[Senate Treaty Document 106-1]
[From the U.S. Government Publishing Office]
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106th Congress Treaty Doc.
1st Session SENATE 106-1
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THE HAGUE CONVENTION AND THE HAGUE PROTOCOL
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
THE HAGUE CONVENTION FOR THE PROTECTION OF CULTURAL PROPERTY IN THE
EVENT OF ARMED CONFLICT (THE CONVENTION) AND, FOR ACCESSION, THE HAGUE
PROTOCOL, CONCLUDED ON MAY 14, 1954, AND ENTERED INTO FORCE ON AUGUST
7, 1956 WITH ACCOMPANYING REPORT FROM THE DEPARTMENT OF STATE ON THE
CONVENTION AND THE HAGUE PROTOCOL
January 6, 1999.--Treaty was read the first time, and together with the
accompanying papers, referred to the Committee on Foreign Relations and
ordered to be printed for the use of the Senate.
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U.S. GOVERNMENT PRINTING OFFICE
69-118 WASHINGTON : 1999
LETTER OF TRANSMITTAL
----------
The White House, January 6, 1999.
To the Senate of the United States:
I transmit herewith, for the advice and consent of the
Senate to ratification, the Hague Convention for the Protection
of Cultural Property in the Event of Armed Conflict (the
Convention) and, for accession, the Hague Protocol, concluded
on May 14, 1954, and entered into force on August 7, 1956. Also
enclosed for the information of the Senate is the report of the
Department of State on the Convention and the Hauge Protocol.
I also wish to take this opportunity to reiterate my
support for the prompt approval of Protocol II Additional to
the Geneva Conventions of 12 August 1949, concluded at Geneva
on June 10, 1977 (Protocol II). Protocol II, which deals with
noninternational armed conflicts, or civil wars, was
transmitted to the Senate for advice and consent to
ratification in 1987 by President Reagan but has not been acted
upon.
The Hague Convention
The Convention was signed by the United States on May 14,
1954, the same day it was concluded; however, it has not been
submitted to the Senate for advice and consent to ratification
until now.
The Hague Convention, to which more than 80 countries are
party, elaborates on obligations contained in earlier treaties.
It also establishes a regime for special protection of a highly
limited category of cultural property. It provides both for
preparations in peacetime for safeguarding cultural property
against foreseeable effects of armed conflicts, and also for
respecting such property in time of war or military occupation.
In conformity with the customary practice of nations, the
protection of cultural property is not absolute. If cultural
property is used for military purposes, or in the event of
imperative military necessity, the protection afforded by the
Convention is waived, in accordance with the Convention's
terms.
Further, the primary responsibility for the protection of
cultural property rests with the party controlling that
property, to ensure that the property is properly identified
and that is not used for an unlawful purpose.
The Hague Protocol, which was concluded on the same day as
the Convention, but is a separate agreement, contains
provisions intended to prevent the exportation of cultural
property from occupied territory. It obligates an occupying
power to prevent the exportation of cultural property from
territory it occupies, requires each party to take into its
custody cultural property exported contrary to the Protocol,
and requires parties to return such cultural property at the
close of hostilities. However, as described in the report of
the Secretary of State, there are concerns about the
acceptability of Section I of the Hague Protocol. I therefore
recommend that at the time of accession, the United States
exercise its right under Section III of the Hague Protocol to
declare that it will not be bound by the provisions of Section
I.
The United States signed the Convention on May 14, 1954.
Since that time, it has been subject to detailed interagency
reviews. Based on these reviews, I have concluded that the
United States should now become a party to the Convention and
to the Hague Protocol, subject to the understandings and
declaration contained in the report of the Department of State.
United States military policy and the conduct of operations
are entirely consistent with the Convention's provisions. In
large measure, the practices required by the Convention to
protect cultural property were based upon the practices of U.S.
military forces during World War II. A number of concerns that
resulted in the original decision not to submit the Convention
for advice and consent have not materialized in the decades of
experience with the Convention since its entry into force. The
minor concerns that remain relate to ambiguities in language
that should be addressed through appropriate understandings, as
set forth in the report of the Department of State.
I believe that ratification of the Convention and accession
to the Protocol will underscore our long commitment, as well as
our practice in combat, to protect the world's cultural
resources.
I am also mindful of the international process underway for
review of the Convention. By becoming a party, we will be in a
stronger position to shape any proposed amendments and help
ensure that U.S. interests are preserved.
I recommend, in light of these considerations, that the
Senate give early and favorable consideration to the Convention
and the Protocol and give its advice and consent to
ratification and accession, subject to the understandings and
declaration contained in the report of the Department of State.
Protocol II Additional
In his transmittal message dated January 29, 1987,
President Reagan requested the advice and consent of the Senate
to ratification of Protocol II. The Senate, however, did not
act on Protocol II. I believe the Senate should now renew its
consideration of this important law-of-war agreement.
Protocol II expands upon the fundamental humanitarian
provisions contained in the 1949 Geneva Conventions with
respect to internal armed conflicts. Such internal conflicts
have been the source of appalling civilian suffering,
particularly over the last several decades. Protocol II is
aimed specifically at ameliorating the suffering of victims of
such internal conflicts and, in particular, is directed at
protecting civilians who, as we have witnessed with such horror
this very decade, all too often find themselves caught in the
crossfire of such conflicts. Indeed, if Protocol II's
fundamental rules were observed, many of the worst human
tragedies of recent internal armed conflicts would have been
avoided.
Because the United States traditionally has held a
leadership position in matters relating to the law of war, our
ratification would help give Protocol II the visibility.
Because the United States traditionally has held a
leadership position in matters relating to the law of war, our
ratification would help give Protocol II the visibility and
respect it deserves and would enhance efforts to further
ameliorate the suffering of war's victims--especially, in this
case, victims of internal armed conflicts.
I therefore recommend that the Senate renew its
consideration of Protocol II Additional and give its advice and
consent to ratification, subject to the understandings and
reservations that are described fully in the report attached to
the original January 29, 1987, transmittal message to the
Senate.
William J. Clinton.
LETTER OF SUBMITTAL
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Department of State,
Washington, May 12, 1998.
The President,
The White House.
The President: I have the honor to submit to you, with a
view to transmission to the Senate for its advice and consent
to ratification, the Hague Convention for the Protection of
Cultural Property in the Event of Armed conflict (the
Convention) and, for accession, the Hague Protocol (the Hague
Protocol), concluded on May 14, 1954 and entered into force on
August 7, 1956.
In this context, I also refer to a law of war agreement
previously transmitted to the Senate, Protocol II Additional to
the Geneva Conventions of 12 August 1949, and recommend that
you reiterate to the Senate our support for its prompt
approval.
The Hague Convention--Background
The Hague Convention is part of the legal regime dealing
with the conduct of armed conflict, both international and non-
international. It constitutes the first comprehensive treaty
for the protection of cultural property during armed conflict.
A number of provisions for the protection of cultural
property were included in law of war agreements prior to World
War II, but the experience of that war clearly demonstrate a
need for more effective and comprehensive protections.
Accordingly, a diplomatic conference was convened at The Hague
in 1954 under the auspices of UNESCO (the United Nations
Educational, Scientific and Cultural Organization) to negotiate
a new instrument.
The United States participated actively in the negotiation
and drafting of the Convention. The U.S. delegation favored its
ratification by the United States and the head of the
delegation signed the Convention. However, after review of the
Convention, certain concerns were raised and it was not
submitted to the Senate. A number of these concerns have not
been borne out in the decades of experience with the Convention
since its entry into force. U.S. military forces have not only
followed but exceeded its terms in the conduct of military
operations. The minor concerns that remain relate to
ambiguities in language that should be addressed through
appropriate understandings or conditions as set forth herein
and detailed in the section-by-section analysis.
Historically, the United States has recognized special
protection for cultural property in armed conflict. The U.S.
Army codified the obligation to protect cultural property in
Articles 34-36 of General Order No. 100 (1863), which was
regarded as a reflection of the customary practice of nations,
including, as it did, provision for waiver of the protection in
the event of military necessity.
The essence of the position historically taken by U.S.
military forces is contained in a memorandum issued on December
29, 1943, by General Dwight D. Eisenhower to U.S. forces in
Italy:
Today we are fighting in a country which has
contributed a great deal to our cultural inheritance, a
country rich in monuments which by their creation
helped and now in their old age illustrate the growth
of the civilization which is ours. We are bound to
respect those monuments so far as war allows.
If we have to choose between destroying a famous
building and sacrificing our own men, then our men's
lives count infinitely more and the building must go.
But the choice is not always so clear-cut as that. In
many cases the monuments can be spared without any
detriment to operational needs. Nothing can stand
against the argument of military necessity. That is an
accepted principle. But the phrase ``military
necessity'' is sometimes used where it would be more
truthful to speak of military convenience or even
personal convenience. I do not want it to cloak
slackness or indifference.
It is the responsibility of higher commanders to
determine * * * the locations of historical monuments
whether they be immediately ahead of our front lines or
in areas occupied by us. This information passed to
lower echelons through normal channels places the
responsibility on all commanders of complying with the
spirit of this letter.
For practical purposes, U.S. military operations since the
promulgation of the Convention have been entirely consistent
with its provisions. During Operation Desert Storm, for
example, intelligence resources were utilized to look for
cultural property in order to properly identify it. Target
intelligence officers identified cultural property or cultural
property sites in Iraq; a ``no-strike'' target list
wasprepared, placing known cultural property off limits from attack, as
well as some otherwise legitimate targets if their attack might place
nearby cultural property at risk of damage.
In attacking legitimate targets in the vicinity of cultural
objects, to the extent possible, weapons were selected that
would accomplish destruction of the target while minimizing the
risk of collateral damage to nearby cultural or civilian
property. However, the proximity of military objectives to
cultural property did not render those military objectives
immune from attack, nor would it under the Convention.
The Hague Convention--Summary
The Convention consists of a preamble, seven chapters,
final provisions, and regulations for the execution of the
Convention.
Primarily, the Convention elaborates obligations contained
in earlier treaties, including the prohibition on attacks
directed against cultural property and against misappropriation
of such property. (These principles may be found in Articles 27
and 56, respectively, of the Annex to the 1907 Hague Convention
IV.) It also provides expanded protection by establishing a
regime for special protection of a highly limited category of
cultural property included on an International Register. The
Convention provides both for preparations in peacetime for
safeguarding cultural property against foreseeable effects of
armed conflict, and also for respect for such property in time
of war or military occupation. In conformity with the customary
practice of nations, the protection of cultural property is not
absolute. If cultural property is used for military purposes or
in the event of imperative military necessity, the protection
afforded by the Convention is waived in accordance with the
Convention's terms.
The Hague Protocol
The Protocol to the Convention was concluded on the same
day as the Convention itself, but is a separate agreement from
the Convention. The Hague Protocol contains provisions which
require the prevention of exportation of cultural property from
occupied territory, and the taking into custody and return of
exported cultural property. The Hague Protocol also contains
provisions for the deposit of cultural property by one Party in
the territory of another Party for protective purposes and the
return of such property.
The United States did not sign the Hague Protocol in 1954
because of certain objections to both the drafting and
substantive provisions of Section I of the Hague Protocol,
particularly the provision requiring indemnification by an
occupying Party to ``holders in good faith'' of cultural
property exported from territory occupied by it. Regarding the
drafting, there was concern that, for example, the term
``export'' was undefined and invited confusion and debate. The
main substantive provision of concern dealt with the obligation
of indemnification. With respect to this indemnification
obligation, concern centered on the complexities and burdens of
implementation under both U.S. and other legal systems. These
objections require further consideration.
Given these objections, it is our view that the United
States should declare, at the time of accession of the
Protocol, that the United States will not be bound by the
provisions of Section I of the Hague Protocol. This procedure
is specifically permitted by Section III, paragraph 9 of the
Hague Protocol.
Understandings and Declaration
Ratification of the Convention should be subject to the
following understandings and accession to the Protocol should
be subject to a declaration described in detail in the
accompanying analysis of the provisions of the Convention and
Protocol.
1. It is the understanding of the United States of America
that ``special protection'', as defined in Chapter II of the
Convention, codifies customary international law in that it,
first, prohibits the use of any cultural property to shield any
legitimate military targets from attack and, second, allows all
property to be attacked using any lawful and proportionate
means, if required by military necessity and notwithstanding
possible collateral damage to such property.
2. It is the understanding of the United States ofAmerica
that decisions by military commanders and others responsible for
planning, deciding upon, and executing attacks can only be judged on
the basis of their assessment of the information reasonably available
to them at the relevant time.
3. It is the understanding of the United States of America
that the rules established by the Convention apply only to
conventional weapons, and are without prejudice to the rules of
international law governing other types of weapons, including
nuclear weapons.
4. It is the understanding of the United States of America
that, as is true for all civilian objects, the primary
responsibility for the protection of cultural objects rests
with the party controlling that property, to ensure that it is
properly identified and that it is not used for an unlawful
purpose.
5. With respect to the Hague Protocol, the United States
declares, in accordance with paragraph 9 of Section III of the
Hague Protocol, that the United States will not be bound by the
provisions of Part I.
Conclusion
The United States has participated actively in all of the
significant international negotiations on the laws of armed
conflict. Each treaty produced has received extensive inter-
agency review to determine whether it is consistent with our
humanitarian values and legitimate military requirements and
whether the United States should become a Party. This is true
also for the Hague Cultural Property Convention and the Hague
Protocol and I believe the United States should proceed now
with ratification and accession.
Following the Gulf War, Congress expressed interest in the
issue of cultural protection in the context of a request for a
review of the matter by the Senate Committee on Appropriations
in its report on the Department of Defense Appropriations Bill,
1992 (Senate Report 102-154, page 46).
In addition, there has been renewed interest in the
Convention as the issues surrounding the disposition of Nazi
assets from World War II have commanded increased attention.
(The Convention, however, is understood not to apply
retroactively and hence would have no legal impact on the
matter. Nonetheless, our ratification at this time would
underscore our commitment to the just resolution of this
important issue.)
Also, there have been international meetings over the last
four years to consider possible future amendments. These
meetings will enter a more formal phase this year with a review
conference of state parties to be held in the Spring of 1999.
As only parties may adopt amendments, U.S. ratification would
enable us to play an appropriate role in this initiative, as
well as the future course of the Convention generally.
I believe that the Convention contains reasonable
provisions which are already consistent with U.S. military
policy and practices. Action by the United States to ratify the
Convention will underscore our commitment to afford better
protection to the world's cultural resources and advance
efforts to promote its object and purpose.
The Department of State and the Department of Defense join
in recommending that the Convention and the Hague Protocol be
submitted to the Senate for advice and consent to ratification
and accession at an early date, subject to the above
understandings and declaration.
Protocol II Additional to the Geneva Conventions
In a letter dated January 29th, 1987, the Reagan
Administration requested the advice and consent of the Senate
to ratification of Protocol II. The Senate, however, did not
act on Protocol II. I believe renewed consideration of this
important law of war instrument is appropriate.
Protocol II deals with non-international armed conflict
and, unlike its companion law of war agreement, Protocol I,
which deals with international armed conflict, Protocol II has
not been a source of controversy. Protocol I was not submitted
for ratification at the time Protocol II was transmitted. This
decision was based on certain military, humanitarian and
terrorism-related objections.
With respect to Protocol II, we are not aware of any
serious substantive objections to its ratification and believe
its ratification would assist us incontinuing to exercise
leadership in the international community in matters relating to the
law of war.
With respect to Protocol I, the comprehensive military
review of all past military objections that you directed is
underway. This review will take some time. It need not,
however, delay progress on Protocol II, which essentially
expands upon fundamental rules contained in the 1949 Geneva
Conventions with respect to internal armed conflicts. In
particular, Protocol II makes clear that any deliberate killing
of a noncombatant in the course of a non-international armed
conflict is a violation of the law of war, punishable as
murder. Clearly, observance of these fundamental provisions in
civil wars over the past several decades would have avoided
many of the worst human tragedies we have witnessed.
Most of our closest allies have ratified Protocol II. Given
our position of leadership in the law of war area, U.S.
ratification would give a significant boost to the Protocol's
visibility and would enhance efforts to further ease the
suffering of war's victims--especially, in this case, civilian
victims of internal armed conflicts.
I therefore recommend that you request the Senate renew its
consideration of Protocol II and give its advice and consent to
ratification, subject to the understandings and reservations
that are described fully in the report attached to the original
January 29, 1987 letter of transmittal to the 100th Congress
(Treaty Doc. 100-2).
Respectfully submitted,
Strobe Talbot.