[Senate Treaty Document 106-1]
[From the U.S. Government Printing 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.

                               --------

                    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.