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The Protection of Cultural Property in Armed Conflict. By Roger O’Keefe. New York: Cambridge University Press, 2006. Pp. xix, 404. $100.00. Reviewed by Dr. iur. Stefan Baufeld.

Even if states are obliged to refrain from the use military force in their international relations the number of armed conflicts is constantly at a high level. This regularity of armed conflicts meets the regularity of threats for cultural property in these conflicts. In the past there was virtually no armed conflict without damages, destructions, losses, seizure or plunder of cultural objects. These regularities combined had produced a long lasting demand for legal writing on the international legal protection of cultural property in armed conflict. Before he had read O’KEEFE’s book the present reviewer thought that the latter demand was met by the great number of relevant publications.1

This elaborated status of legal thinking on the protection of cultural property in armed conflict raises the question if there can be any new insights that have not been published yet. But O’KEEFE delivered a lot of these new insights.

O’KEEFE arranges the various legal instruments in a strictly chronological order: Chapter 1 is dedicated to the time from the high Renaissance to the Hague Rule. In Chapter 2 the author analyzes the development from 1914 to 1954. Chapter 3 contains the interpretation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (UNESCO 1954) as well as the description of the subsequent practice of States Parties to this convention. Chapter 4 is the analysis of the norms of the 1977 Additional Protocol to the Geneva Conventions regarding the protection of cultural property in armed conflict. This is followed by Chapter 5 with its description of the 1999 Second Hague Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. And in Chapter 6 O’KEEFE discusses “[o]ther relevant bodies of law”. This differs from the common order in which the description of the 1954 Convention is followed by the discussion of its 1999 Second Protocol and the 1977 Additional Protocols are the last legal bodies to be analyzed. This may seem to be nothing more than a slight difference without any consequences to the interpretation of the respective bodies of law.

But this order is more than that: It is the result of O’KEEFE’s new approach to think about the 1 This is only a small selection: KARL-HEINRICH BUHSE, Der Schutz von Kulturgut im Krieg. unter besonderer Berücksichtigung der Konvention zum Schutze des Kulturguts im Falle eines bewaffneten Konflikts vom 14. Mai 1954, Hamburg 1959; KEVIN CHAMBERLAIN, War and cultural heritage. An analysis of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols, Leicester 2004; ANDREA GIOIA, The development of international law relating to the protection of cultural property in the event of armed conflict. The Second Protocol to the 1954 Hague Convention, in: 11 Italian Yearbook of International Law (2001), p. 25-58; FRITS KALSHOVEN, The protection of cultural property in the event of armed conflict within the framework of international humanitarian law, in: 57 Museum International (2005), p. 61-69; ANDRÈ NOBLECOURT, Protection of Cultural Property in the event of Armed Conflict, Paris 1958; JIŘÍ TOMAN, The Protection of Cultural Property in the Event of Armed Conflict - Commentary on the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocol, signed on 14 May 1954 in the Hague, and other instruments of international law concerning such protection, Aldershot 1996; RÜDIGER WOLFRUM, Protection of cultural property in armed conflict, in: 32 Israel Yearbook on Human Rights (2002), p. 305-338.

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development of the laws regarding the protection of cultural property in armed conflict. This new approach enables the author to overcome the two major disadvantages of traditional thinking. For traditional thinkers norms which directly protect cultural property are a special body of law within the complete body of humanitarian law. In this view the objective of humanitarian law as a whole – the protection of civilians and their property – is almost completely different from the objective of the law protecting cultural property. Thus norms protecting civilian property in general bear almost no relation to norms directly protecting cultural property. This mental isolation denies substantial influences of the law protecting civilian objects in general on the interpretation of norms directly protecting cultural property. O’KEEFE challenges this first disadvantage of the traditional point of view. He is able to show that both complexes of norms have a unified history. Thus protection of cultural property is just a special element of the set of humanitarian protection of civilian objects as a whole. This implies influences of humanitarian law as a whole over the interpretation of the law protecting cultural property. After he has proven this, the author interprets the norms protecting cultural property with the help of norms and concepts derived from humanitarian law as a whole. He does this to a much greater extent than is common in traditional thinking. It goes without saying that this is a good source for new insights.

The second disadvantage of common thinking O’KEEFE is able to overcome with his emphasis on the development aspect of international law protecting cultural property in armed conflict is the somewhat static interpretation of international treaties on that subject. When interpreting treaty provisions most lawyers only refer to the history preceding the adoption of the treaty. This thinking does not recognise subsequent state practice as a source of arguments for treaty interpretation. Sometimes this leads to an understanding of treaty provisions that is in accordance with the will of the States Parties at the date of the adoption of the treaty, but not with the will of states as it has developed since that date.

And the author tells the story of legal protection of cultural property in armed conflict not only as a history of the incorporation of norms which protect cultural property into the framework of humanitarian law as a whole, but also as a story of international legislation as incorporation of humanitarian ideas that had developed within the non-legal sphere of social and cultural ethics into humanitarian law. This enables him to recognise that the transformation of ethical demands into international law by way of legislation does not guarantee that ethical demands will be incorporated into law to the fullest extend. Thus O’KEEFE is well aware of the fact that the ethical concept of ‘cultural heritage of mankind’ – which demands the protection of cultural property in armed conflict – has not been fully incorporated into international law. He tells the story of this transformation to find out which parts of the said concept have become parts of international law and therefore can be used for the interpretation of legal provisions. Following this insight the author avoids an occasional misunderstanding. In contrast to other international lawyers, who recognise the said concept as well established in customary law2, O’KEEFE uses only that part of the non-legal concept of common heritage which he is able to identify as incorporated into international law. It is the consequence of this approach that O’KEEFE must refrain from any attempt to conclude any legal obligation from the non-legal

2 See pars pro toto: BARBARA GENIUS-DEVIME, Bedeutung und Grenzen des Erbes der Menschheit im internationalen Kulturgüterschutz, Baden-Baden 1996, p. 234

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contents of the common-heritage-principle that states have not expressly incorporated into international law.3

The above mentioned advantages of O’KEEFE’s approach make it well worth to have a closer look at the results of his research.

Renaissance legal thinking on the laws of war has been dominated by the concept of just war. This concept permitted all belligerent actions necessary to achieve the end of the war. Because no distinction was drawn between civilian property and the property of the enemy state seizure and destruction of civilian property was not per se unnecessary to overcome the enemy. Even if reason dictated that military action against civilian property was usually unnecessary (to overcome the enemy’s forces) and therefore unlawful the necessary seizure and destruction of cultural objects was permitted.4 In this train of thought the protection of cultural property has been an integral part of the emerging humanitarian law: Civilians and cultural property have been protected for the same reason. Because both had no positive effect on military power it was unnecessary to make them a target. This unity of protection left no room for special protection of cultural property. A specific difference between this property and other civilian objects deriving from a special cultural value and therefore demanding the immunity of cultural property from all hostile acts without exceptions was not recognised by law.

This legal situation was contested by an ethical concept that began to develop within the learned society across Europe: The metaphysical doctrine of cultural property as a common heritage of humankind found more and more adherents.5 This non-legal thinking recognised a special value of cultural property demanding its protection from belligerent action without exception.

The following time (from the French Revolution to the 19th century) saw the further development of the metaphysical concept of cultural heritage of mankind.6 Legal thinking changed more and more to the concept of military necessity. All acts that were not necessary to overcome the belligerent forces of the enemy were forbidden. Normally cultural property has no positive effect to strengthen the military power. And thus cultural objects had to be spared. But in exceptional cases destruction of cultural property was permitted when this was necessary to overcome the enemy.7 Accordingly the prohibition of seizures of cultural property was more and

3 In contradiction to this approach for some authors the concept of ‘cultural internationalism’ can be derived from the customary principle of cultural heritage of mankind. According to this view states have lost the right to save their national cultural patrimony from exports. Because all states have the right to get a share of the common cultural heritage all states are obliged to take part in a process of international distribution of cultural objects with the scope to manage an equal allocation of cultural objects among all states. Compare JOHN HENRY MERRYMAN, To way of thinking about cultural property, 80 American Journal of International Law (1986), p. 831 (833 et passim) and Sharon A. Williams, The international and national protection of movable cultural property – A comparative study, Dobbs Ferry 1978, p. 202. Following O’KEEFE’s approach one has to deny this option because no body of international law incorporates this concept of cultural internationalism into international law (see for the latter aspect: ANASTASIA STRATI, Deep seabed cultural property and the common heritage of mankind, 40 International and Comparative Law Quarterly (1991), p. 859). 4 O’KEEFE, p. 5 et passim. 5 O’KEEFE, p. 8 et passim. 6 O’KEEFE, p. 17-18. 7 O’KEEFE, p. 10 et passim.

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more recognised as a legally binding rule.8 In 1863 the Lieber Code’9 restated the customary laws of war of its time. According to its art. 22 civilian property had to be spared ‘as much as the exigencies of war will admit’. All damage or destruction of civilian property (of which cultural property was a part) indispensable for securing the end of the war remained permissible.10 By art. 23(g) of the 1907 Hague Rules it was forbidden to destroy or seize enemy property ‘unless such destruction or seizure be imperatively demanded by the necessities of war’. Despite these general provisions the Hague Rules contained provisions especially protecting cultural property: Art. 27 provides that buildings dedicated to arts and science have to be spared from bombardment ‘as far as possible’. If it was unavoidable to target another building cultural property was a lawful target.11 During belligerent occupation the property of institutions dedicated to arts and sciences was to be treated as private property and was therefore protected from seizure, damage and destruction; artistic and historic monuments were expressly exempted from these measures.12

This history leads the reader to the following conclusions: The protection of cultural property in times of war has emerged as a part of the general protection of civilian objects. Legal protection of cultural property began as a special derivation from the concept of military necessity. This concept has been applied to cultural property as a category: Since cultural property regularly makes no contribution to hostile action its targeting or seizure has been regarded as unnecessary and therefore unlawful. But when – in exceptional cases – cultural property made a contribution to military action it was necessary – and therefore lawful – to make it a target. The specialized protection of cultural property was one within the wider concept of military necessity and has thus been an integral part of humanitarian legal protection. Even if the legal protection of cultural property has become stricter it has never been transformed into a special body of law distinct from the rest of the laws of war. Thus every development of the provisions of humanitarian law can effect changes of the protection of cultural property. This can be taken as a guideline for legal interpretation; norms protecting cultural property in armed conflict have to be interpreted in the light of the state of development of humanitarian law as a whole at the time of interpretation. Especially changes to the concept of military necessity must effect changes to the protection of cultural property – since the latter is part of the concept of necessity it takes part in the changes of the whole concept.

The second conclusion is that the legal system never incorporated the metaphysical concept of cultural heritage of mankind as a whole. Non-legal thinkers demanded a strict immunity of cultural objects to save them for humankind. But a legally guaranteed immunity for all cultural objects has never become reality; only unnecessary hostile acts became unlawful. This also leads to a guideline for legal interpretation: The idea of cultural heritage has inspired the development of a lot of legal norms and therefore can be used to inform interpretation of these norms.13 But

8 O’KEEFE, p. 15 et passim. 9 Instructions for the Government of Armies of the United States in the Field; commonly named after ist author Francis Lieber the ‘Lieber Code’. 10 Lieber Code, art. 14, 15. 11 O’KEEFE, p. 24. 12 Hague Rules, art. 56. For details see O’KEEFE, p. 31. 13 O’KEEFE, p. 1.

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since this metaphysical concept is not as a whole part of the legal system this concept alone cannot be a source of legal provisions.

The practical results of the application of the Hague Rules during the First Word War have been far from satisfying.14 Art. 23(g) was applied in bad faith15 and the rules regulating bombardment were practically unable to prevent widespread destruction of civilian and cultural property16. International lawyers, states authorities and civilian organizations cited the concept of heritage of mankind to condemn these losses of cultural objects.17 In order to strengthen the protection of cultural property in times of war the Dutch NGO Nederlandse Oudheidkundige Bond (Netherlands Archaeological Society) drafted a convention especially designed for this protection.18 Furthermore attempts were made to revise the laws regulating aerial bombardments.19 The customary dichotomy of defended and undefended towns20 – which is another example of special derivations from the general concept of military necessity because it was considered to be unnecessary to make an undefended town the target of attacks – should have been replaced by the dichotomy of military objectives and civilian objects.21 This was an attempt to align military necessity more closely with the distinction between objects that can make contributions to the hostilities (military objectives) and those which have no effects on military conduct (civilian objects).22 Furthermore art. 25 of the Draft Air Rules contained a special mention of cultural property: The norm forbade bombardment of historic buildings and other cultural objects provided that these objects were not used for military purposes.23

Even though this draft never entered into force legal thinking has to consider it as the link between the old concept of military necessity and the concept of military objective which is the guiding principle of contemporary humanitarian law. The Draft Air Rules clearly show that the concept of military objective is nothing else than an evolutionary state of the concept of military necessity. The Air Rules did not deny the continuance of the strategic logic behind the two concepts: Both were designed to permit all military operations with the aim and ability to neutralize the enemy’s strength.24 The only change was one of the legal consequences: Since the distinction between the enemy state and its armed forces on one side and its civilian population on the other side was commonly acknowledged (because civilians are not part of the enemy’s forces and therefore have no influence on their military potentials) it is within the logic of the old concept of necessity (permitting all acts necessary to overcome the enemy state) not to permit hostile acts against civilians because they are no factor of the enemy’s military strength. Taking

14 Compare for details of the destructions of civilian and cultural property: O’KEEFE, p. 36 et passim. 15 O’KEEFE, p. 39. 16 O’KEEFE, p. 36. 17 O’KEEFE, p. 40. This is another example of the development of the non-legal, metaphysical concept of cultural heritage of mankind. 18 O’KEEFE, p. 41-43 describes the content of this draft: It contained provisions very similar to that of later UNESCO 1954 and is therefore the non-legal inspiration for the later convention. 19 1923 Hague Draft Rules of Aerial Warfare; see O’KEEFE, p. 45 et passim. 20 Hague Rules, art. 25. 21 Draft Rules of Aerial Warfare, art. 24. 22 O’KEEFE, p. 45. 23 According to O’KEEFE, p. 46 et passim this rule was redundant because the concept of military objective (art. 24) made clear that cultural property was no military objective. 24 O’KEEFE, p. 45.

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this into account the concept of military objective is not a totally newly designed one but the old concept of necessity as it has been developed by subsequent states practice.

The inter-war years also saw a new incorporation of some aspects of the metaphysical concept of cultural heritage of mankind into international law because the Roerich Pact25 contained a reference to this concept in its preamble26 and some articles of a further draft convention27 did the same28.

After Word War II – with its widespread damages and removals of cultural property29 – there was a strong motivation amongst states to work out a special legal instrument to improve the protection of cultural property in armed conflict. Working on the Dutch draft30 mentioned above states drafted UNESCO 1954. This convention is the first embodiment of the concept of cultural property of mankind in a universal treaty.31 It contains – among other norms – a definition of the term cultural property32, provisions to safeguard cultural property33 and norms providing ‘general’ and ‘special’ protection.

The general protection has as its aspects – among others – the refraining from any military use of cultural property and from any act of hostility directed against such property.34 Even if art. 4(1) obliges States Parties of the Convention to refrain from hostile acts and military use these measures have not become obsolete. Because art. 4(1) has to be read together with art. 4(2). And the latter provides that the obligations of paragraph (1) ‘may be waived only in cases where military necessity imperatively requires such a waiver’.35 The meaning of the term ‘military necessity’ has not been expressly defined by UNESCO 1954. But before art. 4(2) was adopted the draftsmen of the convention had agreed upon the thesis that the concept of military necessity was long established in international law.36 Thus the term ‘military necessity’ in art. 4(2) is to be interpreted as having the same meaning as the customary rule of military necessity as it is part of humanitarian law. That this was the will of the draftsmen can be concluded from the fact that experts informed the draftsmen about the meaning of the customary concept before art. 4(2) was adopted.37

25 1935 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments. This treaty remains in force between eleven American states; compare: O’KEEFE, p. 52. 26 O’KEEFE, p. 51. 27 Preliminary Draft International Convention fort he Protection of Historic Buildings and Works of Art in Times of War. 28 O’KEEFE, p. 54. 29 O’KEEFE, p. 61 et passim describes them in detail. 30 O’KEEFE, p. 93, 95. 31 UNESCO 1954, preamble; O’KEEFE, p. 95. 32 UNESCO 1954, art. 1. O’KEEFE, p. 102 et passim interprets this definition with specific interest on the uncertainties of its application (p. 109-111). 33 UNESCO 1954, art. 3; O’KEEFE, p. 111 et passim interprets this norm. 34 UNESCO 1954, art. 4(1); O’KEEFE, p. 118. Compare for all aspects of general protection O’KEEFE, p. 118 et passim. 35 O’KEEFE, p. 121. Here we find another proof for the thesis that the non-legal concept of cultural heritage of mankind has never been fully incorporated into international law; international law does not provide the immunity which the concept of cultural heritage requires. 36 O’KEEFE, p. 122. 37 HELMUT STREBEL, Die Haager Konvention zum Schutze der Kulturgüter im Falle eines bewaffneten Konflikts vom 14. Mai 1954, in: 16 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1955/56), p.35 (72).

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Most authors stop their search for interpretative guidelines at this point and come to the conclusion that art. 4(2) has to be interpreted as a restatement of the concept of military necessity as it has been before the adoption of UNESCO 1954.38 But O’KEEFE does not stop at this point. After stating that military necessity is an open textured phrase he says that this term has to be interpreted in the light of subsequent sate practice and subsequent customary international law.39 He recognises, what was mentioned above, that the concept of military objective is the contemporary state of development of the concept of military necessity. Therefore the author interprets art. 4(2) in accordance with customary rules which emerged since the adoption of art. 52 of the Additional Protocol I to the Geneva Conventions; the latter containing the principle of military objective. As a result of this incorporation of the concept of military objective into art. 4(2) UNESCO 1954 an attack directed against cultural property is permitted when it makes an effective contribution to military action and offers a definitive military advantage in the given situation. In addition to this – according to art. 52 of Additional Protocol I – the rule of proportionality, forbidding attacks excessive in relation to the concrete military advantage, has to be applied within art. 4(2) UNESCO 1954.40

The present reviewer agrees with this opinion for the following reasons: The first reason is the above mentioned identity of the two concepts of military necessity and military objective as they are nothing else than different stages of development of the same principle. Therefore the term in art. 4(2) UNESCO 1954 shares the development of the general notion of military necessity. This can only be rejected when there are reasons to believe that the draftsmen of the convention wanted to expel the possibility of a subsequent development of the treaty provision. The drafting history of UNESCO 1954 gives reason to believe that this was not the will of the draftsmen: Art. 4(2) UNESCO 1954 was adopted after a passionate debate on the question if states will be willing to access a legal instrument without military necessity. A majority of drafting states denied this and therefore a majority of votes favoured the inclusion of art. 4(2) into the convention.41 This shows the draftsmen’s inability to set the law protecting cultural property in armed conflict outside the framework of humanitarian law as a whole with its general principle of military necessity. The above mentioned logic behind this general concept also should have been the logic behind the protection of cultural property: As in humanitarian law in general military measures should not have been forbidden without the ability to justify exceptions in cases when military logic demands this. If therefore UNESCO 1954 should have been a part of humanitarian law as a whole this convention was supposed to share all developments of the general provisions of humanitarian law as a whole. Every change of meaning of the general principles effects changes of the subsystems of humanitarian law. When

38 Compare: JAN HLADIK, The 1954 Hague Convention fort he Protection of Cultural Property in the Event of Armed Conflict and the Notion of Military Necessity, in: Revue Internationale de la Croix-Rouge 1999, p. 526 (624). The present reviewer was of the has made the same mistake until the book under review persuaded him to follow the opinion that will be discussed immediately; compare: STEFAN BAUFELD, Kulturgutbeschlagnahmen in bewaffneten Konflikten, ihre Rückabwicklung und der deutsch-russische Streit um die so genannte Beutekunst, Frankfurt am Main et al. 2005, p. 68. 39 O’KEEFE, p. 127. This is the most prominent example of the above mentioned ability of the author to overcome the common static interpretation of treaties for the protection of cultural property in armed conflict. 40 O’KEEFE, p. 128 et passim. 41 O’KEEFE, p. 121 et passim.

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the principle of military necessity of humanitarian law as a whole changed into the notion of military objective the identical principle in that part of humanitarian law that governs the protection of cultural property underwent the same change.

After he has discussed all other provisions of UNESCO 1954 the author goes on with the interpretation of art. 52 of Additional Protocol I.42 According to art. 52(1) civilian objects – which means all objects that are not military objectives as defined in art. 52(2) – shall not be the object of attack. The latter paragraph defines military objectives as those objects which by their nature, location, purpose or use make an effective contribution to military action or whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definitive military advantage. Cultural property will, in almost all cases, fulfil the criteria of the definition of civilian object.43 But – with special reference to attacks – O’KEEFE finds some exceptions to this rule. As long as they are not decommissioned, military buildings, such as fortresses, can be military objectives, because they are used for military purposes and their destruction can therefore offer a military advantage. Historic means of transportation can by their nature be military objectives because they can be used for military transportation. Summing this up O’KEEFE is of the opinion that the potential or de facto use of cultural objects can make an effective contribution to military action and therefore they can be treated as military objectives.44 Art. 53 provides the protection of some categories of cultural property without the exception of military necessity. O’KEEFE shares the opinion of the majority of international lawyers45 and interprets art. 53 in the light of art. 52. As a result the protection of art. 53 can be waived under the conditions of art. 52(2) when the cultural objects effectively contribute – for example by their use – to military action.46

The 1999 Second Hague Protocol to UNESCO 12954 supplements the latter convention.47 After the suggestion to delete UNESCO 1954’s art. 4(2) was not supported by a majority, the draftsmen of the 1999 Second Protocol decided to restrict the meaning of military necessity by a stricter definition in art. 6. This definition defines the phrase ‘military necessity’ as it is used in art. 4(2) UNESCO 1954 with the concept of the distinction between military objectives and civilian objects. In O’KEEFE’s view this definition is in accordance with the now customary art. 52 of Additional Protocol I to the Geneva Conventions.48 Considering O’KEEFE’s above mentioned dynamic interpretation of art. 4(2) UNESCO 1954 – according to which the concept of military objective is already within the meaning of this norm – art. 6 of the 1999 Additional Protocol is not the novelty that it seems to be at first glance. A substantial novelty which the protocol provides is the newly created ‘enhanced protection’49 of cultural property. The implementation of UNESCO 1954’s ‘special protection’ is poor because the criteria for cultural

42 O’KEEFE, p. 204 et passim. 43 O’KEEFE, p. 204. 44 O’KEEFE, p. 205. 45 Compare: GENIUS-DEVIME, supra note 2, p. 119. 46 O’KEEFE, p. 216. 47 1999 Second Protocol to UNESCO 1954, preamble. Art. 2 of this protocol provides further regulations concerning the relationship between the protocol and UNESCO 1954; compare for their interpretation: O’KEEFE, p. 242. 48 O’KEEFE, p. 251 et passim. 49 1999 Second Protocol to UNESCO 1954, art. 10 et passim; compare: O’KEEFE, p. 263 et passim.

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property under this protection can hardly be fulfilled.50 Therefore the draftsmen of the 1999 Second Protocol agreed on a new regime providing immunity for cultural property51. The property must be ‘cultural heritage of the greatest importance to humanity’. The present reviewer agrees with O’KEEFE’s opinion that this is an open textured phrase that does not represent a quantifiable legal standard. Therefore the decision whether a given object fulfils the definition is within the discretion of the Committee which has to decide upon the granting of enhanced protection.52 This lack of guidance by the text may turn out to be the great disadvantage of the 1999 Second Protocol. If States Parties will not be satisfied with the decisions of the Committee they will refrain from the implementation of enhanced protection. Thus it is uncertain whether enhanced protection will be able to meet the aims of its draftsmen and will overcome the poor implementation of special protection.

The last chapter of the book under review is dedicated to ‘[o]ther relevant bodies of law’ protecting cultural property against military measures. One of them is art. 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICECSR). This rule guarantees the right to take part in cultural life. The Committee on Economic, Social and Cultural Rights interprets this as an obligation to preserve and present the cultural heritage of mankind, which includes the obligation to protect cultural objects from vandalism, theft and wilful damage.53 But as a positive duty this provision does not include the negative duty of states to refrain from the said acts.54 According to the opinion of the International Court of Justice human rights law – and therefore the ICECSR – is applicable to a state’s own territory and that which it occupies. Furthermore state practice customarily recognises the applicability of human rights law in armed conflicts.55 But in armed conflict humanitarian law is lex specialis to human rights law. This means that the applicability of human rights law is limited to cases that are not regulated by humanitarian law. O’KEEFE gives further details of this relation between both systems of law56: If a norm of humanitarian law permits a military act this permission overrules as lex specialis all human rights law that may prohibit this act. Thus only breaches of humanitarian law can be regarded as breaches of human rights law.57 Considering this it is very clear that additional protection by human rights law does not place more restrictions on military acts against cultural property than humanitarian law. Its value is that it obliges states to prevent vandalism, theft and wilful damage of cultural property in the event of armed conflict.58

Within the description of customary international law regarding the protection of cultural

50 O’KEEFE, p. 141. 51 1999 Second Protocol to UNESCO 1954, art. 12; art. 13 is stating the circumstances under which the immunity is lost. 52 O’KEEFE, p. 265. 53 O’KEEFE, p. 305. 54 O’KEEFE, p. 306. 55 One example of this recognition is: INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, Decision of 12th March 2002 (Detainees at Guantanamo Bay), in: 23 Human Rights Law Journal (2002), p. 15 et passim; compare for details of states practice: DINAH SHELTON, The Legal Status of the Detainees at Guantanamo Bay: Innovative Elements in the Decision of the Inter-American Commission on Human Rights of 12 March 2002, in: 23 Human Rights Law Journal, p. 13-14. 56 O’KEEFE, p. 308 et passim. 57 O’KEEFE, p. 309. 58 O’KEEFE, p. 309 et passim.

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property in armed conflict59 O’KEEFE adopts an opinion of which the present reviewer is not fully convinced: Art. 23(g) Hague Rules restates a long established and still valid rule of customary international law. It prohibits seizure of all enemy property in the event of hostilities, unless this seizure is imperatively demanded by military necessity. This rule is applicable to both private property and to property of the enemy state60; all enemy property without exception means that the norm covers seizures of enemy cultural property. O’KEEFE adopts the opinion that there can be no legitimate military reason for seizures of cultural property. Therefore such seizures can not be justified by military necessity. This makes art. 23(g) Hague Rules a provision which amounts in practice to an absolute prohibition on seizures of cultural property during hostilities.61

Even if this is the commonly shared interpretation of the said provision62 it cannot be immune from criticism. The text of art. 23(g) Hague Rules does not expressly mention cultural property. Thus an object’s cultural properties give no criteria for the decision whether the text of this norm permits a seizure. Therefore the interpretation of the said norm must be guided by other criteria to determine which properties of an object justify its seizure. This search has to start with the interpretation of the word ‘seizure’. This means the acquisition of possession (not necessary of ownership; the latter is within the discretion of the seizing troops) of an object in order to enable the possessor to use the seized object on its behalf (use) or to deprive the enemy from such use (neutralisation). According to the text of art. 23(g) Hague Rules this seizure to neutralise or use objects must be demanded by military necessity. This means that the seizure must fulfil military needs. Only objects which can – by their useful properties that derive from their design – fulfil military needs are therefore legitimate objects of seizures. In other words: When the concrete situation demands a special military measure (or that the enemy forces have to be kept from taking such a measure) an object that can be used to facilitate this military measure can be seized. The cultural properties of an object – for instance its character as a monument of history or its aesthetic values – are no properties that can facilitate military measures. It follows from this that art. 23(g) Hague Rules provides an absolute prohibition of seizures of works of art, because they have no other than cultural properties. But a lot of other cultural objects have – besides their cultural properties – other useful properties which make them suitable for hostile action. Examples of such objects are historic monuments: Historic means of transportation – such as museum railways or historic cars – can be used to rescue troops from the battlefield, provided that they are in working order. The neutralisation of these objects can be demanded by military reasons when the enemy forces intend to use the historic means of transportation for the same reason. It goes without saying that historic weapons can facilitate hostile conduct when they are in working order.

59 O’KEEFE, p. 316 et passim. 60 JOSEF L. KUNZ, Kriegsrecht und Neutralitätsrecht, Wien 1935, p. 83; KARL STRUPP, Das internationale Landkriegsrecht, Frankfurt am Main 1914, p. 64. 61 O’KEEFE, p. 336, 349. 62 Compare pars pro toto: BUHSE, supra note 1, p. 7; LUDWIG ENGSTLER, Die territoriale Bindung von Kulturgütern im Rahmen des Völkerrechts, Köln 1964, p. 205; SABINE VON SCHORLEMER, Internationaler Kulturgüterschutz. Ansätze zur Prävention im Frieden sowie im bewaffneten Konflikt, Berlin 1992, p. 67.

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The present review cannot provide more than a look at the highlights of O’KEEFE’s outstanding book. A lot more may have been noteworthy because the author deals with almost all problems of his subject. There is virtually no detail that the author has missed. This makes the book a good and reliable resource for all scholars – beginners as well as experts -- in the field of the protection of cultural property in armed conflict.

The present reviewer is of the opinion that O’KEEFE’s book is the coming core literature on its subject. Its quality in respect to language and legal thinking are high above the average level of legal literature. His fresh understanding of his subject – which is the result of his above mentioned new approach – and his profound knowledge of international law make O’KEEFE a remarkable legal thinker.

Congratulations to the author!

Global Law Books- www.globallawbooks.org 11