Marga KOUTSAROVA. THE Roerich Pact – the foundation of the international legal system for the protection of cultural property and its future

Wherever there is Culture, there is also peace. There are heroism and right solutions to the most difficult social problems. Culture is the accumulation of the highest Grace, of the highest Beauty, of the highest Knowledge. Mankind may in no way be proud that it has done enough for the flowering of culture.

Nicholas Roerich

The Roerich Pact is the first international treaty that provides a comprehensive solution to the problems of cultural property protection. It has become the foundation of the contemporary international legal system for the protection of cultural treasures. The Pact has given enormous opportunities for the preservation of Culture, in the past some of them have been seized, while others have been lost. The Pact also contains in itself new opportunities for the future. It depends on us whe­ther they will be realized in the name of Culture.

The above said shall be substantiated by way of analysis of the provisions of the Treaty on the Protection of Artistic and Scientific In­s­titutions and Historic Monuments (the Roe­rich Pact). We shall compare the Roerich Pact and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and in particular the nature of the protection provided for in these treaties, the protected objects, the criteria for their registration and the sign for the protection thereof. Consideration will be given also to the 1977 Additional Protocol I to the Geneva Conventions, the 1999 Second Protocol to the 1954 Hague Convention and other international legal instruments.

UNCONDITIONAL PROTECTION OF CULTURAL PROPERTY OR CONDITIONAL?

The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict provides, in the first paragraph of its Article 4, that no act of hostility should be directed against cultural property and that such property should not be used for purposes which are likely to expose it to destruction or damage in the event of armed conflict. However, in the second paragraph of the same Article it is stated that: “The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.”

This reservation relates to cultural pro­perty enjoying general protection in accordance with the 1954 Hague Convention. That Convention has also provided for a system of special protection of movable and immovable cultural property that is of very great importance. However, such cultural property is entitled to conditional protection as well – its immunity may be withdrawn, i.e. the obligation for its protection may be waived “in exceptional cases of unavoidable military necessity.” Thus, the protection accorded by the 1954 Hague Convention to cultural property is a conditional one. The 1954 Hague Convention borrowed this limitation from the 1907 Hague Regulations Respecting the Laws and Customs of War on Land, where the destruction and the seizure of the enemy’s property is forbidden unless such destruction or seizure be imperatively demanded by the necessities of war [1].

However, the notions of “imperative military necessity” and “exceptional cases of unavoidable military necessity” were not defined in the 1954 Hague Convention and their content has remained vague [2]. Therefore one cannot but agree with the opinion that the imperative mi­litary necessity, as well as the exceptional cases of unavoidable military necessity reservation, makes possible “the intentional destruction of cultural property because of purely military considerations. On this account it is unacceptable and should be corrected de lege ferenda” [3].

The Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in 1977 (hereinafter: 1977 Additional Protocol I) did away with the approach of the 1954 Hague Convention [4]. This Protocol envisages that only military objectives are to be made the object of military attack, whereas civilians and civilian objects are not to be made the target of such an attack. Cultural property is civilian property and as such it may not be subjected to a hostile military act against it. Civilian objects and, therefore, cultural objects may be attacked only in those cases when they have become military objectives. There is no exception to this rule.

The Diplomatic Conference, which adopted the 1977 Additional Protocol I, had as its result the definition of the notion “military objective”, and this is considered as one of its major achievements. According to Article 52 (2) of this Protocol, the definition of “military objective” includes two criteria, which have to be fulfilled cumulatively if an object is to be considered as military. The first criterion relates to the nature, location, purpose and use of the object; due to any of the enumerated characteristics the object has to make an “effective contribution to military action.” The second criterion relates to the military advantage to be gained by destroying, capturing or neutralizing this object and this military advantage has to be “definite, in the circumstances ruling at the time.”

In 1992, the Government of the Netherlands and UNESCO jointly commissioned Professor Patrick Boylan to provide a “wide­ranging review of the apparent failure of the 1954 Hague Convention and its Protocol (now the First Protocol) to achieve the clear and honourable objectives which this important International Legal Instrument was intended to achieve” [5].

Following the recommendations contained in Professor Boylan’s report and the huge preparatory work done by UNESCO and the Go­vern­ment of the Netherlands, a Diplomatic Conference was convened within the framework of which the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict was signed on May 17th, 1999. It entered into force in 2004.

This Protocol took, from the 1977 Additional Protocol I, the rule that there may be no hostile attack against cultural property except in those cases where such property has become a military objective. The Second Protocol differs from the 1977 Additional Protocol I in that it has restricted the criteria, which give reason to consider that a cultural object has become a military objective. This restriction came about as a result of considerable effort at the Diplomatic Conference in The Ha­gue in 1999. Unlike other civilian objects, the nature and the purpose of a cultural object cannot make it a military objective, whereas its use can; there have been no arguments on this point. However, the issue of the location has caused heated debates. The Greek and the Egyptian delegations, as well as the International Committee of the Red Cross, firmly opposed the approach whereby the mere location of a cultural proper­ty is capable of making it a military objective, because if such an approach were to be accepted the protection of cultural pro­perty as a whole would be greatly diminished [6]. Although the criterion of the location of the cultural property did not carry conviction, several delegations, mostly from NATO countries, vigorously insisted on it [7]. A compromise was eventually reached by way of the following wording: an act of hostility may be directed against cultural property which, by its function, has been made into a military objective. One cannot but agree with Jean­Marie Henckaerts, the lawyer of the International Committee of the Red Cross, who participated in the elaboration of the Second Protocol, that only by a stretch of imagination it is possible to assert that “function” covers not only the use, but also the location of the cultural property [8].

The debate on the location criterion related only to those cultural objects which, in accordance with the 1954 Hague Convention and the Second Protocol to it, enjoy general protection. As regards cultural property which by virtue of the Second Protocol is entitled to enhanced protection, there have been no disputes whatsoever: the enhanced protection of such cultural property may be lost only if by its use it has become a military objective [9].

The Roerich Pact, the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, signed on April 15th, 1935 at the White House in Washington, provides for the protection of cultural pro­perty without reservations. Owing to the initiative and the enormous work of Nicholas and Helena Roerich and their fellow­champions in many countries of the world, a great victory was achieved on the eve of the Se­cond World War: the Roerich Pact introduced for the first time in international law, clearly and categorically, the principle of the priority of the protection of cultural property over military necessity. This principle enshrined in itself the fundamental idea that cultural property has an imperishable significance for the whole of humanity, whereas military necessity has a transient and timeserving character. This very approach to the problem of the protection of cultural property shows the tremendous difference between the Roerich Pact and the adopted before it 1907 Hague Conventions respecting the Laws and Customs of War on Land and concerning Bombardment by Naval Forces in Time of War.

The Roerich Pact was conceived and ela­borated as a universal international treaty, and therefore its adoption gave to all peoples and to all mankind the exceptional possibility of saving many invaluable treasures of world culture in the forthcoming world war. The intended universal character of the Roerich Pact has to be particularly stressed. The Pact introduced for the first time legal principles and rules that had in the past and have at present worldwide significance.

The materials of the Third Conference on the Roerich Pact, convened in November 1933 in Washington, also testify to the universal character of the Pact. The resolution of the Third Conference re­commended the adoption of this humane act, in other words the Roerich Pact, “by the go­vernments of all nations as a demonstration of the noble attitude of their peoples to the protection of culture” [10]. Furthermore, in the text of the Treaty itself it is said: “The States which do not sign the present Treaty on the date it is opened for signature may sign or adhere to it at any time” [11]. In the Preamble of the Roerich Pact, the object of this international treaty is elaborated, namely: the universal adoption of a flag (the Banner of Peace), which had already been designed and was generally known. Let us also reiterate that at the signing of the Roerich Pact, President Roosevelt said: “In opening this Pact to the adherence of the nations of the world, we are endeavoring to make of universal application one of the principles vital to the preservation of modern civilization” [12].

Due to the fact that many countries, and primarily the European countries, did not adhere to the Roerich Pact on the eve of the Second World War, the possibility of saving so many treasures of human genius was lost. The 1907 Hague Conventions did not help protect the treasures of culture as was de­monstrated by the First World War. This was specifically mentioned in Baron Michel de Taube’s address to the 1933 Third Conference on the Roerich Pact: “…both 1907 Conventions demonstrated their inefficiency clearly enough during the world war” [13]. The ineffectiveness of the 1907 Hague Conventions regarding cultural property protection was also sadly confirmed by the Second World War. In 1999 Jean­Marie Henckaerts wrote: “As history shows, however, the concept of military necessity has not limited warfare in any significant way. The Second World War, for example, was fought under the restriction that no property could be destroyed unless there was an imperative military necessity to do so. Yet entire cities were destroyed” [14].

After the Second World War yet another possibility was lost: the possibility to retain the highest standards in the international legal protection of cultural property achieved by the Roerich Pact. The Roerich Pact was not proposed to the adherence of all the countries in the world and therefore it remained a regional treaty signed by the American countries.

During the Diplomatic Conference, which adopted the 1954 Hague Convention, it was the US and the United Kingdom that insisted on the “military necessity” reservation [15]. An interesting fact is worth mentioning here: the Romanian representative pointed out that there was no such reservation in the Roerich Pact and it was striking that the US in particular, which signed and ratified the Roerich Pact, insisted on the inclusion of this reservation [16]. “The position of the United States at the Conference,” noted Professor P. Boylan in 1993, “seems particularly illogical since it was (and remains) a Party to the 1935 Washington Pan­American Treaty (the Roerich Pact), which requires unconditional “respect and protection” with no hint of any “military necessity exemption” [17]. The Soviet dele­gation was against the reservation; its leader, V.S.Kemenov, stated that the cultural heritage of humanity should be preserved for generations to come and that this task overruled all “military necessity.” If bombs were to fall over the Acropolis, Versailles or Westminster, it would be poor consolation to ascertain that it was done in observance of the provisions of the Hague Convention [18]. A substantial number of states represented at the 1954 Hague Diplomatic Conference were opposed to the “military necessity” reservation, including France, Greece, Spain and the countries of the former ‘socialist’ block. However, the Anglo­Saxon countries made it clear that this reservation was a conditio sine qua non for their acceptance of the Convention [19]. As a result the Conference adopted the reservation and it was included in the text of the 1954 Hague Convention, which in this respect made a step backward with regard to the Roerich Pact. The level of unconditional protection, which the Roerich Pact envisaged in 1935, was only achieved half a century later: in 2004 when the Second Protocol to the 1954 Hague Convention entered into force.

Article 5 of the Roerich Pact provides that cultural property shall cease to enjoy the protection envisaged in the Pact in case it is made use of for military purposes. Neither the location of the cultural property, nor anything else apart from its use for military purposes may serve as the reason for losing the protection accorded by the Roerich Pact. This solution, which is simple and the only correct one, was adopted by the Second Protocol to the 1954 Hague Convention in relation to those cultural objects enjoying enhanced protection. One could say that as a whole, due to compromises in the wording, it has been adopted also in relation to cultural objects enjoying general protection. This was accomplished more than sixty years after the signing of the Roerich Pact.

There are new rules in the Second Protocol which should be welcomed, because they are not found either in the Roerich Pact or the 1954 Hague Convention, and they provide for an important additional layer of protection for cultural property. For example, in relation to a cultural object enjoying general protection, Article 6 of the Second Protocol stipulates that if, by its function, it has been made into a military objective it may be attacked only if there is no alternative and after an effective advance warning has been given whenever circumstances permit. These new rules were elaborated drawing on the implementation of the 1977 Additional Protocol I to the Geneva Conventions, and this itself once again proves the rightfulness of Nicholas Roerich, who always insisted on the study of the Red Cross experience and its respective use in the area of cultural property protection. The provisions on the individual criminal responsibility of persons responsible for the violation of the international rules on the protection of cultural property were also a very important achievement of the 1999 Second Protocol.

LIST OF PROTECTED CULTURAL PROPERTY. CRITERIA AND PROCEDURE FOR INCLUSION IN THE LIST

The 1954 Hague Convention, as was earlier mentioned, provides for two systems of cultural property protection. When cultural pro­perty is subject to general protection, no list is drawn and the protection may be lost in cases of “imperative military necessity.” The special protection, which was established with a view to preserving such cultural treasures as the Acropolis, the Palace of Versailles, the Taj Mahal, or the Hermitage, requires entering the respective objects in the International Register of Cultural Property under Special Protection, and it may be lost “in exceptional cases of unavoidable military necessity.” However, this system of special protection has on the whole had very limited success [20]. Only five objects have been entered in the International Register of Cultural Property under Special Protection: the Vatican City and four refuges of cultural property in the Netherlands and Germany [21].

There are several reasons that account for this situation. It should be pointed out in the first place that, according to the Convention, cultural objects may be entered in the Register provided they are situated at an adequate distance from any large industrial centre or from any important military objective [22]. There is no clarity as to what “adequate distance” actually designates. The criterion specified above is, of course, almost impossible to fulfill, since many treasures of culture are located in city centres and are surrounded by potential military objectives [23]. In the second place, any state which is party to the Convention may lodge an objection to the entry of cultural property in the Register [24]. Past experience has shown that states can object to the entry of cultural objects in the International Register of Cultural Property under Special Protection on grounds which are political and have no relation to culture [25].

While preserving the existence of special protection under the Hague Convention, the 1999 Second Protocol to the Hague Convention established a new system of enhanced protection of such cultural property, which is of the greatest importance for humanity.

The cultural property enjoying enhanced protection has to be entered into a separate list. States Parties to the Protocol have the right to object to an entry proposed by another State Party only on grounds that relate to the significance of the cultural property, to its protection on a national level and to the obligations of the proposing state not to use the respective cultural property for military purposes.

If we compare the criteria and the procedure for entry in the list of protected cultural property envisaged by the Roerich Pact and by the 1954 Hague Convention, we should note that the Roerich Pact established a more ­flexible system. In accordance with Article 4 of the Roerich Pact, the Signatory Governments and those which accede to the Pact shall send to the Pan­American Union [26] a list of the monuments and institutions for which they desire the protection agreed to in the Pact. Therefore, unlike the 1954 Hague Convention and the Second Protocol to it, the Roerich Pact provides for the entry into the list of all cultural property protected by it and not just a particular category. The list is to be drawn up independently by each state that has signed or acceded to the Pact, and there are no conditions or restrictions as regards the inclusion of monuments or institutions in this list. There is a correspondence between the unconditional protection of cultural property envisaged by the Roerich Pact and the lack of any restrictive location criterion (proximity to industrial centres or to important military objectives) for the entry of such property in the list.

The Second Protocol, aiming at eliminating the imperfect provisions of the Hague Convention, provided for solutions which are closer to those of the Roerich Pact: it did away with the onerous and unrealistic requirement of the Convention for an adequate distance from industrial centres and military objectives, and limited the number of those entitled to take decisions on inclusion in the enhanced protection list (in accordance with the 1999 Second Protocol, the decisions on the entry in the list are to be taken by a Committee consisting of the representatives of 12 States Parties to the Protocol).

The Convention concerning the Protection of the World Cultural and Natural Heritage, adopted in Paris in 1972, established the World Heritage List. The 1954 Hague Convention regulates the protection of cultural property only during armed conflicts. The established by it International Register of Cultural Pro­perty under Special Protection is legally binding in wartime.

Thus, in accordance with these two Conventions, we have two lists of cultural property. The success and the authority of the World Heritage List have served as an incentive to search for a better mechanism for the list in time of armed conflict. As a result the enhanced protection system under the 1999 Second Protocol was established and the criteria for entry in the list of cultural objects, which are entitled to such protection, were alleviated.

In the absence of a wartime list, UNESCO successfully availed itself of the World Heritage List. During the war in the former Yugoslavia, UNESCO referred to the World Heritage List in relation to Dubrovnik, and as a result this city was more or less spared [27]. Let us stress that a list not intended for wartime purposes served to protect during armed conflict; the worldwide renown and authority of the World Heritage List helped to protect Dubrovnik. This attests to Nicholas Roerich’s idea of the greatest educational importance of the legal protection of cultural property in time of peace, since the very fact of such protection cultivates respect for cultural property and appreciation of its significance in the consciousness of the popu­lations of many countries.

The Executive Board of UNESCO adopted a decision in 1993 inviting States Parties to both the Hague Convention and the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage which had sites listed on the World Heritage List to consider the possibility of nominating them for the International Register of Cultural Property under Special Protection [28]. Although this decision of the Executive Board of UNESCO did not bring about concrete results, the initiative itself should be welcomed as it testifies to the orientation towards a single list for the treasures of mankind’s culture.

The Roerich Pact provides for the protection of cultural property both in peace and wartime, and it envisages a single list for protected cultural objects. The latter provision of the Pact demands our special attention. The events of the last fifty years confirm the viability and correctness of this approach. Cultural property should be protected as written in the Pact, “in any time of danger”, and a single list should direct such protection. If the lists are different, it means that we do not really follow the principle of protection of Culture but rather considerations of a military nature.

The language of the Roerich Pact is very unequivocal: if states desire to give cultural objects the protection envisaged in the Pact, they have to include them in the list. This requirement itself clearly indicates that the protection of cultural property demands the efforts of the country to which they belong in peacetime.

Article 2 of the Roerich Pact requires States Parties to this treaty to adopt necessary measures of internal legislation to insure the protection provided for by the Pact. ­Taking into consideration that all cultural objects protected by the Pact are to be entered in the list, the aforementioned provision signifies that in the internal policy of these states particular attention has to be given to culture, which includes in itself also art, spirituality and science. We shall come back to this later.

OBJECTS OF PROTECTION

The Roerich Pact provides for the protection of the most comprehensive range of cultural property: historic monuments, museums, scientific, artistic, educational and cultural ­institutions [29].

It is worth noting that the Roerich Pact protects both movable and immovable cultural property. Some authors have expressed the opinion that the Roerich Pact envisages the protection of only immovable cultural property [30]. It is not possible to agree with this. In the draft of the Roerich Pact published in 1929 it is said that “…historic Monuments, educational, artistic and scientific Institutions, artistic and scientific Missions, the personnel, the property and collections of such Institutions and Missions above mentioned shall be deemed neutral, and, as such, shall be protected and respected by belligerents” [31]. It follows clearly from the wording of the text that the authors of the draft provided for the protection of movable cultural property. In the text of the Pact adopted in April 1935, the words “the property and collections” are no longer present, but it is not possible to consider that the international legal protection of movable cultural property had been dropped. The protection of museums stipulated in Article 1 of the Roerich Pact presupposes the protection of museum buildings and their exhi­bits. The museum unifies in a single whole the building and the movable cultural valuables preserved in it, and this whole may not be se­vered since the building on its own is not a museum but at best a monument of architecture. This argument applies also to the movable cultural property preserved in the scientific, educational, cultural and artistic institutions protected by the Roerich Pact.

The Roerich Pact provides for the protection of the personnel of the institutions mentioned above [32]. It is impossible to overemphasize the tremendous significance of the protection given by the Pact to the people working in the fields of culture, arts, science and education! These people are the spiritual and intellectual wealth of every country and their loss often has grave repercussions on the next generations. It is very important that the Pact protects the personnel of the aforesaid institutions not only in wartime, but also in time of peace. It is sufficient here to recall Stalin’s repressions in the Soviet Union in the 1930s, which were particularly ruthless to the bearers of ideas, knowledge and the search for truth: in other words, to those who crea­te Culture.

It is rightly pointed out by E.Alexandrov that the protection accorded by the Roerich Pact to the institutions specified above co­vers not only their material substance, but also their non­material characteristics: the legal status of these institutions, the achieved recognition, the nature of their activity, their place in social and cultural life, the conditions for developing the institutions’ specific activities, etc [33]. This broad interpretation of the protection envisaged by the Roerich Pact pertains also to the protection of the personnel of these institutions: not only the physical integrity, but also the mental integrity of these people is entitled to protection. The latter implies securing the possibilities and conditions for the work of the personnel and for the realisation of their creative potential [34].

It follows from Article 1 of the 1954 Hague Convention, that the Convention protects, using the terminology of the Roerich Pact, historic monuments, museums and some cultural institutions (large libraries and depositaries of archives; refuges intended to shelter, in the event of armed conflict, the movable cultural property enumerated in Article 1 of the Convention). The Convention uses the descriptive method of detailed enumeration of these objects. The 1999 Second Protocol to the Hague Convention did not introduce any changes regarding the scope of objects protected by the Convention. It is evident from Article 1 of the Hague Convention that, unlike the Roerich Pact, it does not protect:

– scientific institutions (with the exception of scientific collections);

– educational institutions;

– the personnel of museums and scientific, artistic, educational and cultural institutions, i.e. people engaged in creative work.

Thus, we can see that the Roerich Pact provides for a much broader scope of protected objects than the 1954 Hague Convention. The Pact is based on an integral approach to the definition of cultural objects in accordance with the concept of Culture of the initiator of the Pact – Nicholas Roerich. E.Alexandrov justly noted that “the existing provisions of international law protect only part of the cultural objects, whereas future provisions will cover all, or nearly all” [35]. In this respect, the Roerich Pact is a leading international treaty, which undoubtedly paves the way to an all­embracing protection for all the elements of culture.

DISTINCTIVE SIGN FOR THE PROTECTION OF CULTURAL PROPERTY

The Roerich Pact introduced for the first time the principle that there should be a generally known and obligatory sign for the protection of cultural property, and that principle was accepted by the 1954 Hague Convention.

The sign of the Banner of Peace adopted by the Roerich Pact was not taken over by the draft Convention, and therefore the issue of its adoption was not raised at all at the Diplomatic Conference in The Hague in 1954. The Conference approved another distinctive sign of the Convention, which has the form of a shield, pointed below, per saltire blue and white (Article 16). The Hague Convention stipulates the following in its Article 36, Paragraph 2: “In the relations between Powers which are bound by the Washington Pact of 15 April, 1935 for the Protection of Artistic and Scientific Institutions and of Historic Monuments (Roerich Pact) and which are Parties to the present Convention, the latter Convention shall be supplementary to the Roerich Pact and shall substitute for the distinguishing flag described in Article III of the Pact the emblem defined in Article 16 of the present Convention, in cases in which the present Convention and the Regulations for its execution provide for the use of this distinctive emblem.”

It follows from the above quoted provision of the Convention that, in those cases where the Roerich Pact provides for a higher level of protection of cultural property in comparison to the Convention, the Pact has to be applied.

It also follows from the same provision of the Convention that the emblem of the Blue Shield is to be used in those cases where the Convention and the Regulations for its execution provide so. However, in relation to cultural property that is not protected by the Convention, but is within the scope of the protection of the Pact (for example educational and scientific institutions) the Banner of Peace must be used. Hence, for those count­ries bound both by the Convention and by the Roe­rich Pact [36] the Blue Shield and the Banner of Peace must be used in time of armed ­conflicts.

The rules of the 1954 Hague Convention regulate the use of the distinctive emblem

in time of armed conflicts, but not during peacetime. This approach of the Convention is explained in the UNESCO Director­General’s circular letter CL/717 of the 5th of February, 1953, which contains the UNESCO Secre­tariat’s Draft Convention and a commentary to it. The Draft Article 15 stipulated that the distinctive emblem of the Convention shall take the form of a solid light blue equilateral triangle on a white circle, and the commentary to this Article stated:

“…One question of some difficulty is whether the distinctive emblem should be affixed in peace­time or only on the outbreak of hostilities. In the case of isolated refuges specially constructed for the purpose, there can be little doubt; the emblem should be affixed as soon as the Convention enters into force. The case is otherwise, however, with other refuges (certain historic castles or pa­laces, for example) or with important monuments situated in large urban centres; such marking, in peace­time, might raise difficulties on aesthetic and even psychological grounds, and this would be even more true in the case of a centre containing monuments. The draft [of the Convention], therefore, contains no provision on this point” [37].

The text of the 1954 Convention that was finally adopted provides for the distinctive sign of the Blue Shield. In spite of that, one would think that the concerns expressed in the above­cited comment remained, since the 1954 Convention does not contain rules on the use of the emblem in peacetime. As of 2004, only 15 states have given information to UNESCO on the marking of cultural property with the distinctive emblem of the Convention, and some have expressed their opinion that they do not deem it necessary to use the emblem ­during times of peace [38].

The Roerich Pact provides for the use of the Banner of Peace in time of armed conflicts as well as in peacetime. This follows from Article 3 of the Pact, which allows the use of the Banner of Peace for the purpose of the identification of protected monuments and institutions, and also from Article 1, Paragraph 3, which provides that the protection of these objects is to be the same in time of war and peace.

The distinctive sign of the Roerich Pact, created by one of the greatest artists of the 20th century, is remarkable for its special harmony and its symbol is intrinsic in the context of cultural treasures. The roots of this symbol are ancient and are present in the cultures of all the peoples in the world. It is for this reason that the Banner of Peace of the Roe­rich Pact has always entered naturally into the life of historic monuments and cultural institutions. Here it is sufficient to recall the consecration of the Banner of Peace in the Basilica of the Holy Blood in Bruges and its hoisting above the Ministry of Education of ­Japan on the very day of the opening of the Third Conference on the Roerich Pact in Washington in 1933. From the very beginning of his work aimed at protecting cultural property, Nicholas Roerich was of the opinion that the greatest importance of the Pact lays in its educational effect. Therefore a sign­symbol was created, which has a pictorial influence and is capable of directing our thoughts towards Beauty, towards the value of knowledge and towards spirituality. The initiator of the Pact entrusted the Banner of Peace with the most difficult task of ennobling and uplifting the consciousness of people. Such a task, without doubt, is fulfilling the sign of the Red Cross [39] and it is for this reason that Nicholas Roerich often defined the Banner of Peace as the Red Cross of Culture. In accordance with Nicholas Roerich’s concept, the Banner of Peace, like the Red

Cross symbol, had to become our constant companion in life. It is for this reason that the Roerich Pact envisages the use of its distinctive emblem, both in peace and wartime, over historic monuments, museums, and scientific, artistic, educational and cultural institutions. Nicholas Roerich wrote the following about this: “The Banner must not only hang in time of military actions, but the masses and thereby future warriors ‘should already in time of peace be accustomed to the perception of this sign.’ Truly, could the Red Cross be of ­significance if it was all of a sudden only unfurled in time of battle?” [40].

The protection of Culture is, as Nicholas Roerich insisted, not only the responsibility of states, but also of people. Therefore the role of the Banner of Peace is extremely important: by way of directing the thoughts of the people towards Beauty and Knowledge, it attracts the consciousness of the general public to the cause of the protection of Culture. It is precisely these ideas of the founder of the international movement for the protection of cultural objects that were left outside the issues for consideration at the Diplomatic Conference in The Hague in 1954. However, Nicholas Roerich’s ideas gradually gain a foothold throughout the world, and, in the adop­ted in 1999 Second Protocol to the Hague Convention, it is said (Article 30): “The Parties shall endeavour by appropriate means, and in particular by educational and information programmes, to strengthen appreciation and respect for cultural property by their entire population.”

The Banner of Peace, taken into space by international crews of astronauts at the end of the 20th century, shows the strength of Roerich’s ideas about Culture as the highest achievement of humanity, which can free the planet of all wars and establish peace throughout the world. Today the Banner of Peace, as the symbol of this profoundly great idea as well as of the necessity for the protection of Culture, is used in peacetime in Russia and in other countries of Eastern Europe and Asia, which are not Parties to the Roe­rich Pact.

TO CARRY THE BANNER OF CULTURE

From its inception, the Roerich Pact had many supporters and among these were prominent military men. However, the Pact had many opponents as well; its adoption necessitated overcoming numerous obstacles. Some of the objections against the Pact took the form of legal arguments. In this respect, of particular importance is the address by Michel de Taube to the Third Washington Conference on the Roerich Pact in 1933. In this address he responded to objections against the adoption of the Pact, which were made on the grounds that the provisions of the two 1907 Hague Conventions (IV and IX) already recommended that the attacker in situations of bombardment, spare “as far as possible” buildings dedicated to religion, art, science, or charitable purposes and also historic monuments marked with certain distinctive signs. Taube in particular stressed that these articles of the 1907 Hague Conventions were not clear; they did not provide for a generally known and obligatory distinctive sign and they did not envisage the drawing up in advance of an urgently needed list of protected objects. He pointed out (in the first section of this article his words have already been quoted) that the two 1907 Conventions had de­monstrated their inefficiency during the world war [41]. Indeed, the obligation to protect cultural property “as far as possible”, qualified further by exceptions pertaining to military necessity, had brought about well known and sad results.

Today we can say with confidence that, in spite of its regional character, the Roerich Pact is the fundamental international treaty in the field of cultural property protection. The Pact introduced for the first time and established in international law the following principles and rules:

–        Cultural property, irrespective of its owner­ship and state allegiance, belongs to all mankind as its cultural heritage.

–        Cultural property enjoys unconditional protection and respect in time of armed ­conflict.

–        Cultural property loses the protection it is entitled to only in cases when it is used for military purposes.

–        Cultural property must be protected in time of peace.

–        Cultural property has to be registered and listed with a view to its protection both in peace and wartime.

–        A generally known and obligatory sign for the protection of cultural property in peacetime and in times of armed conflict is to be established.

–        Application of national standards of protection for foreign cultural property.

It should be added that the provisions in this treaty relating to the protection of cultural property “in any time of danger” (the preamble of the Roerich Pact), in war and peacetime (Article 1, Paragraph 3) are extremely important, it is owing to them that the Roerich Pact is applicable both to international armed conflicts and to conflicts of a non­international character. At the Third Washington Confe­rence on the Roerich Pact, official representatives of states as well as lawyers pointed out this purpose of the Roerich Pact [42].

In the preamble to the draft of the Roe­rich Pact we read about “the ideas sponsored by a wise and generous foresight” which brought about the signing of the 1864 Geneva Conven­­­tion of the Red Cross. Owing to this Con­ven­tion, countless human lives were saved during the First World War. Of the Roerich Pact itself, signed in 1935, one could also say that it was certainly inspired by wise foresight. If all the countries in the world, and in particular the Euro­pean countries, had adhered to it, many irreplaceable cultural treasures would have been saved during the Second World War.

The Roerich Pact is a tremendous achievement of mankind, it should be a source of great pride to the countries that adopted it, and in particular the country which turned out to be the leader in the cause for its advancement and adoption: the United States of America. Due to a number of circumstances, the US discontinued its patronage of the Roerich Pact’s ideas and ceased to take upon itself the leading role in the field of the protection of Culture. After the Second World War the possibility of retaining the high levels of protection of cultural property, achieved by the Roerich Pact, was lost.

The 1954 Hague Convention, ratified by many countries in the world, is at present the universal international treaty for the protection of cultural property in the event of armed conflict [43]. The Convention has taken over many of the most important principles and rules of the Roerich Pact. However, it differs from it in a fundamentally important point: it subordinates the protection of cultural property to military necessity. The 1977 Additional Protocol I to the Geneva Conventions has made a very important contribution to the protection of cultural property. The Se­cond Protocol to the 1954 Hague Convention, adop­ted in 1999, which came into force in 2004, is a significant achievement of contemporary international law.

In 1972, in Paris, the Convention concerning the Protection of the World Cultural and Natural Heritage was adopted. Although the Convention does not refer to the Roerich Pact, there is no doubt that it consolidates and develops the principle of protection of cultural property in peacetime, which was established by the Roerich Pact.

In the speeches of the participants during the Third Conference on the Roerich Pact in Washington, Nicholas Roerich was justly compared to Henry Dunant, the founder of the International Red Cross Movement and the initiator of the 1864 Geneva Convention. At the beginning of the 20th century, Nicholas Roe­rich became the founder of the International movement for the protection of cultural objects and the initiator of the first international treaty devoted to their protection in war and peacetime.

As everyone knows, cultural property is threatened not just by armed conflicts, but also by shortsighted government policy in times of peace: for example, by timeserving considerations of “imperative” financial necessity to cut down on funds for the maintenance and development of cultural objects. Here we touch on the vital importance of the Roerich Pact, not only for the future development of the international legal system for the protection of cultural property, but for the world as a whole. The International Monetary Fund (IMF) and the World Bank oversee the existing system, established by the 1944 Bretton Woods Agreement. The activity of these financial institutions is subject to considerable criticism in western academic literature and there is a good reason for that. If we put aside the rhe­toric and look at the results of their activity, we cannot fail to see that the policy of the IMF, for example, secures the paying back of poor countries’ debts, as well as the liberalization of their markets, but it is also the main cause for the considerable curtailment of funding for science, culture, education and healthcare in these countries. The system is so designed that it perpetuates itself: poor countries become permanent debtors and lose many opportunities for their development. Some of the poorest countries, languishing under the burden of debt, have them written off from time to time, but this can hardly be considered a solution to the problem. The problem first and foremost relates to the question: of where financial resources are being channeled on a global scale and for what needs of humanity. What is the alternative to the existing practice of suppression of culture, education, science and healthcare, which is being carried out in too many countries with modest means?

Let us recall the words of Nicholas Roerich: most important for us should be spirit and creativity, then comes health, with wealth only in third place [44]. The Roerich Pact contains in itself the potential for integrating these ideas of Nicholas Roerich in international relations. We should note that in the Pact, which establishes the obligation to respect and protect cultural objects in peacetime, there is no re­servation of imperative financial necessity that could waive this obligation and respectively allow the systemic cutting down on the funding of cultural objects.

The idea of Nicholas Roerich for establishing a Banner of Peace Fund has to a certain extent been brought about: the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage set up a fund, whose objective is the provision of support to states and the supplementation of their efforts aimed at the preservation of cultural treasures of world significance. The 1999 Second Protocol to the Hague Convention also provides for the setting up of a fund, which should contribute to the protection of cultural property during armed conflict. However, let’s remember that the Roerich Pact provides for an all­embracing protection of cultural objects and the personnel of artistic, scientific and educational institutions. Let’s also recall the words of Nicholas Roerich that the Banner of Peace Fund shall provide financial support to those who are promulgating the message of Beauty and knowledge to broad sections of the public. Now it should be evident that, an International Fund working under the aegis of the Banner of Peace and aiming at the development of the cultures of the peoples of the world and at all­embracing education, has not yet been established; its establishment, when this happens, will become the real potential for the development of many countries, and for all the human family on our planet.

“But the universal fund into which every­one will bring his voluntary mite,” writes Nicholas Roerich, “will be the sign that humanity has already become sufficiently matured to carry the Banner of Culture” [45]. This, of course, is a task that is enormous in its scale and extremely difficult. Its fulfillment requires not only the united efforts of the international community, of states and peoples, but, as in the case of the International Red Cross and Red Crescent Movement, it requires a leader. Let us recall once again the words of Nicholas Roerich that due to the Red Cross, Switzerland rose immeasurably in the esteem of the whole world [46]. Having taken under its patronage the ideas of the great Swiss, Henry Dunant, this country has become “the guardian of the Red Cross’s precepts” [47]. Will Russia, Roerich’s Native Land, be capable of taking under its patronage the ideas of its great son, embodied in the Banner of Peace and the Culture Pact?

It is certain that the future will belong to those countries which take upon themselves the responsibility to implement these ideas for the good of the whole world. For Culture is the future. The future world will be the world of Culture, without wars and destruction. This will be the world of all­embracing love and compassion for humans and for every living ­being. This will be the world in which the leading and most important role in life is accorded to spirituality, beauty and knowledge.

NOTES

1. Regulations Respecting the Laws and Customs of War on Land, Article 23 (g). The Regulation is the Annex to the Hague Convention (IV) Respecting the Laws and Customs of War on Land (done at the Hague, 18 October 1907).
2. Hladik, Jan. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and the Notion of Military Necessity. International Review of the Red Cross, No. 835, pp. 621–635. The Electronic version of this article at the Internet site of the International Committee of the Red Cross: http://www.icrc.org.
3. Alexandrov, Emil. International Legal Protection of Cultural Property. Sofia: Sofia Press, 1979, p. 45.

On this problem see also: Nahlik, Stanislaw E. Protection of Cultural Property. The International Dimensions of Humanitarian Law. UNESCO, Henry Dunant Institute, Martinus Nijhoff Publishers, 1988, pp. 203–209.

4. Henckaerts, Jean­Marie. New rules for the protection of cultural property in armed conflict. International Review of the Red Cross, No. 835, pp. 593–620. The Electronic version of this article at: http://www.icrc.org (Info resources\International Review\1999–No. 835).
5. Boylan, Patrick. The Significance of the 1954 Hague Convention and its 1999 Second Protocol in relation to the Protection of Cultural Property in the Event of Armed Conflict. Cultural Policy, Criticism and Management, issue 1, 2005, City University, London, p. 2. The First Protocol to the 1954 Hague Convention was also adopted in 1954.
6. Henckaerts, Jean­Marie. New rules for the protection of cultural property in armed conflict. http://www.icrc.org (Info resources\International Review\1999–No. 835). The International Committee of the Red Cross had the status of observer at the 1999 ­Diplomatic Conference.
7. Ibid.
8. Ibid. Jean­Marie Henckaerts represented the Inter­national Committee of the Red Cross at the 1999 Diplomatic Conference.
9. Ibid.
10. Materials of the Third International Conference on the Roerich Pact and the Banner of Peace in Wash­ington. 17–18 November, 1933 // Section of manuscript of the International Centre of the Roerichs. F. 1, list 3, file 991, p. 104.
11. Article 6 of the Roerich Pact.
12. Cited by: Знамя Мира [The Banner of Peace]. М.: МЦР, 2005. С. 262.
13. Address of Baron Michel de Taube, member of the International Law Institute and of the American International Law Institute, member of the International Law Academy in the Hague, to the 1933 Third Conference on the Roerich Pact. Materials of the Third International Conference on the Roerich Pact and the Banner of Peace in Washington. 17–18 November, 1933 // Section of manuscript of the International Centre of the Roerichs. F. 1, list 1, file 965, p. 22 (reverse). Michel de Taube refers to the 1907 Hague Convention respecting the Laws and Customs of War on Land and the 1907 Hague Convention concerning Bombardment by Naval Forces in Time of War.
14. Henckaerts, Jean­Marie. New rules for the protection of cultural property in armed conflict.­ http://www.icrc.org (Info resources\International Review\1999–No. 835).
15. Boylan, Patrick. Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954), Paris, UNESCO, 1993, p. 56.
16. АлександровЭ. Международно­правоваязащитакультурныхценностейиобъектов [International Legal Protection of Cultural Property and Objects]. София: СофияПресс, 1978. С. 47.
17. Boylan, Patrick. Op. cit. (note 15), pp. 56–57.
18. Alexandrov, Emil. Op. cit. (note 3), p. 145.
19. The United States ratified the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict on March 13, 2009. The United Kingdom has not ratified it yet.
20. Henckaerts, Jean­Marie. New rules for the protection of cultural property in armed conflict. http://www.icrc.org (Info resources\International Review\1999–No. 835).
21. Since the adoption of the Hague Convention in 1954 there have been registered nine objects in the International Register of Cultural Property under Special Protection. The registration of four of these objects (refuges for cultural property) has been subsequently cancelled on the request of the states which have jurisdiction over them. See UNESCO document CLT­2005/WS/6: Report on the implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two 1954 and 1999 Protocols. Report of the activities from 1995 to 2004, p. 2.
22. The 1954 Hague Convention, Article 8 (1) (a).
23. Henckaerts, Jean­Marie. New rules for the protection of cultural property in armed conflict. http://www.icrc.org (Info resources\International Review\1999–No. 835).
24. If an objection has been lodged there has to be initiated a procedure of arbitration or of voting, in the latter case the Parties to the Convention may vote. If the voting procedure has started, the objection will be confirmed only if the Parties so decide by a two­third majority of the Parties voting. See Article 14 of the ­Regulations for the Execution of the Convention for the Protection of Cultural Property in the event of Armed Conflict.
25. Henckaerts, Jean­Marie. New rules for the protection of cultural property in armed conflict. http://www.icrc.org (Info resources\International Review\1999–No. 835). See also UNESCO document CLT­2005/WS/6, pp. 5–6. In this UNESCO document it is said that the request of the Federal Republic of Yugo­slavia in March­April 1999 for the inclusion of cultural property in Kosovo and Metohija in the International Register of Cultural Property under Special Protection has not been acted upon. The main reason to this was repeated contestation of the status of the Federal Republic of Yugoslavia as a Party to the 1954 Hague Convention.
26. At present: General Secretariat of the Organization of American States.
27. Henckaerts, Jean­Marie. New rules for the protection of cultural property in armed conflict. http://www.icrc.org (Info resources\International Review\1999–No. 835).
28. UNESCO document CLT­2005/WS/6: Report on the implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two 1954 and 1999 Protocols. Report of the activities from 1995 to 2004, p. 2.
29. Article 1, Paragraph 1 of the Roerich Pact.
30. БогуславскийМ.М. ПактРериха [The Roerich Pact] // МирчерезКультуру [Peace through Culture]. М.: Советскийписатель, 1990. С. 15.
31. ЗнамяМира. С. 31. Italics supplied.
32. Article 1, Paragraph 2 of the Roerich Pact.
33. Alexandrov, Emil. Op. cit. (note 3), p. 92.
34. Ibid.
35. Ibid., p. 12.
36. See the International Humanitarian Law database of the International Committee of the Red Cross about the countries which have signed and ratified the Roerich Pact: http://www.icrc.org/ihl.nsf/INTRO/325?OpenDocument.
37. Records on the Conference convened by the United Nations Educational, Scientific and Cultural Organization held at the Hague from 21 April to 14 May 1954, Staatsdrukkerjen uitgeverijbedrijf, The Hague, 1961, p. 312. Cited in: Hladik, Jan. Marking of cultural property with the distinctive emblem of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. International Review of the Red Cross, June 2004, Vol. 86, No. 854, p. 381.
38. UNESCO document CLT­2005/WS/6: Report on the implementation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two 1954 and 1999 Protocols. Report of the activities from 1995 to 2004, pp. 14–16.
39. Here and further in the text it is not only the Red Cross which is meant but all the three emblems of the International Red Cross and Red Crescent Movement: the Red Cross, the Red Crescent and the Red Crystal.
40. ЗнамяМира. С. 381.
41. Address of Baron Michel de Taube, member of the International Law Institute and of the American International Law Institute, member of the International Law Academy in the Hague, to the 1933 Third Conference on the Roerich Pact. Materials of the Third International Conference on the Roerich Pact and the Banner of Peace in Washington. 17–18 November, 1933.
42. Materials of the Third International Conference on the Roerich Pact and the Banner of Peace in Wash­ington. 17–18 November, 1933.
43. The 1954 Hague Convention has been ratified at present by 123 states. See the UNESCO website: http://portal.unesco.org/culture/en and the International Humanitarian Law database of the International Committee of the Red Cross. http://www.icrc.org/ihl.nsf.
44. Рерих Н.К. Держава Света. Священный дозор [Realm of Light. Sacred Watch]. Рига: Виеда, 1992. С. 62.
45. Roerich, Nicholas. Realm of Light. Book II, New York: Roerich Museum Press; New Era Library, 1931, p.262.
46. Знамя Мира. С. 376.
47. Ibid., p. 394.

Marga Koutsarova – Chairperson of the Bulgarian National Roerich Society – Institutional Member of the International Centre of the Roerichs, lawyer