Protection Of Cultural Property During Armed Conflict In International Law

To protect cultural property during armed conflict is a very important issue in international humanitarian law. But, all too often, the issue is overshadowed by other horrors of conflicts, especially the battlefield casualties. Of course, the priority remains to protect the civilian population and persons not participating directly in the hostilities. Cultural property, including objects such as buildings and monuments, works of art, and many other items, however, represents mankind’s intelligence and links our past with our present and future. Cultural property isn’t solely items of commercial value, which covers all that evidence of human life that we are trying to preserve and expresses the thought of a particular society. It is also internationally significant in that it helps to foster an understanding between different nations and appreciation of cultural diversity. The protection of cultural property should be the concern of all people, everywhere.The present dissertation is composed of 6 chapters in addition to an introduction, which contains about 130000 Chinese characters.The introduction part provides a general background for the other chapters. Its quotation a poem from the website of UNESCO encapsulates in a few short sentences the essential reasons why the international community attaches importance to the preservation of cultural property in times of armed conflict. The cultural property is the common heritage of mankind, which is non-renewable. It is a sad fact that in any armed conflict there will be the loss or destruction of cultural property. So, we should protect cultural property during armed conflict. The topic is important in international humanitarian law. To this topic, foreign and domestic doctrine has devoted a lot concrete and basic research, which constitutes a foundation for our further discussion.Chapter 1 clarifies some fundamental concepts and gives an overall review on the development of the rules and the international legal framework relating to protection of cultural property. There are two important concepts in the thesis: armed conflict and cultural property. The armed conflict is an important term in international humanitarian law, and divided into international armed conflict and non-international armed conflict. This chapter discusses the first one. On the basis of analysis on the Conventions, the dorctrine, and the jurisprudence, we can conclude that the existence of an international armed conflict whenever there is resort to armed conflict between two or more States. Generally speaking, cultural property means objects that embody culture. But, it is not definite which items can be classed as cultural property and whether the term "cultural property " or "cultural heritage "is suitable. For various resons, each Convention and Recommondatioan has definition drafed for the purposes of that instrument alone. It may not, at this stage be possible to achieve a generally agreed definition of the cultural property. This chapter tries to interprete the concept of cultural property according to each convention and not to give a precise definition and not to distinguish from the concepts of cultural property and cultural heritage. But in the thesis, the intangible things are not included. The 1954 Hague Convention is the first international convention to protect cultural property during armed conflict. The Convention is very important. The chapter discusses the historical background of international rules protection of cultural property during armed conflict. The 1954 Hague Convention and its two protocals are the most important international rules on protection of cultural property during armed conflict. There are customary international humanitarian rules and the suggestions and declarations of the UNESCO are also important, although the latter is not binding.It makes a comment on how to protect cultural property in different kinds of armed conflicts from chaper 2 to chapter 4. The armed conflict can be divided into two types:international and non-international armed conflict. Occupation is included in international armed conflict. The three chapters discuss how to protect cultural property in international, non-international armed conflict and occupation.Chapter 3 provides a general background. Cultural property is protected because it is a type of civilian object in international armed conflict. There are three types of protection in the 1954 Hage Convention and its two protocals:general protection, special protection and enhanced protection. The parties of international armed conflict should perform the duties to protect cultural property enslaved to military necessity. A further remark needs to be made on the execution in international law. There are some execution measures in the 1954 Hague Convention and the Second Protocal besides the general measures in international humanitarian law. To sum up, the international law has strengthened the protection of cultural property in armed conflict. The enhanced protection is more reasonable than the special protection. The parties have more and more obligations to protect culture property in armed conflict. The attacker and defender should protect cultural property while emphasis on the former previously. The emphasis becomes to a deeper degree on the preparatory measures in peacetime and the positive role of the parties. If the third party destructs the cultural property, the parties should take active steps to protect the cultural property. Although the protection of cultural property enslaved to military necessity, the military necessity is described more definitely. The difficulties have grown to justify the destruction of cultural property with military necessity. The execution measures are strengthened especially in the Second Protocal including establishment of the committee and the fund for the protection of cultural property in the event of armed conflict, and promotion to the function of the general conference.There are less rules protection cultural property in non-international armed conflict because of the sovereign doctrine and non-intervention the internal affairs. It has not rules protection cultural property applicable to non-international armed conflict in the 1899 and 1907 Hague Conventions. It has not rules relating to protection cultural property in non-international armed conflict until the 1954 Hague Convention. The 1999 Second Protocal applies to all types of armed conflict along with the apperarance of non-international armed conflict and its destruction cultural property. It has special problems about the rules relating to protection cultural property in non-international armed conflict, for example, the insufficient international rules, the undefinite concept of non-international armed conflict, in conflict with the fundamental principles of international law, the non-implementation of the measures and the lack of desire and capacity to execute the rules concerning protection of cultural property. The thesis concludes, however, that the distinction from the international and non-international armed conflict would be kept as long as the preservation of nations. We should not intervene the internal affairs on one side, and protect cultural property during non-international armed conflict in international law on the other side. We should learn by heart the preamble of the 1954 Hague Convention:being convinced that damage to cultural property belonging to any people whatsoever means damage to the culrural heritage of all mankind, since each people makes its contribution to the culture of the world.There are special rules regulating the military occupation in international law. It is the same in protection cultural property. After Napoleonic wars the cultural property looted were returned. From that moment, a ban on plunder and the corresponding obligation of restitution became commonly accepted international customs. The 1899 and 1907 Hague Conventions affirmed the customs. The 1954 Hague Convention and its two protocals also include the protection and restitution of cultural property in military occupation. In 2003, the Coalition invaded the Iraq and the nation’s museum was looted. On the basis of the internatonal rules, we conclude that the Coalition breach the international humanitarian law. It is the obligations as occupying power of the Coalition to take steps to restitute of cultural property to the Iraq.Chapter 5 discusses individual criminal responsibility for violations of the rules protection cultural property during armed conflict in international law. According to the Charter of the International Military Tribunal,Hermann Dresden and Alfred Rosenberg were tried mostly because of the looting of cultural property. The provision in 1954 Hague Convention has largely remained a dead letter, mainly because it does not list the violations which required a criminal sanction. This is one of the main areas in which the Second Protocal clarifies and develops humanitarian law with respect to cultural property. The provisions in the Second Protocal define five acts which constitute serious violations requiring a criminal sanction and requires Contracting Parties to make the offences criminal offences under their domestic law. The provisions in the Second Protocal also define two acts which constiture other violations. There are provisions in the 1977 Additional Protocal 1 and the Statute of the Internatioanal Criminal Court concerning the acts of attack on cultural property in armed conflict. The armed conlict in the former Yugolavia is a disaster for cultural property. According to the resolutions of the Security Council of the UN, it has established the International Criminal for the former Yugoslavia. The chaper analyses the typical cases, for example, the attack on the old city of Dubrovnik. In view of the above, the definition established by the jurisprudence of the Tribunal appears to reflect the position under customary international law. For the purposes of this case, an act will fulfil the elements of the crime of destruction or wilful damage of cultural property, if:(ⅰ) it has caused damage or destruction to property which constitutes the cultural or spiritual heritage of peoples; (ⅱ) the damaged or destroyed property was not used for military purposes at the time when the acts of hostility directed against these objects took place; and (ⅲ) the act was carried out with the intent to damage or destroy the property in question.The last chapter discusses how to protect cultural property during armed conflict in China. China has been the Contractiong Parties of the 1954 Hague Convention and its first protocal, and the 1949 Geneva Conventions and its two additional protocals. China has not properly implement the 1954 Hague Convention and its two protocals. It is recommended that China become a Party to the Second Protocal and properly implement the 1954 Hague Convention and its two protocals. The constituton of China should include how to implement the international treaties. It should adopt such measures as may be necessary to establish as criminal offences under China’s penal law and make such offences punishable by appropriate penalties and not to apply the Statutory Limitations. Simultaneously, it should appoint an appropriate national authority to authorize the use of the emblem of blue shield, submit the reports to the Director-general of UNESCO, take an active part in general conference, and enhance judicial cooperation and the conciousness of protection of cultural property in armed conflict.