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New rules for the protection of cultural property in armed conflict

Published online by Cambridge University Press:  19 April 2010

Jean-Marie Henckaerts
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Type
Research Article
Information
International Review of the Red Cross , Volume 81 , Issue 835 , September 1999 , pp. 593 - 620
Copyright
Copyright © International Committee of the Red Cross 1999

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References

1 “All things of value are defenceless.” A famous line by the Dutch poet Lucebert (author's translation).

2 Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague, 14 May 1954, reprinted in Schindler, Dietrich and Toman, Jiri (Eds.), The laws of armed conflicts: A collection of conventions, resolutions and other documents, 3rd ed., Martinus Nijhoff/Henry Dunant Institute, Dordrecht/Geneva, 1988, pp. 745–759Google Scholar.

3 Protocol for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague, 14 May 1954, ibid., pp. 777–782.

4 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, Paris, 1993, p. 19Google Scholar.

5 UNESCO Doc. HC/1999/1,9 October 1998.

6 See Synoptic report with its Addendum and Corrigendum of comments on the Preliminary Draft Second Protocol to the 1954 Hague Convention received from High Contracting Parties to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954, other UNESCO Member States and international organizations, UNESCO Docs. HC/1999/4, 15 January 1999, HC/1999/4/Add.1, March 1999, and HC/1999/4/Add.1/Corr.1, 18 March 1999. Military and legal aspects of the preliminary draft were further discussed in the light of modern humanitarian law at an Expert Meeting on the Improvement of the 1954 Hague Convention, Leiden (Netherlands), 17–18 December 1998.

7 Draft Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO Doc. HC/1999/1/rev.1, February 1999.

8 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague, 17 May 1999, U N ESCO Doc. HC/1999/7, 26 March 1999.

9 1954 Convention, Article 39(5).

10 Second Protocol, Article 5.

11 Ibid., Article 29.

12 Ibid., Article 24.

13 Ibid., Article 29(4).

14 1954 convention, Article 25.

15 Second Protocol, Article 30.

16 Boylan, op. cit. (note 4), pp. 54–57.

17 See Carnahan, Burrus M., “Lincoln. Lieber and the laws of war: The origins and limits of the principle of military necessity”, American Journal of International Law, Vol. 92, 1998, 213Google Scholar, and Jr.Robertson, Horace B., “The principle of military objective in the law of armed conflict”, in Schmitt, Michael N. (Ed.), The Law of Military Operations — Liber Amicorum Professor Jack Grunawalt, International Law Studies, Vol. 72, Naval War College Press, Newport, Rhode Island, 1998, p. 197Google Scholar.

18 Regulations Respecting the Laws and Customs of War on Land, signed at The Hague, 18 October 1907, Article 23(g), in Schindler/Toman, op. cit. (note 2), p. 83.

19 This was in part because some documents which had identified such limits had failed to become binding treaty law. See, e.g., Article 24(1) of the Hague Rules of Air Warfare, drafted by a Commission of Jurists at The Hague, Dec. 1922. Feb. 1923, in Schindler/Toman, op. cit. (note 2), p. 210: “Aerial bombardment is legitimate only when directed at a military objective. that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent”.

20 Sandoz, Yves, Swinarski, Christophe and Zimmerman, Bruno (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Dordrecht/Geneva, 1987, p. 395Google Scholar, quoting David, Éric, La protection des populations civiles pendant les conflits amis, International Institute for Human Rights, VIIIth Teaching Session, July 1977, Strasbourg, p. 52Google Scholar.

21 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), in Schindler/Toman, op. cit. (note 2), pp. 621–688.

22 Ibid., Article 57(3) which provides that “when a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack of which may be expected to cause the least danger to civilian lives and to civilian objects [and which is not cultural property].” The text in brackets shows how Article 57(3) would read for States having adopted both Additional Protocol I and the Second Protocol.

23 ICRC Commentary, op. cit. (note 20), p. 636, para. 2021.

24 Ibid., p. 636, para. 2021.

25 Ibid., p. 621, para. 1955.

26 Ibid.

27 Ibid.

28 Even though Article 53 deals with the use of very special cultural property only, for example cultural property on the International Register of Cultural Property under Special Protection or the new List of Cultural Property under Enhanced Protection, the author will argue below that there is no need to differentiate between the ways in which special or enhanced protection, on the one hand, and general protection, on the other, is lost..

29 ICRC Commentary, op. cit. (note 20), p. 648, para. 2079.

30 Ibid, (emphasis added). — See also Bothe, Michael, Partsch, Karl Josef, Solf, Waldemar A., New Rules for Victims of Armed Conflicts, Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff, The Hague/Boston/London, 1982, p. 334, para. 2.6Google Scholar.

31 Second Protocol, Article 6(b). It is noteworthy that the Protocol speaks of “a waiver on the basis of imperative military necessity”, because that is the language used in Article 4(2) of the 1954 Convention. The Second Protocol is additional to the 1954 Convention.

32 Ibid., Article 6(c).

33 1954 Convention, Article 8(1).

34 Ibid., Article 8(6).

35 These are: Vatican City (18 January 1960), a refuge at Alt-Aussee in Austria (17 November 1967), six refuges in the Netherlands (Zandvoort 2), Heemskerk (2, cancelled on 22 September 1994), Steenwijkerwold (cancelled on 22 September 1994), Maastricht (12 May 1969)) and the central Oberrieder Stollen refuge in Germany (22 April 1978). See International Register of Cultural Property under Special Protection, UNESCO Doc. CLT-97/WS/12, August 1997.

36 1954 Convention, Article 8(1)(a).

37 Toman, Jiri, The Protection of Cultural Property in the Event of Armed Conflict, Dartmouth/Unesco, Aldershot/Paris, 1996, pp. 108–109Google Scholar.

38 Second Protocol, Article 10.

39 Ibid., Articles 11(5) and 11(7).

40 See Toman, op. cit. (note 37), pp. 108–111, for examples of important cultural property that, for one reason or another, has not been included in the International Register of Cultural Property under Special Protection,

41 1954 Convention, Article 11(2).

42 Second Protocol, Article 13 (emphasis added).

43 See Additional Protocol I, Article 59.

44 Second Protocol, Article 6(d).

45 Additional Protocol I, Article 57(2)(c).

46 Supra, note 32.

47 1954 Convention, Article 11(2).

48 Second Protocol, Article 13(2)(c).

49 1954 Convention, Article 28.

50 Second Protocol, Article 18(2).

51 Ibid., Articles 20–23.

52 Fischer, Horst, Presentation of the Results of the Working Group on Chapter 4, UNESCO Doc. HC/1999/INF.5,25 March 1999, p. 2Google Scholar.

53 Additional Protocol I, Article 85(4)(d).

54 Second Protocol, Article 19(2)(a).

55 Ibid., Article 19(2)(b).

56 Ibid., Article 19(2)(a).

57 Fischer, op. cit (note 52), p. 3.

58 Second Protocol, Article 19(2)(chapeau).

59 Toman, op. cit. (note 37), p. 294 (emphasis in original).

60 Second Protocol, Article 19(2)(a).

61 Ibid., Article 19(2)(a).

62 Fischer, op. cit. (note 52), p. 3.

63 Second Protocol, Articles 3 and 22.

64 Third States which have not ratified the Second Protocol are generally referred to as “party” On lower case).

65 It is unfortunate that recognition of the potential confusion of the definition of “Party” and the use of the term “Party to the conflict” came only in the last hours of the Diplomatic Conference. As a result, there was no discussion on whether the general understanding that the Second Protocol applies to governmental forces and rebel groups in a non-international armed conflict is also valid for Article 11(9). It is difficult to say whether this was indeed the intention of States, as the Working Group on Chapter 3 (Enhanced Protection) did not discuss the issue.