Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

Dutch involvement By Nout van Woudenberg1 During the last decade of the 20th century, it became evident that the 1954 UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict [also called the Hague Convention], with Regulations for the Execution of the Convention and the First Protocol, needed to be updated and supplemented. The two Gulf wars and the armed conflict in the former Yugoslavia were the immediate cause for this. After various meetings and rounds of negotiations, the Second Protocol to the Convention was adopted in The Hague in March 1999. I would like to give you an account of Dutch involvement in the Second Protocol to the 1954 Convention. This describes both the involvement of the Netherlands in the conclusion of the Second Protocol and its steps to implement the provisions of the Second Protocol as effectively as possible.

I.

GENERAL PART

I.1

Need for conclusion of a Second Protocol to the 1954 Hague Convention

The UNESCO Convention for the Protection of Cultural Property in the Event of Armed Conflict (the 1954 Convention), with Regulations for the Execution of the Convention and the First Protocol, was adopted in The Hague on 14 May 1954. This Convention is the main multilateral instrument for the protection of cultural property during armed conflicts. It creates a legal regime intended to protect cultural property against the effects of an armed conflict that are foreseeable in time of peace and obliges the States Parties to respect and protect cultural property during an armed conflict.

Almost half a century after the adoption of the 1954 Convention the need for a Second Protocol to update and supplement the Convention became apparent, partly owing to the manner in which armed conflicts are now conducted. The conclusion of the Second Protocol was a direct consequence of the armed conflicts in the early 1990s, which showed that the system of protection created by the 1954 Convention and the First Protocol was susceptible of improvement. Doubts about the effectiveness of the 1954 Convention arose partly as a result of the violations of cultural heritage during the two Gulf Wars, in which archaeological sites proved particularly vulnerable, and subsequently, the armed conflict in the former Yugoslavia. Much damage was caused in historic cities such as Sarajevo, Dubrovnik and Mostar. Cultural property became the target of direct attacks, and violations of the 1954 Convention went unpunished in many cases. Many recent conflicts have not been international, and it was this above all which would have to be addressed in a new Protocol to supplement the 1954 Convention. The Protocol should also provide for a system of sanctions based on the criminal law.

This Second Protocol to the 1954 Convention is a major step forward in the protection of cultural property under international humanitarian law. It strengthens and supplements the Convention by introducing more effective international rules (see article 2 of the Protocol). As I pointed out, the application of the Convention in non-international armed conflicts was deficient. As conflicts of this type are on the increase, the necessary supplementary rules are now contained in [chapter 5 of] the Second Protocol.

The Second Protocol supplements the special protection under the Convention with a system of enhanced protection. It was found that virtually no country was able to meet the conditions for eligibility for special protection, partly because of the practical requirements listed in article 8 of the 1954 Convention. The system of enhanced protection in the Second Protocol involves the obligation to establish as a criminal offence the intentional violation of cultural property. It should be noted
2

that this enhanced protection also applies to non-international armed conflicts (see article 22 of the Protocol).

[Only States that are party to the 1954 Convention can become a party to the Second Protocol.]

I.2

History of the negotiations on the Second Protocol

The Netherlands had a leading part in the conclusion of the 1954 Convention with Protocol, and it wished to play a similar role in relation to the measures to strengthen this Convention.

During the 26th session of the General Conference of UNESCO [the United Nations Educational, Scientific and Cultural Organisation] in November 1991, the indignation among the members about the destruction of cultural heritage during the conflict in the Balkans was so great that it was decided to review the effectiveness of the 1954 Convention and make proposals for improvement. The Dutch government then took the initiative in 1992 of drawing up an Explanatory Note on ways of strengthening the Convention. This Dutch proposal resulted in a preliminary discussion during the 140th session of the Executive Board of UNESCO in October 1992. In close collaboration with the Director-General of UNESCO, the Netherlands organised meetings of experts in July 1993 and February 1994 to prepare the way for decisions. [A similar meeting was held in Paris in late 1994]. The aim of these meetings was to formulate specific recommendations for improving the 1954 Convention and enhancing the effectiveness of its implementation. The first question that arose in this connection was whether the aim should be to revise the 1954 Convention or conclude a second protocol. Ultimately it was decided to have a second protocol, because the unanimous decision required to amend the Convention had proved unfeasible.

An extensive meeting of experts was held in Vienna in 1998. UNESCO, together with the Netherlands, set out the results of the meeting in a working document containing the draft text of a legal instrument. UNESCO and the Netherlands jointly sent this document to the individual States, the International Committee of the Red Cross and various international organisations for their comments. On the basis of these comments, UNESCO once again with the help of the Netherlands prepared a final draft that would serve as a basis for a diplomatic conference to negotiate the text.

Subsequently, the Second Protocol to the 1954 Convention was adopted in The Hague on 26 March 1999 after two weeks of negotiation. This diplomatic conference was attended by 93 States and various international organisations. The Protocol entered into force on 9 March 2004. [At the moment the Protocol has 48 State Parties]

II. DUTCH OBLIGATIONS AND IMPLEMENTATION

A number of specific articles in the Second Protocol require national implementation. This goes most specifically for the articles on criminal responsibility and jurisdiction [chapter 4 of the Second Protocol].

One of the shortcomings of the 1954 Convention was the lack of a peremptory system of sanctions. 1954 Convention introduced an obligation for the Parties to provide for violations of the Convention to be criminal offences under national law [Article 28 of the 1954 Convention]. Chapter 4 (Criminal responsibility and jurisdiction) of the Second Protocol adds a more exact list of serious violations of international humanitarian law in relation to cultural property (article 15 (1)) and also contains provisions governing criminal responsibility and jurisdiction. The Second Protocol reaffirms the inviolability of cultural property in times of war or military occupation. The main innovation is the creation of a repressive
4

mechanism. Chapter 4 of the Second Protocol introduces an obligation on the Parties to provide for individual criminal responsibility in the case of the violations of the Protocol listed in article 15. The Netherlands has already arranged for the acts defined as offences in the Second Protocol to be included in the International Crimes Act (WIM). [This has been done by means of amendments to the Surrender of War Crimes Suspects Act]

II.1

Article 15: Serious violations of this Protocol

Paragraph 1 of Article 15 describes a number of acts contrary to the Protocol as serious violations and obliges the Member States to make such acts criminal offences. This applies to any acts whereby a person intentionally and in violation of the Protocol (a) makes cultural property under enhanced protection the object of attack; (b) uses cultural property under enhanced protection or its immediate surroundings in support of military action; (c) causes extensive destruction or appropriation of such cultural property; (d) makes cultural property protected under the Convention and the Protocol the object of attack [so, this doesnot deal with enhanced protection, as under (a); (e) commits theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected by the Convention.

As far as Dutch law is concerned, these obligations in relation to offences committed in an international armed conflict have already been implemented by inclusion in section 5, subsection 4 (a), (b), (c), (d) and (e) of the International Crimes Act.2

Although the International Crimes Act does not explicitly state that these acts are criminal offences when committed in a non-international armed conflict, they will still be criminal under the catch-all provision of section 7 of the International

Crimes Act.3 Here too, therefore, provision is made for these acts to be criminal offences.

II.2

Article 16: Jurisdiction

Under paragraph 1, States which are party to the Protocol are required to establish jurisdiction over the offences listed in article 15, in so far as they are committed in their territory, by one of their nationals and, in the case of the offences set out article 15, sub-paragraphs a), b) or c), when the alleged offender is present in its territory. The Netherlands has already established jurisdiction over these offences by including them in the International Crimes Act; section 2 of the Act provides that Dutch jurisdiction over these offences is in keeping with the requirement in article 16 (1) of the present Protocol.4

Nonetheless, as is apparent from subparagraph 2 (a), broader jurisdictional criteria may be applied in respect of individual criminal responsibility than those specified in paragraph 1. Similar provisions are already known from previous instruments of criminal law, for example article 6 (5) of the International Convention for the Suppression of Terrorist Bombings (STB) concluded in New York on 12 December 1997.5

II.3

Article 18: Extradition

This extradition provision also corresponds with previous provisions from the recent terrorism conventions, namely article 9 STB and article 11 of the International Convention for the Suppression of the Financing of Terrorism (FTC).6

It obliges Parties to make extradition possible for the most serious violations of article 15 (1). These criminal offences are already deemed to be included as
6

extraditable offences in any extradition treaty concluded between any of the Parties before the entry into force of the Protocol. Moreover, the Parties undertake to include such offences in every extradition treaty to be subsequently concluded between them. The Protocol also gives States the option of treating the Protocol itself as the legal basis for extradition between States Parties. [To make this possible for the Netherlands too, a reference to this Protocol will be added to section 1 of the Surrender of War Crimes Suspects Act in a bill currently being prepared for partial amendment of the Criminal Code, the Code of Criminal Procedure and other statutes. ]

II.4

Article 20: Grounds for refusal

Paragraph 1 of this article provides that for the purposes of extradition and mutual legal assistance the offences set out in article 15, subparagraphs 1 a), b) and c) are not to be regarded as political offences, nor as offences connected with political offences nor as offences inspired by political motives. The Netherlands already does not treat such offences as political offences.

Paragraph 1 also provides that States which are party to this Protocol may not refuse a request for extradition or for mutual legal assistance based on the offences listed in article 15, subparagraphs 1 a), b) and c) on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives. A virtually identical depoliticisation clause can be found in article 11 of the STB7 and article 14 of the FTC; the underlying idea is once again that the offences are of such a serious nature that they cannot be justified by political motives of any kind whatever.

In both these Conventions the clause in question is followed by a nondiscrimination clause, with which it is closely connected.8 This clause, which is included in paragraph 2 of article 20, provides that there is no obligation to
7

extradite or afford mutual legal assistance if the requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that persons race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that persons position for any of these reasons.

Together, the two paragraphs of article 20 strike a balance between the protection of two justified interests: on the one hand that a suspect should not escape prosecution or punishment for a serious violation of the Protocol on the sole ground that his offence was of a political nature and on the other that an individual should not be exposed to prosecution on improper grounds. Section 12 of the International Crimes Act already contains a depoliticisation clause for the serious violations of the Protocol which are to be made criminal offences and have, as mentioned above, already been included in that Act.9

II.5

Article 21: Measures regarding other violations

Under article 21 the Parties to the Protocol are required to adopt, in addition to the criminal sanctions prescribed by article 15 (2), for the serious violations described in paragraph 1 of that article such other measures as may be necessary to suppress other intentional violations of the Protocol. Subparagraphs a) and b) of this article indicate when these measures must be taken.

However, the Parties have greater freedom of choice in respect of these measures than in the case of the serious violations, since the measures in question need not necessarily be of a criminal law nature. Dutch law already has penal sanctions for a number of the acts covered by this, for example under the Cultural Heritage Preservation Act10, and the definitions of offences of a more general nature (such as handling stolen goods in article 416, paragraph 1 of the Criminal Code) may be applicable in certain situations.
8

The Geneva Conventions too have such a provision. See, for example, article 146 of the Geneva Convention relative to the protection of civilian persons in time of war, concluded on 12 August 1949: The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

An example of a sanction other than under the criminal law is the application of military disciplinary law.

IV Final observations During the last decade of the 20th century the need for a Second Protocol to the 1954 Convention became apparent. The Netherlands took the lead, together with UNESCO, in introducing this Protocol. As the Netherlands wished to fulfill its implementation obligations to the letter, it took untill the beginning of 2007 before it could become a Party to the Protocol. It can be concluded that the Netherlands has taken considerable effort towards this implementation. Let us now hope that the provisions of criminal liability and jurisdiction do not have to be applied in practice too often.

Nout van Woudenberg is Legal Counsel at the International Law Division of the Ministry of Foreign Affairs of the Kingdom of the Netherlands. This lecture has been written in his personal capacity. This presentation is a shortened version of his presentation at the 2007 Hague From Peace to Justice / Culture and International Law Conference. Section 5, subsection 4 International Crimes Act: 4. Anyone who, in the case of an international armed conflict, intentionally and unlawfully commits one of the following offences shall be liable to a term of imprisonment not exceeding fifteen years or a fifth category fine: (a) making cultural property under enhanced protection as referred to in articles 10 and 11 of the Second Protocol, concluded in The Hague on 26 March 1999, to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (Netherlands Treaty Series 1999, 107) the object of attack; (b) using cultural property under enhanced protection as referred to in (a) or the immediate vicinity of such property in support of military action;
2

(c) destroying or appropriating on a large scale cultural property under the protection of the Convention, concluded in The Hague on 14 May 1954, for the Protection of Cultural Property in the Event of Armed Conflict (Netherlands Treaty Series 1955, 47) or the Second Protocol thereto; (d) making cultural property that is under protection as referred to in (c) the object of attack; or (e) theft, pillaging or appropriation of or acts of vandalism directed against cultural property under the protection of the Convention referred to in (c). Section 7 International Crimes Act: 1. Anyone who, in the case of an international or non-international armed conflict, commits a violation of the laws and customs of war other than as referred to in sections 5 or 6 shall be liable to a term of imprisonment not exceeding ten years or a fifth category fine. 2. A term of imprisonment not exceeding fifteen years or a fifth category fine shall be imposed: (a) if an offence as referred to in subsection 1 is likely to result in the death of or serious bodily injury to another person; (b) if an offence as referred to in subsection 1 involves one or more outrages committed upon personal dignity, in particular humiliating and degrading treatment; (c) if an offence as referred to in subsection 1 involves compelling another person to do, refrain from doing or permit something, or (d) if an offence as referred to in subsection 1 involves pillaging a city or place, even when taken by assault. Section 2 International Crimes Act 1. Without prejudice to the relevant provisions of the Criminal Code and the Code of Military Law, Dutch criminal law shall apply to: (a) anyone who commits any of the crimes defined in this Act outside the Netherlands, if the suspect is in the Netherlands; (b) anyone who commits any of the crimes defined in this Act outside the Netherlands, if the crime is committed against a Dutch national; (c) a Dutch national who commits any of the crimes defined in this Act outside the Netherlands. 2. The expression any of the crimes defined in this Act as referred to in subsection 1 shall be equated with the serious offences defined in Articles 131-134, 140, 189, 416-417bis and 420bis-420quater of the Criminal Code, if the offence or crime referred to in such articles is a crime defined in this Act. 3. Prosecution on the basis of subsection 1 (c) may also take place if the suspect becomes a Dutch national only after committing the crime.
5 4 3

Article 6 (5) STB: This Convention does not exclude the exercise of any criminal jurisdiction established by a State Party in accordance with its domestic law.

Article 9 STB: 1. The offences set forth in article 2 shall be deemed to be included as extraditable offences in any extradition treaty existing between any of the States Parties before the entry into force of this Convention. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be subsequently concluded between them. 2. When a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, the requested State Party may, at its option, consider this Convention as a legal basis for extradition in respect of the offences set forth in article 2. Extradition shall be subject to the other conditions provided by the law of the requested State. 3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offences set forth in article 2 as extraditable offences between themselves, subject to the conditions provided by the law of the requested State. 4. If necessary, the offences set forth in article 2 shall be treated, for the purposes of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territory of the States that have established jurisdiction in accordance with article 6, paragraphs 1 and 2. 5. The provisions of all extradition treaties and arrangements between States Parties with regard to offences set forth in article 2 shall be deemed to be modified as between State Parties to the extent that they are incompatible with this Convention. Article 11 STB: None of the offences set forth in article 2 shall be regarded, for the purposes of extradition or mutual legal assistance, as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives.
7

10

Article 12 STB: Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in article 2 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that persons race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that persons position for any of these reasons.

Section 12 International Crimes Act: The crimes defined in this Act shall not be deemed to be offences of a political nature for the purposes of the Extradition Act or the Surrender of War Crimes Suspects Act.
10

Sections 7, 14a and 14b in conjunction with section 1 of the Economic Offences Act.

11