The Protection of Cultural Property

during Armed Conflict

Hyder Gulam
Australian Red Cross - Cultural Property Working Party
 Objectives:
• Historical developments regarding the
protection of Cultural Property
• Overview of the legal instruments that
protect cultural property during armed
conflict
• Examples of armed conflict and cultural
property
 References:
• 1954 Convention on the Protection of Cultural
Property in the Event of Armed Conflict and its
Protocols
• Geneva Conventions and Additional Protocols
(especially AP 1 1977)
• United Nations Security Council Resolution 1483
• 1907 Hague Convention (Art.56)
• 1923 Hague Air Rules
 Historical developments regarding the
protection of Cultural Property

• Herodotus (430BC) chastised the Persian King

Xerxes for plundering Greek and Egyptian
religious and political centers.
• Roman destruction of Carthage following the 3rd
Punic War (146BC)

• Napoleon's systematic looting of European art and

cultural objects
 Protection of Cultural Property in Armed Conflict

• Formulated after WWII in wake of massive physical destruction

- applicable to all armed conflicts, ie internal.
• States party to the treaty are committed to safeguarding cultural
property in periods of hostility, and in times of peace -
preparation of inventories.
• The destruction of CP means diminution of civilians and
civilized life - part of the identity and dignity of peoples.
• Protection of CP in peacetime can be used to enhance
international commitment to the safeguarding of CP in periods
of hostility.
• CP includes museums, libraries, archives, archaeological sites
and monuments or architecture, art of history, whether religious
or secular.
 1954 Convention
• Expanded protection for cultural property
• Designated an international symbol for nations in
order to protect CP.
• Created an International Register for CP under
Special Protection.
• Affirmative duty on signatory parties to protect
CP situated within their territory.
• Created conditional immunity and subsequent
withdrawal of immunity for CP sites (‘imperative
military necessity’).
 Australian & US Position

• ASGOV accepted Convention 19/9/84

• US position is that the 1954 Convention is a
reflection of customary international law,
but has never risen per se to the level of
customary international law. Moreover,
while the U.S. follow, when possible, the
basic framework of the 1954 Convention,
they are not bound by it.
 1977 Additional Protocols to the Geneva
Conventions 1949
• Art.38 - prohibits the misuse of the
protective emblem of CP.
• Art. 53 - prohibits acts of hostility
against, or the use in support of the
military effort or, or reprisal against
‘historical monuments, works of art
or places or worship which
constitute the cultural or spiritual
heritage of peoples.
• Art.85 - Grave breach - making CP
the object of attack.
 Duty of
Attackers
• Attack military objectives / combatants only.
• Do everything feasible to ensure object or person
is a mil object. Cases of doubt - presume civilian.
• Take all feasible precautions to avoid /limit
incidental damage and never excessive.
• When course of action would provide equal mil
adv choose the COA with least collateral damage.
• Occupied Territory: Occupying forces must
preserve CP in that territory (Art.5)
 Duty on Defenders

• Must avoid locating shelters for specially

protected CP near potential military targets.
• Avoid the use of CP and its surrounding for
military purposes.
• Listing of CP.
 Medieval Monastery of Monte Casino

• Allies believed that the monastery was being used as an

observation post - only after allied air bombing did the
Wehrmacht occupy it. This occupation forced the
campaign up the Italian Peninsula to an eventual standstill.
 2nd Gulf War 1991

• From Saddam’s Use of Human Shields and Deceptive

Sanctuaries Special Briefing for the Pentagon Press Corps
Cultural Heritage of Iraq
Baghdad 2003
 United Nations Security Council
Resolution 1483

• “…take appropriate steps to facilitate the

safe return to Iraqi institutions of Iraqi
cultural property and other items of
archaeological, historical, cultural, rare
scientific, and religious importance illegally
removed from the Iraqi National Museum,
the National Library…”
 The Cultural Heritage of Former Yugoslavia

• Dubrovnik - perfectly preserved walled city

and world heritage site: hit by 500 rockets,
sustained 45% damage (6 Dec 1991).
• Mostar Bridge (1566)
• Sarejevo’s Oriental Institute - home to the
largest collection of Muslim and Jewish
manuscripts, texts and Ottoman documents
in southeastern Europe.
 Mostar Bridge

• Nov 9, 1993 after 2 days of concentrated cannon fire at

point-blank range, the bridge at Mostar collapsed into the
river.
• Croatian militiaman: ‘It is not enough to cleanse Mostar of
the Muslims, the relics must also be destroyed.
 Sarejevo’s Oriental Institute

• Shelled with phosphorus grenades on May 17, 1992, the

institute and its contents were consumed by the flames.
• ‘The officer commanding the artillery units apologised
profusely, explaining they had not meant to hit the hotel
(the Holiday Inn: located to the immediate front - and
where international journalists were based), but had been
aiming at the roof of the National Museum behind it’.
Other relevant legal instruments

• 1970 UNESCO Convention on t he Means of Prohibiting

and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property.
• Dealing in Cultural Objects (Offences) Act 2003 (UK).
• UNESCO Declaration Concerning the International
Destruction of the Cultural Heritage.
• In Australia:
• Customs Act 1901 and Regulations (Prohibited Imports)
1956
• DFDA 1982 - Division 5A ‘Property Offences’.
 Second Protocol to the 1954 Cultural
Property Convention
• The exception of military
• Precautionary measures - advanced warning
• The system of special protection
• Individual criminal responsibility
• Institutional aspects
• Specific examples of of concrete dissemination
measures are listed for military and civilian
authorities
* Responsibility to incorporate guidelines and instructions on the
protection of CP in military regulations.
 Questions?

• General Eisenhower:
Wanted all allied commanders to respect cultural
monuments so far as war allowed, saying that he
did not want military necessity to cloak slackness
or indifference and requiring commanders to
determine the location of cultural property
through the allied military government.