International law on cultural heritage

At the occasion of the opening of the Roerich Exhibition in the Peace Palace, The Hague, The Netherlands, 15-16 April 2014.


The Peace Palace was awarded the European Heritage Label, on April 8th, 2014, in order to emphasize the European factual roots and ideological origin of the Peace Palace, although the European history thereof has been overtaken by a universal value and role, like many European offspring have become of worldwide importance.
Next month mankind is going to celebrate the sixtieth anniversary of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.
On April 15th, 79 years ago, United States of America President Franklin D. Roosevelt signed the Roerich Pact, or more formally, the “Treaty on the Protection of Artistic and Scientific Institutes and Historic Monument”. And at that occasion he has said: “This treaty possesses a spiritual significance far deeper than the text of the instrument itself”.


Pillage, plunder, looting and destruction of movable and immovable monuments, historic objects, artistic exhibits happens to be of all ages, chiefly during times of war.
Living from pillaging and plunder was an ordinary phenomenon in the epoch of mercenary armies that had to seek means for remuneration themselves. This feature ended as standing state armies came into being at the threshold of the early modern times and the nineteenth century.
Showing the victory has always been corroborated by showing the movable or hardly movable and immovable goods to the nationals of the victorious nation. Rome allowed war heroes to show there prizes, trophies and booty. Colonial empires, e.g. the Royal Museum for Central Africa in Tervuren in Belgium holds so many exhibits glorifying the Belgian colony Congo and Nazi-Germany is notorious for art robbery, either with the aim to eliminate ‘entartete Kunst’ or to restore the booty in new museums, although many pieces went into private hands.
And even nowadays, although increasingly a framework of international law calls for responsible military and civilian behaviour, horrible things occur. Unfortunately, as in the past, e.g. in the era of imperialism, -as expansionist genocidal policy wiped out Australian and New Zealand Aboriginal cultures, American Indian civilization, Herero-history and population or Jewry and Roma societies-, deliberate destruction of cultural heritage as an emanation of groups is too often carried out for attaining political goals during international or civil wars.
At Nuremberg Göring was (i.e.) accused of the crime of destruction and pillage of cultural objects. The devastation of the Sarajevo library even so evidences the on-going history of annihilation, as well as the ruining of the Bamiyan Buddha sculptures in Afghanistan.


In The Netherlands we tend to refer to the wisdom of the seventeenth century founder of Modern International Law, Hugo Grotius, to safely anchor our views and argumentation. This is even more appropriate in the Peace Palace (Library), since it possesses the most unique and largest single collection of Hugo Grotius works. A piece of cultural heritage is in itself worth protecting legally and in all other ways.
Hugo Grotius considered it fully permissible to hamper and destroy all kinds of property belonging to the enemy. However, Hugo Grotius equally considered it void of any reason to do so if no military gain would be achieved. The ‘necessity’ argument. He therefore concluded that objects containing artistic or historic value ought to be spared, e.g. burial places. This is written down in ‘On the Laws of War and Peace’ in the chapters on ‘Moderations’ with respect to warfare. (Book III, Ch. 12, Sections V-VII.)
The eighteenth century Enlightenment jurist Emer Vattel even unconditionally condemns the intentional destruction of monuments, churches, paintings etc. because no such act in itself could possibly be a just war objective. Still, a bombardment of a fortification, even of a unique monumental character, is indiscriminately legitimate.


The 1863 Lieber Code and more importantly the 1874 Brussels Declaration and the 1880 Oxford Manual, all general warfare regulating vehicles, stipulate that ‘all necessary steps must be taken to spare, as far as possible, buildings dedicated to art, science, and charitable purposes, … on the condition they are not being used at the time for military purposes’.
The genealogy just mentioned, leads without interruption to the Hague Conferences 1899 and 1907, more specifically the Regulations concerning the Laws and Customs of War on Land, adopted during the first conference of 1899 and revised at the second conference of 1907. Therefore better known as the 1907 Hague Convention IV or the 1907 Hague Regulations. A codification of customary law on warfare as it had developed during the nineteenth century in particular.


We all know that Fedor Fedorovich Martens played a pivotal role at the First Hague Conference, reformulating the sole mission of disarmament into an array of goals, amongst which the establishment of the Convention on the Pacific or Peaceful Settlement of International Disputes, concluded in 1899.
How can we identify Martens, the St Petersburg Faculty of Law international law professor, conference delegate and special envoy of Czar Nicholas II? A realist and positivist, but not so much a pacifist.
Leonid Alekseevich Kamarovskii, Moscow University Faculty of Law, however, had a reputation as a true pacifist, authored pamphlets on pacifism and was principal in peace societies in which Leo Tolstoy (“War and Peace”) and Jan Bloch -who wrote on the horrors of future wars- were active as well. Kamarovskii nevertheless shared Martens’ passion for disarmament and peaceful settlement of international disputes through arbitration and courts.
Nicholas Roerich, being Martens’ student, at the St Petersburg University Faculty of Law, was – unlike his teacher in international law – very much drawn towards the peace movement in the sense of Kamarovskii and Tolstoy.
Did Martens express himself on the protection of cultural heritage protection, and, by doing so, influence Nicholas Roerich intellectually in that legal domain?
Martens, his handbook “International Law of Civilised Nations”, puts forward that “community goods, religious institutions, charity establishments, education institutes, buildings devoted to the study of art and sciences are inviolable … . All efforts to master these by violence or to destroy them have to be persecuted … by the military authority”. This relates equally to state and private property. Martens has become known for his clear position on the inviolability of private property during war. Martens separates private property in sharp terms from general prize law applicable to the state property. State property, also referred to in that way in the 1863 Lieber Code (art, libraries, … astronomical telescopes … must be secured against … etc.), remains in the domain of lawful military necessity for securing the ends of war, and thus open for seizure. Nevertheless, over the nineteenth century, like Hugo Grotius had put forward centuries before, scholarship concluded that sacrosanct places (read cultural heritage) basically do not fall in that category, and ought to be spared during warfare. The necessity criterium seems to become absent.


This nineteenth century documentary dynasty of treaties on rules during warfare and scholarship ending up in the 1907 Hague Regulations is clear as we look at the crucial Art 56, prohibiting any seizure, destruction or wilful damage of works of art and science: “The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when state property, shall be treated as private property”, and “all seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made subject of legal proceedings”.
Art 56 needs to be read in combination with Art 27: “In sieges and bombardments all necessary steps must be taken to spare as far as possible, buildings dedicated to religion, art science … historic monuments … provided they are not being used for military purposes. It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand”. Still, a military necessity proviso has survived … Art 23 g: “it is especially forbidden … To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war”.
The First World War experienced too many incidents of inefficacy of the 1907 Hague Regulations. The idea of necessity was still too much overarching. Pity the Library of Louvain and the Reims Cathedral.


And how did this harvest of 1907, the ruins of the First World War and of the influence of Martens as a teacher find its way into the 1935 Roerich Pact? Contrary to the 1907 Hague Regulation – and e.g. the Air Warfare Convention of 1923 – the Roerich Pact concerns the protection of and respect for historical monuments, museums, scientific, artistic, educational and cultural institutions, in war but in times of peace as well (Art 1).

And, the 1935 Roerich Pact has been the first comprehensive treaty solely dedicated to protection of culture heritage, representations of arts, science and religions and monuments, in times of war and during peace. However, no movable goods covered, although implicitly done so via the protection of the covering building.


In the late 1930s the International Museums Office also started drafting protective rules to be applied in times of war and civil disturbances.
After the Second World War the 1954 Hague Convention, and obviously the result of the wilful devastations of cultures in all forms during the recent war, limits itself to the Protection of Cultural Property in the Event of Armed Conflict. But the whole chimera of military necessity had eclipsed.
In the Preamble it says to be guided by the 1907 Hague Regulation and the Roerich Pact.

Article 1. Definition of cultural property

For the purposes of the present Convention, the term `cultural property’ shall cover, irrespective of origin or ownership:

(a) movable or immovable property of great importance to the cultural heritage of every people, 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; 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 or of reproductions of the property defined above;

(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);

(c) centers containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as `centers containing monuments’.

Unfortunately, there are many demonstrations of havoc that mankind has encountered since the start of the Arab Spring, e.g. in the world of Egyptian museums and Syria is not yet over …

Jeroen Vervliet