U.S. Cultural Resources Laws
The 1954 Hague Convention for the Protection of Cultural Property During Armed Conflict
The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is the principal international treaty that sets forth obligations and provisions for the protection of cultural property during military operations.
1. With 126 States Parties and four state signatories to date, the 1954 Hague Convention is considered customary international law. This means all nations as well as non-state actors are bound by the terms of the Convention. Violations can be prosecuted under international law, whether the accused party signed/ratified the Convention or not.
2. Under the terms of the Convention, all States Parties must protect the cultural property situated within their own territory and avoid acts of hostility directed against another State Party’s cultural property, defined broadly to include historic structures and monuments, archaeological sites, and repositories of collections of artistic, scientific and historical interest.
3. Article 3 requires all States Parties to “prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate.” This is not a DoD function. Article 3 compliance is the responsibility of other Executive branch departments of the U.S. government;
- Should not target, attack or direct any act of hostility against the cultural property of another nation.
- Should not use cultural property in a way that might expose it to destruction or damage during hostilities.
- Should not direct any act of reprisal against cultural property.
These obligations may be waived only in cases where military necessity imperatively requires such a waiver.
What is “imperative military necessity?
Who decides whether “imperative military necessity” exists?
Who who decides if a cultural property on a “no strike” list is to be attacked?
Article 4 also requires US forces and all States Parties to “undertake to 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 … [and] refrain from requisitioning movable cultural property situated in the territory of another [State Party]“;
5. Article 5 of the Convention sets out the obligations of a State Party during occupation, emphasizing that the primary responsibility for securing cultural property lies with the competent national authority of the State that is being occupied. Therefore the first obligation imposed on the occupying power is to support these national authorities as far as possible. But the obligation of the occupying power to care for and preserve the cultural property of the occupied territory is limited.
Article 5 states that In the event one State Party occupies the whole or part of the territory of another State Party, the occupying party must “as far as possible support the competent national authorities of the occupied country in safeguarding and preserving its cultural property.” — and — “Should it prove necessary to take measures to preserve cultural property situated in occupied territory and damaged by military operations, and should the competent national authorities be unable to take such measures, the Occupying Power shall, as far as possible, and in close co-operation with such authorities, take the most necessary measures of preservation.“
6. Article 6, Article 10, Article 12, Article 16 and Article 17 of the Convention define usage of the “Blue Shield” emblem. These Articles collectively state that immovable cultural property, or vehicles / repositories / persons responsible for the transport or protection of such property, or persons engaged in the regulation of the Convention may be marked with the “Blue Shield”, indicating that the property, vehicles, repository or persons responsible for safeguarding these assets are subject to official protection. See sidebar to the left.
7. Article 7 of the Convention requires that States Parties undertake to educate their military about the Convention. States Parties shall undertake to plan or establish in peacetime, within their armed forces, services or specialist personnel whose purpose will be to secure respect for cultural property and to co-operate with the civilian authorities responsible for safeguarding it. Article 7 also requires States Parties to introduce regulations concerning observance of the Convention. The COCOM regulations, NATO regulations and General Order One, which comply with these Hague ’54 requirements and other international treaties, can be found elsewhere in this website by clicking the appropriate links.
Click to review the definition of “military necessity” as found in Customary International Law Rule 39, which was clarified in the Second Protocol to the 1954 Hague Convention. A waiver based on “imperative military necessity” must be decided at an appropriate level of command, and the waiver has strict limits. For example, under Article 53(2) of Additional Protocol I and Article 16 of Additional Protocol II of the Geneva Conventions, there is no military necessity waiver that permits anyone to attack or make military use of “historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples”. In other words, world-class sites are strictly off-limits. Some (but not all) of these properties are found on The World Heritage List.
The 2001 destruction of the Bamiyan Buddhas (top photo), ordered by the Afghan Taliban leader Mullah Omar, and the 2012 destruction of Sufi tombs at Timbuku (middle and lower photos) by Islamist fighters associated with Ansar Dine, were clear violations of the 1954 Hague Convention by non-state actors and are subject to prosecution at the International Tribunal in the Hague.