Practice Relating to Rule 41. Export and Return of Cultural Property in Occupied Territory

Hague Protocol for the Protection of Cultural Property
Paragraph 1 of the 1954 Hague Protocol for the Protection of Cultural Property provides:
Each High Contracting Party undertakes to prevent the exportation, from a territory occupied by it during an armed conflict, of cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague on 14 May 1954. 
Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, para. 1.
Hague Protocol for the Protection of Cultural Property
Paragraph 2 of the 1954 Hague Protocol for the Protection of Cultural Property provides:
Each High Contracting Party undertakes to take into its custody cultural property imported into its territory either directly or indirectly from any occupied territory. This shall either be effected automatically upon the importation of the property or, failing this, at the request of the authorities of that territory. 
Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 14 May 1954, para. 2.
Convention on the Illicit Trade in Cultural Property
Article 11 of the 1970 Convention on the Illicit Trade in Cultural Property provides: “The export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power shall be regarded as illicit.” 
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted by the 16th Session of the UNESCO General Conference, Paris, 14 November 1970, Article 11.
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 9(1) of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property, which refers to the protection of cultural property in occupied territory, stipulates:
Without prejudice to the provisions of Articles 4 and 5 of the Convention, a Party in occupation of the whole or part of the territory of another Party shall prohibit and prevent in relation to the occupied territory:
(a) any illicit export, other removal or transfer of ownership of cultural property. 
Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 9(1).
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 21 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property provides:
Each Party shall adopt such legislative, administrative or disciplinary measures as may be necessary to suppress the following acts when committed intentionally:
(b) any illicit export, other removal or transfer of ownership of cultural property from occupied territory in violation of the Convention or this Protocol. 
Second Protocol for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, Article 21.
Lieber Code
Article 36 of the 1863 Lieber Code provides:
If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized or removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace.
In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated or wantonly destroyed or injured. 
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 36.
Inter-Allied Declaration against Acts of Dispossession
In the 1943 Inter-Allied Declaration against Acts of Dispossession (also known as the London Declaration), the Allied governments expressed their intention
to do their utmost to defeat the methods of dispossession practised by the Governments with which they are at war against the countries and peoples who have been so wantonly assaulted and despoiled. Accordingly, the governments making this Declaration and the French National Committee reserve all their rights to declare invalid any transfers of, or dealing with, property, rights and interests of any description whatsoever which are, or have been, situated in the territories which have come under the occupation or control, direct or indirect, of the Governments with which they are at war, or which belong, or have belonged, to persons (including juridical persons) resident in such territories. This warning applies whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected. 
Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation or Control, as agreed between the Union of South Africa, United States of America, Australia, Belgium, Canada, China, Czechoslovak Republic, United Kingdom of Great Britain and Northern Ireland, Union of Soviet Socialist Republics, Greece, India, Luxembourg, Netherlands, New Zealand, Norway, Poland, Yugoslavia, and the French National Committee, London, 5 January 1943.
Revised Lauswolt Document
Article 1(4) of the 1997 Revised Lauswolt Document provides: “Without limiting the provisions of the 1954 Protocol [for the Protection of Cultural Property], it is prohibited to export or otherwise illicitly remove cultural property from occupied territory or from a part of the territory of a State Party.” 
Draft Provisions for the Revision of the 1954 Hague Convention and Commentary from the UNESCO Secretariat, Paris, October 1997, UNESCO Doc. CLT-97/CONF.208/2, Article 1(4).
Revised Lauswolt Document
Article 12(1) of the 1997 Revised Lauswolt Document provides:
All the provisions of this instrument, the provisions of the Convention and its 1954 Protocol [for the Protection of Cultural Property] which relate to safeguarding of, and respect for, cultural property shall apply in the event of an armed conflict not of an international character, occurring within the territory of one of the States Parties. 
Draft Provisions for the Revision of the 1954 Hague Convention and Commentary from the UNESCO Secretariat, Paris, October 1997, UNESCO Doc. CLT-97/CONF.208/2, Article 12(1).
Germany
Germany’s Military Manual (1992) states: “Each party to the conflict shall be bound to prevent the exportation of cultural property from a territory occupied by it during an international armed conflict.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten KonfliktenHandbuch, August 1992, § 922.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Germany
Germany’s Law Implementing the 1954 Cultural Property Convention (2007) states:
§ 2 Prohibition on movement and seizure
(1) Every movement of cultural property from occupied territory of a Contracting State to the federal territory during an armed conflict, contrary to Paragraph I No. 2 of the Protocol, is prohibited. This does not apply to cultural property which, according to Paragraph II No. 5 of the Protocol, is intended to be deposited in the federal territory for the purpose of protection against the dangers of an armed conflict.
(5) Cultural property which, contrary to the prohibition in paragraph 1, is moved into the federal territory directly from a third country is subject to seizure by the competent customs authorities. The seizure shall be reported without undue delay to the Federal Foreign Office and to the Federal Government Commissioner for Culture and the Media.
(6) Without undue delay, the Federal Foreign Office shall notify the authorities of the Contracting States of the seizure.
(7) After the close of hostilities, seized property shall be returned to the person entitled to dispose of it, if the Contracting State, after inquiry, declares that no request is made. The property is also returned to the person entitled to dispose of it if the Contracting State does not make a declaration within one year …
(8) The Federal Foreign Office publishes the occupied territories of the Contracting States in the Federal Gazette. 
Germany, Law Implementing the 1954 Cultural Property Convention, 2007, Section 2(1) and (5)–(8).
Japan
Japan’s Law concerning the Protection of Cultural Property in the Event of Armed Conflict (2007) states:
Article 9
1. A person who damages or disposes of trafficked cultural properties from occupied territories … and imported into the country shall be sentenced to less than five years’ imprisonment, with or without hard labour, or fined for less than three hundred thousand yen.
2. When the person prescribed in the previous paragraph is the possessor of the concerned cultural properties from occupied territories, he or she shall be sentenced to less than two years’ imprisonment, with or without hard labour, or fined for less than two hundred thousand yen or for a lighter fine.
Article 10
A person who transfers or who received trafficked cultural properties from occupied territories … and imported into the country shall be sentenced to less than one year imprisonment with hard labour, or fined for less than one million yen. 
Japan, Law concerning the Protection of Cultural Property in the Event of Armed Conflict, 2007, Articles 9 and 10.
Luxembourg
Luxembourg’s Law on the Repression of War Crimes (1947) provides for the punishment of “the exportation, by any means, from the territory of Luxembourg, of objects of whatever nature”. 
Luxembourg, Law on the Repression of War Crimes, 1947, Article 2(6).
Peru
Peru’s Regulations to the General Law on the Cultural Heritage of the Nation (2006) states: “Any form of export or transfer of unlawfully obtained cultural property from occupied territory … is prohibited.” 
Peru, Regulations to the General Law on the Cultural Heritage of the Nation, 2006, Article 82.
Israel
In 1970, two antiquity dealers in East Jerusalem were charged in the Military Court of Hebron under Jordanian law with exporting antiquities into “foreign territory” (i.e., from Hebron, in Judaea, to East Jerusalem) without obtaining an export licence. 
Case referred to in Shoshana Berman, “Antiquities in Israel in a Maze of Controversy”, Case Western Reserve Journal of International Law, Vol. 19, 1987, pp. 356–360.
Canada
In 2005, during a debate in the House of Commons, the Parliamentary Secretary to Canada’s Minister of Natural Resources stated the following on Bill S-37 (An Act to amend the Criminal Code and Cultural Property Export and Import Act):
There are two protocols to the [1954 Hague Convention for the Protection of Cultural Property]. The first protocol, adopted in 1954, establishes obligations, among other things, to return cultural property that has been taken illegally from an occupied territory. The second protocol, adopted by UNESCO in 1999, expands on many of the concepts of the convention and the first protocol. One of the most important aspects of the second protocol is the range of obligation it creates for states to prosecute those who commit certain acts against cultural heritage during armed conflict. This is what I mean when I talk about the mutual responsibility of states to protect heritage.
These aspects of the Hague protocol speak directly to that responsibility. It means that if a country is occupied and someone illegally exports cultural material, the country can look to others for help in getting the material back. It means that a state commits to pursuing those found to be in its territory who have damaged, destroyed or looted cultural property during conflicts in other countries. It means that cultural heritage is important to us all and that we have a collective responsibility to help each other protect it.
The Crimes Against Humanity and War Crimes Act establishes the authority in Canadian law to prosecute war crimes. That includes acts against culture property that are prohibited under the protocols to the Geneva convention and similar acts prohibited under the Hague convention. Further, the National Defence Act has already established obligations for conduct of our armed forces that mirror obligations on the military under the Hague convention and its protocols.
[Bill S-37] amends the Criminal Code. It will allow us to prosecute Canadians who commit acts such as theft, arson and vandalism against significant cultural property abroad. Such acts are specifically prohibited under the second protocol and states who join that protocol must be able to prosecute those who commit them.
Bill S-37 also amends the Cultural Property Export and Import Act. It will allow us to prosecute Canadians who illegally export cultural property. Right now we can do it only if they import to Canada. It will allow us to prosecute those who illegally export cultural property from an occupied territory that is party to the second protocol. Again, such exports are prohibited under both protocols and the second protocol requires states to prosecute those who commit such acts.
It will strengthen Canada’s role in returning cultural property that has been illegally exported from an occupied territory. It will also acknowledge that when Canada is asked to accept cultural property for safe keeping by another country that is in conflict, we have an obligation to return it at the end of that conflict. 
Canada, House of Commons Debates, Statement by the Parliamentary Secretary to the Minister of Natural Resources, 25 October 2005, Canadian Yearbook of International Law, 2006, volume XLIV, pp. 606–607.
Iraq
It has been reported that, during the Gulf War, large amounts of cultural property, including almost the entire contents of the Kuwait National Museum, were removed to Baghdad. After the Gulf War, Iraq stated that thousands of objects had been stolen from its provincial museums during the period of the military intervention and its immediate aftermath. Four volumes listing this catalogued material have been drawn up by the Iraqi authorities and deposited with UNESCO. 
Lyndel V. Prott, “The Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention) 1954”, Humanitäres VölkerrechtInformationsschriften, No. 4/1993, pp. 192–193.
UN General Assembly
In a resolution adopted in 2003 on the return or restitution of cultural property to the countries of origin, the UN General Assembly:
Expressing concern also about the loss, destruction, removal, theft, pillage, illicit movement or misappropriation of and any acts of vandalism or damage directed against cultural property, in particular in areas of armed conflict, including territories that are occupied, whether such conflicts are international or internal,
4. Reaffirms the importance of the principles and provisions of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, and invites Member States that have not already done so to become parties to the Convention and to promote its implementation;
5. Also reaffirms the importance of the Second Protocol to the Convention, adopted at The Hague on 26 March 1999, and invites all States Parties to the Convention to consider becoming parties to the Second Protocol. 
UN General Assembly, Res. 58/17, 3 December 2003, preamble and §§ 4–5, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on the return or restitution of cultural property to the countries of origin, the UN General Assembly:
Expressing concern … about the loss, destruction, removal, theft, pillage, illicit movement or misappropriation of and any acts of vandalism or damage directed against cultural property, in particular in areas of armed conflict, including territories that are occupied, whether such conflicts are international or internal,
7. Reaffirms the importance of the principles and provisions of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, and of their implementation, and invites Member States that have not already done so to become parties to the Convention;
8. Also reaffirms the importance of the Second Protocol to the Convention, adopted at The Hague on 26 March 1999, and of its implementation, and invites all States parties to the Convention that have not already done so to consider becoming parties to the Second Protocol;
9. Welcomes the most recent efforts made by the United Nations Educational, Scientific and Cultural Organization for the protection of the cultural heritage of countries in conflict, … and calls upon the international community to contribute to these efforts;
10. Urges Member States to introduce effective national and international measures to prevent and combat illicit trafficking in cultural property, including special training for police, customs and border services. 
UN General Assembly, Res. 61/52, 4 December 2006, preamble and §§ 7–10, adopted without a vote.
UN Economic and Social Council
In a resolution adopted in 2003 on the prevention of crimes that infringe on the cultural heritage of peoples in the form of movable property, ECOSOC:
Aware of the serious harm done to States and to the objects themselves by the theft and illicit export of objects regarded as part of States’ cultural heritage, in particular as a result of the plundering of archaeological sites and of other sites of historical and cultural value,
Recognizing the importance for States of protecting and preserving their cultural heritage in accordance with the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted by the United Nations Educational, Scientific and Cultural Organization on 14 November 1970, the preamble to which refers, inter alia, to the duty of every State to protect the cultural property existing within its territory against the dangers of theft, clandestine excavation and illicit export, and also the commitment by States and relevant international organizations to combat such practices with all the means at their disposal, in particular with regard to international cooperation on the return of such property. 
ECOSOC, Res. 2003/29, 22 July 2003, preamble, adopted without a vote.
UN Economic and Social Council
In a resolution adopted in 2004 on trafficking in cultural property, ECOSOC:
Emphasizing the importance for States of protecting and preserving their cultural heritage in accordance with the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted by the United Nations Educational, Scientific and Cultural Organization on 14 November 1970, and other relevant instruments such as the 1995 Unidroit Convention on Stolen or Illegally Exported Cultural Objects and the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols,
5. Urges Member States to continue to strengthen international cooperation and mutual assistance in the prevention and prosecution of crimes against movable property that forms part of the cultural heritage of peoples, as well as to ratify and implement the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the other relevant conventions. 
ECOSOC, Res. 2004/34, 21 July 2004, preamble and § 5, adopted without a vote.
UNESCO
In a resolution adopted in 1993, the UNESCO General Conference reaffirmed that “the fundamental principles of protecting and preserving cultural property in the event of armed conflict could be considered part of customary international law”. 
UNESCO, General Conference, Res. 3.5, 13 November 1993, preamble.
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Islamic Summit Conference
In a resolution adopted in 2000 on the destruction and desecration of the Islamic historical and cultural relics and shrines in the occupied Azeri territories resulting from the Republic of Armenia’s aggression against the Republic of Azerbaijan, the Islamic Summit Conference, referring to the 1954 Hague Convention for the Protection of Cultural Property, noted: “Where an armed conflict erupts, the states undertake to prevent the smuggling of valuable cultural items from the territories under occupation.” 
Islamic Summit Conference, Ninth Session, Doha, 12–13 November 2000, Res. 25/8-C (IS), § 3.
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