Protection of cultural property in armed conflicts

1
Protection of cultural property in armed
conflicts

• University of Oslo 18 October 2007
• Mads Harlem, Legal adviser
• Norwegian Red Cross

2
Outline of Programme

• Why do we need protection of cultural property in
  armed conflict
• The different levels of protection under IHL
• Civilan Objects
• Additional Protocols to the Geneva Conventions
• Hague Convention and its Protocols
• What does international law require of State
  Parties?

3
Why worry about the protection of cultural
property in armed conflict?

• War is also the worst enemy of art, culture,
  monuments and cultural heritage
• Preserving cultural property helps in the
  reconstruction of destroyed communities and
  facilitates the return to peace
• Cultural property reflects the identity of a
  people, its culture and its heritage

4
Legal sources

• 1954 Hague Convention for the Protection of
  Cultural Property in Armed Conflict
• Protocol 1 of 1954 concerning cultural property
  in situations of occupation
• Articles of the 1977 Protocols Additional to the
  1949 Geneva Conventions
• 1999 Second Protocol to the 1954 Convention
• Customary International Law

5
Overview of the different levels of protection
during combat operations
IAC NIAC
Additional Protocol I to GC Art. 52 and customary law Protection as Civilian Objects Customary law
Protection of cultural objects and of places of worship, Protocol I Art. 53 Protection of cultural property in the Additional Protocols Protection of cultural objects and of places of worship, Protocol II Art. 16
CultPropConv of 1954 Art. 4 and customary law General Protection in CultPropConv of 1954 CultPropConv of 1954 Art 19, para. 1 and customary law
Special Protection CultPropConv of 1954 Art. 8 Enhanced Protection Second Protocol to CultPropConv Art 10 Special Protection and Enhanced Protection Special Protection CultPropConv of 1954 Art. 19 para 2 Enhanced Protection Second Protocol to CultPropConv Art. 22 para 1
6
Cultural Property defined in the 1954 Hague
Convention

• Cultural property is any movable or immovable
  property of great importance to the cultural
  heritage of all people, such as monuments of
  architecture or history, archaeological sites,
  works of art, books or any building whose main
  and effective purpose is to contain cultural
  property (CCP, Art. 1).

7
Protection of cultural property as Civilian
Objects

• What is Civilian Objects?
• a) First Additional Protocol art. 52 para. 2
• b) Customary law
• Cultural property that falls outside the scope of
  the 1954 Hague Convention could still be
  protected as Civilian Objects
• Restrictions on the use of Civilian Objects for
  military purposes?

8
Protection of cultural property under the 1977
Protocols Additional to the 1949 Geneva
Conventions

• Article 53 of Protocol I
• Article 16 of Protocol II
• What if the objects are used in support of the
  military effort?
• Relationship between the Hague Convention and the
  Additional Protocols

9
Systems of protection under the 1954 Hague
Convention and its Protocols

• General Protection
• Special Protection
• Enhanced Protection

10
General Protection

• Protection
• Parties to the Convention must safeguard their
  own cultural property against foreseeable effects
  of armed conflict (CCP, Art. 3 and P2, Art. 5).
• Respect
• State Parties must respect all cultural property
  by the following (CCP, Art. 4)
• not using cultural property for any purpose
  likely to expose it to destruction or damage in
  the event of armed conflict
• not directing any act of hostility against
  cultural property

11
General Protection

• The obligation to respect all cultural property,
  described above, may be waived on the basis of
  "imperative military necessity" (CCP, Art. 4).
• This waiver may be invoked
• to use cultural property for purposes likely to
  endanger it, only if there is no feasible
  alternative available to obtain a similar
  military advantage. (P2, Art. 6)
• to attack cultural property, only when that
  property has, by its function, been made into a
  military objective and there is no feasible
  alternative available to obtain a similar
  military advantage. Effective advance warning
  must be given, circumstances permitting (P2, Art.
  6).

12
General Protection

• Precautions
• Parties to the Convention must, to the maximum
  extent feasible, either move cultural property
  away from military objectives or avoid placing
  military objectives near such property (P2, Art.
  8).
• Parties to a conflict must do everything feasible
  to protect cultural property, including
  refraining from an attack that may cause
  incidental damage (P2, Art. 7).

13
General Protection

• Occupied Territory
• Under the Convention, State Parties occupying
  foreign territory must preserve cultural property
  in that territory (CCP, Art. 5 and customary
  law).
• The 1954 Protocol requires State Parties
  occupying territory during armed conflicts to
  prevent the exportation of cultural property from
  that territory (P1, Art. 1 and customary law).
  However, if cultural property is exported, State
  Parties must return it at the close of the
  hostilities (P1, Art. 3 and customary law).

14
Special protection

• The 1954 Convention provides a system of "special
  protection", which resulted in only limited
  success. In response to the limitations of the
  1954 system, the 1999 Protocol introduces a new
  system of "enhanced protection".
• If property has been granted both special and
  enhanced protection, only enhanced protection
  applies (P2, Art. 4).

15
Enhanced protection

• To be granted "enhanced protection", cultural
  property must meet the following three criteria
  (P2, Art. 10)
• it is cultural heritage of the greatest
  importance to humanity
• it is protected by domestic measures that
  recognize its cultural and historical value and
  ensure the highest level of protection
• it is not used for military purposes or to shield
  military sites, and the Party which has control
  over the property has formally declared that it
  will not be so used.
• Cultural property granted enhanced protection by
  the Committee for the Protection of Cultural
  Property in the Event of Armed Conflict is placed
  on the "List of Cultural Property under Enhanced
  Protection" (P2, Art. 11).

16
Enhanced protection

• Protection
• Parties holding property included on the List
  must not use such property or its immediate
  surroundings in support of military action (P2,
  Art. 12). There is no exception to this
  obligation.
• Parties to the Convention must refrain from
  attack against property on the List (P2, Art. 12).

17
Enhanced protection

• Exception
• The obligation not to attack property on the List
  does not apply if such property has, by virtue of
  its use, become a military objective. Attack is
  permitted only if it is the only feasible means
  of terminating such use and if precautions are
  taken to minimize damage to the property.
  Effective advance warning must be given,
  circumstances permitting (P2, Art. 13).

18
What does international law require of States
Parties?

• Decision to consider an object, building or site
  to be cultural property worthy of protection
• List all protected cultural property and place it
  at disposal of concerned entities
• Identification/construction of places that may be
  used as refuges
• Planning emergency measures
• Provide for means of protection for movable
  property
• Designate authorities responsible for the
  safeguarding

19
Criminal Responsibility and Jurisdiction

• Parties to the Convention must take all necessary
  steps to prosecute and impose sanctions on all
  persons who violate its provisions (CCP, Art.
  28).
• State Parties to the 1999 Protocol must ensure
  that the following are offences under domestic
  law (P2, Art. 15) (Art 8 Rome Statutes)
• making cultural property under enhanced
  protection the object of attack
• using cultural property under enhanced protection
  or its immediate surroundings in support of
  military action
• extensive destruction or appropriation of
  protected cultural property
• making protected cultural property the object of
  attack
• theft, pillage or misappropriation of, or acts of
  vandalism directed against, protected cultural
  property.
• Each State Party must ensure that its legislation
  establishes jurisdiction when the offence is
  committed in its territory, when the alleged
  offender is a national of that State, and in
  relation to the first three offences when the
  offence is committed abroad by a non-national.

20
What does international law require of State
Parties?

• Marking of cultural property
• Incorporation of international rules, guidelines
  and instructions for the protection of cultural
  property into military regulations and
  instructions
• Training and educational programs to sensitise
  the population for respect of cultural property
  and its need of protection
• Communication of laws and administrative and
  practical measures adopted
• Train qualified personnel to monitor respect of
  cultural property