Background to Protection of Cultural Property

The looting, theft, and destruction of works of art and other cultural objects during war have a long history. Greek and Roman historians sometimes expressed criticism of the looting of art works, such as in the comments of Polybius concerning the Greek colony of Syracuse on Sicily, when he wrote that “these remarks will serve to teach all those who succeed to empire, that they should not strip cities under the idea that the misfortunes of another are an ornament to their own country.” In 70 BC, the Roman orator Cicero prosecuted Gaius Verres, the governor of Sicily, for extortion and corruption. Although not part of the formal charges, Verres had enriched himself through wanton looting of both privately-owned and publicly-dedicated religious artworks. As he was not a conquering general, his depredations were more problematic and outraged the Sicilian people. Cicero’s Verrine orations were well-known both by later Roman authors, such as Pausanias, Livy, and Pliny and by authors and travelers in the late Renaissance and Enlightenment periods, particularly among those who visited Sicily.

Despite these occasional expressions of limits, in practice, cultural heritage was not protected in times of war and conflict. The armies of the Fourth Crusade devastated the cultural heritage of the eastern Mediterranean region, sacked Constantinople in 1204, and plundered palaces, churches, monasteries, and libraries. Among the booty were the famed ancient horses that were placed in the cathedral of St. Mark in Venice. The horses were in turn taken by Napoleon but returned to Venice after his defeat.

Throughout intra-European wars of the 15th-18th centuries, artworks, libraries, and church collections were looted. The Treaty of Westphalia (1648), which ended the Thirty Years’ War, dictated that plundered property would not be restored, but it allowed for limited return of records, writings, documents, and other movables.

Between the 16th and 18th centuries, legal commentators were divided as to whether cultural sites and objects are legitimate war booty or whether they are a distinct form of property to be protected. Any actions necessary to accomplish the purposes of a just war were considered legitimate, but most commentators seemed to agree that destruction or appropriation of what we today call cultural property was not necessary to achieve these purposes. Hugo Grotius, the founder of modern international law, writing in the early and mid-seventeenth century, justified the legal right to claim prizes. In the next century, however, the Swiss jurist, Emmerich de Vattel, distinguished between cultural objects and other types of moveable property, which constituted legitimate war booty.

During his wars, Napoleon looted artworks, libraries, and other cultural objects from throughout Europe and brought them to Paris. After Napoleon’s defeat, the victorious Allies demanded that they French return the cultural objects from where Napoleon had taken them, although only about half of the works were returned.

Present at the Battle of Waterloo was a young Prussian soldier, Francis Lieber. After studying mathematics and history and fighting in the Greek War of Independence, Lieber moved to the United States where he taught first in South Carolina and later at Columbia University. At President Abraham Lincoln’s request, Lieber drafted the first codification of the conduct of armies during armed conflict, issued as Instructions for the Government of Armies of the United States in the Field General Order No. 100 (1863) and known as the Lieber Code.

Under the Lieber Code, property belonging to religious institutions, hospitals, “other establishments of an exclusively charitable character,” and educational institutions “or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific character” would not be subject to appropriation. Certain categories of cultural property, including collections of artworks, libraries, and scientific instruments, were to be protected “against all avoidable injury even when they are contained in fortified places whilst besieged or bombarded” (Article 35). Movable cultural objects could be seized if removal did not injure them, but they could not be sold, “privately appropriated, or wantonly destroyed or injured.” The ultimate disposition of such objects would be decided by the treaty of peace (Article 36).

The influence of the Lieber Code spread to Europe. In the summer of 1899, Czar Nicholas II of Russia sponsored a conference of twenty-four countries at The Hague in the Netherlands, which resulted in the 1899 and 1907 Hague Conventions. The 1907 Hague Convention Regulations stated that “[i]n sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes [and] historic monuments, provided they are not being used at the time for military purposes” (Article 27). It also prohibited “[a]ll seizure of, destruction or wilful [sic] damage done to institutions of this character, historic monuments, works of art and science” and any violation was to “be made the subject of legal proceedings.”

In addition to the 1899 and 1907 Hague Conventions, eleven countries ratified the Washington Pact for the Protection of Artistic and Scientific Institutions and of Historic Monuments, also known as the Roerich Pact, in 1935. However, this charter had little impact during subsequent conflicts because only countries in the Americas were parties. The International Museum Office drafted an international convention on cultural property protection in response to the Spanish Civil War, but the League of Nations was unable to take any formal action before the Second World War.

The Second World War saw the greatest destruction of cultural sites and largest displacement of cultural objects known to human history. Germany systematically plundered and looted art works, particularly in Western Europe. At the same time, the Germans intentionally and indiscriminately destroyed art collections, libraries and archives in Eastern Europe and the Soviet Union. The plunder of public and private property was included in the Nuremberg Charter and Control Council Law No. 10 as a war crime and, when accompanied by discrimination based on religion and when the impact on the victim was sufficiently severe, could be a crime against humanity. The Nuremberg International Military Tribunal convicted Alfred Rosenberg, the head of the Einsatzstab Reichsleiter Rosenberg (ERR), which was the primary organization responsible for carrying out the confiscations of art works and cultural objects, for war crimes and crimes against humanity under the 1899 and 1907 Hague Conventions, as well as principles of customary international law. Efforts by victims and their family members continue today to recover artworks and other cultural objects looted during the Holocaust.

After the Second World War, as part of the international community’s efforts to create a system of international humanitarian law, a legal regime specifically for the protection of cultural heritage during armed conflict was crafted. The first international convention devoted exclusively to cultural heritage was adopted in 1954 — the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Convention’s First Protocol was drafted at the same time and deals exclusively with movable cultural objects. The 1999 Second Protocol strengthens the main Convention by responding to several perceived weaknesses, particularly those made evident during the Balkan Wars of the 1990s.

The Preamble to the Convention refers to the “cultural heritage of [hu]mankind” evincing the universality of the Convention. The Convention defines cultural property as movable or immovable property of great importance to the cultural heritage of every people, including immovable property (such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest); moveable property (such as works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives); and buildings whose purpose is to preserve or exhibit movable cultural property (such as museums, libraries and archives, and buildings intended to shelter movable cultural property during armed conflict).

The central obligations imposed by the Convention are the obligation to safeguard cultural property by preparing during peace to protect it from “the foreseeable effects of an armed conflict” (Article 3); and the obligation of respect (Articles 4 and 5), which refers to the actions that a State Party must refrain from taking in order to protect both its own cultural property and the cultural property of another State.

To fulfill the obligation of respect, States Parties are required to foster a spirit of respect in their military for culture and cultural property, to issue regulations concerning observance of the Convention, and to ensure the presence in the military of qualified cultural property specialists whose purpose is to secure respect for cultural property and cooperate with civilian authorities (Article 7). The Convention also provides for the marking of cultural property with the distinctive emblem of the “blue shield” (Article 6).

States Parties must also refrain from use of their cultural property in ways that would likely expose it to harm in case of armed conflict and must refrain from any “act of hostility, directed against any such property” (Article 4(1)). However, these obligations may be waived in cases “where military necessity imperatively requires such a waiver” (Article 4(2)). This military necessity waiver has little definition and has been criticized because it grants considerable latitude to countries in deciding what actions will fall within the scope of this exception.

The First Protocol, also adopted in 1954, regulates the movement of movable cultural objects during occupation. Its core provision requires an Occupying Power to “undertake to prevent the exportation, from a territory occupied by it during an armed conflict, of cultural property.” The Second Protocol, adopted in 2009, strengthens and clarifies several of the provisions of the main Convention. It narrows the circumstances in which a nation can claim the military necessity waiver to situations in which “cultural property has, by its function, been made into a military objective” or in which “there is no feasible alternative available to obtain a similar military advantage” (Article 6(a)). It also incorporates the principles of distinction (knowing which sites are protected cultural property), feasibility (avoiding harm to the extent possible), and proportionality (avoiding damage that would be disproportionate to the expected military advantage).