The Impact of the 1954 Hague Convention on the Protection of Cultural Property

Syrian Cultural Property in the Crossfire:

Since armed conflicts are based increasingly on politics of identity, the protection of cultural property is likely to become continuously more important during peace operations. The extent to which peace operations are obligated to protect cultural property is, however, not always clear. This article explains why and to what extent peace operations ought to be required to protect cultural property. It first explores the way that the protection of cultural property can contribute to the overall aim of an operation. Second, the extent, from a legal standpoint, to which peace operations must respect cultural property is elaborated – and whether peace operations must refrain from damaging cultural property. Finally, the article analyses whether peace forces are obligated by international law to actively protect cultural property. Thus, whether they are responsible for the protection of cultural property from the depredations of others is questioned. The study contends that, on the one hand, the protection of cultural property is needed because it contributes to the overall aim of a peace mission, but that, on the other hand, a coherent legal framework is lacking.

This article discusses how the protection of cultural property in armed conflicts is far from being complete, and how the enforcement of existing international law rules is ineffective. Although it is certainly unavoidable that not every cultural property can be protected, one category is missing, namely, the property which constitutes the cultural heritage of a particular population or even a minority group. The protection of cultural property in non-international conflicts is particularly unsatisfactory. Not only is it questionable whether the 1954 Hague Convention is binding upon rebels; it is even more problematic to ensure its enforcement. Another weakness of the existing international regime on the protection of cultural property in armed conflict stems from its lack of coherency. The possibility to waive the protection of cultural property under the 1954 Hague Convention on the basis of military necessity makes the respective objects a prey of military considerations. Keywords:armed conflict; cultural property; Hague Convention; international instruments; military necessity; obligation; protection

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.

This chapter provides a commentary on the protection of cultural property in armed conflicts, which covers recent developments in treaty law and international practice. The Second World War spurred the eventual conclusion of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and the Regulations for its execution, along with a separate optional Protocol, now known as the First Protocol. The preamble to the former declares that ‘damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world’. While the 1954 Convention applies during international armed conflict (whether or not a legal state of war exists between the belligerents, as well as to all cases of partial or total occupation of the territory of a party), its provisions relating to respect for cultural property also apply to non-international armed conflict occurring within the territory of one of the parties. Meanwhile, the 1977 Additional Protocols to the Geneva Conventions, too, embody brief provisions specifically relating to respect for cultural property. In parallel with these treaty regimes, a body of customary international law has developed over the years to protect 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.

Intangible Folk Cultural Properties (IFCP) represent cultural customs or events related to transition in people’s lives, and need to be protected and passed on to future generations. The Japanese government adopted the revised Act on Protection of Cultural Properties in 2018, which aims to ensure comprehensive protection and utilization of cultural properties. IFCP are required to make it available and accessible to the public considering these features. This study proposes an IFCP data model using Linked Open Data (LOD). This model is based on the CIDOC Conceptual Reference Model (CRM) and other vocabularies. We constructed a dataset based on this model and published it on the web. The dataset contains 5,106 triples from 103 IFCP focusing on religious faiths festivals (RF) and annual observances (AO). To evaluate our data model, we defined functional requirements for the IFCP and implemented a prototype system to verify utilization feasibility of the IFCP. The prototype system shows the IFCP lists based on retrieval feature using the SPARQL query language.KeywordsIntangible folk cultural propertiesMetadataLinked open dataCIDOC CRMSPARQL

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

During the past years, numerous and recurrent disasters have damaged an important part of the cultural heritage. Wars and ethnic or religious conflicts have also haphazardly or voluntarily destroyed it, hence the necessity of launching information campaign so as to safeguard and protect, as far as possible, the cultural property in order to pass it on to future generations.BR This paper consists of five sections. The introduction (Chapter 1) shows the feature of cultural property(Chapter 2). It is followed by a brief overview of the historical background to the international legal regime on the protection of cultural property (Chapter 3). The World Wars have destroyed the widespread destruction and pillage of European cultural property. It was these ‘cultural tragedies’ that ultimately provided the impetus for the international community to draft a set of laws specifically aimed at the protection of cultural property in the event of armed conflict. In 1954, the Hague Convention was drafted aspiring to provide and improve protection of cultural property during war. The Convention is supplemented by two protocols. The first of 1954, deals with the prevention and export of cultural property from occupied territory, its safeguard and return. The second, of 1999, is more comprehensive to improve the implementation of the Convention.BR It is further discussed on the implementation scheme of the Convention and its two Protocols, including technical measures, periodic report and the penal measures. It remains to be seen, however, whether States would be willing to nominate cultural property for enhanced protection given their reluctance to do so under the original regime. Highly important constitutional issues need to be addressed at the national level, such as the extension of the principle of international jurisdiction for the most serious new ‘cultural war crimes’, in order for this Protocol to execute effectively. In conclude, the effective respect for cultural property in the event of armed conflict by States Parties will ultimately be reliant upon the proper national implementation of the Hague Convention. An international exchange of information is a key element in the improvement of the compliance with the Convention by each State Party (Chapter 4, 5).

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.

Contents: Introduction Bibliography and further reading. Part I Foundations: The Concept of Cultural Heritage: Cultural property internationalism, John Henry Merryman On defining the cultural heritage, Janet Blake The Politics of Cultural Heritage Rights: The expanding purview of cultural properties and their politics, Rosemary J. Coombe The politics of preservation: privileging one heritage over another, Jonathan S. Bell. Part II Types of Cultural Heritage Rights: Natural Heritage as Cultural Heritage: Nature and culture: a new World Heritage context, Shabnam Inanloo Dailoo and Frits Pannekoek World Heritage and rights-based approaches to nature conservation, Gonzalo Oviedo and Tatjana Puschkarsky Urban Landscapes as Cultural Heritage: Informal settlements and urban heritage landscapes in South Africa, Lindsay M. Weiss Artefactual Cultural Heritage Rights: Sir, how much is that Ming vase in the window? Protecting cultural relics in the People's Republic of China, Michael L. Dutra Underwater Cultural Heritage Rights: 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, Sarah Dromgoole Intangible Cultural Heritage Rights: Heritage trouble: recent work on the protection of intangible cultural property, Michael F. Brown The UNESCO concept of safeguarding intangible cultural heritage: its background and Marrakchi roots, Thomas M. Schmitt Indigenous Cultural Heritage Rights: Indigenous cultural heritage in development and trade: perspectives from the dynamics of cultural heritage law and policy, Rosemary J. Coombe with Joseph F. Turcotte Indigenous cultural landscapes and the politics of heritage, Melissa F. Baird. Part III Contemporary Issues in Cultural Heritage Rights Law: Repatriation of Cultural Heritage: Resolving material culture disputes: human rights, property rights and crimes against humanity, Robert K. Paterson Illicit Trade in Cultural Heritage: Controlling the international market in antiquities: reducing the harm, preserving the past, Patty Gerstenblith Armed Conflict and Cultural Heritage Protection: The protection of cultural property in times of armed conflict: the practice of the International Criminal Tribunal for the former Yugoslavia, Hirad Abtahi The obligation to prevent and avoid destruction of cultural heritage: from Bamiyan to Iraq, Francesco Francioni and Federico Lenzerini Tourism, Economic Development and Cultural Heritage Protection: Posta Econflict heritage and tourism in Cambodia: the burden of Angkor, Tim Winter. Part IV Future Directions in Cultural Heritage Rights Law: Cultural Heritage Protection and the Challenge of Climate Change: Changing climate, changing culture: adding the climate change dimension to the protection of intangible cultural heritage, Hee-Eun Kim Cultural Expressions as Cultural Heritage: The UNESCO Convention on the Protection and Promotion of Cultural Expressions: building a new world information and communication order?, Rachael Craufurd Smith The Human Genome and Cultural Heritage: The human genome as common heritage: common sense or legal nonsense?, Pilar N. Ossorio Beyond Rights? Rethinking the Cultural Heritage Protection Paradigm: Cultural heritage rights: from ownership and descent to justice and well-being, Ian Hodder. Name index.

Objective. The aim of the study is to analyze the state of implementation of the Council of Europe Convention on Offences relating to Cultural Property in national criminal legislation. Methodology. The methodology includes the analysis of individual scientific works, provisions of the Criminal Code of Ukraine, the draft law and the Nicosia Convention, synthesis of scientific knowledge and drawing of reasonable conclusions on the subject of the study. The following methods of scientific cognition were used in the study: analysis, synthesis, formal and dogmatic, comparative legal, systemic, logical and semantic, and systemic and structural. Results. In the course of the study, it was recognized that the improvement of legislation on the protection of cultural property should be guided by the provisions of the Nicosia Convention. The analysis of the draft law «On Amendments to the Code of Ukraine on Administrative Offenses and the Criminal Code of Ukraine in connection with the ratification of the Council of Europe Convention on Offenses relating to Cultural Property» of December 12, 2024, No. 12310, allowed to establish its constructive and terminological flaws and inconsistency with the provisions of the Nicosia Convention. It is proposed to use the universal term «cultural property» in the process of improving Ukrainian criminal legislation. The author substantiates the need to harmonise the content of the term ‘cultural property’ with the Nicosia Convention and suggests that the term «cultural heritage object» should be clarified in the Law of Ukraine «On Protection of Cultural Heritage» of 8 June 2000. Originality. The study established that when updating criminal legislation on the protection of cultural property, one should be guided not only by the provisions of the Nicosia Convention, but also by the ongoing developments in the doctrine of criminal law. It is established that the draft law № 12310 and the Nicosia Convention do not take into account the current Russian aggression against Ukraine. Practical significance. The results of the study can be used in law-making activities in the course of improving national legislation in the field of protection of cultural property.

The ongoing armed conflict in Syria has severely impacted human lives. More than 250,000 Syrians have lost their lives and more than 11 million were displaced from their homes. The impact of the conflict has been extended to the invaluable cultural property of Syria. The Syrian exceptional rich and unique cultural property was in the middle of hostilities, which took various forms including bombing; fighting in or near the archaeological sites; looting and illicit trafficking of invaluable objects and artefacts. As per Public International Law rules, cultural property is protected against unlawful acts, further, these unlawful acts are prosecutable before international tribunals as war crimes. Though, with regard to the conflict in Syria, the legal regime for the protection seems unfit for its purpose and the prosecution seems to be unattainable at least for the current time. To this end, this Article aims to examine the application of the international law rules with respect to the protection of cultural property and their effectiveness in protection and prosecution with regard to the armed conflict in Syria. Therefore, this Article is divided into four parts. Part I introduces an overview on the current conflict in Syria and its implication on the cultural property. Part II exposes to the protection of cultural property in international law with relation to the conflict in Syria. Part III examines the criminalization of the unlawful acts against cultural property as per International Criminal Law. Part IV suggests possible venues for prosecuting unlawful acts against cultural property in Syria. The Article concludes with remarks on the effectiveness of current provisions of international law with respect to the protection of cultural property and suggests possible ways for enhancement.

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.

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