Protection of cultural property in armed conflicts University of Oslo 18 October 2007 Mads Harlem, Legal adviser Norwegian Red Cross

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?

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

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

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

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). The main difference between the objects mentioned in Art 1 lit a CultPropConv and in APs 1 and II lies in their qualification as being of “great importance” on one hand and belonging to the cultural or spiritual heritage of peoples on the other hand.

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?

What if the objects are used in support of the military effort? 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 Under article 53 it is a) Illegal to commit any acts of hostility dircted against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; b) To use such objects in support of the military efforts; c) To make such objects the object of reprisals Only a and b is covered in Protocol II. Why? The obligations under art 16 and 53 can never be waived unless the objects are used for military effort. If so it could be a military target - If controdiction between Hague Convention and the Additional Protocols Hague Convention shall be applaid.

General Protection Special Protection Enhanced Protection Systems of protection under the 1954 Hague Convention and its Protocols General Protection Special Protection Enhanced Protection

General Protection Protection Respect 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 Obligation of protection and respect will be elaborated below

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).

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).

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).

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).

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).

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).

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).

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 Guidelines provided by UNESCO on how states parties shall fulfill their obligations under the Conventions article 3, 4 and 5, Identify cultural property, register then, and mark them with the emblem.

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.

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 States may mark the emblem with a distinctive emblem art 6. Shall always be used according to article 17.