofwar.'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 'contra:r to every principle of justice and to the usages of
modem warfare'. 1
Such an approach was not foreign to other religions and civiliza-
tions 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 reli-
gions and all political systems. In traditional and pre-colonial Africa,
there were innumerable sacred places (trees, ancestral huts, shrines
6 The Protection of Cultural Property in the Event of Armed Conflict
thanks to science, will have such prodigious means of doing evil that
it will not be possible to save him from himself, amidst frightful
disasters, other than by divine intervention.'24
The two international peace conferences held in 1899 and 1907 never-
theless played a particularly pioneering role in the development of
the protection of cultural property in time of war. This was especially
true of Conventions Nos IV and IX of 1907. The protection of cultural
property is covered by these Conventions first of all by provisions
relating to the protection of civilian property in general (especially
by Articles 23(g), 25, 28 and 47 of the Hague Regulations) as well as
by special provisions concerning cultural property.
The Regulations of 1907, annexed to Convention No. Iv, and in
particular Articles 27 and 56, deal with cultural property. The impor-
tance of these rules was reinforced still further by the assertion of the
Nuremberg International Military Tribunal that, by 1939, they were
rules 'recognized by all civilized nations and were regarded as being
declaratory of the laws and customs of war'.28 Article 27, in the
Section on Hostilities (Chapter 1 on Means of Injuring the Enemy,
Sieges and Bombardments), states:
monuments, hospitals, and places where the sick and wounded are
collected, on the understanding that they are not used at the same
time for military purposes.
It is the duty of the inhabitants to indicate such monuments, edi-
fices, or places by visible signs, which shall consist of large, stiff rec-
tangular panels divided diagonally into two coloured triangular por-
tions, the upper portion black, the lower portion white.
At the time of the First World War the provisions were too succinct to
afford effective protection. Moreover, the extent of the theatre of
operations made real protection impossible because firing techniques
were not sufficiently accurate at the time to guarantee the protection
of specific buildings.
During that war, especially after the destruction of Rheims, Louvain
and Arras, increasing efforts were made to strengthen the protection
of cultural property. Mr Vetter of Berne and Mr Mauriaud of Geneva
suggested, during a public gathering in Geneva in April 1915, the
setting up of an international body called 'La Croix d'Or' (the 'Gold
Cross'). The idea, clearly inspired by the Red Cross, took root. A
conference convened in Brussels in August 1915, which was attended
by representatives of Germany, Austria-Hungary and Switzerland,
drew up the broad lines of a convention. The failure of this confer-
ence led the Dutch Archaeological Society (Nederlandsche
Oudleidhundige Bond) to propose to the Queen of the Netherlands,
in April 1918, the convening of an international conference on the
protection of historic and artistic monuments and objects against the
dangers of war. On 31 October 1918, Mr Van Eysinga submitted a
report to the Ministry for Foreign Affairs which, in 1919, was for-
warded to foreign cultural organizations.
The project of the Dutch society had no more success than the
preceding plan but it had undeniable influence on two other propos-
als put forward at the end of the First World War. A Preliminary
Conference to the Treaty of Versailles had considered punishing those
responsible for violations of Hague Conventions. The Commission
on Responsibility for War and Guarantees, set up in January 1919,
collected evidence concerning attacks against cultural property.
Article 25
In bombardment by aircraft, all necessary steps must be taken by the
commander to spare as far as possible buildings dedicated to public
worship, art, science, or charitable purposes, historic monuments,
hospital ships, hospitals and other places where the sick and wounded
are collected, provided such buildings, objects or places are not at
the time used for military purposes. Such buildings, objects and
places must by day be indicated by marks visible to aircraft. The use
of marks to indicate other buildings, objects, or places than those
specified above is to be deemed an act of perfidy. The marks used as
aforesaid shall be in the case of buildings protected under the Ge-
neva Convention the red cross on a white ground, and in the case of
other protected buildings a large rectangular panel divided diago-
nally into two pointed triangular portions, one black and the other
white.
A belligerent who desires to secure by night the protection for the
hospitals and other privileged buildings above mentioned must take
the necessary measures to render the special signs referred to suffi-
ciently visible.
Article 26
The following special rules are adopted for the purpose of enabling
states to obtain more efficient protection for important historic monu-
ments situated within their territory, provided that they are willing
to refrain from the use of such monuments and a surrounding zone
16 The Protection of Cultural Property in the Event of Armed Conflict
for military purposes, and to accept a special regime for their inspec-
tion.
The final text of the Treaty was then drawn up by the Governing
Board of the Pan-American Union and signed on 15 April 1935.32 It
This Pact, signed in Washington on 15 April 1935, has been ratified by numerous
States in North and South America and is still in force.
The flag - a red circle enclosing three small red spheres on a white background -
has the same meaning as the blue and white emblem of the 1954 Hague Conven-
tion. The effectiveness of this flag at great distances depends on the conditions of
visibility and on the possibility of perceiving its red surfaces.
18 The Protection of Cultural Property in the Event of Armed Conflict
a distinctive flag (red circle with triple red spheres in the circle) may
be displayed;