By : Firnadia Yulia Wahda
The rules governing the protection of
cultural property in the event of armed conflict are well established in both
treaty and customary international humanitarian law. They are far, however,
from being systematically applied and indeed are often flouted. The growing
number of intereligious and interethnic conflicts has implied not only attacks
against civilians but also, in many cases, the destruction of civilian objects,
in particular cultural property. Acts of vandalism directed against such
objects or their destruction are particularly common in such conflicts, as
cultural property can be considered to symbolize the cultural identity and
history of the adverse party. Not
only is the protection of such property, part of the world historical and
cultural heritage, intrinsically important, its destruction could act as a
catalyst, sparking more widespread hostilities and further blurring the
distinction between military targets and civilian objects. Efforts to
strengthen the protection of cultural property must therefore continue to be
made alongside those undertaken to heighten the protection of civilians and
civilian goods.
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From certain kind of that reason made
the state realise that it is important and fundamental things for the
international society regulates the international rules to accomodate and
protected the cultural heritage in every part
of the world. And in Den Hague Convention for the
Protection of Cultural Property in the Event of Armed conflict 1954 already
started that the Urgency of the internationa society is really need any
protection for the Cultural Property because it is related with the heritage
all mankind.
In additional, because
we need such kind of international instrument to cover the protection of cultural
property, thus international law alrady provide certain kind of the rule which
are governed about the cultural property. The kind scope of regulation divided into two
kinds, the first is international Law and the second is national law. The
international Law regulation governed about the convention and additional
protocol 1 and 2 about the Protection of Cultural Property in the Event of
Armed Conflict in the year of 1954 (protocol 1) and 1999. And national Law
regulation in the form of national act and president decision.
The purpose of this article is propose a
philosophical view the urgency of cultural property is need to be protected and
describe the regulation which govern cultural property protection.
1 Cultural
Property Need to be Protected
Before
I describe of the urgency why cultural property must be protected. The first I
would like to explain first the definition of Cultural Property. According to
chapter 1 of the hague convention for the protection of cultural property in
the event of armed conflict is Movable or immovable property of 2 2 great
importance to the cultural heritage of every people, buildings for the
preservation of cultural property and centers containing large amounts of
cultural property all fall within the scope of the Convention. The definition
is thus restricted to property of great importance only. Examples of cultural
property include: monuments of architecture, art or history, whether religious
or secular; archeological sites; groups of buildings of historical or artistic
interest; works of art; manuscripts, books and other objects of artistic,
historical or archeological interest; and scientific collections and important
collections of books, archives or reproductions.
In
clearly cultural propety devide into two are :
a.
Movable
or immovable property of great importance to the cultural heritage of every
people, such as:
·
Monuments of
architecture, art or history, whether religious or secular;
· Archaeological sites,
groups of buildings which are, as a whole, of historical or artistic interest;
·
works of art;
· Manuscripts, books, and
other objects of artistic, historical or archaeological interest;
·
Scientific collections
and important collections of books or archives;
·
Reproductions of the
above property;
b. Buildings whose main
and effective purpose is to preserve or exhibit movable cultural property, such
as:
· Museums;
·
Large libraries;
· Depositories of
archives;
· Refuges intended to
shelter other cultural property in the event of armed conflict;
c.
centres containing a
large amount of cultural property, known as ‘‘centers containing monuments’’.
Based on that definition we already
known what are cultural property. And here we can refer to the hague convention
for the protection of cultural property 1954 . the urgency cultural property
need to be protected are :
1. The cultural .Property and the natural heritage are increasingly
threatened with destruction not only by the traditional causes of decay, but
also by changing social and economic conditions which aggravate the situation
with even more
formidable phenomena of damage or destruction,
2. Deterioration or
disappearance of any item of the cultural property constitutes a harmful
impoverishment of the heritage of all the nations of the world,
3. The existing international
conventions, recommendations and resolutions concerning cultural and natural
property/heritage demonstrate the importance, for all the peoples of the world,
of safeguarding this unique and irreplaceable property , to whatever people it
may belong,
4.
The cultural heritage
are of outstanding interest and therefore need to be pres,erved as part of the
world heritage of mankind as a whole,
1 The
regulation which govern cultural property protection
1 1. . International Law Regulation
a. Convention for the Protection of Cultural Property in the event of
Armed Conflict (Hague, 1954 )
The
1954 Hague Convention provides for a system of general and special protection
of cultural property. It is supplemented by Regulations for its execution
(hereinafter referred to as the Regulations), which form an integral part of
the Convention and whose purpose is to determine the practical measures through
which observance of the protection recognized by the Convention can be ensured.
These instruments apply in situations of international armed conflict.
In
the event of non-international armed conflict within the territory of a State
Party to the Convention, ‘‘ each Party to the conflict shall be bound to apply,
as a minimum, the provisions of the present Convention which relate to respect
for cultural property’’; the other
provisions can be brought into force by means
of special agreements.
The general principle of the protection of cultural property in armed conflicts
is based on the obligation to safeguard and respect that property.
The safeguarding of cultural property comprises all preparatory measures to be
taken in time of peace in order to provide the best possible material
conditions for its protection.
Respect for cultural property implies refraining from committing any hostile
act against it, and prohibiting, preventing and if necessary stopping any form
of theft, pillage or misappropriation and any acts of vandalism. It also means
that use of that property, of the appliances in use for its protection, or of
its immediate surroundings for military purposes or to support military action
is prohibited.
It must be stressed that the
instruments of international humanitarian law impose the responsibility to
protect cultural property on both parties to the conflict, i.e. both the party
which controls the cultural property and the opposing party.
Special protection
The
placing of cultural property under special protection grants that property
immunity against any act of hostility and any use, including that of its
surroundings, for military purposes (Art. 9). Only a ‘‘ limited number of
refuges intended to shelter movable cultural property in the event of armed
conflict, of centers containing monuments and other immovable cultural property
of very great importance’’ may be placed under special protection, provided
that they fulfill the following conditions (Art. 8): V they must be situated at
an adequate distance from any large industrial center or from any important
military objective, and V they must not be used for military purpose.
b. Convention concerning the Protection of the World Cultural and Natural Heritage 1972
For
purposes of this Convention, the following shall be considered as heritage":
'natural natural featur-es ~onsisti~g of physical and biological formations or
groups of 80 ICOMOS Tourism Handbook for World Heritage Site Managers such
formations, which are of outstanding universal value from the aesthetic or scientific
point of view; geological and physiographical formations and precisely
delineated areas which constitute the habitat of threatened species of animaIs
and plants of outstanding univers al value from the point of view of science or
conservation; natural sites or precisely delineated natural areas of
outstanding universal
value
from the point of view of science, conservation or natural beauty.
Each
State Party to this Convention recognizes that the dut y of ensuring the identification,
protection, conservation, presentation and transmission to future generations
of the cultural and natural heritage referred to in Articles 1 and 2 and situated
on its territory, belongs primarily to that State. It will do all it can to
this end, to the utmost of its own resources and, where appropriate, with any international
assistance and co-operation, in particular, financial, artistic, scientific and
technical, which it may b~~ able to obtain. To
ensure that effective and active measures are taken for the protection,
conservation and presentation of the cultural and natural heritage situated on
its territory, each State Party to this Convention shall endeavor, in 50 far as
possible, and as appropriate for each currentIy:
(a)
to adopt a general policy which aims to give the cultural and natural heritage
a function in the life of the community and to integrate the protection of that
heritage into comprehensive planning programs;
(b)
to set up within its territories, where su ch services do not exist, one or
more services for the protection, conservation and presentation of the cultural
and natural heritage with an appropriate staff and possessing the means to
discharge their functions;
(c)
to develop scientific and techrùcal studies and research and to work out such
operating methods as will make the State capable of counteracting the dangers
that threaten its cultural and natural heritage sites.
(d)
to take the appropriate legal, scientific, technical, administrative and
financial measures necessary for the identification, protection, conservation,
presentation and rehabilitation of this heritage; and (e) to foster the
establishment or development of national or regional centers for training in
the protection, conservation and presentation of the cultural and natural
heritage and to encourage scientific research in this field.
Thus
This
convention has a big role in the protection of international cultural heritage.
That interested in this convention is how the cultural heritage in every
countries can registered their cultural heritage by the other country. And based on that
article the sterghten point here that would make different than other
convention in this convention provided detaily about the role of national Law
to implemented this kind of action.
c. Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of victims of International Armed Conflicts
(Protocol I)
The
fundamental things in additional protocol one in the context of relationship
with the punishment toward the people who commtit the crimes with make damage
word cultural heritage. According to experter the regulation in artice 85 point
5 which is mentioned the catagorize of war crimes, thus have a criminal conduct
in the artice 85 point 4 and can be punished based on International court
decision. And one of the crimes is impairment to historical cultursl heritage .
d. Second
Protocol to the Hague Convention 1954 for the Protection of Cultural Property
in the event of Armed Conflict (Hague 26 Maret 1999)
Enhanced
protection
Cultural property may be placed under
enhanced protection provided that it meets the following three conditions (Art.
10):
·
it is cultural heritage
of the greatest importance for humanity;
·
it is protected by
adequate domestic legal and administrative measures recognizing its exceptional
cultural and historic value and ensuring the highest level of protection;
·
it is not used for
military purposes or to shield military sites, and a declaration has been made
by the party which has control over the cultural property confirming that it
will not be so used.
Where cultural
property has been granted both special protection under the 1954 Hague
Convention and enhanced protection, only the provisions of enhanced protection
apply between the States applying the Protocol (Art. 4).
2. National Law Regulation
The Second
Protocol contains a number of obligations which the States must consider and if
necessary fulfil as soon as they ratify it; these include conduct relating to
identification and safeguarding of cultural property the granting of enhanced
protection, dissemination; and penal and administrative sanctions.
a. Law No 5 of 1992 about
Cultural Property
Actually our national regulation in
the law no 5 of 1992 already governed about the protection of cultura property.
The definition of cultural property in this Law is has same purposes if we
refer to the Hague Convention 1959. But the differencess this law with the
hague convention is the situation are diffrent. In law no 5 of 1992 its only in
the peaceful c ondition and not in the war situation. But in the Hague
convention is the protection of cultural property in the war or armed conflict
situation.
Thus the lackness of this
regulation the protection of cultural property is to general and do not govern
particularly in the war situation.
b. President
decision no 23 of 1966 .
To
proving that Indonesia already legalize and signed deen haquae convention of 1954 on on 14 mei 1954. And the form
of national Law if Indonesia already approved and legalize president gave the
decree through president decision no 23 of year 1996
Conclussion
- Cultural
property need to be protected because of before in the year of 1954 at that
time The cultural Property
and the natural heritage are increasingly threatened with destruction
not only by the traditional causes of decay, but also by changing social and
economic conditions which aggravate the situation with even More formidable
phenomena of damage or destruction. Thus need such kind the regulation to
governed about it.
- The regulation which govern
cultural property protection is divided
into two kinds, the first is international Law and the second is national law.
The international Law regulation governed about the convention and additional
protocol 1 and 2 about the Protection of Cultural Property in the Event of
Armed Conflict in the year of 1954 (protocol 1) and 1999. And national Law
regulation in the form of national act and president decision.
Marı´a Teresa Dutli, Protection
of Cultural Property in the Event of Armed Conflict, this paper reported
on the Meeting of Experts at Geneva, 5-6
October 2000, page 9
Preambule of Convention for the Protection of Cultural Property in the eventof Armed
Conflict (Hague, 1954)
Article 18 of the Hague Convention for the Protection of Cultural Property in the event
of Armed Conflict 1954
Article 19 the Hague Convention for the Protection
of Cultural Property in the event of Armed Conflict 1954
Article 2 the Hague Convention for the Protection of Cultural Property in the event
of Armed Conflict 1954
Article 3 the Hague Convention for the Protection of Cultural Property in the event
of Armed Conflict 1954
Article 4 the Hague Convention for the Protection of Cultural Property in the event
of Armed Conflict 1954
Article 10, Second Protocol to the Hague Convention 1954 for the Protection of
Cultural Property in the event of Armed Conflict (Hague 26 Maret 1999)
Article 4 Second Protocol to the Hague Convention 1954 for the Protection of
Cultural Property in the event of Armed Conflict (Hague 26 Maret 1999)
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