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. =================== ========================================================= Important Subscriber Information: The Museum-L FAQ file is located at http://www.finalchapter.com/museum-l-faq/ . 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