Wow! Thank you Professor Boylan you have done all of us a service.
Nicholas Burlakoff

-----Original Message-----
From: Museum discussion list [mailto:[log in to unmask]]On Behalf
Of P Boylan
Sent: Thursday, April 17, 2003 8:48 AM
To: [log in to unmask]
Subject: PROTECTING MUSEUMS AND MOMUMENTS ETC. UNDER INTERNATIONAL LAW

I agree with the sentiments of many Museum-L members that we need to move
on.  However, John Martinson has asked a very specific question in
relation to the Geneva Convention, and - in effect - suggests that some of
the recent reports and comments may have been incorrect, so I will provide
the factual answer only to his specific question, as below.


(Prof.) Patrick Boylan

(City University London, and Consultant to UNESCO & The World Bank -
though writing in a private capacity)


=====================

On Apr 16 2003, John Martinson wrote:

++++ [CLIP] ++++

> There has been a few references by the group to the Geneva Convention, and
> the stipulation that the United States is required to stop looting.
> However, in my own search, I've found only references to looting
> specifically done by military soldiers NOT looting by civilians or a
> population from the country being looted.
>
> Can someone with a copy of the Covention, the particular artilce
> mentioning that fact please advise me on list or off the exact article by
> number and source where to find it.

========================

John:

The recent references (from Governments downwards) to "the Geneva
Convention" have themselves been misleading. There are in fact six Geneva
Conventions in current application as follows:

Geneva Convention I for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field. Geneva, 12 August 1949.

Geneva Convention II for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.

Geneva Convention III relative to the Treatment of Prisoners of War.
Geneva, 12 August 1949.

Geneva Convention IV relative to the Protection of Civilian Persons in Time
of War. Geneva, 12 August 1949.

Protocol I Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts, 8
June 1977.

Protocol II Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed Conflicts,
8 June 1977.

(Recent Government references to "the Geneva Convention" - certainly since
Sept. 11th 2001 seem to have been mainly to the 3rd Geneva Convention of
1949 relating to Prisoners of War.)

----------

The Geneva Conventions I - IV of 1949 have been accepted by just about
every country in the world and incorporated directly or indirectly into
their national law.

The Additional Protocols of 1977 have similarly been adopted and
incorporated into national law by all but around 30 of the 190 or so
countries of the world. Most of those that have not ratified the Additional
Protocols are so-called "micro-states", such as isolated island territories
with populations of just a few thousands, but there are around a dozen
major states that recognise only the 1949 Conventions without the two
Additional Protocols of 1949. These include Afghanistan, Iran, Iraq,
Israel, Turkey and the United States. Consequently, when US spokespersons
speak about "the Geneva Conventions" they are referring only to the 1949
version, not the current one including the 1977 Additional Protocols.

However, the obligation of military powers to enforce order and among other
things protect certain special categories of property (including medical
facilities, and civilian cultural, religious and educational property) is
not in the Geneva Conventions (or at least the 1949 version) as John
correctly points out.

This is because the legal obligation is at least 42 years OLDER than this:
it was laid down in the Fourth Hague Convention of 1907 "Respecting the
Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land".

In Section III of Hague 1907: "Military Authority over the Territory of a
Hostile State", Article 43 requires the military authority to: "take all
the measures in his power to restore, and ensure, as far as possible,
public order and safety, while respecting, unless absolutely prevented,
the laws in force in the country", while Article 56 states: "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. 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 the subject of legal
proceedings."

Over subsequent decades the Hague Laws and Regulations of 1907 have become
accepted as part of "customary international humanitarian law", enforceable
against all States and their nationals, whether or not the State is legally
a party to Hague 1907. These principles, for example, formed the basis of
the Treaty of London which set up the Nuremberg and Tokyo War Crimes
Tribunals at the end of World War II, and the Hague Laws were vigorously
enforced in the Nuremburg and Tokyo judgements.

More recently, they have been incorporated into, and applied in, the
International Criminal Tribunal for Yugoslavia. For example, two of the
nine charges relating to war crimes in Bosnia in 1994 on which the
Tribunal convicted (and sentenced to 45 years imprisonment) the Croatian
General Tihomir Blaskic related to his "command responsibility" failure to
exercise effective control over civilians and irregulars, and to take
reasonable measures to apprehend and punish perpetrators of crime.

There are also a number of quite explicit requirements relating to the
obligation of belligerents to actively protect cultural property and
institutions in the 1954 Hague Convention on the Protection of Cultural
Property in the Event of Armed Conflict.  This has been ratified by Iraq,
though not by the USA or United Kingdom. There are also explicit
provisions in Geneva Additional Protocol I of 1977, which has been
ratified by the United Kingdom, though not Iraq or the USA, so arguably
United States forces in Baghdad last week  were not bound by either of
these.

The United States is, however, a Party to the 1935 Treaty of Washington
("Roerich Pact") the main purpose of which was to ensure that "the
treasures of culture be respected and protected in times of war and peace".

There are also provisions at the national level - in United States
military law. These go all the way back to US Army General Orders No. 100
of 1863 (known as the Lieber Code, after the officer who drew it up for the
Army), which is generally considered the first modern codification of the
law of war anywhere in the world.

The Lieber Code (which still forms the backbone of United States military
law stressed the obligation of the US military to actively "protect from
injury" not only non-combatants (Article 19), their property (Article 22),
and hospitals and churches (Article 34), but also "classical works of art,
libraries, collections, or precise instruments such as astronomical
telescopes" which similarly "must be secured against all avoidable injury"
(Article 35).

It was under these principles that in May 1944, on the eve of the "D-Day"
invasion of continental Europe, the Supreme Allied Commander, General
Dwight D. Eisenhower, declared: "Inevitably, in the path of our advance
will be found historical monuments and cultural centers which symbolise to
the world all that we are fighting to preserve. It is the responsibility of
every commander to protect and respect these symbols whenever possible."

In order to implement and enforce this policy Gen. Eisenhower ensured that
the cultural protection specialists - leading scholars and curators
attached to Civil Affairs Staffs as Monuments, Fine Arts and Archives (M.FA
& A) Officers, travelled into the field alongside the field commander of
each major unit, with these commanders ensuring that their "information,
together with the necessary instruction, will be passed down through command
channels to all levels." though there were in fact only around 30 US and
British M.FA & A Officers available at th time, the system worked remarkably
well. Indeed several landed on the Normandy beaches on D-Day itself, and
moved with the front line advances to identify immediately, mark, and call
for armed guards where necessary at, all key monuments and institutions.



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