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110th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      110-26

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



 
                 THE HAGUE CULTURAL PROPERTY CONVENTION

                                _______
                                

               September 16, 2008.--Ordered to be printed

                                _______
                                

          Mr. Biden, from the Committee on Foreign Relations,
                        submitted the following

                                 REPORT

                  [To accompany Treaty Doc. 106-1(A)]

    The Committee on Foreign Relations, to which was referred 
the Hague Convention for the Protection of Cultural Property in 
the Event of Armed Conflict, concluded at the Hague on May 14, 
1954 (Treaty Doc. 106-1(A)), having considered the same, 
reports favorably thereon with four understandings and one 
declaration, as indicated in the resolution of advice and 
consent, and recommends that the Senate give its advice and 
consent to ratification thereof, as set forth in this report 
and the accompanying resolution of advice and consent.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................1
III. Major Provisions.................................................4
 IV. Entry Into Force.................................................7
  V. Implementing Legislation.........................................7
 VI. Committee Action.................................................8
VII. Committee Recommendation and Comments............................8
VIII.Resolution of Advice and Consent to Ratification.................9


                               I. Purpose

    The Hague Convention for the Protection of Cultural 
Property in the Event of Armed Conflict (the ``1954 Hague 
Cultural Property Convention'' or the ``Convention'') is 
designed to preserve cultural heritage and protect cultural 
property from destruction or damage in the event of an armed 
conflict.

                             II. Background

    Though wars have been fought for millennia, it was only 
within the last two hundred years that the law of armed 
conflict began to address seriously the preservation of 
cultural property. Historically, if the war was just, virtually 
any destruction of property accomplished along the way was 
considered acceptable. The old adage ``to the victor go the 
spoils'' was a common excuse for egregious cases of theft and 
destruction of cultural objects during armed conflicts and 
subsequent occupations. Yet, philosophers, historians, and 
leaders have long raised objections to this view, generally 
arguing that the pointless destruction of cultural property in 
the absence of military necessity is at best idiotic and at 
worst immoral. Polybius, an ancient Greek historian, urged 
respect for religious sites, and stated that ``to do wanton 
damage to temples, statues and all such works with absolutely 
no prospect of any advantage in the war to our own cause or 
detriment to that of the enemy must be characterized as the 
work of a frenzied mind at the height of its fury.''\1\ Cicero 
argued in prosecuting Gaius Verres for the pillage of Sicily 
while he was the governor and ``the wielder of supreme military 
and civil power,'' that the theft of cultural objects was not 
just greedy, but immoral and unscrupulous.\2\ Swiss philosopher 
Emer de Vattel in 1758 urged the protection of objects, stating 
that ``we ought to spare those edifices which do honor to human 
society, and do not contribute to increase the enemy's 
strength,--such as temples, tombs, public buildings and all 
works of remarkable beauty. What advantage is obtained by 
destroying them? It is declaring one's self an enemy to mankind 
....''\3\
---------------------------------------------------------------------------
    \1\See Polybius, The Histories 31 (W.R. Paton trans., G.P. Putnam's 
Sons (Loeb Classical Library 1922)); Polybius (c.200-c.1118bc), a 
Hellenistic historican, wrote of ``Rome's rise to Mediterranean 
dominion and of the world in which that happened.'' Oxford Classical 
Dictionary 1209-11 (Hornblower and Spawforth eds., 3d ed. 1996).
    \2\See Cicero, The Verrine Orations 289-299 (L.H.G. Greenwood 
trans., Harvard Univ. Press 1928). Cicero was only thirty-six years of 
age when, in the year 70bc, he prosecuted Gaius Verres in the court of 
Repetundae for an accusation brought by the Sicilians against their 
former governor for a systematic and ruthless spoliation of the 
province. See also Margaret M. Miles, Cicero's Prosecution of Gaius 
Verres: A Roman View of the Ethics of Acquisition of Art, 11 Int'l J. 
Cultural Prop. 28, 30-31 (2002).
    \3\ Emer de Vattel (1714-1767), The Law Of Nations Or, Principles 
Of The Law Of Nature, Applied To The Conduct And Affairs Of Nations And 
Sovereigns 571 (Kapossy and Whatmore eds. 2008) (1758).
---------------------------------------------------------------------------
    In the 1800s, the protection of cultural property was 
formally incorporated into a code of military conduct. The 
Lieber Code of 1863, which was developed by Francis Lieber at 
the request of President Lincoln during the Civil War, 
explicitly provides that ``[c]lassical works of art, libraries, 
scientific collections, or precious instruments, such as 
astronomical telescopes ... must be secured against all 
avoidable injury, even when they are contained in fortified 
places whilst besieged or bombarded.''\4\ The Lieber Code also 
states that cultural property may be transported in order to 
protect it from injury.\5\ The Lieber Code led to the inclusion 
of similar and expanded provisions on the protection of 
cultural property in the 1899 and 1907 Hague Conventions,\6\ to 
which the United States is a Party.\7\ After World War I, which 
saw the destruction of significant cultural property, such as 
the medieval Cathedral in Rheims, the burning of Louvain, and 
the historic town of Arras, further efforts were made to 
strengthen the protection of cultural property during times of 
armed conflict, but those efforts met with little success.\8\ 
Not until after World War II and the enormous destruction of 
cultural property that occurred during the war was real 
progress made, leading to the conclusion of the 1954 Hague 
Cultural Property Convention. This Convention constitutes the 
first comprehensive treaty for the protection of cultural 
property during armed conflict.
---------------------------------------------------------------------------
    \4\ Lieber Code, Section II, Article 35.
    \5\Id. at Article 36.  See also Hays Parks, Protection of Cultural 
Property From the Effects of War in The Law of Cultural Property and 
Natural Heritage: Protection, Transfer and Access Sec. 3:03 (1999) 
(noting that the Lieber Code's provisions``form the basis for the law 
relating to the protection of cultural property to this day,'' but that 
Articles 35 and 36 are only part of the legacy. Articles 14, 15, 16, 
31, 34, 37, 38, 44, 45, and 46 should also be reviewed; the Lieber Code 
``recognized all private property, including perhaps especially 
cultural property (as so identified in articles 35 and 36), whether 
public or private, as protected from intentional damage or seizure 
absent `military necessity' . ...'').
    \6\See Article 23, 25, 27, and 56 of the Regulations annexed to the 
1899 Hague Convention respecting the Laws and Customs of War on Land, 
done at The Hague on July 29, 1899; Articles 23(g), 25, 27, and 56 of 
the Regulations annexed to the 1907 Hague Convention (IV) respecting 
the Laws and Customs of War on Land, done at the Hague on October 18, 
1907.
    \7\The 1899 Hague Convention respecting the Laws and Customs of War 
on Land, done at The Hague on July 29, 1899, entered into force for the 
United States on April 9, 1902. Shortly thereafter, however, the United 
States joined the 1907 Hague Convention (IV) respecting the Laws and 
Customs of War on Land, done at The Hague on October 18, 1907, which 
entered into force for the United States on January 26, 1910, and in 
accordance with Article 4 of the 1907 Hague Convention, superseded the 
1899 Hague Convention as among Parties to both conventions.
    \8\For a discussion of efforts made between World War I and World 
War II, see Parks, supra note 5, at Sec. 3:06 (noting, for example, 
that progress was made at the 1922-1923 Hague Conference on 
incorporating articles bearing on the protection of cultural property 
in the Hague Air Rules of 1923, but that these rules were never adopted 
by any nation and similarly, subsequent efforts at the League of 
Nations in this area were not terribly successful).
---------------------------------------------------------------------------
    The United States participated actively in the negotiation 
and drafting of the 1954 Hague Cultural Property Convention, 
and was one of the first to sign.\9\ For some time, the United 
States has been a world leader in promoting and protecting 
cultural property. Congress has passed numerous laws designed 
to preserve historic and cultural sites,\10\ and since the 
civil war the U.S. armed forces have consistently recognized in 
their rules of conduct appropriate protections for cultural 
property during armed conflicts.\11\ General Dwight D. 
Eisenhower, for example, took pains to protect cultural 
property in Europe during World War II, and the Department of 
Defense has sent special teams to protect cultural property at 
risk during the course of more recent conflicts. The Department 
of Defense has carefully studied the Convention, and its impact 
on military practice, and has found it to be fully consistent 
with good military doctrine and practice as conducted by U.S. 
forces. As noted in the Secretary of State's Letter of 
Submittal, ``[i]n 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'' and 
since the Convention's entry into force, ``U.S. military forces 
have not only followed but exceeded its terms in the conduct of 
military operations.''\12\
---------------------------------------------------------------------------
    \9\The United States signed the 1954 Hague Cultural Property 
Convention on May 14, 1954, the same day it was concluded.
    \10\See, e.g., The American Antiquities Act of 1906, 16 U.S.C. 
Sec. 433; The Historic Sites Act of 1935, 16 U.S.C. Sec. Sec. 462-67; 
The National Historic Preservation Act of 1966, 16 U.S.C. Sec. 470; The 
Archeological Resources Protection Act, 16 U.S.C. Sec. Sec. 470.  See 
generally Patty Gerstenblith, Identity and Cultural Property: The 
Protection of Cultural Property in the United States, 75 B.U.S. Rev. 
559 (1995).
    \11\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.
    \12\See Letter of Submittal from the Secretary of State, Treaty 
Doc. 106-1 at p. VII.
---------------------------------------------------------------------------
    The principles underlying the 1954 Hague Cultural Property 
Convention are grounded in the Regulations to the 1899 and 1907 
Hague Conventions. Nevertheless, the 1954 Hague Cultural 
Property Convention goes a step further by, among other things, 
defining the term ``cultural property;'' providing for the 
protection of cultural property during not only armed conflict, 
but also military occupation; providing for preparations in 
peacetime for safeguarding of cultural property against the 
foreseeable effects of armed conflicts; establishing an emblem 
for use in the protection of cultural property; and 
establishing a regime for the special protection of a highly 
limited category of cultural property included on an 
International Register established by the Convention.
    The protection of cultural property under the Convention 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. Moreover, 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 it is not used for 
an unlawful purpose. In sum, the Convention does not prevent 
military commanders from doing what is necessary to accomplish 
their missions. Protections are lost if the cultural objects 
are put to military use, and legitimate military actions may be 
taken even if collateral damage is caused to cultural 
property.\13\
---------------------------------------------------------------------------
    \13\See, e.g., Article 4(2) and Article 8, as further discussed in 
Section III of this report.
---------------------------------------------------------------------------
    The 1954 Hague Cultural Property Convention entered into 
force on August 7, 1956, and there are currently 118 parties, 
including Israel, the Russian Federation, and every NATO Member 
State except the United States, Iceland, and the United 
Kingdom, which has announced its intention to ratify the 
Convention.\14\ In 2001 the American Bar Association adopted a 
position supporting ratification of the Convention, which was 
recently reaffirmed, and the committee has received testimony 
and letters in support of the Convention from the 
Archaeological Institute of America, the Lawyers' Committee for 
Cultural Heritage Preservation, the United States Committee of 
the Blue Shield, the American Anthropological Association, the 
American Association of Museums, the American Institute for 
Conservation of Historic and Artistic Works, the American 
Schools of Oriental Research, the Association of Moving Image 
Archivists, the College Art Association, the National Trust for 
Historic Preservation, the Society for American Archeology, the 
Society for Historical Archeology, the Society of American 
Archivists, the United States Committee of the International 
Council on Monuments and Sites, and the World Monuments Fund.
---------------------------------------------------------------------------
    \14\See UK statement at http://www.culture.gov.uk/
reference_library/consultations/1183.aspx. The United Kingdom's 
Department for Culture, Media and Sport published draft legislation 
earlier this year (available at http://www.culture.gov.uk/images/
publications/culturalproperty armedconflictsdraftbill.pdf) and there 
are preparations being made for the introduction of legislation in the 
next Legislative Session starting in December.
---------------------------------------------------------------------------
    In a letter to the committee dated August 15, 2007, Deputy 
Secretary of State John D. Negroponte and Deputy Secretary of 
Defense Gordon England wrote to express their strong support 
for the Convention and urge the Senate to act promptly.

                         III. Major Provisions

    A detailed section-by-section analysis of the Convention 
may be found in the Letter of Submittal from the Secretary of 
State to the President, which is reprinted in full in Treaty 
Document 106-1. A summary of key provisions is set forth below.

Protection of Cultural Property from the Effects of an Armed Conflict

    Chapter I of the Convention (Articles 1-7) sets forth 
general provisions regarding the protection of cultural 
property.
    Article 1 defines cultural property as (1) moveable or 
immovable property of great importance to the cultural heritage 
of every people, which includes monuments of architecture, art 
or history, archeological sites, groups of buildings of 
historical or artistic interest, works of art, manuscripts, 
books and other objects of artistic, historical or 
archeological interest, as well as scientific collections and 
important collections of books or archives; (2) buildings whose 
main and effective purpose is to preserve or exhibit movable 
cultural property, such as museums, large libraries, and 
depositories of archives; and (3) centers containing a large 
amount of cultural property.
    Article 3 provides that Parties must prepare in peacetime 
for the safeguarding of cultural property situated within their 
territory against the ``foreseeable effects of an armed 
conflict'' by taking measures they consider to be appropriate. 
Article 7 requires Parties to, among other things, establish in 
peacetime within their armed forces certain personnel ``whose 
purpose will be to secure respect for cultural property and to 
co-operate with the civilian authorities responsible for 
safeguarding it.'' The U.S. Army currently maintains such 
personnel in its civil affairs reserve force.\15\ In addition, 
Marine Corps reserve civil affairs personnel receive training 
to perform such functions, if needed.\16\
---------------------------------------------------------------------------
    \15\  See Section-by-Section Analysis in the Letter of Submittal 
from the Secretary of State, Treaty Doc. 106-1 at p. 5.
    \16\Ibid.
---------------------------------------------------------------------------
    Article 4 requires Parties to respect cultural property by 
refraining from using such property or its surroundings for 
purposes that are likely to expose it to destruction or damage 
in the event of armed conflict and by refraining from any act 
of hostility directed against such property. Consistent with 
customary international law, however, these protections for 
cultural property are not absolute. In accordance with Article 
4(2), for example, the protection afforded by the obligation 
set forth in Article 4(1) to respect cultural property is 
waived in the event of imperative military necessity.

Cultural Property Granted Special Protection

    Chapter II of the Convention (Articles 8-11) sets forth 
provisions on special protection for limited categories of 
cultural property. These include specially designated refuges 
for moveable cultural property, and centers containing 
monuments and other immovable cultural property of ``very great 
importance.'' To enjoy such special protection, the property 
must be entered onto the International Register of Cultural 
Property under Special Protection established by the 
Convention. According to the Department of Defense, the Vatican 
is one of only a limited number of listings on the Register.
    Article 8, among other things, sets forth criteria for 
compliance by the Party claiming special protection. In 
particular, centers containing immovable cultural property that 
is specially protected may not be used for military purposes, 
including the movement or stationing of military personnel, the 
movement or production of war materiel, or other activities 
directly connected with military operations. Article 9 provides 
that Parties are to refrain from any act of hostility directed 
against registered cultural property that is specially 
protected and, with certain exceptions, from any use of such 
property or its surroundings for military purposes. Article 11 
sets forth certain limitations on the special protection 
provided for registered cultural property. Paragraph 1 of 
Article 11 provides that Parties to the Convention shall be 
released from the obligation in Article 9 to ensure the 
immunity of cultural property under special protection if that 
property or its surroundings are used for military purposes, so 
long as such improper use persists. Paragraph 2 provides, in 
addition, that immunity shall be withdrawn from cultural 
property under special protection ``in exceptional cases of 
unavoidable military necessity'' for such time as that 
necessity continues.

Transporting Cultural Property

    Chapter III of the Convention (Articles 12-14) addresses 
the transport of cultural property. Under Article 12, transport 
exclusively engaged in the transfer of cultural property, 
whether within a territory or to another territory may, at the 
request of the Party concerned, take place under special 
protection in accordance with procedures contained in Chapter 
III of the annexed regulations. Article 13 authorizes 
exceptions in urgent cases to the procedures referred to in 
Article 12. Article 14 grants immunity to cultural property in 
transit from seizure, although nothing in this provision limits 
the right of Parties to visit and search during the course of 
such transit.

Protection for Personnel Engaged in the Protection of Cultural Property

    Chapter IV of the Convention (Article 15) requires that 
personnel engaged in the protection of cultural property be 
respected, and that they be allowed to carry out their duties, 
consistent with the interests of security, if they fall into 
the hands of the opposing Party.

Emblem for Use in the Protection of Cultural Property

    Chapter V of the Convention (Articles 16 and 17) provides a 
description and procedures for use of the distinctive emblem, 
which may be used for marking cultural property to facilitate 
its recognition pursuant to Article 6. Article 17 details 
criteria for use of the emblem.

Scope of Application

    Chapter VI of the Convention (Articles 18 and 19) defines 
the scope of the Convention's application. Article 18 specifies 
that, in addition to the relevant peacetime applications, the 
Convention applies during declared war or any other armed 
conflict between two or more Parties. It also applies during 
times of occupation of the territory of a Party, even if that 
occupation meets with no armed resistance. Article 19 provides 
that the provisions of the Convention relating to respect for 
cultural property shall also apply to any non-international 
armed conflict in the territory of a Party.

Mechanisms for Facilitating Implementation

    Chapter VII of the Convention (Articles 20-28) facilitates 
implementation of the Convention. Articles 21 and 22 address 
the role of Protecting Powers, which are responsible for 
safeguarding the interests of the Parties to a conflict. 
Article 23 provides that the Parties may call upon the United 
Nations Educational, Scientific and Cultural Organization for 
assistance in implementing the Convention. Article 24 provides 
for special agreements among Parties to enhance the protection 
of cultural property. Article 25 requires Parties to 
disseminate the Convention, particularly among their armed 
forces and personnel engaged in the protection of cultural 
property. Article 27 provides for meetings of Parties to 
consider problems of implementation or proposals for revision 
of the Convention. Article 28 requires each Party to undertake 
all steps necessary, within the framework of its ordinary 
criminal jurisdiction, to impose penal or disciplinary 
sanctions on persons who violate the Convention.

Regulations

    The Convention has attached to it Regulations that set 
forth procedures for the implementation and operation of the 
Convention and are considered, as stated in Article 20, an 
integral part of the Convention. The Regulations are divided up 
into four chapters, which respectively address: (1) the 
framework to be established by Parties in order to exercise a 
degree of control over cultural property for the sake of its 
protection; (2) procedures for dealing with cultural property 
under special protection, including the procedures for 
managing, and making an application for entry onto, the 
International Register of Cultural Property Under Special 
Protection; (3) procedures for transporting cultural property 
pursuant to Article 12 of the Convention; and (4) procedures 
governing the use of the distinctive emblem established in 
Article 16 of the Convention. In accordance with Article 39 of 
the Convention, the Convention and the Regulations are subject 
to the same amendment procedure, which requires a States Party 
to formally accept an amendment formally before it can enter 
into force for that State Party.

                          IV. Entry Into Force

    In accordance with Article 33, the Convention will enter 
into force for the United States three months after the date on 
which the United States deposits its instrument of 
ratification.

                      V. Implementing Legislation

    No implementing legislation is required for this 
Convention. The United States already complies in practice with 
the norms contained in this Convention. In response to the 
committee's questions, the Department of Defense stated that if 
the United States were to ratify this treaty, existing 
Department of Defense and Military Department directives and 
publications that refer to treaties to which the United States 
is a party would be updated to reflect that the United States 
is a party to this Convention, but no new Department of Defense 
directives or regulations would be needed and there would be no 
additional costs associated with implementing the Convention.

                          VI. Committee Action

    The committee held a public hearing on the Convention on 
April 15, 2008. Testimony was received from Mr. John B. 
Bellinger, Legal Adviser at the Department of State; Mr. 
Charles A. Allen, Deputy General Counsel for International 
Affairs at the Department of Defense; and Brigadier General 
Michelle D. Johnson, Deputy Director for the War on Terrorism 
and Global Effects, J-5 Strategic Plans and Policy Directorate, 
Joint Staff. The transcript for this hearing is attached as an 
annex to Executive Report 110-22.
    On July 29, 2008, the committee considered the Convention 
and ordered it favorably reported by voice vote, with a quorum 
present and without objection.

               VII. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that cultural 
property can enhance the growth of civilization, enrich the 
lives of all peoples, and inspire a mutual respect and 
appreciation among nations. Nevertheless, the protection of 
cultural property cannot be absolute during the course of an 
armed conflict. As stated by General Eisenhower to U.S. forces 
on December 29, 1943: ``[i]f 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.'' The 1954 Hague Cultural Property 
Convention strikes this careful balance and its ratification, 
which requires no change in U.S. law or practice, would allow 
the United States to continue its long-standing leadership in 
the promotion and protection of cultural property. Accordingly, 
the committee urges the Senate to act promptly to give advice 
and consent to ratification of the Convention, as set forth in 
this report and the accompanying resolution of advice and 
consent.

                               RESOLUTION

    The committee has included in the resolution of advice and 
consent four understandings and one declaration.

First Understanding

    As noted above in Section III of this report, Chapter II 
sets forth provisions on special protection for a highly 
limited category of cultural property that is regarded as being 
of ``very great importance'' and is entered onto the 
International Register of Cultural Property under Special 
Protection. The proposed understanding makes clear that the 
level of protection required for such cultural property is one 
that is consistent with existing customary international law.
            Second Understanding
    The proposed understanding makes clear that the actions of 
any military commander, military personnel, or any other person 
responsible for planning, authorizing, or executing military 
action or other activities covered by this Convention, can only 
be assessed in light of information that was reasonably 
available at the time.

Third Understanding

    The proposed understanding makes clear that the rules 
established by the Convention only apply to conventional 
weapons, and do not affect existing rules of international law 
governing other types of weapons, such as nuclear weapons. 
According to the executive branch, such a statement reflects 
the intent of those States that negotiated the Convention.\17\
---------------------------------------------------------------------------
    \17\See Section-by-Section Analysis in the Letter of Submittal from 
the Secretary of State, Treaty Doc. 106-1 at p. 8.
---------------------------------------------------------------------------

Fourth Understanding

    Article 4(1) of the Convention requires Parties ``to 
respect cultural property situated within their own territory 
as well as within the territory of other [Parties] by 
refraining from any use of the property and its immediate 
surroundings or of the appliances in use for its protection for 
purposes which are likely to expose it to destruction or damage 
in the event of armed conflict . . . .'' The proposed 
understanding makes clear that 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.

Declaration

    The proposed declaration relates to the self-executing 
nature of the Convention and is included in light of the recent 
Supreme Court decision, Medellin v. Texas, 128 S.Ct. 1346 
(2008), which has highlighted the importance of clarity 
regarding the self-executing nature of treaty provisions. A 
further discussion of the committee's views on this matter can 
be found in Section VIII of Executive Report 110-12. In brief, 
the Protocol is self-executing, in the sense that it operates 
of its own force as domestically enforceable federal law, but 
the Protocol does not confer private rights enforceable in U.S. 
courts.

         VIII. Resolution of Advice and Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO UNDERSTANDINGS AND A 
                    DECLARATION

    The Senate advises and consents to the ratification of the 
Hague Convention for the Protection of Cultural Property in the 
Event of Armed Conflict, concluded on May 14, 1954 (Treaty Doc. 
106-1(A)), subject to the understandings of section 2 and the 
declaration of section 3.

SECTION 2. UNDERSTANDINGS

    The advice and consent of the Senate under section 1 is 
subject to the following understandings, which shall be 
included in the instrument of ratification:

          (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 of 
        America that any decision by any military commander, 
        military personnel, or any other person responsible for 
        planning, authorizing, or executing military action or 
        other activities covered by this Convention shall only 
        be judged on the basis of that person's assessment of 
        the information reasonably available to the person at 
        the time the person planned, authorized, or executed 
        the action under review, and shall not be judged on the 
        basis of information that comes to light after the 
        action under review was taken.

          (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.

SECTION 3. DECLARATION

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:

          With the exception of the provisions that obligate 
        the United States to impose sanctions on persons who 
        commit or order to be committed a breach of the 
        Convention, this Convention is self-executing. This 
        Convention does not confer private rights enforceable 
        in United States courts.