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

Lecturer -A-, Ahmed Ben Ahmed University, Oran 2 9829-6795-0008-009

Cultural property is one of the most important pillars in both the international and national realms, deeply rooted in history. It serves as a bridge between generations, forming an essential part of a nation’s history, culture, memory, and identity, from which its beliefs, values, history, and language are derived. Cultural property also plays a critical role in economic development and contributes significantly to the sustainable progress of peoples. This has led the international community to seek effective methods for safeguarding cultural property from aggression, destruction, or looting, whether in times of peace or conflict.

In response to mounting concerns over flagrant violations threatening cultural heritage, particularly after World War II, the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflicts was adopted. This Convention has had a profound impact by holding conflicting parties accountable and imposing specific obligations to protect cultural property in regions affected by military operations.

This leads us to the question: To what extent are the mechanisms established under the 1954 Hague Convention effective in protecting cultural property? To answer this question, we employ an analytical approach, examining the legal texts and provisions of the 1954 Convention. The first section addresses general protection, while the second section delves into special protection.

First Section: General Protection

This section introduces the topic, followed by subsections that provide an overview without delving deeply into the specific details explored in the subsections.

The 1954 Hague Convention, which focuses on the protection of cultural property during armed conflict, defines cultural property as: "movable or immovable property of great importance to the cultural heritage of peoples, such as architectural, artistic, historical, religious, or civil buildings and archaeological sites, and groups of buildings which, by virtue of their cohesion, have historical or artistic value, as well as works of art, manuscripts, books, and other objects..."2

The Convention has had a significant legal impact on the general protection of cultural heritage, establishing that all parties to a conflict are responsible for the safeguarding of cultural property. They are required to ensure the protection of cultural property within the areas affected by military operations. The state under attack must take documented measures to protect these properties, while

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the armed forces of the opposing party are obligated not to target these cultural assets with military strikes.3

First Subsection: Prevention

Cultural property faces mounting threats, which have been further aggravated by advancements in military technology. It is widely acknowledged that any damage inflicted on cultural property belonging to a people also diminishes the global cultural heritage, as the preservation of such heritage is beneficial to all nations. Hence, it is crucial to ensure that international protection is afforded to this shared heritage.4

Prevention involves the proactive measures that a state must undertake to ensure the safety of its cultural property.5The protection of cultural property requires states, even in times of peace, to take the necessary and preventative actions to safeguard cultural property within their territories, ensuring its protection in the event of an armed conflict.6

Despite the failure to implement adequate measures in some cases, the 1999 Second Additional Protocol was introduced, which, in Article 5, outlined the essential steps to be taken during peacetime to provide a minimum standard of protection. 7

The Protocol set forth a series of concrete preparatory measures that states must undertake:

• 1.    States must relocate movable cultural property away from military targets, or ensure its protection in place if relocation is not feasible. Where military targets are near cultural property, efforts should be made to minimize such proximity.⁸

• 2.    States must create inventories of cultural property, accompanied by detailed maps that indicate the locations of these properties. Additionally, states are encouraged to produce documentary films that highlight the significance of their cultural heritage.⁹

• 3.    States should establish emergency plans to protect cultural property from threats such as building collapse or fires, including the construction of dedicated storage spaces equipped with fireresistant materials. Restoration efforts should be actively pursued to mitigate the impact of bombings and other forms of destruction.¹⁰

• 4.    The competent authorities responsible for the protection of cultural property must be designated. This measure is outlined in Article 5, Paragraph 2 of the 1999 Protocol to the 1954 Hague Convention, as well as in Article 7 of the 1954 Convention. It is further reflected in Article 6 of the 1977 First Protocol to the Geneva Conventions. These authorities should be qualified to manage the preservation of cultural property and assist the relevant civil authorities responsible for this task.¹¹

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Second Subsection: Respect

Respect pertains to the prohibition of using cultural property or its designated protection mechanisms for military purposes, as well as the avoidance of any actions such as looting, destruction, or hostile acts directed at cultural property.12

Based on this principle, states parties to the Convention are generally committed to respecting cultural property during armed conflicts, ensuring its protection during both peacetime and wartime. This commitment is embodied in the following provisions:

• 1.    States' Commitments during Armed Conflict:

States parties commit to respecting cultural property by refraining from utilizing it for purposes that could lead to its destruction or damage during armed conflicts, and from directing hostile actions towards it, as stipulated in the 1954 Hague Convention. This obligation is outlined in the first paragraph of Article 4.

9Paragraphs A and B of Article 8 of the Second Protocol of 1999.

¹⁰Khayari Abdel Rahim, Op. cit. , p. 110.

11Moataz Faisal Al-Abbasi, "The Obligations of an Occupying State Toward the Occupied Country: A Case Study of Iraq," 1st edition, Dar Al-Halabi Legal Publications, Beirut, Lebanon, 2009, p. 490.

• ¹²Ali Khalil Ismail Al-Hadithi, "Protection of Cultural Property in International Law: A Comparative Applied Study," 1999 edition, Dar Al-Thaqafa Library for Publishing and Distribution, Amman, Jordan, p. 58.

  

• 2.    Times of Peace:

• 3.    Non-exposure of Cultural Property to Attack during Armed Conflict

  This principle is enshrined in both Article 7 of the Hague Regulations concerning the laws and customs of war on land (1907) and Article 4 of the 1954 Hague Convention for the Protection of Cultural Property. Both articles prohibit exposing cultural property to any form of attack. Furthermore, they mandate that every effort must be made to relocate movable cultural property away from military targets and ensure the protection of all sites housing such property.

• 4.    Protection of Cultural Property During Occupation

  Cultural property in occupied territories often faces substantial risks, including damage, whether intentional or incidental, by the occupying forces. Consequently, Article 5 of the 1954 Hague Convention imposes an obligation on the occupying power to take urgent measures to protect and preserve the cultural property of the occupied territories.¹⁴

• 5.    Marking Cultural Property with Distinctive Signs

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  The 1954 Hague Convention introduced a distinctive emblem in Article 27 to facilitate the identification and differentiation of cultural property by conflicting parties.¹⁵ Article 6 of the 1954 Hague Convention stipulates that a distinctive emblem must be affixed to cultural property to aid in its recognition. Article 16 outlines the design of this emblem, which consists of a pointed shield divided into white and blue segments. A blue triangle appears at one corner above a white triangle, with white triangles positioned on each side.

• 6.    Non-Discrimination in Protection Measures

  The 1954 Hague Convention emphasizes that protection must be granted to cultural property without discrimination based on national or religious affiliation, ownership of the cultural property, or the origins of the institutions involved in education, science, or culture.¹⁷

• 7.    Prohibition of the Use of Cultural Property for Military Purposes

  Article 1, Paragraph 4 of the 1954 Hague Convention prohibits the use of cultural property for military purposes, as such use undermines the legal foundation for its protection. The Convention further mandates that warring parties take all feasible measures to distance cultural property from military targets and ensure its protection at its location. Additionally, it prohibits the establishment of military targets near cultural property¹⁸. This prohibition is also reinforced by the 1977 Additional Protocol I to the Geneva Conventions, which forbids the use of cultural property for military purposes.

• 8.    Return of Cultural Property to Its Origin Following the End of Armed Conflict

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  The first protocol to the 1954 Hague Convention outlines the obligations of each contracting party to:

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The second and third paragraphs of Article 4 introduce two complementary principles: the obligation of states to prevent and halt any acts of looting, theft, or waste, and the prohibition of deliberate destruction of cultural property. Furthermore, the second principle forbids selective actions against cultural properties, requiring that all cultural properties be treated with respect. Additionally, the Convention mandates respect for personnel designated to protect cultural property, ensuring they are safeguarded from all forms of hostility and destruction.

The Zurich Charter of 1935 underscored the importance of protecting cultural property by states parties during peacetime to ensure its effective safeguarding. The 1954 Hague Convention, through Articles 3 and 7, reinforced this principle by requiring states to adopt appropriate measures to protect cultural property. Article 3 obligates states and parties to take necessary actions during peacetime to prevent harm to cultural property located within their territories, ensuring its protection in the event of an armed conflict.13

The emblem may be used either as a single mark or repeated three times. The placement of the emblem is left to the discretion of the competent authorities of each party. It may be displayed on flags, sleeves, walls, or other suitable surfaces, provided it is positioned in a way that ensures its visibility during the day, whether on land, in the air, or on various modes of transportation.16

• 1.    Prevent the occupying power from exporting cultural property from the occupied territories.

• 2.    Subject any cultural property imported into the occupied territories, whether directly or indirectly, to scrutiny and assessment.

• 3.    Ensure the return of cultural property located in occupied territories to the competent national authorities upon the conclusion of the armed conflict. Such property cannot be retained as war reparations.

• 4.    If cultural property has been entrusted to another party for safekeeping during the conflict, that party is required to return the property to the national authorities immediately after the cessation of hostilities.

Second Section: Special Protection

The 1954 Hague Convention provides special protection for certain cultural properties, allowing the creation of a limited number of shelters specifically designed to protect movable cultural property, as well as memorial buildings and other significant immovable cultural properties. These properties are granted protection under the system of special protection, which comes with specific conditions.

Given the unique nature of these cultural properties, the system of general protection is aligned with special protection in terms of prohibiting the use of cultural property or the means designated for its protection for military purposes. However, the key distinction lies in the fact that general protection mandates preventive measures for both movable and immovable cultural property.19

In this context, we will explore the system of special protection, elaborating on its conditions in first subsection, followed by an examination of the primary methods available to achieve special protection and its legal implications in the second subsection.

First Subsection: Conditions for Special Protection

The 1954 Hague Convention, in Article 8, introduced a special protection system for a limited number of cultural properties, subject to specific, defined conditions. The Convention establishes two main criteria for cultural property to be eligible for special protection:

First Condition:

• ¹⁹Salwan Ahmed Midan Al-Mufarji, "International Protection of Cultural Property During Armed Conflicts: A Study in Light of International Conventions," Dar Al-Kutub Al-Ilmiya, Dar Shetat for Publishing and Software, Egypt, 2011, p. 43-44.

  

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The cultural property must not be used for military or war purposes. This condition goes beyond simply preventing cultural property from being placed under the special protection system. If, for instance, the buildings or memorial centers are used for military troop movements or to store military materials, even if only temporarily for transit, such use disqualifies the property from receiving special protection. The property is considered to be used for military purposes if it has been involved in activities directly related to military operations, if military forces are stationed there, or if military materials are stored at the site.20

A relevant example is the case of the "Venetian Waterfalls" in Italy, which were not placed under special protection due to their proximity to a military airport. It is essential to note that the presence of armed guards specifically assigned to protect cultural property does not count as using the property for military purposes.21

The issue here is that disqualifying cultural property from special protection extends beyond military use; it also includes the designation of a military target near the cultural property. According to customary international law, military objectives are defined as those that, by their nature, location, function, or use, contribute effectively to military action. Their destruction or capture offers a clear military advantage.22

Second Condition:

The cultural property must be located at a sufficient distance from any large industrial facility or vital military target, such as airports, radio and television stations, ports, national defence institutions, major railway stations, or major transportation routes. While this condition is critical, the challenge arises in determining whether it is permissible to place shelters for cultural property under the special protection system, regardless of their location, especially if these shelters are constructed to protect the property from bombing.

Furthermore, cultural properties can be placed in shelters even if they are close to military targets, provided that the relevant parties guarantee that the shelter will not be used for military

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purposes. However, there is a risk that states may not uphold their commitments made prior to the conflict, finding themselves compelled to alter these agreements as circumstances change.23

Cultural properties can also be located near military targets as long as the parties involved pledge not to use the military target in the event of armed conflict, especially if it involves a port or a railway station, and agree to divert all military activity away from the site.24 The 1954 Hague Convention does not explicitly define what is meant by "a sufficient distance" in the context of cultural property protection. This ambiguity could lead to different interpretations and conflicting opinions among the parties involved in a dispute, depending on their respective interests.

Applying this condition to the example of the "Venetian Waterfalls," considered by many as an irreplaceable part of shared human heritage, poses a challenge due to its proximity to Marcopolo Airport on mainland Italy. Consequently, the Convention prohibits placing this particular site, despite its natural significance, under special protection.25

Special protection is granted to cultural properties by registering them in the International Register of Cultural Properties under the special protection system. The Convention mandates the establishment of this register, with its management entrusted to the executive secretariat, which outlines the procedures in Articles 12–16. The Director-General of UNESCO is responsible for overseeing the register and must provide copies of the register to the UN Secretary-General and the contracting parties. Cultural properties are registered following a request submitted by a state party to the Director-General of UNESCO.26

In terms of the registration process in the International Register of Cultural Properties, a state party must submit a request to the Director-General, including detailed information about shelters, memorial buildings, or other immovable cultural properties located within its territory.27

Any state wishing to register its cultural property in the register must be a party to the 1954 Hague Convention and ensure that its property meets the conditions outlined in Article 8 of the Convention. The requesting party must provide an accurate geographic description of the location, such as the case of a memorial building, offering precise details about the property’s exact coordinates,

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including longitude and latitude, along with other relevant data. The Director-General then notifies all contracting parties of the request.28

Any state party has the right to object to the registration of cultural property by submitting a written notice to the Director-General of UNESCO. Upon receiving an objection, the Director-General immediately sends a copy of the objection to all other contracting parties. The Director-General may consult the International Committee of Monuments and Sites (ICOMOS) or other experts if considered necessary. He may also attempt to persuade the objecting party to withdraw its objection.29

If the objecting party persists in its position, the cultural property will not be registered in the system. However, if the requesting party enters into an armed conflict before the registration is completed, the Director-General must temporarily register the cultural property, pending resolution of the objection. If no objection is withdrawn within six months of its submission, the requesting party may seek arbitration.

Each party involved in the dispute selects an arbitrator, and if there are multiple objecting parties, they must agree on a single arbitrator. The two selected arbitrators will then appoint a third arbitrator, and if they cannot reach an agreement, the President of the International Court of Justice will select the third arbitrator. The decision of the arbitration court is final and not subject to appeal.30

A challenge with the procedure outlined in Article 8 is that it could be delayed by any state party in the event of an armed conflict, as it holds the right to object to the registration of cultural property, provided it offers a valid reason for the objection.

Article 10 of the Convention further stipulates that cultural properties placed under the special protection system must bear a distinctive emblem. This emblem consists of a shield with a pointed bottom, composed of separate blue and white segments. A blue triangle sits at the top of the shield, flanked by a white triangle on each side.31 The emblem can be displayed as a single mark or repeated up to three times.

²⁸Ahmed Se Ali, Op. cit. , p. 39.

²⁹See Article 14/Paragraph 7 of the Executive Regulations of the 1954 Hague Convention, for further details, see: Haik Spiker, "Protection of Civilian Property According to International Treaty Law," Studies in International Humanitarian Law , Cairo, Dar Al-Mustaqbal Al-Arabi, 1st edition, 2000, p. 210-211.

30Each state has the right to oppose the registration for duly specified reasons. See Patrick J. Baylon, "Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, the Hague Convention of 1954," UNESCO, Paris, 1993, Doc CLT, 93/WS/12, p. 77.

31See Article 16 of the Convention.

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The emblem can also be used up to three times in a triangular formation, with one of the emblems facing downward, in the following instances:

• _    For cultural properties placed under the special protection system.

• _    In cases where cultural property is urgently relocated to protect it from seizure, confiscation, or looting.

• _    For makeshift shelters, the general agent may permit the concerned party to affix the emblem if the circumstances and significance of the cultural property justify such a measure.

The Director-General of UNESCO may remove cultural property from the register under the following conditions:32

• _    Upon a request from the state party where the cultural property is located.

• _    If the state party withdraws from the Convention, and such withdrawal becomes effective.

• _    Additionally, as specified in Article 14, paragraph 5, if objections arise regarding the procedures outlined in paragraph 8 of the same article.

Article 12 of the 1954 Hague Convention permits the extension of special protection to means of transportation carrying cultural property, whether within or outside the country. The Convention sets several conditions, such as the transport being exclusively for cultural property, with the concerned state party required to submit a formal request. Article 13 further stipulates additional conditions and restrictions, which include:

• _    A commitment by the contracting state not to engage in any hostile actions during the transportation of cultural property.

• _    The requirement to notify the opposing party of the transportation process.

• _    The obligation to display the distinctive emblem during transportation.³³

Article 14 of the 1954 Hague Convention ensures immunity for cultural property placed under special protection, safeguarding both the property and the means of transportation from seizure,

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confiscation, or looting. However, this immunity does not prevent inspections to ensure compliance with the conditions set by the Convention.34

Moreover, officials are required to refrain from taking any hostile actions to benefit from the system established by the Convention. Military and civilian personnel involved in the protection of cultural property may wear armbands bearing the distinctive emblem and carry special identification cards issued by the relevant authorities.35

Second Subsection: Means of Achieving Special Protection and Its Legal Effects:

To achieve special protection, the 1954 Hague Convention outlines two primary mechanisms: control and assistance. Notably, the provisions related to the transportation of cultural property are of particular importance, as transporting such property often involves safeguarding it by moving it to a neutral state until the end of the conflict. Article 12 of the Convention establishes that the transportation of cultural property is subject to special protection (immunity) and international oversight. Conflicting parties are required to refrain from any permanent actions that could undermine this transportation process.

Special protection carries significant legal effects, as clearly outlined in the Hague Convention. However, as noted by Professor Haike Spekker, these effects are somewhat misleading. The special protection system is not necessarily more robust than general protection and, in some respects, may be considered weaker.36

The practical failure of the special protection system is evident, as since the entry into force of the Hague Convention in 1956, only five cultural properties have been registered. Among them, only one was an archaeological site (the entire Vatican City), while the remaining four were shelters in Germany and three in the Netherlands. The last registration occurred in 1978, after which some properties were even removed from the register. In 1994, the Netherlands, which had six shelters, requested the removal of three of them, and in 2000, Austria requested the removal of one from the 1969 register.37

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Despite the importance of both general and special protection for cultural properties under the Hague Convention, to ensure their effective implementation, the convention includes additional provisions related to the supervision and respect for cultural properties through supplementary protective measures. These include, in addition to the protection of officials tasked with safeguarding these properties, the possibility of transferring cultural property under special protection as outlined in Article 15.38

Conclusion:

The role played by the international community in protecting cultural property during armed conflicts, by preventing destruction, looting, vandalism, and the illicit trafficking of cultural heritage, through the adoption of the 1954 Hague Convention and its additional protocols, is no longer sufficient to address these negative phenomena that destroy the history of nations and erase their identity.

Failure to comply with the international protection rules set forth by these conventions is considered a crime against peoples. This has been clearly evident in some Arab countries, such as Syria, Iraq, and Palestine, where cultural properties were looted and destroyed amidst the complete absence of international intervention, and without holding responsible parties accountable to ensure the protection of such properties within military operations zones. This situation undermines the mission of the United Nations peacekeeping forces, who are tasked with carrying out their duties impartially.

Based on the findings highlighted, the following recommendations can be made:

• _    There is a need to train military leaders to ensure the protection of cultural properties during armed conflicts and to hold them accountable for their responsibilities.

• _    Strengthening the provisions of international agreements to serve the interests of peoples in preserving cultural heritage and national identity, and encouraging the largest possible number of countries to join as parties to these agreements.

• _    Establishing a global database or observatory to catalog all cultural properties of global significance, identifying them accurately, and raising awareness about their importance through media outlets.

• _    Organizing continuous scientific courses and creating task forces to develop a long-term strategy to combat all forms of heritage crimes.

³⁸Nariman Abdel Kader, Op. cit. , p. 92-93.

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