The law of war: The Hague Convention as military necessity or military convenience?

The 1954 convention is the product of nearly a century’s thought about cultural property in which it is implicit that it is the heritage of all mankind

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Once again we are faced with grave danger to what are irreplaceable parts of the human record. The war in the Gulf threatens monuments and museums, especially in Mesopotamia, the cradle of civilisation. This article, abridged from John Henry Merryman’s essay “Two ways of thinking about cultural property”, describes the impulses and earlier laws behind the Hague Convention of 1954.

The Convention for the Protection of Cultural Property on the Event of Armed Conflict of 14 May 1954 (hereinafter “Hague 1954”) is a direct descendant of the work of Francis Lieber, “the man who shaped and laid the cornerstone on which the laws of war, as we now find them, are based”. Lieber, a German migr professor at Columbia College in New York, had assisted Henry Wager Halleck, General-in-Chief of the Union Armies, in defining guerrilla warfare. At Halleck’s request, Lieber prepared a proposed “code of conduct by belligerent forces in war” to apply to the conduct of the Union forces in the American Civil War. Issued by the Union command as General Orders No. 100 on 24 April 1863, the Instructions for the Governance of Armies of the United States in the Field or Lieber Code contains 157 articles. Articles 34-36 deal with protection of cultural property and provide:

“34 As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific characterDsuch property is not to be considered public property ... but it may be taxed or used when the public service may require it.

35 Classical works of art, libraries, scientific collections, or precise instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded.

36 If such works of art, libraries, collections, or instruments belonging to a hostile nation or government can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace.

In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured.”

The Lieber Code was the first attempt to state a comprehensive body of principles governing the conduct of belligerents in enemy territory. Its influence can be traced through a number of succeeding efforts. Thus, at an international conference of fifteen states called by the Russian government and held in Brussels in 1874, the “Declaration of Brussels” was promulgated (but never adopted as an international convention because of the resistance of Great Britain). Article 8, of a total of fifty-six articles, states:

“The property of parishes (communes), or establishments devoted to religion, charity, education, arts and sciences, although belonging to the State, shall be treated as private property. Every seizure, destruction of, or wilful damage to, such establishments, historical monuments, or works of art or science, shall be prosecuted by the competent authorities.”

In 1880 the prestigious Institute of International Law (an organisation of scholars of international law) included a similar provision (Article 56) in its “Manual of the Laws and Customs of War”. In 1899, again at the initiative of the Russian Government, a conference of twenty-six nations was convened at The Hague. This important conference produced a number of international agreements, including the Convention with Respect to the Laws and Customs of War on Land (Hague II, 1899) and a set of Regulations Respecting the Laws and Customs of War on Land in sixty articles, of which Article 56 deals with the protection of cultural property in similar terms.

Such provisions appear with increasing frequency in the present century. In 1907, at the initiative of the United States (President Theodore Roosevelt) and, again, of Russia, another important conference was convened at The Hague, attended by forty-four nations. The Convention on Laws and Customs of War on Land (Hague IV, 1907) adopted at that conference has a set of appended Regulations Respecting the Laws and Customs of War on Land, of which Article 56 provides in similar terms for the protection of cultural property. The same 1907 conference produced the Convention Concerning Bombardment by Naval Forces in Time of War (Hague IX), which provides in Article 5 for the protection of “historic monuments”, “art” and “science”. In 1923 another Hague conference produced the Hague Rules of Air Warfare (which were never adopted by the powers concerned). Articles 25 and 26 provide for the protection of cultural property.

Hague IV, 1907, and related conventions were the governing general international legislation on the conduct of belligerents until the end of World War II. On the whole, these conventions merely restated earlier provisions concerning cultural property. Although the language varied from one to another, the basic structure of protection remained the same: subject to an overriding concession to military necessity, which will be discussed below, cultural objects were protected. Individuals responsible for offences against cultural property were to be punished by the authorities of their own nations.

The Lieber Code and its progeny all dealt comprehensively with the obligations of belligerents; the protection of cultural property was merely one among many topics. In the 1930s, however, international interest turned to the preparation of a convention dealing solely with the protection of cultural property in time of war. In 1935 the twenty-one American nations promulgated a Treaty on the Protection of Artistic and Scientific Institutions and Monuments, now generally referred to as the Roerich Pact. Roerich was a Russian painter, poet and activist on behalf of cultural preservation who also lived in Finland, Britain, the United States and India, where he died in 1947. As the first international convention entirely devoted to the protection of cultural property, this document is historically important, but it is now, for all practical purposes, superseded. In 1939 the governments of Belgium, Spain, the United States, Greece and the Netherlands, under the auspices of the League of Nations, issued a Draft Declaration and a Draft International Convention for the Protection of Monuments and Works of Art in Time of War. Like the Roerich Pact, these League efforts were quickly overtaken by the events of World War II, by changes in the technology, tactics and strategy of warfare and the new concept of “total war”, and by the offences against cultural property deliberately and systematically committed by the Nazis. By the end of World War II, the governing rules concerning protection of cultural property against belligerent acts had clearly become inadequate. Two major legal events then occurred: the Nuremberg Trials and the promulgation, under the auspices of the United Nations Educational, Scientific and Cultural Organisation, of Hague 1954.

Alfred Rosenberg, one of the principal accused Nazis at the Nuremberg Trials, was among other things head of the infamous Einsatzstab (Special Staff) Rosenberg. The Einsatzstab was charged with looting German-occupied countries of cultural property, an assignment that it ruthlessly, voraciously and efficiently executed. Rosenberg’s indictment and the evidence introduced at his trial detailed his (and the Einsatzstab’s) offences against cultural property. Rosenberg was found guilty of these (and many other) offences and was hanged. The innovation here, as elsewhere in the Nuremberg Trials, was that other nations imposed responsibility on an individual official of the offending belligerent power for acts against cultural property committed in its name. The Lieber Code and its progeny had a different basis: such offences violated international law, but offending personnel were to be disciplined, if at all, by their own governments.

Hague 1954, the first universal convention to deal solely with the protection of cultural property, appears to incorporate the principle of individual international responsibility, affirmed at Nuremberg, in Article 28: “The High Contracting Parties undertake to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the present Convention”. This language seems to authorise, indeed to oblige, nations that acquire personal jurisdiction of persons accused of Hague 1954 violations to try them.

A more significant novelty of Hague 1954, however, is that it provides a rationale for the international protection of cultural property. The language of the Preamble is for this reason alone memorable:

“Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world;

Considering that the preservation of the cultural heritage is of great importance for all peoples of the world and that it is important that this heritage should receive international protection ...”

While it seems clear that such considerations underlay the protection of cultural property in Lieber’s code and its successors, their expression in Hague 1954 is a significant innovation. The quoted language, which has been echoed in later international instruments, is a charter for cultural internationalism, with profound implications for law and policy concerning the international trade in and repatriation of cultural property. The principle appears to apply, for example, to the Elgin marbles; they are a part of “the cultural heritage of all mankind”. It follows that people who are not Greek or British have an interest in their preservation, integrity and availability for enjoyment and study. The perennial debate about the propriety of their removal from Greece by Elgin and the current proposals to return them to Athens become the business of others besides Greeks and Britons. As the smog of Athens eats away the marble fabric of the Parthenon, all of mankind loses something irreplaceable.

Hague 1954 contains one significant concession to nationalism: like its predecessors, it limits the protection of cultural property by the doctrine of “military necessity”. As stated in Articles 14 and 15 of the Lieber Code:

“14 Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern law and usages of war.

15 Military necessity ... allows of all destruction of property. ...”

Hague 1954 is not greatly different. Article 4(2) provides that the obligation to respect cultural property “may be waived ... in cases where military necessity imperatively requires such a waiver”. In short, military necessity can justify the destruction of cultural property otherwise protected by the Convention.

This principle, whose origin has been attributed to Prussian militarism, was strongly debated at the conference that produced Hague 1954 and was retained by a divided vote. The United States, Great Britain and Turkey insisted on including an exception for military necessity, while the USSR, Romania, Greece, Belgium, Ecuador and Spain were among those that argued that such an exception was “incompatible avec l’esprit et les principes essentiels de la Convention”. It is ironic that the United States, which insisted on the military necessity exception and, with Great Britain, argued that without it “plusieurs pays ne se trouveraient plus en mesure de signer et de ratifier la Convention”, has not itself ratified Hague 1954. It is also significant that the earlier Roerich Pact, to which the United States was a party, contained no military necessity clause. The decisive vote on the Soviet motion to delete the military necessity clause was twenty opposed, seven in favour and fourteen abstentions. The criticisms are of several kinds. One is that the concept of military necessity is so indefinite and the circumstances of its use in the field so fluid that “necessity” too quickly and easily shades into “convenience”. The problem was anticipated by General Eisenhower in a statement to the Allied Forces on 29 December 1943: “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 buildings 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. The phrase ‘military necessity’ is sometimes used where it would be more truthful to speak of military convenience or even of personal convenience. I do not want it to cloak slackness or indifference”. Military necessity was one of the standard defences used by accused war criminals after World Wars I and II.

A related but more subtle difficulty is that, in practice, field commanders can be expected to place other values higher than cultural preservation and to translate them into “military necessity”. The conduct of the Allied forces in Europe in 1943-45 provides various examples. General Eisenhower issued clear directions for the preservation of cultural property on 29 December 1943 in Italy, and on 26 May 1944, as the Allies began to sweep across northern Europe.

General Eisenhower’s reference to the Abbey of Monte Cassino, one of the oldest and most revered and honoured sites in Europe, is unfortunate and revealing. The Allies destroyed Monte Cassino, but there was no military necessity of doing so. As the Report of the American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas states:

“Although the German High Command had apparently issued orders that troops were not to enter the monastery under any circumstances, there were enemy observation posts and mortar and other defensive positions all over the mountain around the abbey, and to the Allied armies the towering walls crowning the mountain may well have grown into a symbol of the opposition against a victorious advance. In any case these defensive positions and the abbey were blasted by artillery and aerial bombardments and the abbey was very largely destroyed in attacks on 5, 8 and 11 February, culminating in the aerial assault of 15 February.”

Of the seventeenth-century church almost nothing remained. The monastic buildings, library, picture gallery and all structures were reduced to rubble.

The choice between saving human lives and saving irreplaceable monuments is not an easy one. To use a classroom example, suppose you command a company of soldiers in the vicinity of the cathedral of Chartres. An enemy artillery spotter in one of the towers is directing fire against you and your men and must be removed. You can bomb the cathedral without endangering your men or you can order some of them to enter the cathedral and find and remove the spotter. One or more of the men would in that case probably be killed. Do you bomb the cathedral? Is this a case of “military necessity”? Students try to evade the issue, but when forced to choose, they generally state that human lives are more important. Only a minority agree with Sir Harold Nicolson:

“I am not among those who feel that religious sites are, as such, of more importance than human lives ...; nor should I hesitate, were I a military commander, to reduce some purely historical building to rubble if I felt that by doing so I could gain a tactical advantage or diminish the danger to which my men were exposed. Works of major artistic value fall, however, into a completely different category. It is to my mind absolutely desirable that such works should be preserved from destruction, even if their preparation entails the sacrifice of human lives. I should assuredly be prepared to be shot against a wall if I were certain that by such a sacrifice I could preserve the Giotto frescoes; nor should I hesitate for an instant (were such a decision ever open to me) to save St Mark’s even if I were aware that by doing so I should bring death to my sons ... My attitude would be governed by a principle which is surely incontrovertible. The irreplaceable is more important than the replaceable, and the loss of even the most valued human life is ultimately less disastrous than the loss of something which in no circumstances can ever be created again.”

The Monte Cassino example and many others described in the Report illustrate both the complexity of the field commander’s decision and the depressing regularity with which “honoured objects” and “revered sites” were destroyed as the Allied armies advanced and the Allied air forces bombed. We did enormous damage to irreplaceable works. A military necessity equation that routinely values the possibility of loss of life higher than the certainty of destruction of cultural property necessarily produces that kind of result. Where the cultural property in question belongs to the enemy, the equation tilts further against preservation. In World War II, “military necessity” justified saturation bombing of towns containing irreplaceable cultural treasures and “precision” bombing of factories and yards adjacent to great monuments of human achievement, guaranteeing widespread damage and destruction, not to mention enormous loss of noncombatant lives.

A third objection is more fundamental, arguing that military necessity is a relic of an age that treated aggressive war as a legitimate instrument of national policy – an age evoked by such terms as jus ad bellum, Kriegsraison, Kriegsbrauch, raison de guerre, raison d’état and so on. Why, such critics ask, should a great cultural monument be legally sacrificed to the ends of war? What does it say about our scale of values when we place military objectives above the preservation of irreplaceable cultural monuments? This criticism obviously gains force from the present century’s outlawing of aggressive war and from acceptance of the idea that cultural property belongs to all mankind, not merely to the nation of its situs or to the belligerents.

Finally, the concession to military necessity seems inconsistent with the premises of Hague 1954: “the cultural heritage of all mankind” is put at the mercy of the relatively parochial interests of certain belligerents. In an international convention to which national states are parties, this is perhaps unsurprising and may be unavoidable. Still, the matter was vigorously discussed and the concession to nationalism strongly opposed by major nations at the conference.

Despite its deference to military necessity, Hague 1954 expresses several important propositions affecting the international law of cultural property. One is the cosmopolitan notion of a general interest in cultural property (“the cultural heritage of all mankind”), apart from any national interest. A second is that cultural property has special importance, justifying special legal measures to ensure its preservation. Another is the notion of individual responsibility for offences against cultural property. The fourth is the principle that jurisdiction to try offences against cultural property is not limited to the government of the offender. The first and second of these propositions are expressed in a variety of other international acts and agreements (including UNESCO 1970 and its cluster of related events and documents, which will be discussed below). One can therefore treat them as principles of general applicability, not limited to controlling the conduct of belligerents in time of war or civil conflict.

The third and fourth propositions, however, growing out of the Lieber Code, the Hague 1899 and 1907 Conventions, the experiences of World Wars I and II and the Nuremberg Trials are more closely tied to the international law of war. For example, they do not at present apply to the peace-time traffic in smuggled or stolen cultural property. Like all major international conventions, however, Hague 1954 exerts an influence that extends beyond the obligations imposed on and accepted by its parties. It is a piece of international legislation that exemplifies an influential way of thinking about cultural property.

The writer is Sweitzer Professor of Law and Cooperating Professor in the Department of Art, Emeritus, Stanford University

Abridged from “Two ways of thinking about cultural property”, The American Journal of International Law, Vol 80, No 4, October 1986, pp 831-842.

Originally appeared in The Art Newspaper as 'Military necessity or military convenience?'

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