Emerging Voices: The Supervisory Functions and Practice of the Second Protocol Committee for the Protection of Cultural Property in the Event of Armed Conflict

[Sofia Poulopoulou is a PhD candidate at the Grotius Centre for International Legal Studies at Leiden University and staff member of the Kalshoven-Gieskes Forum on IHL.]

This year marks the 20^th anniversary of the Second Protocol to the Hague Convention of 1954 for the protection of cultural property in the event of armed conflict. The Second Protocol was adopted in 1999 in order to address the shortcomings of the 1954 Hague Convention. Its main achievements focus on the following areas: scope of application of the Second Protocol, general provisions regarding the protection of cultural property, enhanced protection, institutional structure, criminal responsibility as well as dissemination of information and international assistance. While the new rules of the Second Protocol and their practical application have been widely discussed, not sufficient attention has been paid to the institutional structure of the Second Protocol; specifically, to the work of the Committee for the protection of cultural property in the event of armed conflict (hereinafter the Committee). The latter is an intergovernmental body established by Article 24 of the Second Protocol and mandated with the supervision of the implementation of the Protocol. On the occasion of the 20^th anniversary of the Second Protocol, this blog post will discuss the mandate and practice of the Committee aiming to draw conclusions related to its successes and identify areas for improvement in future practice.

The compliance system of the Second Protocol comprises the following supervisory mechanisms: Meetings of the Parties to the Second Protocol (Art. 23), the Committee (Art. 24), use of the Protecting Powers system (Art. 34), the conciliation procedure by the Director-General in the absence of Protecting Powers (Art. 36) and periodic reporting (art. 37). The establishment of the Committee is the main difference of the compliance structure of the Second Protocol compared to the one of the 1954 Hague Convention for the protection of cultural property in armed conflict. Moreover, the creation of the intergovernmental Committee to oversee the implementation of the Second Protocol distinguishes the latter from other treaties falling within the International Humanitarian Law (IHL) framework. Intergovernmental bodies, such as the Committee for the protection of cultural property do not usually form part of the compliance system of treaties falling with the IHL framework. For example, neither the Geneva Conventions of 1949 and the Additional Protocols of 1977 nor the treaties regulating or prohibiting the use of specific means of warfare, such as the Convention on Certain Conventional Weapons or the Ottawa Convention establish intergovernmental bodies in charge of monitoring the implementation of the respective treaties. In light of the above, the role and functions of the Committee as part of the compliance system of the Second Protocol merit specific attention.

Starting first with the mandate of the Committee, Article 27 of the Protocol entrusts it with the following functions:

1. to develop Guidelines for the implementation of the Second Protocol;
2. to grant, suspend or cancel enhanced protection for cultural property and to establish, maintain and promote the List of Cultural Property under Enhanced Protection;
3. to monitor and supervise the implementation of this Protocol and promote the identification of cultural property under enhanced protection;
4. to consider and comment on reports of the Parties, to seek clarifications as required, and prepare its own report on the implementation of this Protocol for the Meeting of the Parties;
5. to receive and consider requests for international assistance under Article 32;
6. to determine the use of the Fund;
7. to perform any other function which may be assigned to it by the Meeting of the Parties.

The functions assigned to the Committee, specifically, paragraph (d) of Article 27 highlight the relationship of the Committee to the other supervisory mechanisms and functions of the Second Protocol, namely the Meetings of the Parties to the Protocol and periodic reporting. In relation to the former, the Committee undertakes a preparatory role by drafting a report on the implementation of the Protocol, which is considered by the Meeting of the Parties. The latter also oversees the Committee’s work by electing and appointing its members, endorsing the guidelines developed by the Committee and supervising the use of the Fund by the intergovernmental body. Regarding periodic reporting, the Committee receives the reports submitted by the States Parties and has the power to ‘consider and comment on reports of the Parties’ and to ‘seek clarifications as required’. While the UN human rights treaty bodies have the power to examine reports and address their concerns to States, this is uncommon for treaties within the IHL system. For the treaties that impose reporting obligations on States, e.g. the Amended Protocol II to the Convention on Certain Conventional Weapons, the Ottawa Convention or the Convention on Cluster Munitions, there is no formal, treaty-based body in place vested with the power to comment on periodic national reports and request clarifications. The compliance system is usually based on self-reporting by States accompanied by discussions on issues arising out of the submission of the national reports in the context of formal or informal forums of exchange among States. The Chemical Weapons Convention is an exception to the above conclusion, as it provides for the most comprehensive verification system. Apart from the obligation of States Parties to submit declarations in relation to chemical weapons or chemical weapons production facilities, the Convention’s verification regime is supplemented with data monitoring, on-site inspections and challenge inspections [Part IV (A) (D); Part V (A) (C)] undertaken by the Convention’s implementation body, the Organisation for the Prohibition of Chemical Weapons. While the subject-matter of the aforementioned Conventions differs from that of the Second Protocol, reference to them is still relevant for the purpose of analysing and comparing the mandate of the Committee with other compliance systems of treaties relevant for IHL.

Moving on to the practical application of the Committee’s mandate, we note that the Committee developed Guidelines for the implementation of the Protocol, which were endorsed by the third Meeting of the Parties to the Second Protocol and amended by subsequent Meetings of the Parties. This is one of the functions assigned to the Committee in accordance with Article 27(a) of the Second Protocol. In addition, the Committee has been engaged in the consideration of requests for the granting of enhanced protection and has granted such protection or referred back to the State concerned for additional information. Up to this moment, seventeen cultural properties are included in the List of Cultural Property under Enhanced Protection. Moreover, in accordance with Article 27 of the Second Protocol the Committee decided in its 6^th, 11^th and 13^th Meeting to provide international assistance from the Fund for the protection of cultural property in armed conflict to El Salvador, Mali, Libya and Afghanistan following the submission of requests for international assistance.

Concerning the implementation of the Committee’s functions in relation to periodic national reporting, it is unclear how the Committee discharges the powers entrusted to it by Article 27(d) of the Second Protocol. For example, the consideration of national reports by the fifth, eight and twelfth Meeting of the Committee merely consists in providing a summary of the information included in the national reports, which is organized in a thematic manner. Moreover, as noted before, Article 27(d) of the Protocol assigns to the Committee the preparation of a report related to the implementation of the Second Protocol, which is considered by the Meeting of the Parties. During the latter, when the Chairperson of the Committee is given the floor to present the report of the Committee, there is no reference to the consideration of national reports. The report takes into account the requests for the granting of enhanced protection, requests for international assistance, international cooperation and use of the Fund. It therefore appears that the Committee does not comment on the national reports or seek clarifications regarding the information submitted by the States Parties in their reports.

The above observation does not aim to negate the important tasks that the Committee undertakes and its successes in supervising the implementation of the Second Protocol. It rather points out that the Committee does not appear to discharge the full potential of the mandate relating to the consideration of national reports. When the majority of treaties within the IHL framework rely on self-reporting by States, the establishment of an intergovernmental body with treaty supervision powers creates certain expectations. The Committee has fulfilled some of them. However, in the case of periodic reporting its potential is not fully explored. The Meeting of the Parties in December 2019 can hopefully provide more clarity as to the Committee’s approach towards the consideration of national reports. In the next report to the Meeting of Parties in 2019, the Chairperson of the Committee is requested to make reference to the deliberations of the Committee in relation to the consideration of the periodic national reports. For the time being, it is unclear how the Committee interprets and translates into practice the function entrusted to it under article 27(d) of the Second Protocol.