BRIEFING FROM PATRICK BOYLAN, HEAD OF NON-GOVERNMENTAL DELEGATION -
INTERNATIONAL COMMITTEE OF THE BLUE SHIELD (ICBS)

N.B. The ICBS is the standing emergency coordination and response
committee of the four principal UNESCO-associated non-governmental professional
bodies for the "cultural property" area, i.e. the International Council
on Archives (ICA), International Federation of Library Associations and
Institutions (IFLA), International Council of Museums (ICOM), and
International Council on Monuments and Sites (ICOMOS).

-----------------------------------

After two gruelling weeks, 15 - 26 March 1999, during which
things often looked very bleak because of deep-seated
differences between States, a new 2nd Protocol to the 1954
Hague Convention on the Protection of Cultural Property in
the Event of Armed Conflict was adopted by unanimous
consensus on the evening of Friday 26 March in The Hague.  So
far as I could see the Heads of all 84 national Delegations
taking part signed the "Final Act" of the Diplomatic
Conference - though this does not commit and State to sign
and ratify the new treaty itself: this will depend on often
prolonged consideration and major new primary legislation at
the national level in each case.

The new Protocol represents much the greatest advance in
international cultural protection measure for decades -
certainly since the 1972 World Heritage Convention, and
probably since the original 1954 Hague Convention. It is also
the most substantial development in the general field of
International Humanitarian Law since the Geneva Convention
Additional Protocols of 1977.  Both the World Heritage
Convention and the 1977 Additional Protocols offered
significant precedents for many of the innovations in the
1999 2nd Protocol just adopted, coupled with the long, and
sad, experience of the failure of the original 1954
Convention to prevent great losses of important cultural
property over the past 45 years, especially in the sort of
"dirty" armed conflicts such as civil wars that have been a
constant feature of the post-war world.

For those who are familiar with the 1998 Vienna Draft and the
UNESCO Working Draft which the March 1999 Diplomatic
Conference took as its starting point, (and indeed my
original UNESCO report of 1993 which the Dutch Education and
Cultural Heritage Secretary of State generously referred to in
his opening address), on virtually every key area
except one the final version of the new 2nd Protocol has
accepted the basic arguments for change and improvement
(though the final language may look quite different in places
- not least through the careful attempt to use established
"Geneva" wording wherever possible).

In summary, the provisions of Hague 1954 in respect of
"protection" in general have been greatly clarified and
amplified, in the new Chapter 2.  This offers much clearer
explanations of, for example, the very limited cases in which
"imperative military necessity" can be claimed in order to
allow an attack on cultural property - in effect
substantially reducing the possible use of this, (a
long-standing problem dating back to the original 1899 and
1907 Hague Laws of War).  The obligations of States in
relation to peacetime preparation and training have been
expanded. The Chapter also clarifies (and limits very
considerably) what an occupying power may do in relation to
cultural property within occupied territories, placing very
narrow limits on archaeological excavations and the
alteration or change of use of cultural property, and
requiring the occupying power to prohibit and prevent all
illicit export, removal or change of ownership of cultural
property.

The new Chapter 3 creates a new category of "Exceptional
Protection" (Protection Renforce in French) for the most
important sites, monuments and institutions.

This will be an international designation publicised
in advance (rather along the lines of the World
Heritage List).  The detailed provisions restrict even
further than the new Chapter 2 provisions the 1954
"Imperative Military Necessity" exemption: even in the case
of gross misuse by the enemy, it will be lawful to attack or
retaliate only if the cultural property is currently being
actually used in direct support of the fighting etc., and
even then there must be no reasonable alternative and any
response must be strictly proportionate and limited.

One of the two areas in which there is a very major advance
in international humanitarian law and international criminal
law is the new Chapter 4.  This establishes a whole range of
new, explicit, crimes in relation to breaches of cultural
protection and respect contrary to either the original 1954
Convention, the new 2nd Protocol, or the cultural protection
provisions of the 1977 Additional Geneva Protocols.  States
Parties will have to legislate for these and in normal cases
will be expected to prosecute such crimes in their normal
civilian or military courts.  However, there is also
provision for universal international jurisdiction - giving
the possibility of criminal prosecution anywhere else in the
world, at least within a State Party to the 2nd Protocol, and
the most serious new crimes will be extraditable.

Chapter 5 deals with non-international conflicts, and aims to
clarify and strengthen considerably the 1954 provisions
(which above all others have never worked).

The other major advance and significant innovation is Chapter
6, which establishes for the first time institutional
arrangements in respect of the application of the 1954
Convention.  There will be two-yearly meetings of the States
Parties (compared with a 22 year gap between the 1973 and
1995 meetings!), and the States will elect a 12 member
"Committee for the protection of cultural property in the
event of armed conflict" which will meet at least once a
year, and more frequently in cases of urgency.  The Committee
will have a duty to monitor and promote generally, and
consider applications for both "Exceptional Protection" and
financial assistance from a (voluntary contributions) Fund to
be established under the Protocol. The International
Committee of the Blue Shield (by name) and its constituent
"eminent professional organizations" (with ICCROM and the
International Committee of the Red Cross) will have important
standing advisory roles in relation to the Committee,
meetings of States Parties and will be consulted on proposals
for e.g. "Exception Protection" designation.

Chapter 7 strengthens the 1954 provision in relation to
information, training etc. about the Convention, Protocols
and general principles of cultural protection. There is now a
call for States to raise awareness among the general public
and within the education system (non-binding because of the
significant number of States where the central government
does not control or influence directly the school curriculum
- though an important recognition of the importance and role
of "civil society" nevertheless).

The one thing that we "lost" was the proposal to give a right
of recognition and protection to Blue Shield representatives
and professionals involved in cultural protection.  This was
strongly opposed as going too far by a wide range of
delegations, who unfortunately raised their objections very
late on Friday, when there was just not enough time to
adjourn to try to find a more restricted and acceptable form
of words that that proposed by UNESCO (perhaps drawing on the
Geneva Protocols wording again).

This last failure was disappointing, but having reflected on
the Diplomatic Conference as a whole for 48 hours I feel that
this is a relatively minor setback.  (Even one of the major
Delegations mandated in advance to oppose the UNESCO  proposal
on this point, said that  in the short debate I won the argument.
I think that had there been a few more hours available, it would
have been possible to arrive at an acceptable compromise, based
drawing up a parallel provision to the well-established Geneva
Conventions provisions in respect of civilian humanitarian aid etc.
organisations.  Rather than wait 45 years for the next Diplomatic
Conference and updating, there may be ways of  getting at least
part way there if circumstances arise, as  both the new Committee
and the Director-General of UNESCO  will have quite wide powers at
the operational level.

Against this, the formal recognition of the International
Committee of the Blue Shield in several places in the new 2nd
Protocol, especially within the new institutional structure,
represented a really remarkable change of minds during the
course of the two weeks.  During their opening statements
communicating their respective governments' overall reaction
to the UNESCO draft, (which took up most of the first and
second days of the Conference), at least 20 of the 84
participating States spoke strongly against any mention of
non-governmental organisations in the new treaty.  Indeed,
many had at the beginning singled out as "especially objectionable" the
proposal  in the draft to give the ICBS an official status under the
new Protocol, ("contrary to international law" etc. etc.,
"We'll be asked to include the International Federation of
Boy Scouts next!").

In addition, each of the four constituent bodies of the ICBS
including ICOM of course were named in full in the formal "Final Act"
of the  Diplomatic Conference.  Even more remarkably bearing in mind
the earlier hostility among many delegations, I was invited
to sign the Final Act as Head of the International Committee
of the Blue Shield delegation.  I didn't realise the
significance of this until one of the UK Foreign Office
international law experts told me that this was the first
time in modern diplomatic law that an NGO observer delegation
had been allowed to sign the Final Act of such a Diplomatic
Conference!

The text was adopted in French and English: UNESCO is now
preparing urgently official translations in the other four UN
languages (Arabic, Chinese, Spanish and Russian) in time for
the formal signing ceremony of the new Protocol itself.

This is going to be in The Hague on Monday 17 May, the first
day of the three days of celebrations to mark the 100th
anniversary of the first Hague Peace Conference and Convention,
concluded in May 1899.


Patrick Boylan
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