Saving Our Culture, Saving Ourselves: Why We Should Ratify the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict
In War, human casualties leap out at us from photographs and television screens, claiming our attention and focusing it on immutable human suffering. It is incontrovertible evidence that a group of people are under attack, and that their lives have lost all value. The US has ratified the Geneva Conventions which govern armed conflict, so that attacks on civilians, on hospitals, the taking of prisoners of war, and the use of torture may be curtailed, or where they occur, to allow their victims legal redress. The same protections have not been granted to cultural and artistic artifacts belonging to the United States. When libraries are burned, churches are looted, and schools are destroyed, it isn’t flashed across our television screens. And yet academics and ordinary citizens would concur in saying that the preservation of religious iconography, of historical and political texts, is crucial to building a strong civil society.
Although we in the United States are surrounded by allies and protected by geography, our military does not assume that these safeguards will always be enough to protect our national security. The same is true of our cultural treasures. Hypothetically, a few well-aimed missiles could destroy the National Mall, causing us to lose the scientific treasures of the Air and Space Museum, the flag that flew over Fort McHenry when Francis Scott Key composed ‘The Star Spangled Banner’, and countless other emblems of our national identity.
By ratifying the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict,1 the United States would accomplish three things: it would increase the likelihood that our country’s historic artifacts would be preserved in times of conflict, it would signal a commitment to preserving, rather than destroying, ethnic cultural icons, and it would place American art and iconography on a world register of cultural property.
Cultural property may include items as diverse as an extensive baseball card collection, recognizable and highly valued works of art, or a set of objects which have a strong religious or historical symbolism, all of them held sacred because of what they tell us about the past, about the genesis of our country, and of our place in the world.
The Hague Convention defines cultural property to include: "movable or immovable property of great importance to the cultural heritage of every people," including religious and secular monuments, archaeological sites, buildings, works of art, books, manuscripts, archives, scientific collections, as well as the preservation of buildings whose purpose is to preserve these collections.2 One of the strengths of this definition is its inclusiveness; the Convention is concerned with protecting objects which help to define a people, and with the art, history, literature, and iconography which express their history and their continued right to existence. This is especially important in an American context, where the diversity of our ethnic, religious, and racial backgrounds vastly broadens what we consider to be culturally significant.
In much of international law, customary norms of behavior have provided the basis for modern legal rules. Sovereign states will respect the integrity of one another’s ships when they are sailing in their own territorial waters; foreign diplomats have always been guaranteed the privilege of immunity. However, customary law is designed to protect the interests of the nation-state. Cultural property is a much more slippery issue, and in legislating for its protection we cannot rely on the standards of "gentlemanly conduct" which established the laws of a different age. Booty, spoils, and plunder are the order of the day in wartime, and it is almost impossible to monitor the actions of soldiers in a war zone.
The Declaration of London, in 1943, marked the first international attempt to protect cultural property in times of conflict. The Declaration announced that the Allies would "do their utmost to defeat the methods of dispossession practiced by the [Nazis]."3 It established a system by which countries could annul the transfer or sale of art when its provenance was questionable, or when it was believed to be the ill-gotten gains of loot or plunder; this ability extended even to good faith contracts.4 The Declaration was popular at first, but because it had to be implemented on the national level, with no overarching framework or international support, its provisions languished and the flow of looted art went unchecked. "Bound only by honor, individual nations failed to settle the issue, leaving the rightful ownership of a great many pieces of art unknown to this day."5 In comparison to the Hague Convention, which stresses the importance of a unified membership, and the work of whose members is supported by UNESCO (the United Nations Economic, Scientific, and Cultural Organization), the Declaration of London was little more than a sound bite.
The overarching goal of the Hague Convention, the protection of cultural property, speaks to its most important objective: the protection of the cultural and historical artifacts which define a culture, and which are the identifiers of a specific ethnic or national group. This goal is met by focusing the attention of ratifying nations on three specific areas: the identification of items of cultural significance, the education of military and civilians about these items, and the imposition of sanctions on those who abuse or destroy these monuments.
Entering property into an International Register of Cultural Property under Special Protection allows items to be safeguarded within their own country, and when that territory is occupied, ostensibly allows those items to remain under the protection of their guardians, regardless of the conflict taking place around them.6 While this system is fallible, because there are nations which have yet to ratify the Hague Convention, the establishment of behavioral norms and protections for cultural property make it much easier to prosecute those whose behavior violates the basic rights of integrity which the Hague Convention places on its registered objects.
Further, The Hague Convention provides for the education of military and civilians on the importance of protecting cultural property. Contracting parties assume the responsibility of "foster[ing] in the members of their armed forces a spirit of respect for the culture and cultural property of all peoples."7 The Convention also places an emphasis on soldiers working with the civilians who safeguard cultural property, in order to best understand how they might safeguard it in the event of a conflict. This relationship will expand the possibilities for the protection of cultural property in the United States, as well as educating part of the population in a way which might (for example in Afghanistan) lead to the protection of universally significant cultural artifacts.
Although the Hague Convention does not establish a set of penalties for those who have violated the Convention, it asks that each ratifying nation undertake to prosecute, within its own criminal system, those whose acts vandalize and destroy protected cultural property.8 Unlike the Declaration of London, however, which had no unifying body, signatories to the Hague Convention are bound by this agreement, and receive the support and encouragement of UNESCO in their endeavors to identify and preserve cultural property. The support of nations who have ratified the Hague Convention has enabled bodies like the International Criminal Tribunal for Former Yugoslavia (ICTY) to include provisions on cultural crime in their own statutes. The ICTY has license to pursue individuals responsible for the "seizure of, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science."9 This sends a clear message to those who destroyed libraries, mosques, and museums during the conflict in the Balkans. The inclusion of this language in an international criminal court could lead to the establishment of wider norms protecting the sale or destruction of cultural property, and making ratification of the Hague Convention a pre-requisite to obtaining damages for abuse of cultural property, U.S. or otherwise.
The United States, by ratifying the Hague Convention, would be able to re-energize the dialogue about objects of cultural property in the United States, but it would also send a signal, especially in the wake of the events in Afghanistan, that the protection of cultural property is of universal importance. Our own American identity is linked to myriad other cultures, and our ratification of the Hague Convention would mark a recognition and a protection of the cultural property of all Americans, in the content of museums as well as in architecture, history, and literature.
Notes:
Convention for the Protection of Cultural Property in Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter 1954 Hague Convention].
Declaration Regarding Forced Transfers of Property in Enemy-Controlled Territory, 8 Dep’t St. Bull. 21 (1943).
Kelly Ann Falconer, When Honor Will Not Suffice: The Need for a Legally Binding International Agreement Regarding Ownership of Nazi-Looted Art 21 U. Pa. J. Int’l Econ. L. 383, 386 (2000).
Peter Maas, Cultural Property and Historical Monuments, in Crimes of War (Roy Gutman and David Rieff, eds., 1999).