Cultural Heritage
ratified by eleven nations, but its relevance has been limited by the fact that it is ratified by only nations in the Americas.
Only after World War II, with its massive destruc- tion and looting of cultural objects and monu- ments, did the international community succeed in crafting a legal regime specifically for the pro- tection of cultural heritage. The first international convention devoted exclusively to cultural heritage was formulated in 1954 — the Hague Conven- tion for the Protection of Cultural Property in the Event of Armed Conflict. The Convention’s First Protocol was drafted at the same time and deals exclusively with the status of movable cultural objects. The Preamble to the Convention notes its rationale in that “damage to cultural property belonging to any people whatsoever means dam- age to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world; [and] the preservation of the cultural heritage is of great importance for all peoples of the world and that it is important that this heri- tage should receive international protection.”
Article 1 of the Convention defines cultural prop- erty to include “movable or immovable property of great importance to the cultural heritage of ev- ery people, such as monuments of architecture, art or history, whether religious or secular.” Article 2 sets out the core responsibilities of nations to safeguard and to respect cultural property. These mean that nations must prepare during peace- time to protect their cultural property in case of future military conflict (Article 3) and, during con- flict, to avoid using their own cultural property in such a way that might endanger it and to avoid the intentional targeting of cultural property (Ar- ticle 4). These last responsibilities may be waived through the doctrine of imperative military neces- sity.
The applicability of the 1954 Hague Convention to the Jessup problem is limited, however, in two respects. First is the question of whether the
Convention applies to the destruction of cultural heritage carried out by a nation within its own ter- ritory. While the conflict between Rantania and Aprophe is an international armed conflict, the destruction of the Mai-Tocao Temple took place entirely within Aprophe and was carried out in- ternally by the government of Aprophe. Article 19(1) of the Convention states: “In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provi- sions of the present Convention which relate to respect for cultural property.” The provisions that relate to respect for cultural property include “re- fraining from any act of hostility directed against such property.”
While this provision perhaps seems relatively clear, a lack of certainty as to its applicability in an internal conflict led to the inclusion in the Second Protocol, which was adopted in 1999 and came into force in 2004, of a provision intended to clar- ify the Convention’s applicability. Clarification was considered necessary particularly in light of the Balkan conflicts where considerable intentional damage was done to cultural property and par- ticularly religious buildings and institutions. This damage and destruction were frequently carried out within a particular sector against minority reli- gious groups as a means of expelling that minor- ity group in what has since been termed cultural genocide.
The Second Protocol, after reiterating the Con- vention’s applicability to conflicts “not of an inter- national character”, states that the Protocol “shall not apply to situations of internal disturbances and tensions, such as riots [and] isolated and sporadic acts of violence” and “[n]othing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity
ILSA Quarterly » volume 20 » issue 4 » May 2012
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