http://www.museum-security.org
securma@museum-security.org
Museum Security Website indexpage
WW.II and the looted art question
reports of incidents with cultural property
subscribe mailinglist

MAJOR NEW TREATY ON PROTECTING CULTURAL PROPERTY IN TIMES OF ARMED CONFLICT ADOPTED IN THE HAGUE, 26 MARCH 1999
Subject:

MAJOR NEW TREATY ON PROTECTING CULTURAL PROPERTY IN TIMES OF ARMED CONFLICT ADOPTED IN THE HAGUE, 26 MARCH 1999

also see:
http://www.indiana.edu/~hague/1954hague/home.htm
The site contains links to US government documents on the current status of the 1954 Hague Convention. To update those, who are unaware, the President forwarded the 1954 Hague Convention to the United States Senate with a recommendation for ratification (of the convention not the Protocol I). This is the first time that The Convention has ever had an actual chance for ratification.
The Convention is currently under review by the Senate Foreign Relations subcommittee. If you support the ratification of 1954 Hague Convention, visit the site and send your Senator an e-mail message. There is a link, as well as a letter if you wish to use it, that allows you to find your Senator's e-mail address. It takes only a few minutes and would help to voice support for the 1954 Hague Convention. With the interantional situation in its current state of unrest, the Senate could easily chose not to ratify the 1954 Hague Convention. Only through active support can we give The Convention a chance.
If you have any questions feel free to contact me at
jpiper3@compuserve.com
John Piper

BRIEFING FROM PATRICK BOYLAN, HEAD OF NON-GOVERNMENTAL DELEGATION - INTERNATIONAL COMMITTEE OF THE BLUE SHIELD (ICBS)

N.B. The ICBS is the standing emergency coordination and response committee of the four principal UNESCO-associated non-governmental professional bodies for the "cultural property" area, i.e. the International Council on Archives (ICA), International Federation of Library Associations and Institutions (IFLA), International Council of Museums (ICOM), and International Council on Monuments and Sites (ICOMOS).
-----------------------------------
After two gruelling weeks, 15 - 26 March 1999, during which things often looked very bleak because of deep-seated differences between States, a new 2nd Protocol to the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict was adopted by unanimous consensus on the evening of Friday 26 March in The Hague. So far as I could see the Heads of all 84 national Delegations taking part signed the "Final Act" of the Diplomatic Conference - though this does not commit and State to sign and ratify the new treaty itself: this will depend on often prolonged consideration and major new primary legislation at the national level in each case.
The new Protocol represents much the greatest advance in international cultural protection measure for decades - certainly since the 1972 World Heritage Convention, and probably since the original 1954 Hague Convention. It is also the most substantial development in the general field of International Humanitarian Law since the Geneva Convention Additional Protocols of 1977. Both the World Heritage Convention and the 1977 Additional Protocols offered significant precedents for many of the innovations in the 1999 2nd Protocol just adopted, coupled with the long, and sad, experience of the failure of the original 1954 Convention to prevent great losses of important cultural property over the past 45 years, especially in the sort of "dirty" armed conflicts such as civil wars that have been a constant feature of the post-war world.
For those who are familiar with the 1998 Vienna Draft and the UNESCO Working Draft which the March 1999 Diplomatic Conference took as its starting point, (and indeed my original UNESCO report of 1993 which the Dutch Education and Cultural Heritage Secretary of State generously referred to in his opening address), on virtually every key area except one the final version of the new 2nd Protocol has accepted the basic arguments for change and improvement (though the final language may look quite different in places - not least through the careful attempt to use established "Geneva" wording wherever possible).
In summary, the provisions of Hague 1954 in respect of "protection" in general have been greatly clarified and amplified, in the new Chapter 2. This offers much clearer explanations of, for example, the very limited cases in which "imperative military necessity" can be claimed in order to allow an attack on cultural property - in effect substantially reducing the possible use of this, (a long-standing problem dating back to the original 1899 and 1907 Hague Laws of War). The obligations of States in relation to peacetime preparation and training have been expanded. The Chapter also clarifies (and limits very considerably) what an occupying power may do in relation to cultural property within occupied territories, placing very narrow limits on archaeological excavations and the alteration or change of use of cultural property, and requiring the occupying power to prohibit and prevent all illicit export, removal or change of ownership of cultural property.
The new Chapter 3 creates a new category of "Exceptional Protection" (Protection Renforce in French) for the most important sites, monuments and institutions.
This will be an international designation publicised in advance (rather along the lines of the World Heritage List). The detailed provisions restrict even further than the new Chapter 2 provisions the 1954 "Imperative Military Necessity" exemption: even in the case of gross misuse by the enemy, it will be lawful to attack or retaliate only if the cultural property is currently being actually used in direct support of the fighting etc., and even then there must be no reasonable alternative and any response must be strictly proportionate and limited.
One of the two areas in which there is a very major advance in international humanitarian law and international criminal law is the new Chapter 4. This establishes a whole range of new, explicit, crimes in relation to breaches of cultural protection and respect contrary to either the original 1954 Convention, the new 2nd Protocol, or the cultural protection provisions of the 1977 Additional Geneva Protocols. States Parties will have to legislate for these and in normal cases will be expected to prosecute such crimes in their normal civilian or military courts. However, there is also provision for universal international jurisdiction - giving the possibility of criminal prosecution anywhere else in the world, at least within a State Party to the 2nd Protocol, and the most serious new crimes will be extraditable.
Chapter 5 deals with non-international conflicts, and aims to clarify and strengthen considerably the 1954 provisions (which above all others have never worked).
The other major advance and significant innovation is Chapter 6, which establishes for the first time institutional arrangements in respect of the application of the 1954 Convention. There will be two-yearly meetings of the States Parties (compared with a 22 year gap between the 1973 and 1995 meetings!), and the States will elect a 12 member "Committee for the protection of cultural property in the event of armed conflict" which will meet at least once a year, and more frequently in cases of urgency. The Committee will have a duty to monitor and promote generally, and consider applications for both "Exceptional Protection" and financial assistance from a (voluntary contributions) Fund to be established under the Protocol. The International Committee of the Blue Shield (by name) and its constituent "eminent professional organizations" (with ICCROM and the International Committee of the Red Cross) will have important standing advisory roles in relation to the Committee, meetings of States Parties and will be consulted on proposals for e.g. "Exception Protection" designation.
Chapter 7 strengthens the 1954 provision in relation to information, training etc. about the Convention, Protocols and general principles of cultural protection. There is now a call for States to raise awareness among the general public and within the education system (non-binding because of the significant number of States where the central government does not control or influence directly the school curriculum - though an important recognition of the importance and role of "civil society" nevertheless).
The one thing that we "lost" was the proposal to give a right of recognition and protection to Blue Shield representatives and professionals involved in cultural protection. This was strongly opposed as going too far by a wide range of delegations, who unfortunately raised their objections very late on Friday, when there was just not enough time to adjourn to try to find a more restricted and acceptable form of words that that proposed by UNESCO (perhaps drawing on the Geneva Protocols wording again).
This last failure was disappointing, but having reflected on the Diplomatic Conference as a whole for 48 hours I feel that this is a relatively minor setback. (Even one of the major Delegations mandated in advance to oppose the UNESCO proposal on this point, said that in the short debate I won the argument. I think that had there been a few more hours available, it would have been possible to arrive at an acceptable compromise, based drawing up a parallel provision to the well-established Geneva Conventions provisions in respect of civilian humanitarian aid etc. organisations. Rather than wait 45 years for the next Diplomatic Conference and updating, there may be ways of getting at least part way there if circumstances arise, as both the new Committee and the Director-General of UNESCO will have quite wide powers at the operational level.
Against this, the formal recognition of the International Committee of the Blue Shield in several places in the new 2nd Protocol, especially within the new institutional structure, represented a really remarkable change of minds during the course of the two weeks. During their opening statements communicating their respective governments' overall reaction to the UNESCO draft, (which took up most of the first and second days of the Conference), at least 20 of the 84 participating States spoke strongly against any mention of non-governmental organisations in the new treaty. Indeed, many had at the beginning singled out as "especially objectionable" the proposal in the draft to give the ICBS an official status under the new Protocol, ("contrary to international law" etc. etc., "We'll be asked to include the International Federation of Boy Scouts next!").
In addition, each of the four constituent bodies of the ICBS including ICOM of course were named in full in the formal "Final Act" of the Diplomatic Conference. Even more remarkably bearing in mind the earlier hostility among many delegations, I was invited to sign the Final Act as Head of the International Committee of the Blue Shield delegation. I didn't realise the significance of this until one of the UK Foreign Office international law experts told me that this was the first time in modern diplomatic law that an NGO observer delegation had been allowed to sign the Final Act of such a Diplomatic Conference!
The text was adopted in French and English: UNESCO is now preparing urgently official translations in the other four UN languages (Arabic, Chinese, Spanish and Russian) in time for the formal signing ceremony of the new Protocol itself.
This is going to be in The Hague on Monday 17 May, the first day of the three days of celebrations to mark the 100th anniversary of the first Hague Peace Conference and Convention, concluded in May 1899.
Patrick Boylan
P.Boylan@city.ac.uk

home