Key Benefits:
Plenary Assembly of 2 July 2015
(Adopted unanimously)
1. Destruction of the old town of Dubrovnik in Croatia in 1991 and 1992 (1), of the Bamiyan Buddhas in Afghanistan in 2001 (2), of the Tombuktu Mausol in Mali in 2012 (3), of the Baghdad Cathedrals in Iraq in 2010 (4) and of Alexandria in Egypt in 2011 (5), of the collections of the Mosul Museum and the ancient city of Nimrud in Iraq in February and March 2015 (6), Cultural property is sometimes destroyed in the context of blind shelling but is also increasingly deliberately targeted because of what they represent. Through their destruction, "it is the identity of the opponent, his history, his culture and his faith that we seek to destroy" (7). Beyond that, it is also the common roots of humanity and its historical heritage that are attacked, "the attacks against the cultural heritage of any country [to be considered as] attacks against the common heritage of all humanity" (8). The States, gathered in the United Nations General Assembly, recently affirmed that "the destruction of cultural heritage, which is a manifestation of the diversity of human culture, erases the collective memory of a nation, destabilizes populations and weakens their cultural identity" and stressed "the importance of cultural diversity and pluralism as well as freedom of religion and belief, for peace, stability, reconciliation and social cohesion". The preservation of cultural property, as it promotes cultural diversity, is henceforth recognized as a factor of peace.
2. Faced with these events, described as "cultural cleansing" by UNESCO's Director General (10), the international community has decided to react in various forms and at different levels to protect cultural heritage more effectively in current armed conflicts. The United Nations Security Council has thus integrated the protection of the cultural heritage to the mandate of the peacekeeping mission in Mali (United Nations Integrated Multidimensional Mission for Stabilization in Mali - MINUSMA) (11) and has recently adopted a resolution condemning "the destruction of the Iraqi and Syrian cultural heritage", which in this case aims to generate income, intended to finance terrorist activities (12). As previously mentioned, the General Assembly of the United Nations recently adopted a resolution on the safeguarding of the cultural heritage of Iraq in which it is said to be "deeply indignant by the acts of destruction and plunder to which the Islamic State of Iraq and the Levant (ISIL), also called Daesh, which aim to the cultural heritage of Iraq, the cradle of the Mesopotamian civilization, in its museums, libraries It calls by this resolution all States to support actions to safeguard the heritage in Iraq carried out by the Iraqi authorities and UNESCO.
3. UNESCO has, for its part, defined a new set of concrete strategic proposals to respond to the threat posed by ISIS against cultural property (14). In addition, it has set up, in partnership with the European Union, an observatory of Syrian cultural heritage that gathers all relevant data on the conservation status of this heritage, with a view to anticipating post-conflict reconstruction (15).
4. Finally, Interpol took up the issue, under the specific angle of the flights and trafficking of cultural property (16). Several initiatives have been taken in this area, under the auspices of UNESCO, enabling evaluation missions, training and information exchange. Interpol has participated in the protection of Malian cultural sites, has provided its support and assistance to countries facing conflict situations as was the case for illicit trafficking in cultural property after the crises in Iraq, Egypt, Libya and Syria. Interpol also held two recent symposiums on the protection of cultural property in crisis and conflict situations (17).
5. These initiatives usefully complement the legal framework established from the beginning of the twentieth century, and further strengthen, in response to the successive spoliations and destruction of cultural property. This is the result of a progressive awareness of the international community that the protection of cultural property is linked to the protection of the civilian population and must be an integral part of the legal, political and humanitarian response to conflicts for a sustainable peace.
6. The Regulations annexed to the Hague Conventions concerning the Laws and Customs of War on Land of 1899 and 1907 already protected the cult places from the consequences of armed conflict (18).
7. The Hague Convention and its first Additional Protocol, adopted on 14 May 1954, are the first international instruments specifically dedicated to the protection of cultural property in the event of armed conflict. They provide for safeguards, peacetime and provisions for respect for cultural property in times of armed conflict. Thus, cultural property, like their protective devices and their immediate surroundings, must not be used "for purposes that could expose these goods to destruction or deterioration in the event of armed conflict" and must be protected against any act of hostility. It cannot be derogated from these obligations, except "in cases where a military necessity requires it, in a peremptory manner" (Article 4, §1 and §2, of the Convention). In addition, the Convention establishes a special protection regime for certain "very important" cultural property (articles 8-11). These two instruments were ratified by France on 7 June 1957.
8. Article 1 of the Hague Convention sets out a definition of cultural property that designates, " whatever their origin or owner:
(a) The goods, furniture or buildings, which are of great importance to the cultural heritage of the peoples, such as the monuments of architecture, art or history, religious or lay, the archaeological sites, the ensembles of constructions which, as such, have a historical or artistic interest, the works of art, the manuscripts, books and other objects of artistic, defined or archaeological interest, as well as the scientific collections and important collections of
(b) Buildings whose main and effective destination is to retain or expose movable cultural property as defined in paragraph (a), such as museums, large libraries, archival repositories, and shelters to house, in the event of armed conflict, movable cultural property as defined in paragraph (a);
(c) The centres with a considerable number of cultural property defined in subparagraphs (a) and (b), known as “memorial centres”.
9. The two Protocols of 8 June 1977, additional to the Geneva Conventions of 12 August 1949, ratified by France, complete this mechanism by prohibiting "the destruction and appropriation of property, not justified by military necessity ... such as historical monuments, works of art or places of worship that constitute the cultural or spiritual heritage of peoples; to use them in support of the military effort and to make it the object of retaliation
10. The increased destruction of cultural property during the armed conflicts of the 1990s revealed the weaknesses of these instruments. Their provisions were then supplemented by a second Protocol to the Hague Convention, adopted on 26 March 1999, which established a "reinforced protection" regime for certain cultural heritage properties "of utmost importance to humanity" (arts. 12-14). This new regime is called upon to supersede the special protection regime under the 1954 Convention, when a property under special protection is then placed under enhanced protection (19). In addition, it specifies measures to safeguard and respect cultural property, specifying the provisions of international humanitarian law relating to the "precautions" to take "in the attacks" and "in the effects of the attacks" (articles 7 and 8) as well as strictly organizing the possible derogations made "on the basis of an imperative military necessity", by posing two cumulative conditions: the property has been transformed into a military objective and "it is not possible To date, this second Protocol has not been signed or ratified by France.
11. With regard to criminal offences, Article 15 of the Second Protocol defines five acts which, when committed intentionally, constitute serious violations of the 1954 Convention and Protocol 2: "a. to make a cultural property under enhanced protection the subject of an attack; b. use a cultural property under enhanced protection or its immediate surroundings in support of military action; c. destroy or take ownership on a large scale of protected cultural property; d. make a protected cultural property the object of an attack; e. theft, plunder or diversion of protected cultural property, and acts of vandalism directed against protected cultural property". Such offences must be criminalized in domestic law and both the 1954 Convention (art. 28) and Protocol II (art. 15) require States to adopt all measures to seek, judge and punish the perpetrators of such acts.
12. In addition, according to Article 85(d) of Additional Protocol 1 to the Geneva Conventions, "the directing of attacks against historical monuments, works of art or places of worship clearly recognized that constitute the cultural or spiritual heritage of the peoples and to which special protection has been granted under a particular religious arrangement, for example within the framework of a competent international organization, thus causing their destruction on a large scale, whereas there is no object
13. Finally, "the deliberate seizure, destruction or damage of buildings dedicated to religion, charity and teaching, the arts and sciences, historical monuments, works of art and works of a scientific character" were also sanctioned by the Statute of the International Criminal Tribunal for the Former Yugoslavia (Article 3(d) (20) and the Rome Statute establishing the International Criminal Court, ratified by the French National Court of Crime, ratified by the International Criminal Court of Canada,
" - intentionally directing attacks on buildings dedicated to religion, teaching, art, science or charity, historical monuments, hospitals and places where sick or injured are gathered, provided they are not military objectives" in international armed conflict situations (Article 8 [2] [b] [ix] ), as well as;
" - intentionally directing attacks on buildings dedicated to religion, teaching, art, science or charity, historical monuments, hospitals and places where sick and wounded are gathered, provided that these buildings are not military objectives" in the event of an armed conflict not of an international character (Article 8 [2] [(e)] [(iv)]).
14. Several of these broad normative provisions are recognized as having a customary value, as outlined in the study of the International Committee of the Red Cross on customary international humanitarian law (Rules 38-41). They are applicable both in times of international armed conflict and in times of non-international armed conflict and must therefore be respected by both State and non-State actors.
15. In addition, other specific international instruments have been developed to prevent and prohibit acts of looting and trafficking in cultural property (21), phenomena that often accompany, and sometimes motivate, attacks on protected cultural property.
16. In the face of this dense international legal body, this opinion will focus on examining France's accession to the Second Protocol on the Hague Convention, the implementation of the provisions of these various instruments and, finally, the promotion of their protective provisions both internally and in the context of external operations.
With regard to ratifications: towards the accession of France to the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.
17. Although France is one of the most active States in the protection of cultural property in the event of armed conflict, as evidenced by its diplomatic efforts in this regard (22), it is not a party to the Second Protocol on the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (23). The French authorities had considered in 1999 that some of the provisions of the Second Protocol were too restrictive than those of general international humanitarian law. However, the armed forces now consider that this Protocol is no longer an operational problem and that it is already applied by the French armed forces in the course of the conduct of hostilities (24).
18. The entry into force on 9 March 2004 of the Second Protocol is the most recent and in-depth advance in the legal protection of cultural property in the event of armed conflict, especially in the context of enhanced protection and criminal sanctions. With regard to prevention, the Protocol formally recognizes the International Committee of the Blue Shield whose role is to protect and safeguard the world cultural heritage in the event of armed conflicts or major disasters. As an illustration of its work, the International Committee organized training to raise awareness among MINUSMA staff on the protection of cultural property in an emergency situation. Obligations to broadcast to the military and the civilian population (art. 30) are also specified.
19. In addition, the second Protocol of 1999 develops an institutional component by establishing a Committee for the Protection of Cultural Property in the Event of Armed Conflict. This international body, composed of twelve States elected for four years, whose secretariat is provided by UNESCO, is responsible for overseeing the implementation of the Second Protocol, including by managing the list of cultural property under enhanced protection, promoting their identification and reviewing requests for international assistance. The accession to this Additional Protocol would allow France to participate in the work of this Committee.
20. France's accession would be an encouragement to non-party States to do the same, especially African States in prey to many conflicts. In a crucial moment when cultural property is the intentional target of armed groups, France's accession to this instrument would be a symbolic gesture that would show its commitment to the protection of cultural property.
21. In addition, given the involvement of France in several armed conflicts outside its territory and in order to further contribute to the respect of the protective provisions of cultural property in these situations, the CNCDH strongly encourages France to accede to the Second Protocol as soon as possible.
Internally: towards strengthened implementation of the 1954 Convention and its two Additional Protocols.
22. French law includes various provisions to protect cultural property. So, theArticle 461-13 of the Criminal Code (25) and theArticle D. 4122-10 of the Defence Code (26) criminalize violations of cultural property, in accordance with the Protocols to the Geneva Convention, article 28 of the 1954 Hague Convention (27).
23. Article 15 of the Second Protocol lists serious offences to be criminalized in States parties (see para. 10 above). Once the Protocol has been ratified by France, it is necessary to examine precisely the French law in the light of these provisions.
24. On the basis of these incriminations, and under its various jurisdictions, including extraterritorial jurisdiction, France should actively participate in the fight against impunity for violations of international humanitarian law, including in the protection of cultural property. The United Nations General Assembly, in its last resolution on the subject, recalls that "it is important to have the perpetrators of attacks intentionally targeting buildings dedicated to religion, education, the arts, sciences or for charitable purposes or historical monuments, to the extent that they do not constitute military objectives" and calls on all States to take the necessary measures in their jurisdiction to that end (28) In this regard, CNCDH reiterates its recommendation to delete from theArticle 689-11 of the Code of Criminal Procedure the four criteria that restrict, or even prohibit, the effective jurisdiction of French criminal courts in the face of certain violations of international humanitarian law (29).
25. Regardless of the provisions of a criminal nature, international instruments call for domestic adaptation measures, which sometimes seem insufficiently taken into account by French law. Indeed, the French operational and institutional arrangements in this area could be improved to ensure effective implementation of international obligations, based on the proposals contained in the ICRC Model Law (30).
26. Thus, the registration of cultural property under special protection in the "International Register of Cultural Property under special protection", managed by UNESCO. However, France has not yet registered any sites in this register. The Act of 31 December 1913 on historical monuments, the provisions of which are codified Heritage Code since the order of February 20, 2004, provides for the identification of property to be protected because of their historical, artistic or archaeological interest (31). However, no provision provides for the listing of special protection and a fortiori property under enhanced protection. However, even if this registration does not seem crucial to France, which does not have an armed conflict in its territory, it would be a positive incentive to more directly concerned States as well as an important step towards the creation of a shared database at the international level.
27. Finally, in accordance with resolution II of the Hague Conference of 1954 (32), it would be relevant for France to establish a national advisory committee whose mission would be to ensure the implementation of the Convention, like several foreign examples (33). This committee should be placed "under the authority of the minister or senior official of whom the national services responsible for overseeing the interests of cultural property" and be mandated to:
- advising the Government on the necessary measures to implement the Convention at the legislative, technical or military levels in times of peace or armed conflict;
- intervene with his Government in the event of armed conflict or imminence of such a conflict, so that cultural property located in the national territory and in the territories of other countries may be known, respected and protected by the armed forces of the country, according to the provisions of the Convention;
- To ensure, in accordance with its Government, liaison and cooperation with other national committees of this kind and with any relevant international body.
At the level of its composition, it is recommended to include in this committee representatives of all State services concerned with the protection of cultural property in the broad sense.
28. This national committee exists in different countries and is sometimes directly integrated with the National Commission for the Implementation of International Humanitarian Law (34). This approach is advocated by ICRC and UNESCO (35). In France, the CNCDH is considered the commission to implement international humanitarian law. As for the French Committee on the Blue Shield, it ensures France ' s implementation of the 1954 Convention by implementing preventive, safeguard and training actions on the protection of cultural property in the event of a crisis (conflicts, natural disasters). It is composed of heritage specialists and the various ministries concerned are members (non-voting). The national advisory committee, which should be established in France, should involve, in forms that should be determined, that association and institution.
At the operational and diplomatic level: towards better protection of cultural property.
29. On the operational and diplomatic fronts, the CNCDH calls for a particular vigilance to continue to be granted by France at various levels.
Military training:
30. In order to ensure respect for international humanitarian law, the ICRC recommends that measures be taken to ensure a good knowledge of this right in general and therefore more specifically applicable to the protection of cultural property. In order to fulfil this obligation, it is necessary that States develop and implement, in cooperation with UNESCO and other relevant organizations, training and education programmes in peacetime. In France, the protection of cultural property is addressed through the training of legal advisers (LEGAD). In the absence of a specialized service in the protection of cultural property, as recommended in article 7.2 of the 1954 Convention (36), these advisors are the focal points in this field within the French army. The quality of their training in cultural property is therefore all the more important. Training is also provided by the National targeting centre for the benefit of the armed forces (37). The Ministry of Defence has also developed a land army memento on the protection of cultural property in times of armed conflict, which is widely distributed by UNESCO to other armies around the world.
31. As part of joint operations with foreign armies, France, under its obligation to "enforce" international humanitarian law (38), has a responsibility in the dissemination of rules on the protection of cultural property to its partners. More generally, the training provided by the French army to the foreign armed forces should be more an opportunity to address in detail the legal and operational regime applicable to the protection of cultural property.
External operations:
32. In accordance with international provisions linking States, national armies must incorporate in their military regulations guidelines and instructions on the protection of cultural property. The French armed forces incorporate the protection of cultural property in the planning and conduct of operations. This implies the identification of cultural property that cannot be attacked. The CNCDH considers that these lists should be easily identifiable by the French military and, where appropriate, shared with the foreign armies involved in the operation.
The use of the distinguishing sign:
You can view the image in the facsimile of the
JOno 0166 of 21/07/2015, text No. 2833. The distinguishing sign under the Hague Convention to protect and facilitate the identification of cultural property (Chapter V of the 1954 Convention: The distinctive sign, which is used alone or repeatedly according to the circumstances, is recognized by France. However, although the improper and undue use of the distinguishing sign is punished by the Code of Military Justice (39), the French public authorities - military or non-military - do not use it (40). CNCDH encourages France to use it in its territory, in times of peace, as a preventive and awareness-raising measure, to promote this sign with its partners and to call on the belligerents to use it more.
34. Similarly, the installation of shelters to shelter, in the event of imminent attack, cultural property under protection, should be a practice developed and encouraged by France.
International cooperation:
35. The recent resolution of the United Nations General Assembly calls on all states to "help the Iraqi authorities to fight the trafficking of cultural property (...) and to provide them with a criminal justice competition and help them to repair, restore and preserve the damaged or destroyed cultural heritage". This appeal underlines the importance of international cooperation for the protection of cultural property, to States already weakened by armed conflicts. French expertise in the field of cultural property should be more valued through cooperation and technical assistance actions. The participation of French heritage experts in the development by UNESCO of a "passport for heritage", including a map and description of cultural property to be protected in Malian territory, issued to combatants is a positive example of the type of action that the relevant French authorities should continue to develop. In this context, it would be advisable to make more use of the experts of the French Committee on the Blue Shield, who can act as a centre of French resources and expertise.
RECOMMENDATIONS
1. To accede to the Second Protocol on the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 26 March 1999.
2. In parallel to the accession process, consider whether French law is in conformity with the provisions of the 1954 Convention and the two Additional Protocols.
3. Strengthening the implementation of the 1954 Convention and additional protocols, including:
- the use in its territory of the distinguishing sign allowing the identification of cultural property;
- the establishment of a national implementation advisory committee in accordance with resolution II of the Hague Conference of 1954, which would closely and directly involve the CNCDH, which acts as a commission for the implementation of international humanitarian law in France;
- the registration of French cultural property in the UNESCO Register of Cultural Property under special protection and under enhanced protection, once the second Protocol has been ratified.
4. Develop training activities on the legal regime and operational arrangements for the protection of cultural property, for French military personnel in external operations and for the benefit of foreign armies through cooperation or participation agreements in multinational operations.
5. Provide support for the action of the French Blue Shield Committee in the promotion and prevention of attacks and damage to cultural property.
6. Strengthen cooperation and assistance in the field of the protection of cultural property, using the expertise of the French Committee on the Blue Shield, as appropriate.
