The Federal Law of 6 October 1966 on the Protection of Cultural Property in the Event of Armed Conflict
The Federal Law on the Protection of Cultural Property is based on the Hague Convention of 1954 in content, and to some extent also in its phraseology. The legislator was obliged in many respects to remain faithful to this international treaty, which in the Swiss national context has the force of a substantive federal law.
The most important concepts and provisions of federal legislation in the area of cultural property protection are described below.
The concept of "cultural property" (Art. 1 of the Federal Law of 6 October 1966; Art. 1 of the Hague Convention)
The concept of "cultural property" is defined both in the Hague Convention and in the above-mentioned Swiss federal law. The legislator was required to make only certain insignificant changes in phraseology, modelled on the Hague Convention, to adapt national legislation to the international model. As a result of this effort, Article 1 of the Hague Convention and Article 1 of the relevant Swiss law are virtually identical. It is particularly important in this context that notions of source and the status of possession are of no consequence. This means for example that foreign cultural property that happens to be on exhibit in Switzerland would also be protected whenever necessary. In accordance with Article 4, Par. 2 of the Federal Law on the Protection of Cultural Property, the cantons must designate any and all cultural property located on their territory to which the terms of the law are to apply. It is also the responsibility of the cantons to distinguish between what is genuinely "cultural property" and other property which might also to some extent deserve protection. When it comes to deciding which cultural properties should be considered as eligible for protection under the terms of the Hague Convention, the answers to the following two questions will determine the answer:
- What cultural property is likely, except in cases of military necessity, to require treatment with respect in accordance with the international laws and customs of war?
- What expenditures in terms of time, money, etc. can reasonably be expected to ensure protection from the foreseeable consequences of an armed conflict?
The establishing of priorities is unavoidable in this context. The Swiss Inventory of Cultural Property of National and Regional Importance includes something like 8400 items. Such inventories amount to the first step in protecting items of cultural property, since it is clear that one cannot protect things one does not know about.
Protection of cultural property (Art. 2 of the Federal Law of 6 October 1966; Art. 2, 3 and 4 of the Hague Convention)
The protection of cultural property in the event of armed conflict means both safeguarding such property and treating it with due respect.
The provisions for safeguarding cultural property are for the most part standard injunctions. The provisions for respecting cultural property on the other hand are mainly standard proscriptions.
The measures for safeguarding cultural property are rather self-evident and concrete in nature. Respect on the other hand is more a matter of adopting a desirable attitude towards cultural property, and being inwardly prepared to behave in the appropriate manner. The obligation to respect cultural property is absolute, both within ones own sovereign territory and on foreign soil, i.e. it is unlimited except in cases of military necessity. In this sense, respect is the core principle of the Hague Convention. But indeed there is an Achilles, heel at the very core of such a concept of cultural property protection, in the proviso "except in cases of military necessity". Since it is a matter of showing respect in the event of armed conflict, contradictions with respect to the objectives of the war are more or less inevitable. The humanitarian provisions of the international laws and customs of war were not intended to obstruct the prosecution of war, nor would they be likely to be able to do so. Their only purpose is to impose certain limitations. Pressing military necessity can in any case be expected to take precedence over any humanitarian considerations soon enough.
Armed conflict and violations of neutrality (Art. 3 of the Federal Law of 6 October 1966; Art. 18 and 19 of the Hague Convention)
Whereas earlier international treaties on the laws and customs of war use the term "war", the four Geneva Conventions of 1949 and the Hague Convention of 1954 make use of the new terminology in this field which prefers to speak of "armed conflict". The new term applies equally to undeclared war, military occupation without armed resistance and armed conflict that is not international in nature. The Federal Law on the Protection of Cultural Property extends the definition of armed conflict contained in the Hague Convention, putting violations of neutrality and resisting these with violence on an equal footing with other types of armed conflict. This clarification eliminates a certain ambiguity concerning the rights and duties of neutral powers and persons in the event of a land war which can be traced to the Hague Convention of 18 October 1907. Article 10 of the Convention states the following: "The fact that a neutral power itself uses violence to repel a violation of its neutrality cannot be interpreted as a hostile act."
Thanks to the new clarification in the Federal Law on the Protection of Cultural Property, a violent conflict which in international law does not qualify as a hostile act is now also included in the legally defined concept of armed conflict. This is an important extension of the definition for a neutral country like Switzerland.
The Ordinance of 17 October 1984 on the Protection of Cultural Property in the Event of Armed Conflict
The Ordinance regulates all matters to do with organisation, staff and finance in relation to the protection of cultural property.
The Ordinance of 17 October 1984 replaces that of 21 August 1965, which was totally revised following transfer of the responsibility for the protection of cultural property from the Federal Office for Culture to the Federal Office for Civil Protection. The new orientation given to Civil protection in the context of the civil protection reform programme of 1995 made a further partial revision of the Ordinance necessary. This mainly concerned the organisational structure, staffing matters and training. It did not involve the creation of new structures, but rather their adaptation to current practices in the cantons. The new Ordinance ensures an optimum degree of cooperation between the various competent authorities (federal, cantonal and local) on the one hand, and with those in possession of cultural property on the other. The latter have particular responsibility, not least in view of their permanent right to dispose of the cultural property in need of protection. Even more important however is the need to safeguard cultural property within the framework of the Civil protection organisations. The planning and implementation of measures for the protection of cultural property will be the responsibility of a service for the protection of cultural property, to be created within the civil protection organisations by the local authorities acting in concert with the canton, in accordance with Article 4 of the Federal Law of 6 October 1966. The organisational form will above all depend on the number of objects in need of protection and the nature of the measures that need to be taken. Another factor that must be taken into account is the size of the civil protection organisation. For example in a small municipality with few items of cultural property in need of protection, this responsibility can be delegated to an existing official as a task to be added to normal duties. If on the other hand there are many items of cultural property to be protected, and these involve various complications, then the creation of a cultural property protection service will be the most appropriate response. In the larger towns and cities, where there are a number of cultural institutions such as libraries, museums, universities and so on, it is recommended to decide on the structure of this service, and its functions, in collaboration with the institutions concerned.