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1 Codifying Cultural Property Protection: The Path to the Hague Convention

Since the end of the First World War, more than a few governments started to feel the need of codifying and draw some specific legal boundaries for the protection of cultural property in the event of armed conflict.Footnote 1

Cases of voluntary destruction of cultural heritage during WWI, such as the episodes of Reims, Lovanio and Arras, did raise the issue of identifying not only a protection system at the international level but also one that would allow to monitor and ensure the military’s compliance with the rules.

While already in 1915 Professors Vetter and Mariaud, respectively in Bern and Geneva, had launched the first proposals for the creation of a “Croix d’Or” (based on the idea of the Croix Rouge) to safeguard some specific monuments not to be exploited for military purposes by the parties in a conflict, the end of WWI marked the beginning of a transnational legal debate focused on the importance of developing common rules capable of harnessing the impact of war on historical buildings and works of art in general.Footnote 2

Particularly important in this sense was the adoption of the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (also known as the “Roerich Pact”) concluded in Washington in April 1935 and entered into force in August of the same year among the members of the Pan-American Union (later “Organization of American States”). For the first time, the Treaty indeed achieved the objective of legally defining the concepts of “respect” and “protection” of cultural objects as juridical obligations, in this way shaping the idea of a need for “general” protection both in times of peace and war.

Against the promising developments of the 1930s, the outbreak of WWII vividly underlined the extreme vulnerability of artworks and cultural property in the event of armed conflict. With the sole Hague Conventions (stipulated in 1899 and 1907) as the applicable multilateral legal framework impacting the conduct of hostilities (along with some specific restrictions foreseen, for example, by the Geneva Protocol of 1925 related to the prohibition of the use of poisonous and other gases), the total lack of international provisions regulating the treatment and safeguarding of cultural property in the event of armed conflict gave rise to a series of accidents and voluntary heinous acts (not yet formally defined as crimes).

Mostly dismissed as justified by the prevailing weight of the “military necessity” logic (for instance in the case of the destruction of the Montecassino Abbey in Italy, the bombing of the city of Dresden, or the one of Coventry), moreover, deliberate operations against cultural property often took the form, during WWII, of systematic acts aimed at erasing the heritage of a specific culture and/or population.

As a result, the disrupted international community emerging from the war embraced the vision of consolidating specific rules to shield cultural property from hostile acts, in order to prevent civilians from being harmed by means of a direct attack against their individual and collective identity.

Hence, the new role assigned to the United Nations Educational, Scientific and Cultural Organization (UNESCO) turned out to be increasingly crucial, as it provided the States with an institutional framework to carry out the negotiation leading to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

The Convention was integrated into the wider path of codification of the rules curbing the impact of armed conflict on civilians and civilian objects at the time, manifestly inheriting the legal philosophy of the four Geneva Conventions of 1949. The Hague Convention in this way perfectly fits into the overall body of IHL provisions discussed in Geneva a few years before, recalling them under several aspects such as its application framework, its implementation methodology (e.g. use of specific emblems to mark cultural property, protection of relevant personnel on the field) and the dissemination duties to be undertaken by the ratifying parties.

Through its 21 articles, the Convention not only set the overall legal boundaries aimed at protecting cultural property from direct damage in the event of armed conflict but even established that specific “refuges”, used to shelter such property, and “centres containing monuments and other immovable cultural property” should have fallen under a “special protection” (art. 8–11), granting immunity from attacks thanks to the registration into an international register at UNESCO. Notwithstanding the importance of such a multi-layered approach, it is (and was at that time) self-evident how the Convention is heavily impacted by the overarching presence of the military necessity principle as a vulnus to protection, as well as by the several conditions required to insert the shelters in the register for the special protection.

It is also due to this weakness that, in 1977, the drafters of Additional Protocol I to the 1949 Geneva Conventions decided to reaffirm in Article 53 the importance of the provisions of the Hague Convention, recalling the prohibition of committing hostile acts, use or make the object of reprisals cultural objects and places of worship manifestly avoiding any mention of the military necessity principle. In this way, the Additional Protocol tried to take forward the idea of legal protection that should have overcome the military necessity principle, even if not explicitly defining a will to codify such development.

When, in 1999, the Second Protocol to the Hague Convention was finally adopted, the problem, however, showed off again as a persistent and still existing breach in the Hague body of law. Nevertheless, the 1999 Protocol was key to better define military necessity as “imperative” with reference to the general protection of cultural property, as well as to integrate the special protection already foreseen by the 1954 Convention with a structured “enhanced protection”, much better related to military necessity through the concept of the absence of a “feasible alternative available”.

Setting aside the broader international legal framework concerning the protection of cultural property in the event of armed conflict, further integrated by the two protocols in 1954 and 1999, it is key for the present analysis to move now beyond the scope of the mere physical protection of cultural property in conflict scenarios, focusing on the enlarged concept of the “safeguarding of cultural property” raised by the drafters in Article 3 of the Hague Convention.

This latter provision comes particularly useful, in fact, to better understand how deeply the drafters were aware of the paramount value of preparing “[…] in time of peace for the safeguarding of cultural property […] against the foreseeable effects of an armed conflict, by taking such measures as [the Parties] consider appropriate”.Footnote 3 While representing one of the most self-evident cases of legal complementarity between IHL and international human rights law within a humanitarian law convention (Greppi 2012),Footnote 4 thanks to the direct reference made by the text to peace as a logic antecedent of war (during which IHL becomes applicable), Article 3 essentially constitutes a first step towards the confirmation of the importance of preliminary training for the implementation of the Convention on the ground.

Nevertheless, in coherence with the approach drawn by the four Geneva Conventions, the relevance of capacity-building as a prevention instrument is even most immediately encompassed by Article 25, which outlines the dissemination duties of the contracting parties and, consequently, the need “to include the study” of the Convention’s provisions “in their programmes of military and […] civilian training”.Footnote 5 In this sense, the Hague Convention and, more precisely, the formulation of Article 25 cannot help but recalling, in fact, the imprint traced by the many norms of the Four 1949 Geneva Conventions, precisely echoing not only their juridical substance but also their language.Footnote 6

It is in this way too—and not exclusively, as previously mentioned, in the provisions referring to training and dissemination duties—that the contracting parties of the Hague Convention underlined the urgency to fill the critical gap existing in IHL concerning the protection of cultural property, namely not simply by adding a stand-alone regime to complement the Geneva Conventions but by embedding it into the comprehensive IHL body that was being defined in those very years.

2 Training Military and Civilian Personnel in Cultural Property Protection in Armed Conflict: The Mission of the Sanremo Institute

Having briefly depicted a clearer view of the rationale that lies behind the codification process of a legal duty for governments to develop awareness-raising initiatives specifically addressed to their own operatives (being they military or civilians), particularly interesting now is to dwell for a moment on the experience of a unique non-governmental institution, the International Institute of Humanitarian Law. The Institute has indeed statutorily contributed for more than 50 years now to the promotion of all the IHL provisions and principles, and, among them, of the Cultural Property Protection ones.

The International Institute of Humanitarian Law is an independent, non-profit, humanitarian organization established in 1970 in Sanremo, Italy, by a group of distinguished lawyers, in a period in which the international community was launching a new diplomatic initiative aimed at the enhancement of international humanitarian law through the adoption of new, multilateral binding instruments.Footnote 7

The main purpose of the Institute was identified in the promotion of international humanitarian law (or Law of Armed Conflicts), international human rights law, refugee law, migration law, and other related issues, through the organization of specific training programs, round tables, thematic seminars, and international gatherings addressed to national and international practitioners, military officers, diplomats, and academics.

During more than half a century of activity, the Sanremo Institute has built a global reputation as a center of excellence in the field of training, research and dissemination of IHL and IHRL, particularly thanks to the organization of hundreds of initiatives that involved more than 30,000 participants.

Over the decades, such a commitment contributed to what is nowadays recognized worldwide as the “humanitarian dialogue in the spirit of Sanremo”, as well as the establishment of close collaborations with the most important international organizations dedicated to the humanitarian cause, such as the International Committee of the Red Cross (ICRC), the United Nations High Commissioner for Refugees (UNHCR), the Office of the United Nations High Commissioner for Human Rights (OHCHR), the International Organization for Migration (IOM), UNESCO, and many others.

It was exactly on the basis of these multilevel partnerships, involving regional, national, and international organizations, that the Institute has been able to support and foster the increasing international attention on the crucial issue of the Protection of Cultural Property in armed conflicts.

Since 1976 the Sanremo Institute indeed offers training programs specifically tailored to military personnel, aimed at fostering the development of knowledge in IHL. Within such courses, the Institute has always devoted special attention to Cultural Property Protection. The topic is indeed regularly included in its annual training program, both integrated into its foundation courses and specialized training activities such as advanced courses and thematic seminars, workshops, and conferences. More than 20,000 officers of the armed forces of 190 countries have been trained, with courses in English, French, Spanish, Arabic, Russian, and Chinese.

In addition to this overall reference to CPP, in 1984, the Institute organized a Symposium to commemorate the thirtieth Anniversary of The Hague Convention of 1954 and, in 1986, a workshop on “The adaptation of international law on the protection of cultural property to technical developments in relation to modern means of warfare”.

Faithful to this tradition, in 2009 the Institute decided to contribute to the call to action promoted by UNESCO by organizing a seminar to celebrate the 10th anniversary of the Second Protocol to the Hague Convention, aiming to spread knowledge on international regulations governing the Protection of Cultural Property in the event of armed conflict, to share information, to facilitate the exchange of knowledge and promote the dissemination among civilian and military actors of the rules governing the protection of cultural property in armed conflicts.

More recently, on the specific request of the same UNESCO, the Institute developed a military manual on the protection of cultural property, with the general objective of further contributing to more tangible dissemination and operational application of the principles and rules governing this field in international and non-international armed conflict. The Manual was the outcome of a series of high-level meetings among international experts (both military and civilians) held in Sanremo between 2015 and 2016.

The ManualFootnote 8 combines a military-focused analysis of the existing provisions in the field, with suggestions of best practices at the different levels of command and during the different stages of military operations conducted by land, sea, and air. The text was presented at the concluding conference of the NATO Science for Peace and Security project: “Best Practices for Cultural Property Protection in NATO-led Military Operations” held at the Institute in Sanremo in December 2016.

More recently, another key commitment of the Sanremo Institute in the field of CPP is its contribution to the development of the International Master Programme on “Cultural Property Protection in Crisis Response”. The first edition was launched in 2018, promoted by the University of Turin and the University School of Strategic Sciences, in collaboration with the Italian Army, the Carabinieri Command for the Protection of Cultural Heritage Unit, and other relevant institutions and organizations active in the field of CPP and cultural heritage protection.

This program aims to prepare future generations of civil and military professionals by providing them with a multidisciplinary background and advanced expertise in the protection of cultural property in situations of armed conflict, natural disasters and, more widely, in the field of cultural property exploitation as a key element of social and economic reconstruction in affected areas and communities.

The importance of the role of cultural property in crisis and post-crisis scenarios has increased considerably in recent years, due to the emergence of new forms of conflicts and the intensification of disasters. It is also for this reason that the Institute, besides regularly renewing its training sessions in this field, during the last years has been keeping a very close contact with the most important institutions in the field of cultural property protection, not only to innovate capacity-building on this topic but also to find new tools and instruments able to multiply the impact of the dissemination initiatives conducted by different stakeholders on the topic.