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Different legal Issues Related to the Protection of Cultural Property in Peacetime and Wartime

Published online by Cambridge University Press:  28 February 2017

Jan Hladík
Jan Hladík*
Affiliation:
Chief, Cultural Heritage Protection Treaties Section, Division for Cultural Expressions and Heritage, UNESCO, Paris. The author is responsible for the choice and the presentation of the facts contained in this presentation and for the opinions expressed therein, which are not necessarily those of UNESCO. This presentation was completed on April 16, 2012; all the information herein is valid as of that date. The first part of the presentation relating to the 2003 UNESCO Declaration is exclusively based on my article. , SeeJan Hladík, The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage, 9 Art, Antiquity & L. 215-36 (2004). The second part concerning sanctions is based on previous different presentations on the 1954 Hague Convention and its two (1954 and 1999) Protocols, as well as the relevant working document for the sixth meeting of the Committee for the Protection of Cultural Property in the Event of Armed Conflict (UNESCO Headquarters, Dec. 14-15, 2011) whose preparation I coordinated. The third part comparing different categories of protection provided by the Hague Convention and its Second Protocol with those under the 1972 World Heritage Convention is based on my article. , SeeJan Hladík, The Meaning of Enhanced Protection for Cultural Property Under the Second Protocol to the Hague Convention, Cultural Heritage & Arts Rev. 19-22 (Fall/Winter 2010). Finally, I wish to thank my colleagues Kara Koerner Marc, Assistant Programme Specialist in our Section, and Rashmi Joshi, Intern for our Section, for review of this presentation and Elise Santucci, Intern for our Section, for her assistance.
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Type
Confronting Complexity in the Preservation of Cultural Property: Monuments, art, Antiquities, Archives, and History
Information
Proceedings of the ASIL Annual Meeting , Volume 106 , 2012 , pp. 453 - 462
Copyright
Copyright © American Society of International Law 2012

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References

1 UNESCO, Resolution Concerning the Intentional Destruction of Cultural Property, Gen. Conf. Res. 32 C/33 (Oct. 17, 2003).

2 For a comprehensive analysis of the destruction of the Buddhas of Bamiyan in international law, see Francioni, Francesco & Lenzerini, Federico, The Destruction of the Buddhas of Bamiyan and International Law, 14 Eur. J. Int’l L. 4, 619-51 (2003)Google Scholar; Lenzerini, Federico, The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage: One Step Forward and Two Steps Back, 13 Italian Y.B. Int’l L. 131–45 (2003)Google Scholar; O’Keefe, Roger, World Cultural Heritage: Obligations to the International Community as a Whole?, 53 Int’l & Comp. L.Q. 189–209 (2004)CrossRefGoogle Scholar; see also Hladík, Jan, The UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage, 9 ART, Antiquity & Law 215–36 (2004)Google Scholar.

3 For UNESCO’s actions aimed at preventing the destruction of the Buddhas of Bamiyan and, in particular, appeals of the Director-General of UNESCO and his diplomatic contacts, see Item 4(b) of the Provisional Agenda of the 25th session of the World Heritage Committee (Helsinki, Dec. 11-16, 2001) on the Acts Constituting “Crimes Against the Common Heritage of Humanity,” UNESCO DOC. WHC-01/CONF.208/23, Part I, at 5-10 (Nov. 22, 2001 ).

4 UNESCO Report by the Director-General on the Execution of the Program Adopted by the General Conference, 161st Sess., Dec. 3.1.1(111) (May 28-June 13, 2001).

5 UNESCO Resolution on Acts Constituting a Crime Against the Common Heritage of Humanity, Gen. Conf. 31 C/26 (Oct. 15-Nov. 3, 2001).

6 See Rules of Procedure Concerning Recommendations to Member States and International Conventions Covered by the Terms of Article IV, Paragraph 4, of the Constitution; Basic Texts, Art. 12(1), at 114 (2010).

7 Id. at 111 (Art 1(b)).

8 Id. at 114 (Art. 12(2)).

9 UNESCO’s Standard-Setting Instruments, at xiii-xiv (1982).

10 Contrast this with the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, Art. 11, 1970 (“The export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power shall be regarded as illicit.”).

11 For a comprehensive analysis of the Martens clause, see Meron, Theodor, The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, 94 AJIL 78–89 (2000)CrossRefGoogle Scholar. See also Cassese, Antonio, The Martens Clause: Haifa Loaf or Simply Pie in the Sky?, 11 Eur. J. Int’l L. 187–216 (2000)CrossRefGoogle Scholar.

12 Such a list was proposed by Professor Nahlik. See Jiri Toman, The Protection of Cultural Property in the Event of Armed Conflict 296-300 (1996).

13 See UNESCO Report on the Obligations of the Parties to Implement Chapter 4 (Criminal Responsibility and Jurisdiction) of the Second Protocol, at 3, para. 9 (on file with author).

14 Id. at 4, para. 19.

15 UNESCO Report on the Implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Two (1954 and 1999) Protocols: 2005-2010, at 72-82.

16 Id. at 100-07.

17 Roger O’Keefe, National Implementation of the Penal Provisions of Chapter 4 of the Second Protocol of 26 March 1999 to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (Mar. 29, 2002) (on file with author).

18 This report details general principles to which states parties to the Second Protocol should adhere when implementing national legislation. Topics detailed in the report include the crimes considered to be serious violations; the scope of responsibility for violations; appropriate penalties for violation; statutory limitations to prosecution; required jurisdiction; and prosecution or extradition.

19 1977 Additional Protocol I to the four Geneva Conventions for the protection of war victims, Art. 52(2), 1977.

20 See UNESCO Doc. UNESCO/CUA/120, at 3, paras. 13, 18 (Sept. 3, 1962).

21 http://unesdoc.unesco.org/images/0015/001585/158587eb.pdf (last visited Mar. 13, 2012).

22 Toman, Jiri, The Road to the 1999 Second Protocol, in Protecting Cultural Property in Armed Conflict: an Insight Into the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 5 (van Woudenberg, Nout & Lijnzaad, Liesbeth eds., 2010)Google Scholar. When analyzing the issue of enhanced protection, Jean-Marie Henckaerts and Nout van Woudenberg stressed the practical difficulties concerning the notion of “adequate distance” and the issue of cultural property in the heart of large cities close to large urban, political, and industrial centers. Id. at 32, 52.

23 Id. at 5.

24 UNESCO Report on the Implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Two (1954 and 1999) Protocols: 1995-2004, UNESCO Doc. Clt-2005/WS/6, at 14. The Swiss report also called attention to two other practical issues: (1) the difficulty in selecting cultural property for entry in the register; and (2) a lack of precise UNESCO instructions and recommendations regarding the procedure for declaring and registering cultural property of international importance.

25 The 1972 Convention introduces in its Article 1 the concept of the outstanding universal value with regard to cultural heritage. See paragraph 49 of the Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO Doc. WHC.08/01, January 2008, Paris, at 14.

26 Cf. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Art. 10, 1999.

27 The condition of being of the highest importance for humanity does not automatically equal the condition of outstanding universal value under the World Heritage Convention. However, paragraph 36 of the Guidelines for the Implementation of the Second Protocol to the Hague Convention expressly states that “[I]t is presumed that the Committee, subject to other relevant considerations, will consider that immovable cultural property inscribed on the World Heritage List satisfies the condition of greatest importance for humanity.”

28 Id. para. 39.

29 The Committee was elected for the first time at the meeting of the parties to the Second Protocol (Paris, Oct. 26, 2005). It is currently composed of the following six members party to the Second Protocol (Argentina, Austria, The Islamic Republic of Iran, Italy, Romania, and Switzerland) elected until 2013, and the following six members (Azerbaijan, Belgium, Croatia, El Salvador, Japan, and the Netherlands) elected until 2015. The essential functions of the Committee may be summarized as follows:

  1. ■

    ■ granting, suspending, or canceling enhanced protection;

  2. ■

    ■ providing assistance in the identification of cultural property under enhanced protection;

  3. ■

    ■ supervising the implementation of the Second Protocol; and

  4. ■

    ■ granting international assistance and overseeing the use of the Fund for the Protection of Cultural Property in the Event of Armed Conflict.

30 For more details with regard to the Cambodian case, see Toman, supra note 12, at 108-09.

31 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Article 14.

32 Id. at Art. 13(2).

33 The Walled City of Baku, including the Shirvanshahs’ Palace and Maiden Tower (Azerbaijan) and Gobustan Rock Art Cultural Landscape—both included in the World Heritage List and other four non-World Heritage List sites—Atashgah Fire-worshippers Temple, Sheki Khan Sarayi (the Palace of the Sheki Khan), Momina-khatun Turbasi (the Mausoleum of Momina-khatun), and the Mausoleum of Yusuf ibn Kuseyir (Yusuf son of Kuseyir). See generally Item 4 (Enhanced Protection) of Provisional Agenda, UNESCO 6th Meeting for the Committee for the Protection of Cultural Property in the Event of Armed Conflict, Dec. 14-16, 2012.

34 Choirokoitia (Cyprus), The Painted Churches in the Troodos Region (Cyprus), Paphos (Site I: Kato Paphos town; Site II: Kouklia village). All those sites have already been inscribed on the World Heritage List. See generally World Heritage List, Mar. 2012.

35 The colonial city of Santo Domingo. This site has already been included in the World Heritage List. See generally World Heritage List, Mar. 2012.

36 Castel del Monte. This site has already been included in the World Heritage List. See generally World Heritage List, Mar. 2012.

37 Kernavé Archaeological Site (Cultural Reserve of Kernavé). This site has already been included in the World Heritage List. See generally World Heritage List, Mar. 2012.

38 Guidelines, supra note 27, at 71.

39 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Art. 15.