When I was asked by Dr. O'Keefe, Book Editor of the International Journal of Cultural Property, to review “War and Cultural Heritage” by Kevin Chamberlain I immediately agreed because I wished to see the first scholarly article-by-article commentary on the 1999 Second Protocol (“the Second Protocol”)¹

to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (“the Convention”) as well as another commentary on the Convention and the 1954 First Protocol.

I was not disappointed because the publication contains a comparative analysis of the Convention and the First and the Second Protocols, which is of particular use in demonstrating to students, scholars and practitioners of international humanitarian and cultural heritage protection law the genesis of the development of the international legal protection of cultural property in the event of armed conflict. In particular, I found very useful references to the relationship between the First Protocol, on the one hand, and the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Property on the other. It is also important that the publication analyzes the issue of cultural property displaced in relation to the Second World War, though it is not, strictly speaking, linked to the implementation of the 1954 Convention, the 1954 Protocol or the 1970 and 1995 Conventions.

However, the publication also contains some statements which are, in my opinion, debatable. I will focus only on the most substantial ones. I will start with the link between the Convention and international customary law. The author states that “it is now generally accepted that the Convention reflects customary international law” (p. 24): “Since the Convention is now generally accepted as part of customary international law, the mutual obligations of the Convention can be argued to apply irrespective of whether or not the States concerned are Parties to the Convention” (p. 176) and “As already noted, the substantive provisions of the 1954 Convention are now regarded as part of customary international law” (p. 239). I would be more prudent because the State practice in this field is quite scarce and Resolution 3.5 on the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954)²

, adopted by the twenty-seventh session of the General Conference of UNESCO (Paris, 26 October–16 November 1993), only reaffirms, among other things, that “the fundamental principles of protecting and preserving cultural property in the event of armed conflict could be considered part of international customary law”. It may be submitted that this statement mainly concerns principles contained in Articles 3 and 4 of the Convention regarding the safeguarding of, and respect for, cultural property.

I am not comfortable with a part of the commentary on Article 2 of the Convention stating that “It is doubtful whether this Article has any substantive meaning other than as an introduction to what it follows in the remaining provisions of the Convention …” (p. 33) because Article 2 embodies the whole philosophy of the Convention, namely that the protection is based on safeguarding measures (taken mainly, but not exclusively in peacetime) and measures for respect for cultural property (taken mainly, but again not exclusively, in wartime).

In his commentary on the control system under the Convention (p. 103), the author provides a number of reasons for the modest success of that system. One more influential reason should have been added—that the control system of the Hague Convention, based on Protecting Powers, representatives of Parties to the conflict and Commissioners-General for Cultural Property, is not applicable to non-international and mixed armed conflicts prevailing since the adoption of the Convention. Regarding the Second Protocol (pp. 237–240), the author enumerates a number of strengths of that instrument, such as the establishment of a framework within which the waiver of imperative military necessity may be applied, precautions in attack, the protection of cultural property in occupied territory, the penal provisions, and the institutional issues (e.g. the twelve-member Committee for the Protection of Cultural Property in the Event of Armed Conflict). One more strength should have been mentioned—the obligation of States Parties to adopt safeguarding measures (cf. Article 5 of the Protocol) and their importance for protecting cultural property both in peacetime and wartime.

Unfortunately, the publication contains very limited references to other publications and articles in the text and the references contained therein are exclusively from English-speaking sources. The publication does not contain a separate bibliography, a commentary on Article 14 of the Second Protocol and on the three Resolutions adopted by the 1954 Hague Intergovernmental Conference. Finally, the number of objects included in the International Register of Cultural Property under Special Protection is five and not six (p. 192).

However, all these issues I have just mentioned do not diminish the value of the publication as a first reference tool in English (to the best of my knowledge) to both the Hague Convention and its two 1954 and 1999 Protocols, thus raising awareness of those instruments. For those who consult it, the publication provides law students and practitioners with a basic overview of those instruments and their links to other instruments protecting cultural property.