The Second Protocol is not an amendment to the main Convention or its First Protocol, but rather supplements it. It is a separate treaty that must be ratified by State Parties that choose to do so. However, a state cannot become a party to the Second Protocol unless it has ratified the main Convention. Moreover, the Protocol only applies to States that have ratified it.
The Second Protocol provides more detail and precision than the main Convention and its First Protocol regarding actions that State Parties must take during both peacetime and armed conflict.
Article 5 of the Second Protocol outlines the need for preparation of inventories, measures for the emergency protection of buildings against fire or structural collapse, and plans for evacuation of cultural property. It also proposes the designation of competent authorities to manage the protection of cultural property in times of war.
Article 6 limits the application of the doctrine of ‘imperative military necessity’ with regard to attacks on cultural property. It provides that a waiver for imperative military necessity may be invoked only “when and for long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage.” Moreover, it specifies that the decision to attack or use cultural property for military purposes shall only be taken by an officer commanding a force equivalent to a battalion or a smaller force where circumstances do not permit otherwise.
Article 8 cautions against locating potential military objectives near cultural property.
Article 9 deals with protection of cultural property in occupied territory, requiring an occupying power to prohibit and prevent all illicit export, removal, or change of ownership of cultural property. It also places very narrow limits on archaeological excavations and the alteration or change of use of cultural property.
Articles 10-14, creates a new category of ‘Enhanced Protection’ for the most important sites, monuments and institutions, whose protection must be publicized in advance. Although the 1954 Convention had established a system of Special Protection, it was not widely applied since the property to be so designated must be situated at an adequate distance from any large industrial center or important military objective. Moreover, any State can object to the listing of the property on the Register for any reason.
The most substantial provisions of the Second Protocol, however, are those in Article 15 where five explicit offences of serious violations of the Protocol are defined. They are:
If the first three of these offences are subject to universal jurisdiction and prosecution (due to their acceptance as customary international law), and are extraditable, most, if not all, countries will be required to adopt implementing legislation in order to comply with the obligations inherent in the ratification of the Second Protocol (Article 16).
Article 22 deals with non-international conflicts and aims to strengthen provisions of the main 1954 Convention that have been consistently ignored by rebel forces and irregular groups as well as by defending national forces.
Articles 23-28 establish a Committee for the Protection of Cultural Property in the Event of Armed Conflict.
Article 29 establishes a Fund for the Protection of Cultural Property in the Event of Armed Conflict
The Second Protocol was completed in March 1999 and came into force in 2004. The United States is not yet a party to this protocol.
In order to strengthen the little-used provisions of the 1954 Convention for the granting of “special protection” to refuges for the storage of movable cultural property, centers containing monuments and other immovable cultural property of “very great importance,” the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict established “enhanced protection.” The conditions necessary for the granting of enhanced protection and the responsibilities of states whose cultural property has been granted enhanced protection are set forth in Chapter 3, Articles 10-14 of the Second Protocol.
It is the responsibility of the Committee for the Protection of Cultural Property in the Event of Armed Conflict to grant enhanced protection to cultural property in countries that are party to the Second Protocol. State Parties may apply to the Committee to recognize a site as warranting enhanced protection. Cultural heritage under enhanced protection is subject to three criteria:
The Parties to a conflict must ensure the immunity of cultural property under enhanced protection by refraining from making it the object of attack or from any use of the property or its immediate surroundings in support of military action. To this end the Second Protocol requires Parties to provide criminal sanctions under their domestic law in case of violation of this immunity or other serious violation of its provisions (Article 15).
Today a total of ten sites in five countries are listed on the International Register of Cultural Property under Enhanced Protection.
The Second Protocol to the 1954 Hague Convention establishes the Committee for the Protection of Cultural Property in the Event of Armed Conflict and defines its membership and functions in Articles 24-28 of the Protocol.
The Committee works in close co-operation with the Director-General of UNESCO to accomplish the following main functions:
The Committee is composed of 12 State Parties, each elected for four years with equitable representation of the different regions and cultures of the world. Committee members are eligible for immediate re-election only once. Half of the Committee’s members are renewed every two years at the Meeting of the Parties to the Second Protocol, while the Bureau of the Committee is renewed each year. Its members are eligible for re-election only once.
The Committee meets once a year in ordinary session and in extraordinary sessions whenever it is deemed necessary.
The Second Protocol establishes a Fund for the protection of cultural property in the event of armed conflict (Article 29). Contributions to the Fund, which is a fund in trust, will be voluntary, made by State Parties to the Second Protocol. The Fund, which will provide financial or other assistance in support of preparatory or other measures to be taken in peacetime, is to be managed by the Committee for the Protection of Cultural Property in the Event of Armed Conflict, which is to be set up pursuant to the Second Protocol (Article 24). The Fund also provides financial or other assistance in relation to emergency, provisional or other measures to protect cultural property during periods of armed conflict, or for immediate recovery after the end of hostilities. State Parties should apply to the Committee for international assistance from the fund (Articles 27 and 32).
July 21, 2014
In 2009, the United States signaled its respect for and commitment to protecting the world’s cultural heritage by ratifying the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. In 1999, the Second Protocol to the Convention was adopted; currently, sixty-seven nations are States Parties to the Second Protocol, but, in comparison to the Convention’s 126 States Parties, it is apparent that there is still much work to be done in garnering support for protection of world heritage through the Second Protocol. The United States has neither signed nor ratified the Second Protocol.
United States ratification would acknowledge that cultural property protection is not a static field and that, as warfare methods evolve, so must our means of protection. The Second Protocol addresses these changes by strengthening and clarifying provisions of the 1954 Convention. The Second Protocol (1) more clearly defines the circumstances in which a State Party can claim the military necessity waiver by introducing a dynamic definition of “military objective”; (2) adds obligations to minimize incidental damage and introduces a requirement of proportionality between the expected military or strategic advantage and the extent of anticipated damage to cultural property; (3) clarifies the circumstances of armed conflict not of an international character to which the Convention applies, and (4) necessitates that States Parties create criminal sanctions for individuals who intentionally commit a serious breach of the Convention and establishes command responsibility.
We recognize that ratifying the Convention was a significant step forward for cultural heritage protection, but the United States and other nations must ratify the Second Protocol in order to make the Convention more effective in light of current conflict circumstances. Ratification of the Second Protocol would allow the United States to be a leader in the field of cultural property protection by being the first major military power to do so. The Second Protocol will help carry cultural property protection into the twenty-first century and is a step that the United States should initiate as soon as possible.
Nancy C. Wilkie
U.S. Committee of the Blue Shield