    [Senate Treaty Document 106-1]
    [From the U.S. Government Publishing Office]

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    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.