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1 Protecting Cultural Heritage in Conflict Lyndel V. Prott The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its associated Protocols are among the great humanitarian legal instruments, together with the Geneva Conventions and those on Genocide and Torture, that were developed in the twentieth century in order to try to minimize the inhumanity of warfare. The Preamble of the Hague Convention states a simple and important philosophy: “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind.” This is more than ever the case: the whole world was concerned by the destruction of the Buddhas of Bamiyan and the looting of the National Museum of Iraq in Baghdad. The Instruments The Hague Convention sets out major obligations for warring states (Boylan 2002; O’Keefe 2004). In relation to the potential destruction of cultural property the Convention provides that a State Party to the Convention must respect cultural property in its own territory as well as that of other states; must refrain from any use of the property and its immediate surroundings for military purposes , and must refrain from directing any act of hostility against it. The only situation in which this rule may be waived is where military necessity imperatively requires it. Other obligations are also set forth, specifically those in relation to removal of cultural property. States party to the Convention must prohibit, prevent, and if necessary put a stop to any form of theft, pillage, or misappropriation of and any acts of vandalism directed against cultural property. They must refrain from requisitioning movable cultural property. Most important, in the current context of Iraq, occupying forces must as far as possible support the competent national authorities of the occupied country to protect cultural property, and if it proves necessary to preserve cultural property situated in occupied territory and damaged by military operations, the occupier must as far as possible, if the competent national authorities are unable to do so, take the most necessary measures, in close cooperation with such authorities.  / Lyndel V. Prott There are also important provisions that are in force under the Hague Convention before the conflict arises: the State Parties are to undertake training to foster a spirit of respect for the culture and cultural property of all peoples in the members of their armed forces. They are also to introduce in peacetime provisions to ensure observance of the Hague Convention into their military regulations or instructions. As of January 2006, there are 114 states that are party to this Convention. Neither the United Kingdom nor the United States has ratified the Convention , although both signed it when it was first drawn up. Although it is not, therefore, directly in force for them, they have paid regard to its principles by including these in their officer training and military manuals. Australia has been a party since 1984, Canada since 1998. The First Protocol The First Protocol to the Convention, also drawn up in 1954, concerns the return of cultural property. There are ninety-two parties to this Protocol. Unfortunately , the United Kingdom and the United States are not among them, nor is Australia. During the 1960s and 1970s, with the Cold War and the development of intercontinental ballistic missiles, enthusiasm for the Hague Convention dimmed, on the basis that precise targeting over the horizon was not possible and so some of the Convention’s obligations—to target only military objectives, for example—were not realistic. That objection has disappeared with the development of more precise targeting methods. Furthermore, it became clear in the last quarter of the twentieth century that most conflicts were not state-of-theart warfare between major powers but short-term local, though equally brutal, disputes. The conflict in the former Yugoslavia in the early 1990s caused such revulsion that sufficient impetus was given for the development of the Second Protocol to the Hague Convention. The Second Protocol A Second Protocol was drawn up in 1999, designed to improve the working of the Convention. This Protocol makes three major developments: a refinement of the concept of “military necessity,” which creates an exception to the protection of heritage and which was drafted with the clarity necessary for military staff that some saw as lacking in the Convention itself; the much more extensive treatment of punishment of violations; and the establishment of the intergovernmental committee of twelve States Parties to supervise the workings of the protective system. A...

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