International Law Protecting Cultural Property in Armed Conflict

The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention) remains the leading treaty on the treatment of cultural heritage during armed conflict and occupation. After several decades of relative dormancy, eleven States have joined the 1954 Hague Convention in the last decade, including two major military powers: the United States and the United Kingdom. In addition to the 1954 Hague Convention, a host of laws touch on the protection of cultural property in armed conflict, as well as those under customary international law. Nonetheless, there are disagreements in interpretations of States’ obligations toward cultural property during armed conflict stemming from a variety of factors. These factors can include: whether States are Parties to the instrument that conveys the obligation or if the obligation is one of customary international law, which itself is often contested; the individual State’s interpretation; interpretation by tribunals; and a plethora of other factors. Given these discrepancies in interpretation, a review of States’ military manuals is useful to see if they shed any light on the State’s interpretation of their obligations toward cultural property under the law of armed conflict (LOAC) and international obligations in LOAC more generally. This chapter will analyze and compare the military manuals of the United States and the United Kingdom to determine how they elucidate several key issues in the protection of cultural property during armed conflict, such as the definition of ‘cultural property’, requirements for ‘respect’, the doctrine of military necessity, and laws applicable in non-international armed conflicts.

In addition to prescribing laws governing resort to force ( jus ad bellum ), international law also seeks to regulate the conduct of hostilities ( jus in bello ). These principles cover, for example, the treatment of prisoners of war, civilians in occupied territory, sick and wounded personnel, prohibited methods of warfare and human rights in situations of conflict. This subject was originally termed the laws of war and then the laws of armed conflict. More recently, it has been called international humanitarian law. Although international humanitarian law is primarily derived from a number of international conventions, some of these represent in whole or in part rules of customary international law, and it is possible to say that a number of customary international law principles exist over and above conventional rules, although international humanitarian law is one of the most highly codified parts of international law. Reliance upon relevant customary international law rules is particularly important where one or more of the states involved in a particular conflict is not a party to a pertinent convention. A good example of this relates to the work of the Eritrea–Ethiopia Claims Commission, which noted that since Eritrea did not become a party to the four Geneva Conventions of 1949 until 14 August 2000, the applicable law before that date for relevant claims was customary international humanitarian law. On the other hand, treaty provisions that cannot be said to be part of customary international law will bind only those states that are parties to them.

This article considers whether there are any gaps within the legal framework protecting cultural heritage from attacks conducted by non-state armed groups. It first looks at the existing obligations of states vis-a-vis non-state armed groups with regard to the protection of such heritage, in particular their obligations stemming from the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. It also examines the obligations of non-state armed groups with regard to cultural heritage, clarifying their obligations under international humanitarian law, including customary international norms, and other sources of international law. Finally, this article discusses accountability mechanisms, in particular with the application of international criminal law to prosecute the members of non-state armed groups who have conducted attacks against cultural property.

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

The author stresses the importance of protecting cultural property from the effects of armed conflict as its damage or destruction destroys a community’s identity and its links with its past, present and future, as well as diminishes the cultural heritage of humankind. The author draws attention to the recent destruction of cultural property in the civil war in Syria and the activities of the so-called Islamic State (ISIL) in Iraq. This chapter analyses the provisions of the principal legal instruments dealing with the protection of cultural property in armed conflict, namely the Convention on the Protection of Cultural Property in the Event of Armed Conflict (The 1954 Hague Convention), the 1954 Protocol for the Protection of Cultural Property in the Event of Armed Conflict and the 1999 Second Protocol to The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, as well as other relevant instruments of international law. While the existing legal instruments may be adequate, the problem, as with international law generally, lies in their effective enforcement, particularly in situations of non-international armed conflict where the parties to the conflict have no regard for the dictates of international humanitarian law. But once hostilities have come to an end, it will be possible to bring offenders to justice, if necessary before the International Criminal Court. In the meantime, it is important that there should be widespread adherence to The 1954 Hague Convention and its two Protocols.

This chapter looks at the protection of cultural property in non-international armed conflicts in the light of the adoption of Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in Event of Armed Conflict. The preamble to the 1999 Second Protocol indicates the intention of Protocol that the rules governing the protection of cultural property in the event of armed conflict should reflect developments in international law. These developments include the increasing regulation of non-international armed conflicts, both in treaty law and in customary law. The chapter focuses on three elements of this historic development: 1. the extension of the application of rules protecting cultural property to non-international armed conflicts; 2. the extension of the rules on conduct of hostilities to non-international armed conflicts and their application to cultural property; and 3. the enforcement of the rules applicable to cultural property in non-international armed conflicts. Keywords: cultural property; customary law; Hague Convention; international law; non-international armed conflicts; protection; second protocol; treaty law

The protection of cultural property has long been recognised under international humanitarian law. Article 5 of the 1954 Hague Convention on Cultural Property embodies three-pronged affirmative obligations specifically relating to occupied territory. With specific regard to occupied territory, Article 56 of the Hague Regulations of 1907 accord special protections to the property of institutions dedicated to religion, charity, education, the arts and sciences. The occupying powers are absolutely prohibited from seizing, destroying or causing wilful damage to institutions of this character, historic monuments, and works of art and science. In occupied territory, the occupying power must prohibit, prevent and stop any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, the cultural property as defined in Article 1 of the 1954 Convention. The application of rules on the conduct of hostilities in turn necessitates the occupying power to undertake careful appraisal of the applicable rules.Keywords: cultural property; Hague Regulations; international humanitarian law; occupied territory

The relevance of studying the legal foundations of the organization of the protection of cultural property in the context of armed conflict is increasing against the background of recent international events, as well as the aggravation of relations between the Russia and a number of foreign states, including the Baltic states. These circumstances require not only theoretical understanding, but also practical application of the norms of international law. The object of the study is the protection of cultural heritage in the event of an armed conflict. The subject of the study is the regulation and implementation of international legal protection of cultural heritage in the event of an armed conflict. The purpose of the article is to develop proposals for improving the international legal mechanism for the protection of cultural property in the event of an armed conflict, enshrined in the law of the Russian Federation. The methodological basis of the research presented in the article is a systematic approach and a doctrinal method. The following methods were used in the research: analysis, synthesis, generalization, deduction, formal legal analysis, and others. The paper examines the legislative, institutional and practical aspects of the legal framework for the protection of cultural property in the event of an armed conflict. The main international and regulatory legal acts of the Russian Federation regulating these issues are given. The author suggests possible ways to improve the national legislation of the Russian Federation on the protection of cultural property in the event of armed conflict and ensuring compliance with international humanitarian law. The position is argued on the need not only to inform, but also to test military personnel of the Armed Forces of the Russian Federation on the protection of cultural property and responsibility for violations of international law (including the destruction, misappropriation and vandalism of cultural heritage). The novelty of the research lies in a comprehensive approach to analyzing the protection of cultural property in the event of armed conflict, identifying shortcomings in existing norms and offering specific recommendations for their improvement.

The paper notes the attempts that are being made to doctrinally substantiate a broad approach, according to which the «international law of cultural property» was formed as a special (autonomous) legal framework. Without sharing such views, the author justifies the existence of an intersectoral institute for the international legal protection of cultural property, and also notes that the protection of cultural property in the actual situation of armed conflict is a branch institute of international humanitarian law (IHL), characterized by the presence of special principles and established scope of application (ratione materiae and ratione temporis). For the purposes of IHL, the definition of «cultural property» is formulated. It implies movable and immovable objects of the material world (objects) that are subject to identification and have no military purpose. They are of fundamental importance for the cultural heritage of not only a single people, but also the entire international community, included in the relevant register/list and under common, special or enhanced international legal protection, including their storage sites or concentration centers.A reasonable proposal has been made to introduce the concept of the «1954 Hague Convention system» into scientific circulation. The central part of it is formed by the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, including the Executive Regulations as an integral part of it, and additional Protocols to it (Optional Protocol I and the Second Protocol of 1999), as well as three resolutions attached to the Final Act of the 1954 Conference. It is emphasized that the Second Protocol of 1999, which Russia has not ratified, provided for the creation of institutional structures designed to complement the system of implementation of the Hague Convention of 1954. Based on the analysis of the «1954 Hague Convention system», three conventional regimes for the protection of cultural property in the actual situation of armed conflict (general, special and enhanced) have been established and their features have been analyzed.

The war in Syria has lasted for six years and has led to massive destruction and loss of life. Stymieing international peace efforts from the outset, there is increasing doubt that the conflict will reach a resolution or political settlement in the near future. This frustration has triggered an appetite among States, civil society and the international community for finite and concrete measures that can contribute to greater protection and compliance with international law. A recent constellation of events around the protection of cultural property appears to herald a shift in the response of the international community toward prescribing practical and actionable measures for third-party States. Drawing on the responsibility of third States “to respect and ensure respect for” international humanitarian law, this article examines the legal framework protecting cultural property and recent innovative protection responses that contribute to ensuring compliance with international law in Syria, short of military assistance and intervention.

Conflict-induced migration is arguably the most urgent humanitarian challenge today. A growing number of people are forced from their homes each year. The dispossession of civilians by armed parties, furthermore, through forced displacement has become a prevalent phenomenon. This article seeks to provide clarity to civilians, humanitarians, and other stakeholders, attempting to reduce civilian vulnerability to forced displacement through the application of international humanitarian law (IHL). While IHL prohibits forced displacement, pillage, and illegal appropriation, a number of problems arise when we try to implement these laws in practice. Establishing the illegality of an act of forced displacement, for example, may require legal analysis on a case-by-case basis. Furthermore, whether appropriation by force due to military necessity is legal or illegal is unclear due to a divergence between IHL treaty provisions and customary international humanitarian law (CIHL). In addition, when forced displacement becomes illegal, appropriation or pillage is not defined. This paper views these problems from a Humanitarian Protection perspective. The objective of the article is to provide practical criteria for stakeholders aiming to apply the law in protection of civilians and their property.

Al Mahdi was the first case before the International Criminal Court (icc), which focused on the destruction of cultural property, and indeed, the first case before an international criminal tribunal which had the destruction of cultural property as the sole charge against a jihadist. This case note first addresses the international legal framework on the protection of cultural property in Section 2. Section 3 then assesses the concept of hisbah and its operation, including the reasons why the Hisbah in Mali destroyed cultural property. The next section considers the facts of the Al Mahdi case. Section 5 highlights the shortfalls in the Trial Chamber’s consideration of the rationales for the protection and destruction of cultural property, before the note concludes in Section 6.

Excavations in Search of Cultural Artifacts During Armed Conflict: A War Crime Under Customary International Law

Cultural values are part of human dignity and civilian life. Cultural property must be primarily protected during armed conflicts as well as during peacetime. Unfortunately, in armed conflicts, culture has often been one of the primary victims of conflict. As a matter of fact, the parties to the conflict usually target the cultural heritage militarily or politically in order to demoralize the targeted society and show their superiority. During the armed conflicts, many cultural heritages, many of them world heritage, have been destroyed or damaged. The destruction of cultural heritage fuels violence, hatred and revenge among people and undermines the foundations of peace by impeding reconciliation even when conflicts are over. The protection of cultural property in international law is regulated in many international documents. However, the first international regulation prepared by UNESCO on the protection of cultural property in times of armed conflict, “The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict” has a special importance. International law requires the protection of cultural heritage in armed conflicts. Recent history, however, provides numerous examples of the deliberate destruction or its use to secure a military objective. This leads to questioning whether international law provides adequate protection to cultural heritage in times of armed conflict. The study aims to examine what should be understood from the concept of cultural property in terms of international law, what the international regulations are in this regard and whether these regulations are sufficient, on the basis of the 1954 Hague Convention on the Protection of Cultural Properties during Armed Conflicts, and to make some observations and comments.

International law protects cultural property in armed conflict from damage and destruction and from all forms of misappropriation against belligerents who have always looked to raze or plunder the enemy’s cultural heritage. ‘Cultural property’ may include buildings and other monuments of historic, artistic or architectural significance, as well as artworks, antiquities, manuscripts, books, archaeological sites, and archives. This chapter focuses on the relevant bodies of international law and international humanitarian law designed to protect cultural property during armed conflict, including multilateral treaties such as the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (also known as the Roerich Pact) and the Hague Convention of 1954 and its two Protocols. It also examines international human rights law, international cultural heritage law, and international criminal law under the respective rubrics of war crimes and crimes against humanity.