§ 3.2. The control and responsibility over infringements of international legal norms but protection of cultural values in case of a confrontation.

In the international legal literature institute international konyotrolja subjected to research primenitelno to all branches mezhdunayorodnogo humanitarian права1, and in the given paragraph we will give the analysis of the control mechanism provided by the Convention of 1954, DopolniYOtelnogo report II (1999) to it, and also Additional report I (1977) to the Geneva conventions of 1949, concerning protection of cultural values in case of confrontations.

So, we will consider the control mechanism of the Convention of 1954 which has allocated two kinds of the control: international and interstate (nayotsionalnyj).

Within the limits of the interstate (national) control of the country have the right to create corresponding bodies, to define their powers and the competence as the Convention of 1954 does not contain corresponding positions.

At diplomatic conference at discussion of the project of the Convention of 1954 participants were limited only to acceptance of the resolution calling the countries to make it as soon as possible.

According to the employee of UNESCO concerning protection cultural tsenyonostej in J.Hladika's confrontation, only seven countries: Belarus, Belgium, Bulgaria, Islamic republic Iran, Malaysia, NiderYOlandy and Poland have notified on creation corresponding spetsializirovanyonyh the bodies responsible for imilementatsiju of the Convention.

L Argentina and Belgium have paid attention to existence natsioyonalnyh of the commissions to which the general function on implsmentatsii is assigned

Valeev P.M. The control in modern international law / P.M. Valeev. - Kazan, 2003 - With. 157 - 179.


Norms of the international humanitarian law, including devoted to protection cultural ценностей1.

In the Netherlands the corresponding division of inspectors on protection cultural ценностей2 is created, and in Switzerland and Austria there are the private organisations, protection dealing with by a problem cultural ценностей3.

The national control according to the Convention of 1954 is assigned also to representatives of the states on cultural values (item) of item 2 IspolniYOtelnogo of regulations of the Convention).

As to the international control according to the Convention of 1954 it consists of institute of Powers-patronesses which have been entered by Zheyonevsky conventions of 1949, General commissioners, inspectors and eksyopertov on cultural values, the persons who are carrying out functions predstaviyotelja on behalf of Powers-patronesses (the Chapter of I Executive regulations of the Convention).

Besides, within the limits of the powers represented by UNESCO by articles 19 and 23 Conventions of 1954, intermediary auxiliary functions vozlayogajutsja on the General director of UNESCO. The general director has the right from svogo a name and on behalf of UNESCO to address to the conflicting countries with the request to observe Convention and Report 1954 4 positions.

Practice has shown, that provided by the Convention control meyohanizm, was used only once, in the seventies the XX-th centuries during time konyoflikta in the Near East.

The reason of such situation was that the appointment procedure and smeshcheyonija General commissioners is put in direct dependence from voleizjavyolenija and the astipulation.

The appointment procedure of General commissioners moyozhet to be tightened for months and years that does not allow operatively and quickly at -

1 Hladik J. Reporting system under the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict / J. Hladik//Review of the Red Cross. - Vol. 840. - P. 1001-1016.

2 Boy Ian P. J. The decree. Soch. - P. 61 - 74.

3 Osterreichische Geselbcaft fur Kulturgutcrschutz, Socidte Suissc pour la protection des biens cultureh.

4 Cldment E. Some recent practical experience in the implementation of the 1954 Hague convention / E. Cldment//International Journal of Cultural Property. - 1994. - № 1. - Vol. 3. - P. 14-16.


To step to performance of control functions about conformity with positions of the Convention of 1954

With reference to the considered conflict the similar problem has prevented to appoint successors to General commissioners after their resignation in 1977

As a result at the initiative of the General director of UNESCO of the party have agreed to charge before appointment of the new commissioner performance kontrolyonyh functions of Switzerland as Power-patroness.

In the mechanism of the international control on observance of the Convention of 1954 has received also development institute of the personal representative General diyorektora on cultural values. Before Report 1999 acceptance to KonvenYOtsii 1954 the given institute carried ad hoc the character following (podrazumeyovaemyj) from articles 19 and 23 Conventions of 1954

As a result the place of General commissioners on cultural values was gradually occupied with personal representatives of the General director of UNESCO.

The lawyer from Palestin D.Odiran, having compared functions General koyomissara on cultural values and the personal representative General diyorektora, has come to following conclusions:

1) the special representative has the limited functions which are reduced to supervision, to the report and development of recommendations for the conflict parties, in a frame kah rendering of technical support as the UNESCO has the limited functions while General commissioners collect the information and bring corresponding representations about the admitted infringements which carry a binding character for the conflict parties;

2) distinction consists also that the mandate special to preflight vitelja is limited, as a rule, city or district territory to which


It прикомандирован1 while General commissioners carry out functions in all territory государств2.

Unlike General commissioners representatives of Powers-patronesses are appointed them from diplomatic or konsulyoskogo cases or from among other persons at the obligatory consent of the country at which they are accredited (item Z of Executive Regulations).

Representatives of Powers-patronesses establish infringements KonYOventsii with the consent of the Party at which they carry out the functions, rasyosledujut the circumstances which have entailed infringements, undertake demarches on a place to cease these infringements, and, in case of need, uveyodomljajut about them the General commissioner. They inform it on the dejayotelnosti (item 5 of Executive Regulations Koeshsntsii of 1954).

As to the institute of Powers-patronesses as the Convention of 1954 does not contain about it detailed positions konfliktujuyoshchie the parties are obliged to be guided by corresponding positions in frameworks "Geneva" права3.

Difference of institute of representatives of the states on cultural tsennoyostjami from General commissioners consists that they are appointed the states for representation of its interests on the, or on okyokupirovannoj territories, are under control and accountable only naznachivsheyomu to its state. Their functions are identical to functions personal (spetsialyonogo) the representative of the General director of UNESCO.

Thus, the control mechanism provided by the Convention of 1954, it is extreme gromozdok and it is combined. If for a minute to present, that all control mechanisms will be involved, there can be a situation in which who and for what answers will be not clear who and what funkyotsii carries out.

1 In case of a message of the mister of R.Lemajera as the personal representative of the General director its field nomochija were limited to territory of a city of Jerusalem.

2 Oyediran J. Plunder, destruction and despoliation. An analysis of Israel's Violations of the International Law of Cultural property in the Occupied West Bank and Gasa Strip//J. Qyediran. - Л1 - Haq. - 1997. - 30 p.

3 Toman J. The decree. soch. - 232 p.


In the international legal literature lacks kontrolyonogo the mechanism apprehended by the Convention of 1954, owing to it gromozdkoyosti and insufficient организованности1 were marked.

In the work «International legal protection kulturyonyh values and the legislation of the Russian federation» has specified N.L.Potapov, that sisyotema the control is hard for realisation. In it it is involved too much dolzhyonostnyh persons of the most different ranks. Their choice, appointment, introduction in dolzhyonost and performance of the functions assigned to them is connected with bulky procedure. Followed prefer the general means of assistance, rather than control measures (such, as immunity, privileges etc.), and also to measures of influence with tselyo performance of instructions of the Convention (not resorting to the monitoring system) 2.

In our opinion, if to give classification of the persons who are carrying out mezhduyonarodnyj the control on volume of their powers on the first place follows poyostavit General commissioners, not forgetting, that the part of their functions can be transferred inspectors, on the second place it is necessary to arrange predstaviyotelej Powers-patronesses, and, on the third - personal (special) predstayovitelej the General director of UNESCO.

Practice has shown, that only some countries recommend the grayozhdan for a post of the General commissioner on cultural ценностям3, whose nominees at first should be brought in the special international list from which choose General commissioners (item 4 IspolnitelYOnogo of Regulations of the Convention of 1954).

Besides, the Convention of 1954 provides, that General koyomissary in case of need can resort to the help of inspectors and experts (such practice for today is absent), which otvetyostvenny personally before it.

1 Tanja G. J. The decree. soch. - the river 123.

1 Potapov 11. A.Uka?. soch. - 24 - 28 with.

3 Among them Germany, Belgium, Switzerland, Italy.


The general commissioner independently, without the consent to that of the parties, can charge to one of inspectors to carry out functions of the representative of Power-patroness (item 7 of Executive Regulations of the Convention).

The most pitiable situation on control develops in not international confrontation as all mehayonizm about which we spoke earlier, ceases to operate according to positions of paragraph 1 of item 2 of Executive Regulations.

In case of the conflict having not international character, the Convention of 1954 does not provide any control mechanism.

According to the Convention, the UNESCO have the right, only to render technical assistance and the help if the parties about it ask, or under own initiative.

The possible exit consists of the combined situation, in expansion polyonomochy UNESCO by a principle humanitarian инициативы1 which predosyotavlena MKKK within the limits of item 5 of its Charter to operate immediately and nayostolko quickly, how much that is demanded by a situation that have not suffered nevinyonye жертвы2.

However such initiative is included into the contradiction with the UNESCO nature as intergovernmental organisation and item Z of the Charter of UNESCO where organiyozatsii it is forbidden to interfere with internal affairs of member states.

Closer soyotrudnichestvo between UNESCO and MKKK, and also from the United Nations that is provided item 31 of Additional report II (1999) could become the partial decision of the given problem.

The lawyer from the USA K.Vernoj suggests to allocate representatives JUNEYOSKO with the powers similar to what are given inspectors MAGATE within the limits of the Contract of 1968 «About non-distribution of the nuclear weapon» that they could visit free any objects, at any time, when will consider it necessary, and any state will be obliged to accept them with in -

1 Practice shows, that the states have not the right to refuse the humanitarian help offered MKKK, as soon as except for safety reasons.

2 Document of UNESCO. - CLT-83/WS. - the River 70 - 74.


spektsionnoj mission. All it is a consequence of the right on cultural inyoterventsiju which, in its opinion, is given the world community within the limits of already operating international law as most vazhyonye cultural values are a part world cultural наследия1.

Thus, if the state does not carry out of the obligations to the world community it has the right to force this state to them ispolyoneniju.

Various variants of such compulsion are possible, first, zadejyostvovat the UN Security Council mechanism, in this case, if the situation will receive an estimation as «a situation menacing to the world and safety», the world community enters armies is a radical variant, secondly, the second vayoriant, about which we spoke-it expansion of powers of UNESCO, nadeyolenie its right of the inspection, similar to volume which is given inspectors MAGATE within the limits of the Convention of 1968, «About non-distribution of the nuclear weapon».

Thus some scientists suggest to assign to peace-making forces of the United Nations of function on protection of cultural values and suppression vozmozhyonyh infringements, such prospect has already passed discussion within the limits of Sixth committee OON2.

During revision and addition of positions of the Convention of 1954 the big attention has been given institutsionalnoj to a problem as the Convention did not provide creation of any body to which would be supposed to assign control function.

Terrorism and cultural values.

The universal position consists that separate sporadic certificates of violence do not get under concept of a confrontation, and, sledovayotelno, positions of the Convention of 1954 are not applied. Unfortunately, in the end

Vernon M. S Common cultural property: the search for rights of protective intervention / M. C. Vernon//Case Western Reserve Journal of International Law. - Vol. 26. - M> 2 - 3. - P.435 - 479. 2 Tanja G. J. The decree. soch. - P. 124.


The past and the beginning of this century cases when terrorists as targets of the attacks choose also cultural objects have become frequent.

Actively the Irish republican army resorts to it, vzoyorvavshaja on April, 24th, 1993 church Sacred Etelberga in London, postroenyonuju in 1400 1.

Independently there is a situation with statues of the Buddha in Afghanistan as their destruction resembles the certificate of world vandalism more, than terroristiyochesky the certificate. Most in details given question is shined in I.Bhat's work in which opinion, Talibs have broken positions of the general international gumayonitarnogo the rights, having destroyed statues Будды2.

Despite their destruction, the world community recently has undertaken a number of the actions directed on restoration of cultural heritage Аф­ганистана3.

What moves these vandals at the moment of realisation given terroyoristicheskih certificates?

It is necessary to tell, that in this case it is a question of blackmail when kulyoturnye values get out to declare publicly themselves as about political influential force or to achieve a recognition from the party miyorovogo community. In this case it is impossible to talk about etnotside and tselenayopravlennom destruction of cultural values.

P.Bojlan in this connection suggests to pay attention to positions of the Convention on a genocide of 1948 The matter is that in an original project danyonoj Conventions along with concept "genocide", the concept "etno-tsid", as independent structure of the international crime appeared also, but finally it has been lowered. He also notices, that would be quite good to give to United Nations International court advisory opinion of, whether intended destruction of all certificates on ethnic, cultural and religious or other group originality is by means of

1 The Times, 27 April, 1993.

2 Bhat P. I. The decree. soch. - P. 47 - 69.

3 Manhart WITH UNESCO's mandate and recent activities for the rehabilitation of Afghanistan's cultural heritage / ManhartC.//IRRC.-2004.-VOL.86. - № 854.-P.401-411.


Physical destruction of symbols of their originality by a genocide, ispolzueyomym this Convention, or нет1.

In connection with last certificates of terrorism on the foreground leaves proyoblema prevention of acts of terrorism concerning cultural values and soyotrudnichestva the world community thereupon.

Last acts of terrorism in New York when in buildings of business centres the set of works of art also was lost, have shown, that for terrorists the symbolical price of these objects, instead of so much their art and architectural ценность2 is important.

On the other hand these certificates can be regarded, as default goyosudarstvom the obligations within the limits of the Convention of 1954 (item Z of the Convention of 1954), namely to protect, so to prevent, any acts of hostility in relation to cultural values in a peace time.

According to the scientist from the Netherlands Z.Tanja, during revision instiyotutsionalnogo the mechanism fixed by the Convention of 1954, followed sfoyokusirovatsja on four problems:

1) lacks institutsionalnogo the mechanism at the governmental level;

2) possible mutual relations of UNESCO and the United Nations in this field (including United Nations actions on world maintenance);

3) a possible role of non-governmental organisations within the limits of KonvenYO tsii 1954 and their mutual relations about UNESCO and the United Nations;

4) practice of General commissioners and Держав-покровительниц3.

In 1962 at the first meeting it was recommended to General director of UNESCO of gosuyodarstv-participants to create technical, consultative committee which would release it from the functions assigned to UNESCO within the limits of item 23 of the Convention, referring to:

' Bo> lanP. J. The decree. The soch.-river 121.

2 Carcione M.M. Terrorism and cultural property / M.M. Carcione//Tilburg Foreign Law Review. - Vol. 10. - № 1. - 2002. - P. 82 - 89.

3 Tanja G.J. The decree. soch. - P. 123.


1) preparation of the program of the actions connected with application KonvenYO tsii by the various States;

2) entering of the cultural values which are under special zashchiyo with that, into the International register;

3) distribution of the information and the documentation, connected with primeneyo niem Conventions;

4) coordination of activity of the national consultative committees, which creation it has been provided by the Resolution II accepted on KonferenYO tsii on 1954

The given body could take the form of committee of the experts appointed GeYOneralnym the director of UNESCO in personal quality or as structure of the Executive committee. Members of committee should be selected so that experts of various aspects of protection have entered into it, with wider geographical representation. The committee should gather not less often than an once in год1.

If the Committee has been created, under the form it would become additional body of the Executive committee of UNESCO, therefore to it the problem of consideration of reports about implementatsii, formulations reyokomendatsy on implementatsii also could be entrusted the Convention; it would become accountable GeneralYOnoj to conference and Executive committee JUNESKO2.

From UNESCO the big attention during Convention revision has been paid to increase of function of the control.

P.Bojlan suggested to create the organisation on similarity of Committee on ohyorane the world cultural and natural heritage provided KonYOventsiej on 1972.

During meetings, on which there passed acceptance Additional protoyokola II (1999), it was considered two possible variants: creation postojanyono operating Committee within the limits of UNESCO (it is offered the states -

1 Document of UNESCO. - GUA/120. - 1962. - the River 4.

2 Document of UNESCO. - CLT-83/CONF.641/1. - the River 12.

3 Boylan P. J. The decree. soch. - Appendix 12.


Participants), and creation of a time special Bureau from 6 ekhpertov sroyokom for 2 years (it is offered UNESCO Secretary). Creation and an advisory body constituted of experts and representatives neprayovitelstvennyh организаций1 was offered.

Functions which were supposed to be assigned to Committee and the Bureau were the following:

• definition and a criterion formulation on which basis the cultural value could be it is taken under special protection;

• reception of requirements from the state-participants about entering into the Yard gistr the cultural values defined by item 1 of the Convention of 1954 the Given requirement should include the information and the documentation about exact mestoyo a finding, value and the cultural value nature;

• an establishment, updating, the publication and distribution each 2 years of the Register of cultural values;

• monitoring and a management over process implementatsii Conventions;

• execution of any functions which follow from positions doyo kumenta or on request of the Convention state-participants;

• reception and studying of requirements about the international help, formulated by the state-participant according to positions of the given project;

• preparation, conducting and the publication of the list of projects and the programs, provided by the given document on which it will be guaranteed okayo zanie the international help;

• decision-making in reply to the requirement of the international help according to positions of the given document, defining when it is not both hodimo, the nature and degree of this help, and acceptance corresponding vyvoyo dov by results of the activity, with making agreement with praviyo telstvom which they concern;

1 Document of UNESCO. - CLT-95/CONF.009/5. - the River 3.


• procedure definition according to which the requirement about rendering of the international help will be considered;

• cooperation with the General director of UNESCO on vypolyo neniju the functions provided by articles of this document, to execute its problem under the control according to Executive regulations of the Convention of 1954

• the order resources of the Fund provided sootvetstyo vujushchej by article of the given document;

• preparation of the report for each General session of UNESCO, otyo a couple about the деятельности1.

Basically, the given list a little than differs from what as a result has been accepted in item 27 of Additional report II (1999), with that only, in our opinion, an essential difference, that the Committee which has been created in ramyokah Report 1999, is not obliged to report about the work neither before GeneYOralnoj conference, nor to the General director of UNESCO that creates, in our opinion, a certain stock of impartiality and nezavisimoyosti its activity.

Basic distinction consisted only that the Bureau, creation koyotorogo was offered UNESCO Secretary, carried ad hoc характер2.

According to the expert of UNESCO in the field of protection cultural tsennoyostej J.Hladika if to select the first variant, that, certainly, data KomiYOtet could make essential impact on the international affairs, could expand essentially protection of cultural values during time vooruzhennoyogo the conflict, could give to the requiring countries administrativyonuju, the legal and financial help, and it would have the result sisyotematicheskuju implementatsiju Conventions and strengthening of its execution.

However the first variant had also lacks, its acceptance could priyovesti to establishment of new intergovernmental structure during the period kriti -

1 Document of UNESCO. - CLT-97/CONF.208/2.

2 Document of UNESCO. - CLT/95/CONF/009/2.


ki activity of the United Nations and its bodies to strengthen world bureaucracy. The first variant was expensive enough and created new encumbrances besides those, kotoyorye already existed at UNESCO Secretary. Finally, in case of the possible conflict in which the set of the countries would be involved, it could affect efficiency of its work when the consent is very necessary 1.

As a result, having consolidated two given efforts, the international body selected General Conference of UNESCO, but not entering into its structure has been created constant, neyozavisimyj, enough small, consisting of 12 members. As it will be effective it to carry out the functions, will show time.

Besides, with a view of efficiency increase Additional protoyokol II (1999) provides obligatory cooperation with others neyopravitelstvennymi the international organisations: Committee of a blue board, the International centre on preservation and restoration studying kulyoturnyh values, MKKK, that, of course, is the positive moment as the given non-governmental organisations less than UNESCO are subject to influence of political forces and consist of experts, which rukoyovodstvujutsja only interests of protection, acting in personal quality.

But, much to our regret, Committee of a blue board and others organizayotsii the similar sort, items 27 of Additional report listed in item Z II (1999) are only advisory bodies. In our opinion, followed enter the given organisations into structure of Committee as collective members, or to give them the veto power on the decision of Committee which mozhyono would be to overcome only special majority.

Besides, the Committee for performance of the functions assigned to it has the right to dispose of means of specially created Fund.

As control function consists not only in suppression vyjavyolennyh infringements, but also in their revealing, it is necessary to stop on such tool provided by the Convention of 1954, as monitoring more in detail.

1 Hladik J. The review process of the 1954 Hague convention for the protection of cultural property in the event of armed conflict and its impact on international humanitarian law / J. Hladik//Yearbook of International Humanitarian Law. - 19998. - Vol. 1.-P. 320-321.


If monitoring function in the pure state, in extreme situations, is carried out by special deputies of the General director of UNESCO or, according to the Convention of 1954, representatives of the states in a peace time it is shifted on shoulders of the states.

According to J.Hladika, the purpose of inclusion of the given position consists in giving the chance to UNESCO Secretary to study implementa-tsionnye the measures undertaken by the states to execute the Convention and nayopravit to the state-participants the information in the form of the large-scale report.

At the same time, as underlines J.Hladik, the given practice had a number of essential lacks: first, item 2 of item 26 of the Convention of 1954 upolnomoyochivaet the states to inform only that information which was, in their opinion, essential and expedient, secondly, information interchange proyoishodit through the General director of UNESCO who could judge subjectively both its desirability, and on time of its representation.

It was as a result offered, besides a variant of a simple reminder, to include a variant of giving to binding character reports, to refuse system of reports in favour of system of trainings and scientifically-practical seminars.

J.Hladik notices:

1) occurrence of system of monitoring corresponds the Convention requirement;

2) it is an additional periodic reminder a sovereign to stvam-participants about both their rights and duties according to the Convention, otkryvayo et for them possibility to study experience of other state-participants, which under other circumstances (in other cases) was difficultly vypolnimo even in developed государствах1.

Thus, duties which throughout long time de-facto were carried out by UNESCO Secretary, have been told Committee, that javljayoetsja, certainly, positive moment.

HIadik J. Reporting system under the 1954 Convention for the Protection of Cultural Property in {he Event of Armed Conflict/J. HIadik//Review of the Red Cross. - Vol. 840. - P. 1001-1016.


Besides, Additional report II (1999) in item 23 predusmatriyovaet carrying out of periodic meetings of the state-participants, for opredeleyonija the general directions in the politician of protection of cultural values in a confrontation.

As to the monitoring system in conducting operations it remained without basic changes that should cause огор­чений1.

Practice has shown, that monitoring functions can be assigned on speyotsialnye missions in frameworks ООН2 and the European Union, sending a number svoyoih missions during the conflict to territories were Югославии3, during occupation Кипра4, and in a situation with Nagornym Карабахом5. And in a case nayopravlenija it is not required to observant mission in frameworks of the mandate of the UN Security Council of the consent of the state.

Besides considered above the control mechanism on protection kulyoturnyh the values, separate positions on the given question contain also in Additional reports 1977 to the Geneva conventions of 1949

According to requirements named international legal akyotov Powers-patronesses if they are not appointed MKKK — as their substitute are obliged to carry out control functions.

Besides, the part of functions of the control lays down on the Commission on ustanovyoleniju the facts (item 90 of Additional report I (1977)) 6.

But for today, on a trope of the expert in oblasyoti humanitarian law from the Netherlands F.Kalshovena, the commission sojourns

1 Speech, first of all, goes about institute of General commissioners and representatives of Powers-patronesses.

2 Final report of the United Nations Commission of Experts established pursuant to Security Council Resolution 780 (1992). - the United Nations Document. - S/l994/674/Add.2 (Vol. V). - Annex XL - Destruction of cultural property report - 28 December 1994.

War damage to the cultural heritage in Croatia and Bosnia-Herzegovina Tenth information report. — Document PAYOSE Xs 7740. - 24 January 1997., the Document the PASS № 6869 revised 17 July 1993., the Document the PASS № 6904.-20 September 1993., the Document the PASS № 6756. - 2 February 1993.

4 Information report on the cultural heritage of Cyprus, - the Document PASS Jsa 6079. - 6 July 1989, the Document the PASS №9460.-7 May 2002.

State of Azerbaijan cultural monuments in the territories occupied by Armenia. - the Document the PASS № 9977.-13 October 2003.

6 Kussbach E The International Humanitarian Fact-Finding Commission / E. Kussbach//International and Comparative Law Quarterly. - 1994. - Vol. 43. - P. 174-185.


In «a fine dream» in spite of the fact that has passed more than 25 years since the moment priyonjatija the Report, and in the international life there were such situations in which the Commission could accept active participation, for example, in case of the conflict in territory of the former union republic Jugoslavii1.

That the Commission has started investigation, it is required, chtoyoby both parties of the conflict recognised the competence of the Commission of the relation each other by the corresponding statement during ratification or at the desire of the party which are in the conflict, to obligatory reception soyoglasija other party.

Principal cause of that the Commission has not started till now to rayobote, that the guilty states are not interested in its creation as if the facts of infringements will prove to be true is, the state should be responsible for the actions within the limits of international law.

Thus, despite separate lacks, Additional report II (1999) to the Convention of 1954 has brought the essential contribution in soveryoshenstvovanie the mechanism of the international control on observance of norms guyomanitarnogo the rights concerning protection of cultural values in a case vooyoruzhyonnyh conflicts.


Speaking about a liability of infringement of rules of law armed konyofliktov in the doctrine allocate: the sanctions applied to the states, represyosalii, collective responsibility of the states and the sanctions applied to separate person, we will stop on an individual responsibility and otyovetstvennosti the states for fulfilment of crimes against cultural values, as the most probable forms of responsibility (the question about represyosalijah has been mentioned us in the previous heads) 2.

1 Kalshoven F. The International Humanitarian Fact-Finding Commission: L Sleeping Beauty? / F. Kalshoven//Humanitares VOLKERRECHT - Informationsschriften.-2002. - № 4. - P. 213-216.

2 Egors S.L.confrontation and international law / S.L.Egor. — M: Diplomatic akadeyo mija the Ministry of Foreign Affairs of the Russian Federation. - 268 - 277 with.


The individual responsibility question developed is forward, at first IV Hague convention of 1907 has fixed, that «any capture, razruyoshenie... Becomes a subject of legal prosecution» (item 56 of IV Hague KonYOventsii 1907), without those instructions, in what order and how it will occur.

After item 28 of the Convention of 1954 has fixed, that the states undertake to accept within the limits of the criminal legislation all measures, neobhodiyomye that have been revealed and subjected criminal or distsipliyonarnym to sanctions of the person, irrespective of their citizenship, broken or priyokazavshie to break the present Convention, again not having specified structures and not zayokrepiv jurisdiktsionnyh procedures.

Item 28 of the Convention of 1954, according to Hungarian scientist I.Tomana, had already for an object maintenance of the mandate of universal jurisdiction. When during diplomatic conference of 1954 one of representatives of the states has brought up a question, whether the Convention state-participants to pursue or establish criminal sanctions concerning the persons who have made preyostuplenie behind territory on which extends criminal jurisyodiktsija the states are obliged, the answer "yes" as it and is the data purpose предложения1 has sounded.

Practice has shown, that only a few states (Belgium, Slovenia, Mexico, Croatia) have followed to the given example, having accepted, for example, the law of Belgium from June, 16th, 1993 entirely osnoyovyvalsja (repeated) the corresponding legislation on positions of item 53 and 85 4 d) Additional report I (1977), to the Geneva conventions contained 1949 §5 which items 2 nakazayonie from 10 till 15 years compulsory работ2.

In our country the problem of criminal prosecution of persons, for prestupleyonija against cultural values has been considered in E.V.Medvedev's work.

1 Toman J. The decree. soch.—294 the river

2 Hladik J. Reporting system under the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict/J.HIadik//Review ofthe Red Cross.-Vol. 840.-P. 1001 - 1016.

3 Medvedev E.L.Ukaz. Soch.


The operating Russian criminal legislation contains a number stayotej, devoted criminal преследованию1, but, unfortunately, only in a peace time. Therefore we recommend to follow the lead vyshenazvanyonyh of the countries, having passed of the law regulating questions of responsibility for preyostuplenija, made against cultural values in a wartime.

To an adoption of law «About the cultural values which are moved to USSR as a result of the Second World War and being in territory of Rosyosijsky Federation» from April, 15th, 1998, has been developed alternative zayokonoproekt «About protection of cultural property of the Russian Federation in armed konflikyotah» 2 which, unfortunately, has not been accepted.

At the heart of the bill laid two principles: 1) irreversibility rezulyotatov the Second World War which has become by a corner stone by all sovremenyonoj of system of a world policy and international law, 2) a recognition of indestructibility of the right of the people on their preservation cultural наследия3.

Additional reports 1977 to the Geneva conventions of 1949 have entered concept of "gross infringement" which in particular is and preyovrashchenie clearly identified cultural value in military object.

According to the judge of the Supreme Court of Spain ZH.L. Flores, serious nayorushenija comprise acts which seriously break the cores inteyoresy, protected by humanitarian law, therefore they, accordingly, javyoljajutsja war crimes. That this term means not clearly, but its interpretation means international law infringement, is serious zayotragivajushchee persons and protected objects, and, moreover, directly infringing on the vital interests world сообщества4.

Additional report II (1999) has given detailed classification of crimes against cultural values and has specified in compulsion soyotrudnichestva the states in the given area.

1 Criminal code of River F item 164, item 188 item 2, item 190, item 243. 2http://vvw\v.nasledie.ra1ltyra ' 4_4_2/pkc/35.htm.

3 Dirpsh A.D. A policy of the USSR and the Russian Federation concerning a problem of the restitution of cultural values/L.D. Dirgin//MZHMP. - 1999. - L »2. - With. 303.

4 Flores J.L.F. Repression of breaches of the law of war committed by individuals / J.L.F. Flores//International Review of the Red Cross. - X> 282.-1991. - P. 264 - 265.


If in Additional report I (1977) it was spoken only about preyovrashchenii clearly identified historical monuments, products iskusyostva or places of departure of a cult which are cultural or duhovyonym a heritage of the people and which special agreement concluded, for example, within the limits of the competent organisation, it is given special zashchiyota, in object of an attack therefore it puts the big destructions when there is no certificate on infringement by article 53 adversary, point and when such historical monuments, works of art and places of departure of a cult are not in immediate proximity from voenyonyh objects (item 4 d) item 85), that actually shifted all cargo otvetstyovennosti on shoulders defending Report 1999 has laid down the parties in equal conditions, having provided responsibility and for attack (attack), without dependence from its consequences, having overcome "incompleteness" of the given measures.

At the same time, Additional report I (1977), Report 1999 have not provided responsibility for careless causing вреда2.

The offer stated by the delegate from China, to consider within the limits of Additional report II (1999) problem of collateral injury cultural values, has not found поддержки3.

As to responsibility for complicity and other forms sodejyostvija Report 1999 sends to general provisions of the international criminal law as simultaneously with working out of the given mezhdunayorodno-legal certificate there was a work on the Charter of the International Criminal court, and many delegates have considered, that there is no necessity to come back to given проблеме4.

Report 1999 enters three groups of crimes:

' GiolaA. The decree. The soch.-river 55.

2 Galensky L.N.legal regulation protect cultural values in case of confrontations / L.N.Galensky//the Russian year-book of international law, spets. Release. - 2000. - with. 81 - 84.

3 Spieker N.Ukaz. soch. - the river 377.

4 Henckaerts J-M. New rules for the protection of cultural property in armed conflict / J-M. Haenckaerts//IRRC. - 1999.-Vol. 835.


1) Gross infringements, for which fulfilment the Convention of 1954 preyo dusmatrivaet universal jurisdiction, by a principle: or involve, liyo bo transfer:

a. Attack of the cultural values which are under expanded zayo shitoj;

b. Use of cultural values under the expanded protection and their nearest environment in support of military actions;

c. Intensive both large-scale destruction and requisition kulyo turnyh the values which are under protection of the Convention and the Report.

2) Gross infringements, for which fulfilment the Convention, predusmatyo rivaet allowing jurisdiction:

d. Attack of the cultural values which are under protection KonvenYO tsii and the Report;

e. Theft, plunder, misappropriation and fulfilment of certificates of vandalism against cultural values being under Convention protection.

3) Other infringements (Report 1999 item 21):

a. Any use of a cultural value in Convention and Report infringement;

b. Any illegal export, and other moving or property cession of rights on cultural values from an occupied territory in naruyo shenii positions of the Convention and Протокола1.

As to the first group first two crimes concern to neyodvizhimym to the cultural values which are under strengthened protection. DoYOpolnitelnyj report II (1999) does punishable attack and ispolzoyovanie in the military purposes (transformation into military object), without dependence from its consequences. It is not clear where to carry the same actions if they are sover -

1 Given crime is infringement of positions of the Report to the Convention of 1954 more likely


sheny concerning objects which are under special protection, according to the Convention of 1954?

Or in Additional report II (1999) they are carried to a category but then it demands approach of serious consequences, or categories d), that is the most probable, or developers of Report 1999 have considered, that with its acceptance all cultural values which were earlier under spetsiyoalnoj with protection, according to the Convention of 1954, automatically fall under the strengthened mode.

On and in that and other case, developers of Additional report II (1999) have made a rough slip, having lowered the given category, poskolyoku about special protection nobody cancelled positions of the Convention of 1954, and after the introduction into Report 1999 action is theoretically possible vneseyonie new objects in this list. Following logic of developers of Report 1999, crimes concerning this category of cultural values should be necessarily mentioned in the item and Additional report II (1999).

Report 1999 positions extend equally as on conflicts international, and not international character, sledovatelyono, and criminal prosecution should not depend on it фактора1.

In itself definition of gravity of infringement is not enough, for toyogo to be assured that the persons who have made such infringements, will be actually punished, for this purpose it is required effective funkyotsionirovanie the given norm at national level, and it demands kriminayolizatsii infringement and an establishment of jurisdiction for attraction or экстра­диции2.

Therefore it is necessary to stop on jurisdiction and extradition questions.

The gross infringements provided by the item also correspond seryozyonym to the infringements provided by the Geneva conventions of 1949 and To -

The International criminal court adheres to 1 Similar position also. 21 lenckaerts J-M. - the decree. soch. - in the same place.


polnitelnym report I (1977), that actually means presence uniyoversalnoj jurisdictions of the states concerning the given acts.

Proceeding from it, the states should establish jurisdiction not only when crimes are made in their territory or the criminal is the citizen of this state, but even then, when the given crime soyoversheno abroad the stateless person.

The mandate of universal jurisdiction means, that the states should try to involve or ekstragirovat (aliens) for their attraction in responsibility for the war crimes made abroad, but kotoyorye are in present the moment in their territory. And for an extradition it is unessential to refer to the mutual contract, and it is enough to refer only to positions of Additional report II (1999) 1.

On request of the USA it was offered to exclude citizens of the states which are not participating in Report 1999, from a mode of the mandate of universal jurisdiction. However degree of such exception is essentially lowered, owing to a recognition, that the states can establish jurisdiction over such liyotsami according to applied national or international prayovom, including usual international law, and also owing to the statement made the chairman of working group under the chapter of IV Report 1999:

There is nothing such in Report 1999 which limited to any way ability of the states to accept the legislation criminalising or otherwise dealing with any infringement agree the Report, and also owing to that fact, that all provided jurisdiktsionnyj the mode does not put a damage of item 28 of the Convention 1954 2.

Concerning the second category of "gross infringements", the countries obladayojut allowing jurisdiction that means a duty of the states ustayonovit such jurisdiction when the given infringement occurs on them is

1 Giola L.Ukaz. soch. - the river 54 - 55.

2 Fischer H. Presentation of the Results of the Working Group on Chapter 4, UNESCO Doc. HC/1999/INF.5, 25 March 1999.-P.3.


torii also it is made by their citizens of the item and item 16 of Additional report II (1999).

As to last category of crimes, «less serious nayorusheny» it has the right to make the states, but can be limited only administrative and disciplinary actions.

The picture of the individual criminal liability will be incomplete if to leave without consideration the Charter of the International criminal court.

The charter provides the incidental jurisdiction of court concerning the persons responsible for the gross infringements, causing ozabochenyonost all world community, (items 1) specified in the Charter.

As to the list of a considered category of affairs crimes against cultural values are carried to war crimes (to other gross infringements of laws and customs of war) among which deliberate drawing of blows on the buildings intended for the purposes reyoligii is mentioned «, formations, cultures, arts, sciences, charities, istoyoricheskim to monuments, hospitals, places of a concentration of patients and wounded men provided that they are not the military purposes».

The competence of court and on a case of the conflict of not international character (item 8 §2 (b) (ix) and 2 (e) (iv)) is similar.

Thus, the International Criminal court adheres to the obychyono-legal concept of concept of cultural values, proceeding from its special-purpose designation, rejecting all that spectrum of the norms accepted world soobshchestyovom concerning cultural values for last hundred years. The charter not operiyoruet neither concept of a cultural value, nor its kinds, moreover, it not soyoderzhit punishments for transformation of a cultural value into military object, for large-scale destruction and expropriation of cultural values, koyotorye according to Additional report II (1999) are gross infringements and which fulfilment attracts application to them universal jurisdiction.


The court statute does punishable attacks of the objects used in kulyoturnyh the purposes, and historical monuments that corresponds to the item and 4. - P. 221 - 223.


The measured injury to the institutes serving religious blagotvoriyotelnym and the educational, cultural and scientific purposes, historical payomjatnikam, a work of art and sciences (the item d) item Z of the Charter). Thereby directly having covered wider spectrum of crimes, rather than the Nuremberg Tribunal and the Charter of the International Criminal court.

Besides, unlike the Nuremberg tribunal in accusatory zayokljuchenijah the persons made accountable under the Charter of Tribunal, sozyodannogo for investigation of crimes in territory of the former Yugoslavia, charges in «destruction and intended detrimenting to the institutes serving to the religious purposes» 1, «destruction and nameyorennom detrimenting to the institutes serving religious and obrazovayotelnym to the purposes» 2, «capture, destruction and intended injury inyostitutam, to serving religious purposes» 3 began to appear.

The employee of legal service at Tribunal X. Lbtahi, having analysed the Tribunal Charter, has come to conclusion, that besides direct protection, it also soyoderzhit norms about indirect protection and protection a posteriori, directed on vosyostanovlenie situations which existed before fulfilment of crimes, according to item 24 positions, item Z item 105, item 98 Устава4.

Some scientists declare necessity of acceptance of the international code of crimes against cultural values where along with prestupyolenijami, made in a wartime, crimes would enter, sovershaeyomoe and in a peace time as for today in international prayove for this purpose there is the sufficient standard base consisting from:

1 The V. Radovan Karadzic (Indictment), 1995 ICTY Y.B. 204, 215, No. IT-95-5, Count 6, available at http://w\v\vMin.orti/ictv/indictment/engli '; h'kar-iiQ50724ehtm. The V. Radoslav Brdanin (First Amended Indictment), No. IT-99-36, Count 12 (ICTY 1996), available at http:/

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A source: AHMETZJANOV AZAT AJRATOVICH. International-LEGAL PROTECTION of CULTURAL VALUES In case of the CONFRONTATION. The dissertation on competition of a scientific degree of the master of laws. Kazan-2005. 2005

More on topic § 3.2. The control and responsibility over infringements of international legal norms but protection of cultural values in case of a confrontation.:

  4. § 2.3. The convention of 1954« About protection of cultural values in case of a confrontation »and Additional report I to it.
  5. § 2.4. Additional report II (1999) to the Convention «About protection of cultural values to a confrontation case» 1954
  6. AHMETZJANOV AZAT AJRATOVICH. the MEZHUDNARODNO-LEGAL PROTECTION of CULTURAL VALUES In case of the CONFRONTATION. The dissertation on competition of a scientific degree of the master of laws. Kazan-2005, 2005
  7. § 2.2. A parity of military necessity and protection of cultural values in a case pooruzhepnogo the conflict.
  8. § 2.1. Concept of cultural values in international legal akyotah and in the international law doctrine.
  9. § 2.1. The Legal protection of journalists during the international confrontation
  10. § 3. 1. The general, special and strengthened legal modes of protection of cultural values, their application in confrontations mezhyodunarodnogo and nemezhduiarodiogo character.
  11. value of the concept «responsibility on protection» in prevention of gross infringements of the obligations following from mandatory provisions of international law (jus cogens)
  12. § 1.2. Spontaneous regulation of protection of cultural values.
  13. § 3. A legal estimation of a confrontation in Ukraine through a prism of norms of the international humanitarian law about the forbidden methods and weapons of war
  14. the International legal analysis of the concept of "divided responsibility» (shared responsibility) in a context of a liability of infringement of the obligations following from norms jus cogens
  15. protection of human rights in the conditions of a confrontation of not international character
  16. similarities and differences of administrative responsibility for infringements in sphere of taxes and tax collections in the Russian Federation from other kinds of legal responsibility
  17. Chapter 2. International legal protection of objects of an underwater cultural heritage
  19. § 2. Implementatsijathe international legal norms providing responsibility for illegal circulation prekursorov of narcotics and psychotropic substances, in the criminal legislation of Russia and Tajikistan