Just over twenty years ago, on the 26th of March 1999, the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (hereafter Second Protocol) was adopted. Following the Balkan wars, there was a sense that the 1954 Hague Convention, the key treaty protecting cultural property, was not entirely fit for purpose. It had for example left the concept of ‘imperative military necessity’ undefined, leaving too much leeway for interpreting the way it should be applied on the ground. The Second Protocol attempted to clarify this exception to the obligation to respect cultural property in armed conflict by narrowing its scope, i.e. only permitting an act of hostility against cultural property if that object was made, by its function, a military objective and if there is no feasible alternative available to obtain a similar military advantage (Art 6(a) Second Protocol). It added that the use of cultural property in a manner that puts it at risk of damage or destruction is only possible for as long as there is no other means to gain a similar military advantage (Art 6(b) Second Protocol). Finally, it added that only commanding officers may invoke ‘imperative military necessity’ (Art 6(c) Second Protocol).
Importantly, the Second Protocol devised a new form of additional protection. The system established under the 1954 Hague Convention allowing states parties to request ‘special protection’ for a limited range of buildings (refuges sheltering cultural objects from armed conflict, centres containing monuments, and other immovable cultural property of great importance) had not garnered much success. While the advantage to being placed under special protection is clear, with the property benefitting from immunity, i.e. that the States parties must refrain from any act of hostility against it and from any use of it or its surroundings for military purposes which could turn the property into a military objective, only Vatican City and a small number of refuges had been entered on the International Register of Cultural Property under Special Protection’ by the time the Second Protocol was being drafted. The Second Protocol tried to address the failure of the special protection system by replacing it with that of ‘enhanced protection’, which has the ability to encompass many more properties : any movable or immovable property can now be considered and there is no longer any requirement for the property to be situation at a sufficient distance from industrial centre or potential military objectives, a major obstacle to the listing of any property situated in or near a city (Art 10 Second Protocol).
Fifteen years after the entry into force of the Second Protocol (9 March 2004), it is evident that the wider concept of enhanced protection has been more widely embraced. At present, ten States parties have listed properties under enhanced protection, including seventeen sites and monuments in total. While this is of course a lot more properties than have ever been listed under special protection, it remains a rather low number of cultural objects around the world that cannot readily be turned into a military objective. This low number is in stark contrast to more than 800 cultural properties listed as UNESCO World Heritage sites, most of which could also be inscribed on the list of properties under enhanced protection.
Application to Non-International Armed Conflicts
One of the key provisions adopted in the Second Protocol is Article 22, according to which the Protocol applies in its entirety in the event of non-international armed conflicts. The 1954 Hague Convention provides that in such situations, parties to the conflict (both states and non-state armed groups) are bound (at a minimum) by the rules relating to the respect for cultural property, i.e. at least those contained within Article 4 (Art 19, 1954 Hague Convention). By expanding the application of the Second Protocol to armed groups, it also meant to bind them to the rules regarding the precautions to be adopted in attack and those against the effect of hostilities, such as the provision of adequate in situ protection, for example (Arts 7 and 8 Second Protocol). However, just like the 1954 Hague Convention, its Second Protocol only allow States parties to call upon UNESCO for technical assistance (Art. 33 and 1(a)). As highlighted in a recent report published by Geneva Call, Culture Under Fire: Armed Non-State Actors and Cultural Heritage in Wartime, this lack of access to UNESCO’s assistance has resulted in missed opportunities The example of the National Movement for the Liberation of Azawad (MNLA) in Mali is telling in this regard. On 10 March 2013, the MNLA issued a communiqué announcing they had intercepted three boxes containing more than 1,000 ancient manuscripts during clashes with Islamist fighters near Tessalit. In a letter dated 22 March 2013, the MNLA representative in charge of culture informed UNESCO about the seizure, providing an inventory of the manuscripts. The MNLA expressed its willingness to return them to their rightful owners after an expert’s authentication and requested support to UNESCO. The letter was never answered and the manuscripts, which had been stored in Kidal, were reportedly taken back by the Islamists. While UNESCO is authorized to offer technical assistance to all parties to a conflict (Art 22(7) Second Protocol), its room for engagement with armed groups is constrained by political considerations as an intergovernmental organization.
In addition, while it is key to bind all parties to hostilities to the same rules with regard to the protection of cultural property, armed groups are often at a disadvantage as they often lack information about what constitutes protected property under the Hague system. The Second Protocol failed to establish a mechanism that would allow for the exchange of relevant information between warring parties, such as no-strike lists. Therefore, while armed groups must take precautions in attack and against the effect of hostilities on cultural properties, they may often lack the required knowledge to do so, including not only technical expertise but the ability to recognise what object qualifies as cultural property under international law.
Therefore, while it is clear that the Second Protocol was drafted in the view to apply in its entirety to non-international armed conflicts, a number of obstacles remain. In addition to the above lack of avenues for armed groups to obtain assistance in their efforts to protect cultural property, the interviews and trainings conducted by Geneva Call on the matter make clear that there is a lack of knowledge of the Hague system. None of the groups interviewed, whether operating in Iraq, Syria or Mali, were for example aware of the 1954 Hague Convention nor the emblem of the Blue Shield. Nevertheless, all the groups interviewed expressed interest in knowing about those rules and receiving training. Following a training conducted by Geneva Call with Free Syrian Army commanders, one brigade reportedly adopted measures to protect the Umayyad Mosque of Aleppo (with sandbags and bricks) while another withdrew its presence from a castle around Aleppo. It is therefore important to inform armed groups of the rules applicable to them, as well as to offer them assistance to abide by them if requested.
The Second Protocol counts 82 states parties at present, a lot less than the 133 parties to the Hague Convention. While the Second Protocol has brought some (incomplete) advancement with regard to its application in non-international armed conflicts, it is still not in force in many states where a non-international armed conflict is currently active on their territory, such as Iraq, Syria, or Yemen. It is thus important that ratifications to the Second Protocol continue to be encouraged. Finally, it is important that channels of communication are opened to armed groups that seek to protect the cultural heritage located on the territory on which they operate. Without an effective engagement with armed groups, that includes training on rules applicable to them, the protection of cultural property in armed conflict will remain flawed. Given UNESCO’s limitations, the role of NGOs, both international and local, is key in this regard and should be supported.