Question: Australia has committed forces to the ongoing conflict in Ukraine

19 Sep 2024,5:25 PM

 

It is 2026 and Australia has committed forces to the ongoing conflict in Ukraine. General Sir Anthony Cecil Hogmanay Melchett, commanding officer of the 5th Coalition division which includes the Australian contingent, seeks your advice in relation to the application of the 1954 Convention and both Protocols (assuming all relevant States are a party to all these instruments) to a number of situations that potentially impact cultural heritage.
The first concerns the Genoese fortress in Sudak, Crimea. The fortress, dating to the 13th century and on Ukraine’s World Heritage Tentative List, is being used by Russian forces to house their communication technology that is indispensable to their drone warfare capability. General Melchett has indicated that he would like to “bomb the hell out of it” and would like to know what conditions the 1954 Convention and Protocols impose on his ability to do so.
The second concerns the Roman military settlement archaeological site at Charax, also in Crimea. General Melchett has stationed a platoon of military observers on the site and would like to know what limitations he needs to place on their activities at that site. The site is also close to the tourist attraction of Swallow’s Nest, and General Melchett would like to know if his forces have any responsibility to restrain tourist from coming onto the Charax site digging for souvenirs and sending them home to their own States.

 

DRAFT/STUDY TIPS

Introduction

The protection of cultural heritage during armed conflict is a long-standing concern in international law, particularly in light of the extensive damage that conflicts have inflicted on cultural property throughout history. One of the principal instruments governing this area is the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, alongside its two Protocols, adopted in 1954 and 1999 respectively. These legal instruments establish the framework under which cultural heritage is safeguarded during war, and they provide guidelines on what actions military forces can take concerning cultural sites, monuments, and other heritage items.

This essay aims to address the legal considerations that General Sir Anthony Cecil Hogmanay Melchett, commanding officer of the 5th Coalition Division (which includes Australian forces), must take into account under the 1954 Convention and its Protocols. Specifically, this advice will cover two situations involving significant cultural heritage sites in Crimea, Ukraine: the Genoese fortress in Sudak, which is currently occupied by Russian forces for military purposes, and the Roman military settlement archaeological site at Charax, where Australian military observers are stationed. Each case will be analyzed according to the legal principles of the 1954 Convention and its Protocols, paying particular attention to the conditions under which military action may be taken against cultural property and the responsibilities of military forces in protecting such property.

Overview of the 1954 Hague Convention and Its Protocols

The 1954 Hague Convention was the first international treaty aimed specifically at the protection of cultural property during armed conflict. It defines cultural property broadly, including monuments, architectural works, and archaeological sites. The Convention imposes an obligation on State Parties to avoid using cultural property for military purposes and to refrain from targeting it unless such use becomes imperative for military necessity. The Convention’s First Protocol (1954) focuses on preventing the export of cultural property from occupied territories, while the Second Protocol (1999) strengthens the rules on military necessity and provides more detailed provisions for the protection of cultural heritage in both international and non-international armed conflicts.

Both Protocols, especially the Second, underscore the principle of proportionality and precaution, requiring that military commanders carefully weigh the potential military advantage against the harm that might be caused to cultural heritage. Moreover, States are required to safeguard and respect cultural property under their control and prevent its illegal export. These provisions are aimed at ensuring that cultural heritage, as a vital part of human history and identity, is preserved even in times of war.

The Genoese Fortress in Sudak – Legal Restrictions on Military Action

The first issue concerns the use of the Genoese fortress in Sudak by Russian forces for housing communication technology crucial to their drone warfare capabilities. General Melchett’s desire to "bomb the hell out of it" must be analyzed within the framework of the 1954 Convention and its Protocols.

Under the Convention, cultural property is granted immunity from attack unless it is being used for military purposes and there is no feasible alternative to neutralizing the threat posed by that use. The Second Protocol (1999) further clarifies the conditions under which cultural property may lose its protection. Article 6 of the Second Protocol states that the loss of protection is permissible only when the property is being used for a military objective and no other practical means exist to achieve a similar military advantage. The Protocol also emphasizes that any attack must meet the requirements of proportionality, meaning that the military advantage anticipated from the attack must outweigh the damage to cultural property.

In this case, the Genoese fortress is not only a cultural property of significant historical importance but also part of Ukraine’s World Heritage Tentative List. Its protection under the 1954 Convention and the Second Protocol remains intact unless Russia’s use of the fortress for housing communication technology renders it a legitimate military target. Even if the fortress is being used for military purposes, General Melchett must assess whether the destruction of the fortress is the only viable option for neutralizing the Russian forces’ communication capability. Furthermore, the principle of proportionality demands that the military benefit from bombing the fortress must outweigh the cultural loss that would result from such an action.

If feasible alternatives exist, such as using precision strikes that target the communication equipment without destroying the entire fortress or employing non-kinetic methods like jamming communications, those options should be pursued. Thus, under the 1954 Convention and its Protocols, General Melchett cannot proceed with an indiscriminate attack on the Genoese fortress without first considering less destructive means and ensuring that any action taken complies with the principles of military necessity and proportionality.

Stationing Troops at the Charax Archaeological Site – Military Responsibilities

The second issue involves General Melchett’s decision to station a platoon of military observers at the Roman military settlement archaeological site at Charax. This situation requires an analysis of the legal limitations that the 1954 Convention and its Protocols impose on military activities at cultural heritage sites.

The Convention imposes a general obligation on State Parties to respect cultural property by refraining from using it for purposes that may expose it to destruction or damage. Article 4 of the 1954 Convention specifically prohibits the use of cultural property for military purposes if such use may endanger the site. This provision is designed to prevent military forces from exploiting the strategic advantages offered by cultural sites, which would increase the likelihood of these sites being targeted during hostilities.

In the case of the Charax site, General Melchett must ensure that the activities of the Australian platoon do not compromise the integrity of the site or expose it to unnecessary risks. The stationing of military personnel on an archaeological site could be seen as a violation of the obligation to respect cultural property unless there is a compelling reason for using the site for military purposes. Even then, the principle of military necessity must be applied, and the decision to use the site must be proportionate to the military advantage gained.

Moreover, the Second Protocol (1999) requires commanders to take all feasible precautions to avoid or minimize damage to cultural property, even when military necessity justifies its use. General Melchett should therefore limit the activities of his forces at the Charax site, ensuring that they do not engage in any actions that could harm the archaeological remains or affect the site's historical value. The positioning of troops should not involve building fortifications or deploying heavy equipment that could disturb the site's physical integrity.

Preventing Looting and Destruction by Civilians – Responsibilities Regarding Swallow’s Nest and Charax

General Melchett’s third concern relates to the influx of tourists near the Charax archaeological site, particularly their activities in potentially looting artifacts as souvenirs. The 1954 Convention and its Protocols place a duty on military forces not only to avoid damaging cultural property but also to prevent its illegal removal and exploitation by third parties, including civilians.

Article 5 of the First Protocol and Article 9 of the Second Protocol address the responsibility of occupying forces to prevent the illegal export of cultural property from occupied territories. This responsibility extends to taking measures to safeguard cultural sites from being looted or damaged by civilians. General Melchett, therefore, has an obligation to prevent tourists from engaging in activities that would result in the removal of cultural artifacts from the Charax site.

Military forces should collaborate with local authorities and heritage experts to ensure that proper protective measures are in place. This could include establishing clear boundaries around the Charax site, setting up guard posts to monitor tourist activities, and educating visitors about the cultural significance of the site and the legal prohibitions against looting. These preventive measures are crucial not only to comply with the 1954 Convention and its Protocols but also to preserve the cultural heritage of Crimea for future generations.

Practical and Ethical Considerations for Military Commanders

While the legal framework provided by the 1954 Convention and its Protocols is clear, military commanders often face difficult practical and ethical choices when cultural heritage sites are located in conflict zones. The competing demands of military necessity and cultural preservation can create significant dilemmas, as seen in General Melchett's cases.

One practical consideration is the challenge of balancing the immediate military objectives with the long-term consequences of destroying cultural heritage. Bombing the Genoese fortress, for example, might provide a short-term tactical advantage, but it could also result in irreversible damage to an important historical site. Such actions could undermine the broader strategic goals of coalition forces, particularly if they alienate local populations or attract international condemnation.

Ethically, military commanders must consider the broader value of cultural heritage, not only as a symbol of national identity but also as part of the shared human legacy. The destruction of cultural property, even in times of war, erodes the historical and cultural fabric that connects people across generations and borders. Thus, military decisions involving cultural heritage should always prioritize preservation whenever possible, with destruction considered only as a last resort.

Conclusion

In conclusion, the application of the 1954 Hague Convention and its Protocols to the cases of the Genoese fortress in Sudak and the Charax archaeological site requires a careful balance between military necessity and the obligation to protect cultural heritage. General Melchett must adhere to the legal principles of proportionality, military necessity, and precaution when considering any action that could impact cultural property. While the Genoese fortress may be a legitimate military target due to its use by Russian forces, any attack must be proportional and must consider less destructive alternatives. Similarly, the stationing of military personnel at the Charax site must be carefully managed to avoid damage to the archaeological remains, and steps must be taken to prevent tourists from looting the site. Ultimately, military commanders bear a significant responsibility in ensuring that cultural heritage is protected, even in the midst of armed conflict, as part of a broader commitment to preserving humanity's shared historical and cultural legacy.