On May 29, 2019, the NGO Crimean Center for Business and Cultural Cooperation “Ukrainian House” organized and held a roundtable “Monuments of the Crimea – Current State of National Heritage of Ukraine” with the support of the Ukrainian Cultural Fund .
The cultural heritage of Ukraine in the occupied Crimea:
Provisions of the Hague Convention for the Protection of Cultural Property in Case of Armed Conflict 1954
Mykola Yakovyna, Honorary President of the Ukrainian National Committee of ICOMOS
Threats to the cultural heritage of Ukraine in the Crimea have arisen since the first days of occupation of the peninsula by the Russian Federation. In accordance with current treaty and customary international law and national legislation of Ukraine, all cultural values that have been and continue to be in the territory temporarily occupied by the Russian Federation of the Crimean peninsula remain Ukrainian.
Moreover, it is confirmed by the latest international legal acts, in particular, the resolution of the UN General Assembly A / RES / 68/262 of 27 March 2014, adopted immediately after the hot pursuit of the aggressor country, supported the unity of Ukraine and called on all states, international organizations and the specialized agencies do not recognize any change in the status of the Autonomous Republic of Crimea and the city of Sevastopol and “refrain from any steps that could be interpreted as recognizing any such changed status”.
In this situation, one of the most important instruments to repel aggression is the steadfast observance of the international law of the Ukrainian state, which prohibits the appropriation of property in the occupied territories, including property of religious, artistic, educational and scientific institutions, in the field of protection of cultural values.
Ukrainian experts Kateryna Busol and Dmitry Koval, who elaborate on this issue, refer to fundamental acts of international law, in particular Art. 56 of the 1907 Hague Code, which equates these categories of property – even if it is state-owned – to private property. Thus, the inviolability of such property is emphasized, since private property has long been defined as inviolable during an armed conflict. In accordance with Rule 41 of the Common International Humanitarian Law Collection, concluded by the International Committee of the Red Cross, the occupying State must prevent the illegal export of cultural property from the occupied territory and must return the illegally exported cultural property to the competent authorities of the occupied territory.
These provisions were based on other international instruments, in particular, during the period between the two world wars, the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments of April 15, 1935 (known by its initiator as the Roerich Pact or at the place of signature) was signed. – Washington Pact).
Of particular interest now is the Convention on the Protection of Cultural Property in Case of Armed Conflict, concluded at The Hague in 1954 (hereinafter referred to as the 1954 Hague Convention), which is the result of the development of international law in the aftermath of World War II. to say, after Yalta, that gives it symbolic meaning in the context of recent events in Ukraine.
The 1954 Hague Convention obliges the occupying forces to assist the national authorities in protecting and preserving their cultural values (Article 5.1). Thus, as an occupying state, Russia is obliged not only to refrain from any unlawful act on cultural objects, but also to assist the representatives of the state to which they belong (that is, Ukraine) to ensure their security.
Important is the procedure for the application of this Act, as set out in Article 18 of the Convention:
«1. In addition to the provisions which are to enter into force in peacetime, this Convention shall apply in the event of a declared war or any other armed conflict that may arise between two or more Contracting Parties, even if the state of war has not been recognized by one or more of the them.
2. The Convention shall also apply in all cases of occupation of all or part of the territory of the High Contracting Party, even if that occupation does not meet with any military resistance. “
The Convention contains a number of provisions governing international and domestic procedures for actions with cultural values, namely: defining the list (lists) of cultural property, locating their location (including topographic), organizing a permanent monitoring of the situation, applying to the International Register of Cultural special protection values (UNESCO), the designation of certain temporary shelters and ways of possible transportation, the authorization of special staff, the appointment of the Commissioner-General for Cultural Affairs s values and appeal to the Protecting Powers and others. The latter two provisions should be of major interest to Ukraine as they allow not only UNESCO to appeal, but also provide for the right to appeal to one of the countries party to the 1954 Hague Convention to undertake the mission of the so-called “Protecting State”. whose functions include a wide range of actions both in the occupied territory (appointment of the aforementioned special staff and the Commissioner-General, listing, values localization, etc.), as well as mediating diplomatic actions.
Referring to these provisions of the Hague Convention, seeking to accelerate the implementation by the State of measures to protect cultural heritage from the aggression of the Russian Federation in the Crimea, the Ukrainian National Committee of ICOMOS addressed the Minister of Culture of Ukraine E. Nishchuk on March 4, 2014.
However, during the first year of the war, no measures were taken, at least in the public sphere, with the promulgation of official statements, the adoption of acts to implement the provisions of this document or the initiatives of the Ministry of Culture or the Government were generally observed. The second government after the Revolution of Dignity was not adequately addressed by these issues, but the Vice Prime Minister and Minister of Culture V. Kyrylenko addressed an appeal, which also called for Ukraine’s accession to the Second Protocol of the 1954 Hague Convention.
Some attention has been paid to this issue by the National Commission of Ukraine for UNESCO – the issue was included in the commission’s work plan for 2014. But all this was limited. The following 2015, the National Commission, without receiving clear explanations from the Ministry of Culture on the situation with accession to the Second Protocol, again left the question in terms of work in the following wording: “To study the issue of Ukraine’s accession to the Second Protocol of the Hague Convention on the Protection of Cultural Property in the Event of the Armed Conflict 1954” .
And in 2016, the Ministry of Culture issued a statement on the cultural heritage in Crimea only in the third after the Maidan government, in the third year of the war.
In the UNESCO National Commission, the issue was postponed to the 2016 work plan and to the 2017 plan. The shift in the position of the National Commission of Ukraine for UNESCO occurred after a special thematic meeting on the protection of cultural heritage in Crimea on January 19, 2018, where there was a decision “to initiate consultations on enhanced protection of monuments in Crimea in accordance with the Hague Convention on the Protection of Cultural Property in the Event of the Armed Conflict of 1954” and to “hold public hearings and expert consultations on tosuvannya mechanisms and procedures of the Hague Convention of 1954 “. Responsible executor – Ministry of Culture, deadline – “during 2018”.
And here, on May 14, 2019, in the sixth year of the war, the Verkhovna Rada of Ukraine adopted Resolution No. 2716-VIII “On Recommendations of the Parliamentary Hearings on the Status, Problems and Prospects of Protection of Cultural Heritage in Ukraine”, in particular, “ To provide the President of Ukraine with the submission to the Verkhovna Rada of Ukraine of the draft Law of Ukraine on the accession of Ukraine to the Second Protocol to the Convention on the Protection of Cultural Property in the Event of Armed Conflict, signed at The Hague on May 14, 1954 ”.
The fact that the parliamentary hearings took place the year before this resolution – April 18, 2018 – is amazing. At the parliamentary hearings, the proposal to accede to the Second Protocol of the Hague Convention was made at the beginning of this meeting in a speech by the Minister of Culture of Ukraine E. Nishchuk. What prevented the minister from fulfilling his powers without waiting for parliamentary hearings? The question is rhetorical, because that may be the only answer – lack of will, lack of responsibility for the government’s mandate. According to the Ministry of Culture, this agency is “the main body in the system of central executive bodies, which ensures the formation and implementation of state policy in the fields of culture and arts, protection of cultural heritage …”.
And E. Nishchuk’s personal powers were not lacking, because (read further): “4. The Ministry of Culture according to its tasks:
2) develops draft laws and other legal acts on issues within its competence;
7) participates in the preparation of draft international treaties of Ukraine in accordance with the legislation, prepares proposals for the conclusion and denunciation of such treaties, concludes international treaties, ensures the fulfillment of Ukraine’s obligations under international treaties on matters within the competence of the Ministry of Culture.
Thus, Minister of Culture E. Nishchuk did not have to wait for the 2018 parliamentary hearings to keep the public informed about the unfavorable state of affairs in his entrusted field, but to initiate as soon as possible the legislative act on Ukraine’s accession to the Second Protocol of the Hague Protocol values in the event of an armed conflict signed at The Hague on May 14, 1954.
What would give such an attachment? First, it should be borne in mind that since 1954 there have been changes, in particular, the improvement of international law. Therefore, after a series of tangible loss of humanity at the end of the twentieth century, the international community supplemented the 1954 Hague Convention with new provisions that made up the so-called Second Protocol to it. These are new elements of protecting cultural values, such as:
1. Personal criminal responsibility and punishment for violations of this Protocol – Intentional and deliberate damage to cultural property is treated as a war crime.
2. The concept of “military necessity” and other language used in the text of the Convention have been clarified.
3. A new kind of “enhanced protection” has been introduced, which is very important for Ukraine.
4. The institutional body of the Convention – the Committee for the Protection of Cultural Property – has been appointed and the list of measures related to the protection of cultural property carried out during peace, the so-called preparatory measures during peace, has been expanded, which in particular creates opportunities for the involvement of experts and activists in peacekeeping. the number of non-governmental organizations.
Needless to say, in the case of the Khan Palace in Bakhchisarai, the Ministry of Culture could have acted as a precaution to prevent the blatant acts of vandalism that occurred as a result of the so-called restoration initiated by the Occupation Administration.
Of course, there will someday be a punishment for the aggressor. But the high international tribunal, which will in the future consider the case of illegal actions concerning the cultural heritage of Ukraine due to the occupation by the Russian Federation of the Autonomous Republic of Crimea and the city of Sevastopol, in addition to qualifying the criminal actions of the authorities and persons of the aggressor state, will raise the unequivocal question of responsibility for instances of inaction of inaction persons of the Ukrainian state.
Open source photos