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W. Hays Parks, Chief, International Law Branch, Office of the Judge Advocate General of the Army
MS. FLEMING: We turn now to consider the international humanitarian law for protecting material cultural heritage during ARMED conflict between NATIONS and within national boundaries.
The centerpiece of this law is the Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague in 1954. May 14th will mark the 40th anniversary of the signing.
Our speaker, Hays Parks, is playing a significant role in encouraging U.S. ratification of this accord, and in investigating means for strengthening its effectiveness.
Mr. Parks is Chief of the International Law Branch of the Office of the Judge Advocate General of the Army. In that capacity, he provides political legal advice to the Army staff on matters ranging from special operations to directed energy warfare.
He has been a member of the United States delegation to law of war conferences in Geneva and at the United Nations in New York, and an expert witness on the law of war in U.S. Government cases against terrorists.
MR. PARKS: Well, good morning. It is a pleasure to be here. And I have to say, of course, that I am here today in my personal capacity and what I have come to say to you may not necessarily reflect the views of the United States Government.
It's kind of hard to talk about the law and what it does to protect people and objects in armed conflict after the presentations we have just heard. I would preface my remarks by pointing out that most law whether it is domestic or international, is negotiated or promulgated on the basis that it will assume that most people are law-abiding, and that there are good reasons for adhering to it.
You can be an optimist or a pessimist about this subject. If you see a hospital that has been damaged by artillery fire, you can say the law of war accomplishes nothing.
On the other hand, you could say, "But for the law of war all of the hospitals would have been destroyed by now." So, we have to find that happy point.
I would point out, however, that the conflict in the former Yugoslavia shows perhaps the worst of what people can do when they are bent on mischief; the law seldom is going to provide protection against the lawless. And that is one of the dilemmas that we have here.
About three or four months ago I was in these same rooms to discuss the 1977 Additional Protocol I and whether or not the United States should ratify it.
We are, in fact, reviewing the 1977 Additional Protocol I, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and the 1980 Conventional Weapons Treaty.
I was asked to come and speak to tell the audience where we were, status-wise, in review of all those treaties. This year, 1994, priority goes to the 1954 Hague Cultural Property Convention, and the 1980 Conventional Weapons Treaty.
Next year, if we have completed the legal and military review then we will then be able to submit the 1977 Additional Protocol I, which is a much broader law of war treaty, to the Senate.
The gentleman, the ambassador, who negotiated the 1977 Protocol I, reacted by saying, "You have your priorities out of order. The '77 Protocol I should go first. The Hague Cultural Property Convention is a useless piece a useless document that nobody pays any attention to."
I am happy to say that there was someone there from Senator Pell's staff who pointed out that there is interest in the Senate in The Hague '54 Cultural Property Convention.
But that seems to be part of the argument. And the two previous speakers pointed out that, "Yes, we do have a lot of treaties for the protection of people in wartime, and they are very important, and adherence to them is important. But it is equally important to protect property because property does pass through the generations and does represent the culture of the nation."
[Slide of the Sphinx in Egypt.]
MR. PARKS: Sometimes when you talk about protection of cultural property, people tend to think in terms of something big like this, something that has been there for the ages.
And I have always been told some of you who are cultural property experts may be able to tell me more accurately that the nose of the Sphinx was lost in part because it was hit by an artillery shell in Napoleon's time.
It shows you that, yes, cultural property can suffer damage. It can suffer damage in wartime. It can suffer damage as a result of other things as well.
The Cultural Property Convention is not intended to apply and the protection of cultural property in general in wartime is not intended to apply merely to big things. It applies to smaller or lesser, cultural property as well.
Protection of cultural property has been wrapped up in the law of war throughout history. The Lieber Code, the U.S. Army General Orders Number 100 was written in 1863 by Francis Lieber to reflect what was considered to be customary law at that time. It mentioned protection of cultural property.
Since then we have had any number of treaties. The 1907 Hague Convention IV, The Hague Convention IX on naval bombardment, the Roerich Pact (which is unique to the Americas, and has now been supplanted by the 1954 Hague Cultural Property Convention). And there is a very minor mention in the 1977 Protocol I, and in Protocol II of the same year, but it refers to the 1954 Hague Convention, which is the primary document.
Now, there is a sort of a tradeoff here, a quid pro quo. Cultural property does not enjoy absolute protection under every circumstance.
First, if it is close to or in proximity to military objectives, it may suffer incidental damage. Artillery fire, air strikes, or other means of war, are not necessarily that accurate.
Second, there is a contract between the two sides. The language in The Hague Convention IV is basic. Civilian objects are protected from intentional attack. Not all are cultural property. Hospitals, schools, and cultural property are protected from intentional attack so long as they are not being used for military purposes.
The law of war also establishes a responsibility on the part of the person controlling that property to make sure that it is not used for military purposes. If you want your cultural property protected, identify it and keep military activities away from it.
Now, in a modern urban society, that is not always easy to do; that is one of the dilemmas we have. Let me show you an example, however, of the kind of thing that can be done and has been done in the past.
[Slide.]
MR. PARKS: This is the Bronze Horseman, the equestrian statute of Peter the Great in St. Petersburg, and this is what was done during the seige of St. Petersburg, then Leningrad, during World War II.
You see the protection provided when it could not be moved out itself. A number of great art works were actually put in storage during that time to protect them from damage.
[Slide.]
MR. PARKS: What I have seen and I will show you some examples of, in a few minutes, is somewhat the reverse, that many nations at war today will purposely leave cultural property unidentified and/or co-mingle military objectives with cultural property in the hopes that you will hit cultural property, creating a little propaganda for them.
The other side of this (as we oftentimes say when we talk to the military classes) is: "Cultural property is protected from intentional attack, but if you have military reason for its destruction, it is like any other civilian object. It may be destroyed."
That is an extreme case. A typical example involves a commander of an armored force who pulls into a small village. He is concerned about the enemy approaching from a particular direction. There is a house blocking his view of the most likely enemy avenue of approach. He will blow that house up to give his armored force a clear line of fire.
This may be done under limited circumstances. The danger is that some in the military may say, "Okay, let's blow down this building, and this building, this building," not worrying about their cultural protection.
During World War II U.S. Army art curator personnel travelled with U.S. forces to ensure that as the U.S. Army moved into a town in Italy or Germany, they did not immediately destroy the most important and oldest structures.
There has to be a conscious attitude within the military of the importance of cultural property. General Eisenhower said this best: You cannot destroy cultural property because of military convenience. At the same time, if you are talking to military commander about the importance of cultural property, he is going to be weighing that against the risk of the lives of his men and women in his force. No military commander is going to let a building stand if he thinks it will cost him a single life.
That may be a very difficult thing for some folks to grasp. I cannot stand here and tell you that there is total protection. Very clearly it reflects that very delicate balancing.
[Slide.]
MR. PARKS: The other problem that has occurred is a co-mingling of cultural property, or use of cultural property for military purposes. And I put this slide up somewhat facetiously.
This is a Hague '54 Cultural Property sign. And if you can read this, this is the Ministry of Defense in The Hague in the Netherlands, where the 1954 Hague Cultural Property Convention was negotiated. And I like to tease them about this.
[Laughter.]
MR. PARKS: I took that picture last July. I have asked Dutch officials, "Look, doesn't this contradict what The Hague Convention says?" They replied, "Well, we will do one of two things if war ever comes. We will evacuate this building because it is quite old and has historic value, or our lawyer will take a screwdriver and take this sign off."
[Laughter.]
[Slide.]
MR. PARKS: On the other hand, this is the Haiphong Cultural Center in 1967 during the U.S. (Rolling Thunder) bombing campaign. There are over 200 Soviet-built military vehicles in it and around it.
This reflects the trend to which I referred. You find a number of people using cultural property for military purposes, hoping to make military equipment property in it immune from attack.
Now the perfect legal answer to this is: "Well, then you can attack it." But what would be the headline in the New York Times the next day? "U.S. Attacks Cultural Property Center in Haiphong."
Because we are a democracy, a lot of people realize that. We recognize that, and perhaps to some degree there has been a fairly good balance here in saying, "We could gain some momentary, temporary military advantage by destroying all those military supplies here, but the long-term damage would be rather significant, and actually erode our U.S. efforts."
We decided not to attack cultural property in a similar situation during the 1991 Gulf War. Saddam Hussein put two MIG-21 fire aircraft right outside the ancient Temple of Ur. Once again, legally we could have destroyed them. But we thought: There is no runway nearby. There is no aircraft maintenance equipment. We could destroy the aircraft, but they are militarily ineffective where they are, and we would suffer a tremendous propaganda loss. It would give Saddam Hussein something to say against us."
Therefore, they were not attacked.
[Slide.]
MR. PARKS: Saddam Hussein exploited this in another way as well. We were very careful in watching where we carried out our air strikes during the Gulf War and watching for collateral damage as well. This is the Al Basrah Mosque. It attracted our attention early in the air campaign because there was a bomb crater adjacent to it. In tracing its origin, it was determined that it occurred because of an errant bomb off of a Navy strike aircraft. This was not the target. The target was a military objective nearby.
We wanted to make sure there was no more collateral damage done. We kept looking, and suddenly the next day, the mosque was falling apart. There had been no additional air strikes, but it was collapsing.
[Slide.]
MR. PARKS: Three days later, there was even more damage.
[Slide.]
MR. PARKS: Finally, the place is completely obliterated. Now what clearly was happening was the mosque was being torn down by the Iraqis so that Saddam Hussein could use this as a way of trying to split the Coalition because of the number of Moslem nations that were involved in it.
If there is anything that we should be pressing, it is to have an avoidance of military objects in the vicinity of cultural property.
Now, where are we today?
We have the 1954 Hague Cultural Property Convention.
It is the most comprehensive cultural property treaty. It was written based upon our experience during World War II what we could do, what we could not do, what we expected.
It is important in that it is the only treaty that obligates the party controlling the property to keep military activities away from it to the extent that is reasonable and possible.
There may be those rare circumstances where cultural property, like other civilian objects, must be destroyed. If it is being used for military purposes, then that's a consideration.
Our experience since its negotiation has been entirely consistent with that treaty. We have adhered to it. We found during Desert Storm that this was a treaty that was very important to us.
So, why is the U.S. not a party?
We did sign it when it was open for signature in 1954.
It came into the Pentagon for military review at the height of the Cold War, however, and we basically had some folks who took objection to it.
The interpretation they gave was an erroneous one. It basically said:
If the Kremlin puts a cultural property sign on it, we won't be able to attack the Kremlin.
That was an erroneous interpretation of the convention. It was a knee-jerk, cold war interpretation, and it persisted until two years ago.
Following Desert Storm, we began a new review in 1992. In 1993, we were asked to take another look at ratification.
Following a very thorough military review, the Joint Chiefs of Staff agreed to support U.S. ratification with a few minor statements of understanding.
That information was passed on to the Department of State in January 1994. The Department of State has to put together the entire package to go through the White House over to the Senate for its advice and consent for ratification. The Senate Foreign Relations Committee will hold the hearings, following which a vote will be taken in the Senate.
If we become a party to this treaty, what do we have?
We have a treaty that is somewhat less than complete, even though it is the most complete document to date.
First, there are an inadequate number of nations who are party to it. Approximately one-half of the nations of the world are parties, compared to almost all of the nations of the world that are parties to the 1949 Geneva Conventions.
One of the problems is that there is no active sponsorship in the international community for ratification of Hague '54. The International Committee of the Red Cross (ICRC) very actively pushes nations and new nations to become parties to the 1949 Geneva Conventions, and the 1977 Protocols I and II.
This is not an ICRC treaty. It is not its fault. It has looked more to the protection of people than protection for civilian or cultural objects.
UNESCO has this responsibility, but, unfortunately, it has a two-person office to manage three different treaties, this being one. They need more people, and they need some money to do that.
Even though there is a requirement for dissemination and implementation of treaties once a nation becomes a party, this has not occurred.
When a nation becomes a party, someone needs to prod it, to say, "Oh, by the way, what are you doing with regard to implementation and dissemination?" That is true of the Geneva Conventions as well as this cultural property treaty.
There is need for improvement. There is a category in the treaty for a very special cultural property. You can register this special cultural property on a list. That list is disseminated world- wide.
Can you guess how many things over 40 years have been put on that list?
QUESTION: 5 million? No.
MR. PARKS: The 1954 Hague Convention special property list has three things: the Vatican, a storage area for cultural property in the Netherlands, and a similar storage area for cultural property in formerly West Germany. Nothing else.
A few years ago, because of the concern over damage to Angkor Wat, a proposal was put forward to put Angkor Wat on the special cultural property list. It was opposed by one nation because the regime in Kampuchea was not the "right one."
That has nothing to do with the protection of the property. So we are considering measures to depoliticize this requirement.
There are other problems. The military gets training on this treaty, and some in the cultural property business are aware of it. But we don't talk to each other.
In the midst of the Desert Shield operations, building up to Desert Storm some archaeologists (and others) expressed concern that the military might destroy the entire cradle of civilization. In response to this expression of concern, the Joint Chiefs of Staff asked:
"Would you folks like to come talk with us?"
Some said, "Absolutely not. You're the military."
And others said, "We'll be happy to do it if you'll pay us enough in a special contract."
There is something wrong with this. The two communities should be talking to each other because of a need for increased awareness on both sides.
Second, if you wait until a war begins, it's a little late to start building a cultural property list.
We are looking at ways to improve this treaty. The Government of the Netherlands held a meeting last July after a very extensive study was conducted of the treaty, and another meeting in February of this year. We anticipate a third meeting probably around September, to draft an additional protocol, facilitating further use of the Hague 54 Treaty not necessarily amend the treaty as such, but add this protocol for nations to become a party to it.
We are considering better enforcement, better mechanisms for making the treaty work, and some type of individual responsibility when crimes are committed. We could actually use other treaties, but I'll leave that for the next period for discussion.
And, again, we have to depoliticize the treaty.
A bit of a summary. It has to be emphasized to people who are concerned with cultural property that, if it's in your territory, you must take steps in war time and peace time to identify it, establish its location, and provide protection for it.
We need to do things to take advantage of new technology to assist in identification. We have hand-held global positioning systems (GPS) from which you can get a very accurate measurement of your location.
Arlene Fleming has done a little checking on her own of some cultural property, and found that they are sometimes listed as being as much as five miles, away from where they actually are.
When target intelligence people are building our maps for conducting campaigns, they have to have very accurate data. So GPS readings can help not only to establish the location of targets, but the location of cultural property so it can be protected from attack.
Now, of course, the pessimist would say, Aha, this would certainly help some people in Yugoslavia to make sure they know where the cultural property is so it can be destroyed."
That's the pessimist side of viewing this whole subject. I would hope to be a little more optimistic about that.
We are considering using our data base that we use for identifying objects around the world. It's not a target list, but simply a data base to provide information on parts of the world. Cultural property could be added as well.
We did this during the Gulf War. Intelligence personnel conducting area surveys tried to find every mosque, so we could concern ourselves with avoidance of its damage.
Let me show you another example of the kind of thing that can be done. This is a map of downtown Beirut during Operation Peace for Galilee, the 1982 Israeli incursion into Lebanon.
The Israelis went in and numbered every single building. Those that had particular significance, for one reason or another, were highlighted.
Thereafter, in the method in which they carried out their attacks, they were able to look out for that which was cultural property and identify that which was being used by the PLO for military purposes.
One of the difficulties, of course, was the PLO was being very astute and putting its anti-aircraft guns or artillery next to cultural property and/or next to embassies. That's the dilemma you have.
It's labor-intensive type work, but it can be done. It's something that we should consider.
QUESTION: Could you name the governments in former Yugoslavia that have ratified the 1954 Hague Convention?
MR. PARKS: Yugoslavia was a party to it. Since then, if I'm not mistaken, I believe Croatia and Bosnia have said they would continue to abide by that convention.
This is a very politically convenient thing for people to say. They don't have to formerly ratify a convention themselves, they simply accede to the previous ratification.
QUESTION: Could I ask another question?
MR. PARKS: Yes, sir.
QUESTION: My understanding was, earlier in you remarks, when you're interpreting when these conventions are protocols, to say that you don't label a cultural property.
Is that a
MR. PARKS: No, sir. The marking is merely to facilitate identification. I think marking in and of itself is very inadequate because the signs are small, as you saw on the Dutch Ministry of Defense. You're not going to be able to see that from 10,000 feet.
QUESTION: If you bomb the bridge at Mostar, you shouldn't be able to plead ignorance.
MR. PARKS: That's correct. This is probably easier because everyone knows of its cultural significance.
Perhaps, as was said, that's why it was bombed.
Yes, ma'am?
QUESTION: What are the penalties in the Hague Convention for those who violate it?
MR. PARKS: There is not enough of that enforcement mechanism in the Hague Convention. There is in the 1949 Geneva Convention for protection of civilians, a Grave Breach, which is like a major felony for unnecessary destruction.
And I will not get into the next presentation, because it's going to talk about the investigation of war crimes in the former Yugoslavia.
Certainly, if I were looking at this from the standpoint of a prosecutor, I would not look at Hague '54 as an example of customary international law, but that the violation would have been of the Grave Breach provision of the 1949 Geneva civilian convention.
Yes, sir?
QUESTION: There's a lot of sort of boasting about the surgical capacity, the air strikes in the Gulf War. And, yet, there was destruction of the major archaeological sites.
And I assume that you're saying that those were sort of nestled in with military targets. And I know it's very complicated, but doesn't the argument get weaker and weaker about how we can't actually pick it out from the tanks and stuff parked around it when the technology is so good? The surgical strike technology?
MR. PARKS: I think the Air Force, well, the Air Forces have done themselves a disservice by talking about surgical strikes. That is an oxymoron.
I think we did the best job we could have under the circumstances. And if there was something that had to be attacked, it was going to be attacked. And we used the most precise mechanism we could.
That is the dilemma you have in something like this, that if you have a co- -mingling, then you're going to place cultural property at risk.
We, in fact, dropped millions of leaflets, warning people to stay away from military objectives and warning the authorities in Iraq to keep military targets away from cultural property.
Most of the damage that occurred in Desert Storm was not damage done by a bomb striking cultural property, but the effects on structures a mile or more away from bombs. And there was enough concussion from a 2,000 pound bomb to cause damage to a distant building, itself.
And that's unfortunate. We actually had a number of "no bomb" zones throughout Iraq that we adhered to, to the extent we could. In some cases, if (e.g.) the Hammarabi Division moved into that area, then the coalition military commander had to balance:
"Okay. Do I stay out of that area and wait for them to come out, or do I go ahead and carry out an attack?"
The evidence I've seen from Desert Storm indicates the damage basically was simply the concussion of bomb strikes on the ground, itself, in that vicinity. And that's the difficulty of the fragility very, very ancient structures like those in Iraq.
QUESTION: You described some of the lists that exist and somebody said, you know, 5 million on the one hand, three on the other.
Within the lists that do exist, is there any structuring as to major visible, obvious, you know, more difficult to see, you know, vernacular, but still important?
Does anyone
MR. PARKS: No. The 1972 World Heritage Convention actually has the longer list of protected cultural property, and there are requirements for putting something on it. You can't simply say "Phillips 66 gas station down here," "because George Washington slept there," or something like that. It's got to be something that has more significance than that.
But, it goes on the list, and there is no prioritization.
So you're going to see this is a fairly labor-intensive type of activity. Someone will need to say, "Let's start putting some expression of priority here between a mosque, or the oldest mosque in the city," things like that.
QUESTION: You mentioned that this is a labor-intensive process. Does the Department of Defense have staff devoted to researching locations of monuments and putting them into the
MR. PARKS: Not at this time. That's one initiative I mentioned. I'm going to go talk with the people at Defense Intelligence Agency in the next month or so to suggest as part of the implementation this would be a good idea.
The targeting intelligence folks did this during Desert Shield and Desert Storm. They basically did it on their own. They recognized its importance. We need to.
Of course, the draw-down now affects the number of personnel. The other is, ironically, the United States Air Force is doing away with the target intelligence specialty because it's no longer needed.
So we're losing the full time target intelligence people who would know enough about building a data base like that to do it.
QUESTION: And the follow-up question to that is, given that this would provide some sort of global coverage, would such a data base be shared?
MR. PARKS: I don't see why it shouldn't be. I would certainly think that that's a distinct possibility. This is somewhat incumbent upon individual governments. They should have the little hand- held GPS. No one person can walk the earth and check every one of these.
That's the kind of thing that I think we have to have a sharing of information, through UNESCO, or whatever, through some mechanism.
Yes, ma'am.
QUESTION: As a further refinement to the World Heritage list, and in addition to prioritizing the monuments and cultural property, would it also help you think with monetary valuations as much as possible of those things that have the greatest priority?
And also if, in terms of creating a more viable treaty, the reparations that might come out of destruction to such prioritized monuments, knowing exactly what it would take to rebuild them?
MR. PARKS: How could you can you put a monetary value
QUESTION: Not so much, you know
MR. PARKS: Yes.
QUESTION: I know there's the question of pricelessness, and so forth.
MR. PARKS: Yes. Yes, that's
QUESTION: But, nevertheless, one can try to quantify.
MR. PARKS: Anything is possible. It's going to be the matter of, again, I think it's going to depend upon international cooperation. Certainly, people on the cultural professional side are going to know more about the monetary value than some sergeant in the United States Air Force.
Yes, ma'am?
QUESTION: What are the statements and understandings that DoD wants? If you can't say specifically, just sort of general?
MR. PARKS: Well, they basically echo what I have said. One is a reminder that the nation that controls the property has the primary responsibility for avoidance of placement of military objects in the vicinity of cultural property.
The second is one that we've been using on most of our treaties, that if a commander makes a decision and it turns out to be a wrong one, he is judged on the basis of the information reasonably available to him at the time, not on what we've learned in hindsight.
The tragic example of that, of course, is the Al Firdus bunker in Baghdad during the Gulf War. It was a command and control center. Above it was an abandoned air raid shelter. The relatives of the people working in the command and control center were allowed to come in there the night it was attacked. We didn't know that.
Nothing to do with cultural property, but the kind of example that the commander gets.
Now, whether or not we would have attacked it anyway is yet another question. You can't use civilians as a human shield, or cultural property to shield a legitimate military target.
QUESTION: Yes. I just wanted to point out that we can't rely too much on the World Heritage list, because the World Heritage list only covers immovable cultural property.
MR. PARKS: Yes.
QUESTION: Then, there is the immovable cultural property, which are the museums, so on. And there are no lists for that.
So the World Heritage list is only a partial list of what should be protected under the Hague Convention.
MR. PARKS: I think that's a valuable point. And, as I pointed out, there are only two nations who have actually set up these special storage areas for cultural property.
And some people say, "We're not about to do that. We're only facilitating the other guy coming in and looting us."
So there's a certain skepticism here about whether this is a good idea.
One last question.
QUESTION: How do you depoliticize an inherently political game?
MR. PARKS: That's a good question. I mean, that's what war is all about. You have to have a certain assumption, however. The Notre Dame Cathedral in Paris should be the Notre Dame regardless of who is in power and what the controversy is that's going on at that time.
Again, you can be an optimist or a pessimist about the whole subject area.
QUESTION: Right. But, I mean, you were just mentioning that this is really a goal of yours, to make the best attempt you can to kind of get around some of those really obvious sort of political obstacles.
How are you actually going to do that, personally?
MR. PARKS: The Hague, itself, the attempts at amendments of the Hague Convention, are trying to say that there will be a special committee that will make the determination as to the cultural value of special cultural property, that it doesn't have to go to the entire membership.
That's the stumbling block right now.
The other stumbling block, of course, is that the requirements in Hague '54 are perhaps too rigid. It says absolutely no military activity in the vicinity of cultural object X.
You could not put the Notre Dame Cathedral on the Special Cultural Property list because every now and then a military vehicle drives by there.
That may be too high a standard. There's a difference between doing that and parking tanks right next to it. And so what we're trying to do is propose that there be a committee, a three-person committee within UNESCO. When something is nominated by a nation, the Committee weighs the criteria and says, "Yes, we think (a) it has that prominence; and (b) this is not the type of military activity occasional military use of a street next to the object something that would keep it from going on the special list."
Thank you very much.
[Applause.]
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