Treaties, States Parties and Commentaries
  • Print page
Commentary of 1987 
Protection of cultural objects and of places of worship
[p.1465] Article 16 -- Protection of cultural objects and of places
of worship

[p.1466] General remarks

4825 This article corresponds to Article 53 ' (Protection of cultural objects and places of worship), ' sub-paragraphs (a) and (b), of Protocol I. (1) It includes cultural objects and places of worship amongst the small number of objects protected under Protocol II.

4826 As protection of cultural objects in the event of armed conflict was already dealt with by the Hague Convention of 1954, (2) adopted under the auspices of UNESCO, the ICRC had not proposed any rules relating to this matter in the draft Protocols. The basis for this provision was an amendment submitted to Committee III during the third session of the Diplomatic Conference. (3)

4827 The inclusion of the protection of cultural objects in the Protocols is aimed at highlighting the importance of safeguarding the heritage of mankind. The sponsors of the proposal also justified it on the ground that not all States are yet bound by the above-mentioned Hague Convention. (4)

4828 This article was the object of heated controversy, in particular concerning the question whether places of worship should be mentioned and whether there should be an express provision that it is without prejudice to the application of the Hague Convention. Thus, the reference to places of worship and the spiritual heritage of peoples, which was included in the initial text, was deleted in Committee and later reintroduced by an amendment submitted in the plenary meetings. (5) These two points will be developed below.

4829 It should be noted that two delegations, while supporting the principle that cultural objects should be protected, considered that such a rule should not be included in a simplified instrument, when many other humanitarian norms, particularly those relating to the conduct of hostilities, were not retained. (6)

[p.1467] Reference to the Hague Convention

4830 This clarifies the relationship between the two instruments so as to avoid divergent interpretations.

4831 The Hague Convention is explicitly applicable in the event of non-international armed conflicts. (7)

4832 The expression "without prejudice to" means that the conditions of application of the Convention are not modified by the Protocol, (8) only of course as far as a Contracting Party is bound by the Convention. If it is not, only Article 16 applies.

4833 The protection granted by the Convention is more extensive in one sense. In fact, it prescribes, on the one hand, that cultural property should be safeguarded against the foreseeable effects of armed conflict, which implies that measures must already be taken in peacetime; (9) on the other hand, it prescribes respect for such property by refraining from any use of the property and its immediate surroundings, as well as appliances used for its protection, for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and also by refraining from any act of hostility directed against them. (10)

4834 Moreover, the High Contracting Parties undertake to prohibit, prevent and, if necessary, put an end to any form of theft, pillage, or misappropriation of, and any acts of vandalism directed against, cultural property. It should be noted that the Convention allows for the possibility of derogation in the case of imperative military necessity, (11) while Article 16 of the Protocol prohibits any act of hostility without exception.

4835 Finally, the Hague Convention provides for special protection to be granted to a limited number of refuges, centres containing monuments, and other immovable cultural property of very great importance, provided that they:

-- are situated at an adequate distance from any important military objective;
-- are not used for military purposes; [p.1468]
-- are entered in the "International Register of Cultural Property under Special Protection" drawn up by UNESCO. (12)

4836 The rule providing general protection as laid down in Article 4, paragraph 1 , of the Convention may be waived in case of imperative military necessity. However, the rule providing immunity to property under special protection can be set aside only in case of unavoidable military necessity and this can be established only by the officer commanding a force the equivalent of a division in size or larger; moreover, the opposing party must be notified (Article 11, paragraph 2 , of the Convention).

4837 It should be noted that, unlike Article 53 ' (Protection of cultural objects and of places of worship) ' of Protocol I, the article under consideration here does not make reference to other applicable international instruments. In the absence of an explanation on this point in the Official Records, it may be recalled that the Hague Conventions of 1907 (13) are not specifically applicable to non-international armed conflicts. As regards the Roerich Pact, (14) this was intended to apply in times of peace as well as war, so that it is applicable at all times. On the other hand, it seems that the Conference did omit a reference to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property as well as the Convention concerning the Protection of World Cultural and Natural Heritage, adopted by UNESCO in 1970 and 1972 respectively. (15) These omissions have no material consequences on protection.

Historic monuments and works of art

4838 The present article contains a generic reference to historic monuments and works of art, which should be understood in the generally accepted sense of these words. In this respect, Article 1 of the Hague Convention serves as a useful point of reference; it gives the following definition:

"' Definition of Cultural Property ' For the purposes of the present Convention, the term 'cultural property' shall cover, irrespective of origin or ownership:

a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as [p.1469] well as scientific collections and important collections of books or archives or of reproductions of the property defined above;
b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph a);
c) centres containing a large amount of cultural property as defined in sub-paragraphs a) and b), to be known as "centres containing monuments"."

Places of worship

4839 The article includes a reference to places of worship. Although some delegations wished all places of worship to be covered, (16) only the most important "which constitute the cultural or spiritual heritage of peoples" are actually included. These are places which have a spiritual importance independently of their cultural significance, and express the belief of a people. (17)

Cultural and spiritual heritage

4840 The "cultural and spiritual heritage of peoples" means those objects of which the importance transcends national borders and which are unique due to their relation to the history and culture of a people. (18)

4841 The original proposal referred to the heritage of a country, but is was considered better to use the term heritage "of peoples", since problems of intolerance could arise with respect to religions which do not belong to the country concerned, and with respect to places where such religions are practised.

4842 The clause "which constitute the cultural or spiritual heritage of peoples" is intended to clarify the expressions "historic monuments, works of art or places of worship", and refers to all three. (19)

4843 In general the adjective "spiritual" applies to places of worship, but it may be that a historic monument or work of art is attributed spiritual importance in the sense that it contributes to spiritual life. Similarly, a religious building may be of cultural value.

4844 The above-mentioned Article 1 of the Hague Convention refers to property which is "of great importance to the cultural heritage of every people", while the Protocol refers to objects "which constitute the cultural or spiritual heritage of peoples". It does not seem that these expressions have a different meaning. However, the reference to places of worship and to the spiritual heritage makes [p.1470] the definition of protected objects more precise by introducing the criterion of spirituality. Furthermore, it follows from the text and the debates that the Conference intended to protect in particular the most important objects, a category akin to property granted special protection as provided in Article 8 of the Hague Convention. The fact that the text does not allow for any possibility of derogation also
seems to suggest this.

The scope of the rule of protection

4845 Protection of cultural objects and places of worship is achieved by means of two complementary rules, each involving a prohibition:

1) it is prohibited to commit "any acts of hostility directed against". An act of hostility means any act related to the conflict which prejudices or may prejudice the physical integrity of protected objects. In fact, the article does not only prohibit the bringing about of deleterious effects as such, but any acts ' directed ' against protected objects. Thus it is not necessary for there to be any damage for this provision to be violated. (20)
2) it is prohibited to use protected objects in support of the military effort.

4846 "Military effort" means any military activities undertaken for the conduct of hostilities. The second prohibition is the counterpart of the first, indispensable to ensure respect for this rule. If such objects were used in support of the military effort, they could become military objectives, assuming that their total or partial destruction offered the adversary a specific military advantage, and as a result their protection would become illusory. In such a situation the question is if and exactly at what moment there is a right to attack such protected objects in the event that the second prohibition is not respected. Such a possibility should not be accepted without duly taking into account the fact that the objects concerned are of exceptional interest and universal value. All possible measures should be taken to endeavour putting a stop to any use in support of the military effort (by giving due warnings, for example) in order to prevent the objects from being destroyed or damaged. In any case this is the spirit of the provision: it is an invitation to safeguard the heritage of mankind.

' S.J. '

* (1) [(1) p.1466] Reference may be made to the commentary on Art. 53, Protocol I, supra, p. 639;

(2) [(2) p.1466] The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, hereafter referred to as "the Hague Convention", Regulations for the Execution of the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and the Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954;

(3) [(3) p.1466] O.R. IV, p. 65, CDDH/III/GT/95. During the second session of the Conference a similar proposal was submitted for Protocol I (O.R. III, p. 213, CDDH/III/17), and this was later taken up for Protocol Il, without the reference to the prohibition of reprisals;

(4) [(4) p.1466] Moreover, the Conference adopted Resolution 20 on the protection of cultural property, inviting States to become Parties. For the list of States Parties, cf. infra, p. 1549;

(5) [(5) p.1466] See O.R. XV, p. 501, CDDH/407/Rev.1, Annex II; O.R. IV, pp. 65-66, CDDH/436 and CDDH/436/Rev.1 and Corr.1; O.R. VII, p. 115, CDDH/SR.51, para. 64; p. 141, CDDH/SR.53, para. 1;

(6) [(6) p.1466] O.R. VII, pp. 156-157, 162-163, CDDH/SR.53, Annex (Finland, United Kingdom); for other reasons for a negative vote or an abstention, cf. ibid., pp. 159-162 (India, Indonesia, Netherlands). When it was finally put to the vote, the article was adopted by 35 votes to 15 with 32 abstentions (ibid., p. 142, CDDH/SR.53, para. 6);

(7) [(7) p.1467] Art. 19 of the Convention: "' Conflicts not of an International Character '
1. In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property.
2. The Parties to the conflict shall endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
3. The United Nations Educational, Scientific and Cultural Organization may offer its services to the Parties to the conflict.
4. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.";

(8) [(8) p.1467] In the French version the term "sans préjudice" used in Article 53, Protocol I, is replaced by "sous réserve" in this article without any change in meaning, as shown by the fact that the same term "without prejudice" is used in the English text of both articles. See O.R. VII, p. 143, CDDH/SR.53, para. 12;

(9) [(9) p.1467] See Arts. 3 and 19 of the Hague Convention;

(10) [(10) p.1467] See Arts. 4, para. 1, of the Hague Convention;

(11) [(11) p.1467] Ibid., Art. 4, para. 2;

(12) [(12) p.1468] See Art. 8 of the Hague Convention: "Granting of special protection". It should be noted that so far with one exception, special protection has only been granted to refuges;

(13) [(13) p.1468] Arts. 27 and 56 of the Hague Regulations of 1907. Also cf. Art. 5 of the Hague Convention IX of 1907 concerning Bombardment by Naval Forces in Time of War, and commentary Art. 53, Protocol I, supra, p. 639;

(14) [(14) p.1468] Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, known as the "Roerich Pact", after its originator, Professor Nicolas Roerich, adopted on 15 April 1935;

(15) [(15) p.1468] ' Official records of the Genera Conference of UNESCO, ' 16th and 17th sessions;

(16) [(16) p.1469] See O.R. XV, p. 395, CDDH/236/Rev.1, para. 62;

(17) [(17) p.1469] In this context the term "people" refers to a cultural concept. For the legal concept of "people", see commentary Art. 1, para. 4, Protocol I, supra, p. 41;

(18) [(18) p.1469] O.R. XV p. 220, CDDH/III/SR.59, para. 68;

(19) [(19) p.1469] Ibid., p. 111, CDDH/III/SR.49, para. 17;

(20) [(20) p.1470] On this point see also commentary Art. 53, sub-para. (a), Protocol I, supra, p. 647;