Cultural Heritage
cultural objects from throughout Europe and brought them to Paris, but with their defeat, the French were required to return these objects to their countries of origin. In addition, the British refused to take cultural objects as spoils of war for themselves, thus setting the first modern ex- ample of cultural property protection. This implicit recognition that art works should be treated as a distinct category of property is mirrored in a dis- pute that arose during the War of 1812, when the British seized a ship, the Marquis de Somerueles, which was carrying art works from Italy to the newly founded Academy of Arts in Philadelphia. The judge held that the ship’s cargo should be freed and permitted to proceed to Philadelphia, commenting that art works “are considered not as the peculium of this or of that nation, but as the property of mankind at large, and as belong- ing to the common interests of the whole spe- cies.”3
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The first codification of principles for the protec- tion of cultural property during armed conflict is found in the Lieber Code, drafted at the request of U.S. President Abraham Lincoln for the U.S. Army by Francis Lieber, a professor at Columbia University. The result was the manual, Instruc- tions for the Government of Armies of the Unit- ed States in the Field (General Order No. 100), which explicitly acknowledged a special role for charitable institutions, collections, and works of art. Of relevance to the Jessup problem, Article 35 of the Lieber Code provided: “Classical works of art, libraries, scientific collections, or precious instruments, … as well as hospitals, must be se- cured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded.”
In the latter half of the nineteenth century, interna- tional humanitarian law began to develop to make the conduct of war more “humane.” As part of this effort, the international community attempt- ed to draft a code for the conduct of warfare, cul- minating in the two earlier Hague Conventions
of 1899 and 1907 on the Laws and Customs of War on Land and, in particular, the Regulations annexed to the Conventions. These conventions are significant as the regulating international au- thority during both World Wars. Most European countries ratified one or the other convention, and they remain, more than a century later, the only international conventions concerning the protec- tion of cultural property during armed conflict ratified by both the United States and the United Kingdom. Among their provisions, these conven- tions prohibit pillage and seizure by invading forc- es (Articles 23, 28 and 47 of the 1899 Convention Annex) and require armies to take all necessary steps to avoid seizure, destruction and intentional damage to “religious, charitable, and educational institutions, and those of arts and science” as well as to “historical monuments [and] works of art or science” (Article 56). The 1907 Convention limited these obligations to avoid damage to such buildings and historic monuments by requiring that they be marked by a distinctive sign and that they not be used for military purposes but also stated that “[a]ll seizure of, destruction or wilful damage done to institutions of this character, his- toric monuments, works of art and science, is for- bidden, and should be made the subject of legal proceedings.”
Despite the widespread acceptance of these conventions by European nations, the conven- tions failed to protect cultural property during the two World Wars and were useful primarily as a mechanism for extracting reparations and as a ba- sis during the Nuremberg Trials for prosecution of some of the Nazi leadership, who had engaged in massive pillage, damage and destruction to cul- tural property. Between the two World Wars, the League of Nations initiated a draft of a new con- vention to protect cultural property but this was not completed. In addition, the Roerich Pact, also known as the Washington Pact for the Protection of Artistic and Scientific Institutions and of His- toric Monuments, was completed in 1935 and
ILSA Quarterly » volume 20 » issue 4 » May 2012
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