The Hague ProtocolSenate Consideration of Treaty Document 106-1(B)
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[Senate Treaty Document 106-1] [From the U.S. Government Printing Office] ----------------------------------------------------------------------- 106th Congress Treaty Doc. 1st Session SENATE 106-1 _______________________________________________________________________ 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 ---------- 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.