Treaties, States Parties and Commentaries
Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
Protection of cultural objects and of places of worship
[p.639] Article 53
-- Protection of cultural objects and of places of worship
[p.640] General remarks
2039 In the draft the ICRC did not include a provision relating to the protection of cultural objects as this had been provided for by an international instrument especially designed for this purpose already in 1954, i.e., the Hague Convention concluded under the auspices of UNESCO. (1)
2040 However, the Diplomatic Conference considered that the Protocol should contain a provision of this type thereby revealing its concern
for the cultural heritage of humanity. In this respect the fact that
the 1954 Convention had by no means entered into force worldwide was
taken into consideration. (2) In any case the article is short,
limited to the essential points, prohibiting the making of cultural
objects into military objectives, as well as prohibiting their
2041 Thus during the second session a proposal was submitted as an amendment (3) to Committee III. It formed the basis of this article.
2042 Although all the delegations quickly agreed to the protection of historic monuments and works of art, the question of places of
worship led to lengthy discussions. Some considered that all places
of worship should be protected without exception, while others
considered that this should apply only to some important places of
worship which constitute the "heritage of peoples".
2043 Committee III adopted a first draft (4) which opted for the second solution, i.e., that only some important places of worship
were covered. In the light of discussion on the same subject when
of Protocol II ' (Protection of cultural objects and of
places of worship) ' (5) was examined, Committee III returned to this
matter and adopted a second version of the article (6) in which any
reference to places of worship had disappeared. (7) In fact places of
worship had been mentioned without restriction in Article 52
' (General protection of civilian objects), ' paragraph 3, as one of
several examples of objects normally used for civilian purposes --
and they must therefore be presumed to have a civilian character and
enjoy the general protection to which such objects are entitled. In
addition, places of worship which fall under historic monuments or
works of art covered by Article 53
would benefit from the protection
accorded under this article.
2044 In the plenary meetings the Conference considered that it was useful to reintroduce the reference to places of worship, specifying
that the provision only [p.641] applies to those which constitute the
"spiritual heritage of peoples". (8) The article was finally adopted
by consensus. (9)
2045 The first few words of the article specify that it is not aimed at replacing the relevant existing international instruments. The
second part lays down three prohibitions which constitute special
protection for the protected objects.
First part -- Reference to other international instruments
2046 The protection laid down in this article is accorded "without prejudice" (10) to the provisions of other relevant international
instruments. From the beginning of the discussions regarding Article
it was agreed that there was no need to revise the existing rules
on the subject, but that the protection and respect for cultural
objects should be confirmed. It was therefore necessary to state at
the beginning of the article that it did not modify the relevant
existing instruments. For example, this means that in case of a
contradiction between this article and a rule of the 1954 Convention
the latter is applicable, though of course only insofar as the
Parties concerned are bound by that Convention. If one of the Parties
is not bound by the Convention, Article 53
applies. Moreover, Article
applies even if all the Parties concerned are bound by another
international instrument insofar as it supplements the rules of that
2047 The Diplomatic Conference adopted Resolution 20, which stresses the fundamental importance of the Hague Convention of 1954, and
states that the adoption of Article 53
will not detract from the
application of that Convention in any way; moreover, it urges States
which have not yet done so to become Parties to it.
' The Hague Convention of 1954 '
2048 The Convention is accompanied by Regulations for its execution, which form an integral part of it, as well as a Protocol (11) aimed
primarily at preventing the export of cultural objects from occupied
2049 The Convention contains first of all a definition of cultural property; this covers basically movable or immovable property of
great importance to the cultural heritage of peoples.
[p.642] 2050 The complete definition given in Article 1
of the Convention reads as follows:
' "Definition of cultural property '
For the purposes of the present Convention, the term "cultural property" shall cover, irrespective of origin or
(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,
archeological 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 archeological interest; as 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
depositaries of archives, and refuges intended to shelter, in
the event of an 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"."
2051 Protection is accorded automatically to all objects which fall under the definition. It comprises two aspects: safeguarding and
respect for such property. The Convention does not specify the form
which such ' safeguarding ' should take; it simply imposes an
obligation upon the Contracting Parties to take "such measures as
they consider appropriate" in time of peace (Article 3).
2052 Article 4
, relating to ' respect ' is more detailed:
"' Respect for cultural property '
1. The High Contracting Parties undertake to respect cultural property situated within their own territory as well
as within the territory of other High Contracting Parties by
refraining from any use of the property and its immediate
surroundings or of the appliances in use for its protection
for purposes which are likely to expose it to destruction or
damage in the event of armed conflict; and by refraining from
any act of hostility directed against such property.
2. The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where the
military necessity imperatively requires such a waiver.
3. The High Contracting Parties further undertake to prohibit, prevent and, if necessary, put a stop to any form
of theft, pillage or misappropriation of, and any acts of
vandalism directed against, cultural property. They shall
refrain from requisitioning movable cultural property
situated in the territory of another High Contracting Party.
4. They shall refrain from any act directed by way of reprisals against cultural property.
5. No High Contracting Party may evade the obligations incumbent upon it under the present Article, in respect of
another High Contracting Party, by reason of the fact that
the latter has not applied the measures of safeguard referred
to in Article 3
[p.643] 2053 The Convention also provides for a system of ' special protection ' (12) (Articles 8
-11; Regulations for Execution, Articles
-17). Places falling under such protection include refuges intended
to shelter movable cultural property in the case of armed conflict,
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;
-- they are not used for military purposes; and
-- they are entered (13) in the "International Register of Cultural Property under Special Protection" held by the Director-General
2054 Property under special protection granted immunity by the Convention must be marked with a special emblem (14) and be subject
to international control.
2055 The Convention also contains important provisions on the transport of cultural property and the personnel assigned to the
protection of cultural property.
' Other instruments '
1. ' The Hague Conventions of 1907 '
2056 Two Hague Conventions of 1907 contain provisions relating to cultural property, viz., Convention IV, particularly its Regulations
Concerning the Laws and Customs of War on Land, (15) and Convention
IX, Respecting Bombardment by Naval forces in Time of War. (16)
2057 Article 27
of the Regulations annexed to Convention IV reads as follows:
"In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to
religion, art, science, or charitable purposes, historic
monuments, hospitals, and places where the sick and wounded
are collected, provided they are not being used at the time
for military purposes.
It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs,
which shall be notified to the enemy beforehand."
2058 Article 5
of Convention IX contains a similar provision, but gives a description of the sign to be used:
"In bombardments by naval forces all the necessary measures must be taken by the commander to spare as far as
possible sacred edifices, buildings used for artistic,
scientific, or charitable purposes, historic monuments,
hospitals, and places where the sick or wounded are
collected, on the understanding that they are not used at the
same time for military purposes.
It is the duty of the inhabitants to indicate such monuments, edifices, or places by visible signs, which shall
consist of large, stiff rectangular panels divided diagonally
into two coloured triangular portions, the upper portion
black, the lower portion white." (17)
2059 Article 56
of the Regulations annexed to Convention IV, which applies in the case of occupation, provides that:
"The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and
sciences, shall be treated as private property. (18)
All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of
art and science is forbidden, and should be made the subject
of legal proceedings."
[p.645] 2060 Even for States Parties to the Hague Convention of 1954 these provisions remain applicable to cultural property not covered by the
more recent Convention, i.e., to property referred to in Articles 27
of the Regulations and 5
of Convention IX, which is not of "great
importance for the cultural heritage of peoples", and to buildings
dedicated to charitable purposes and education, as well as property
of municipalities. In the context of the Protocol such property is
protected by virtue of its civilian character (Article 52
' General protection of civilian objects ').
2. ' The Roerich Pact '
2061 Another relevant instrument, with a limited geographical scope, since it was concluded under the auspices of a regional organization,
is the Treaty for the Protection, in Time of War and Peace, of
Historic Monuments, Museums and Institutions of Arts and Science
(Roerich Pact), signed in Washington on 15 April 1935 by the members
of the Pan-American Union, which later became the Organization of
American States. (19) The main provisions of this treaty are
contained in Articles 1
The historic monuments, museums, scientific, artistic, educational and cultural institutions shall be considered as
neutral and as such respected and protected by belligerents.
The same respect and protection shall be due to the personnel of the institutions mentioned above.
The same respect and protection shall be accorded to the historic monuments, museums, scientific, artistic,
educational and cultural institutions in time of peace as
well as in war."
The monuments and institutions mentioned in Article 1 shall cease to enjoy the privileges recognized in the present
Treaty in case they are made use of for military purposes."
3. ' Two UNESCO Conventions of 1970 and 1972 '
2062 Two international conventions adopted by the General Conference of UNESCO deserve a special mention: the Convention on the Means of
Prohibiting [p.646] and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property, adopted in 1970, (20) and
the Convention of 16 November 1972 Concerning the Protection of the
World Cultural and Natural Heritage. (21)
Second part -- Definition of protected objects; three prohibitions
' Definition of protected objects '
2063 The special protection conferred by Article 53
applies to three categories of objects: historic monuments, works of art, and places
of worship, provided they constitute the cultural or spiritual
heritage of peoples. (22) The initial draft referred to the heritage
of a country, but it was considered preferable to use the term
heritage "of peoples" as problems of tolerance could arise with
regard to religions which do not belong to the country in question,
and with respect to places where worship takes place.
2064 Article 1
of the Hague Convention of 1954 refers to property which is "of great importance to the cultural heritage" and not, as
in the present Article 53
, to objects which "constitute the cultural
or spiritual heritage". Despite this difference in terminology, the
basic idea is the same. (23) However, the reference to places of
worship and to the spiritual heritage clarifies the qualification of
protected objects by introducing the criterion of spirituality. It
was stated that the cultural or spiritual heritage covers objects
whose value transcends geographical boundaries, and which are unique
in character and are intimately associated with the history and
culture of a people. (24)
2065 In general the adjective "cultural" applies to historic monuments and works of art, while the adjective "spiritual" applies to places
of worship. However, this should not stop a temple from being
attributed with a cultural value, or a historic monument or work of
art from having a spiritual value. The discussions in the Diplomatic
Conference confirmed this. However, whatever the case may be, the
expression remains rather subjective. In case of doubt, reference
should be made in the first place to the value or veneration ascribed
to the object by the people whose heritage it is.
2066 Thus all objects of sufficient artistic or religious importance to constitute the heritage of peoples are protected, (25) including
those which have been renovated or restored. (26)
[p.647] 2067 The Conference rejected the idea which was put forward by some delegations of including any and all places of worship, as such
buildings are extremely numerous and often have only a local renown
of sanctity which does not extend to the whole nation. Thus the
places referred to are those which have a quality of sanctity
independently of their cultural value and express the conscience of
the people. Article 53
lays down a ' special ' protection which
prohibits the objects concerned from being made into military
objectives and prohibits their destruction. This protection is
additional to the immunity attached to civilian objects; all places
of worship, regardless of their importance, enjoy the protection
afforded by Article 52
' (General protection of civilian objects). '
2068 Historic monuments and works of art must be considered as generic terms: in case of doubt, reference should be made to the detailed
definition given in the 1954 Hague Convention.
' Sub-paragraph (a) '
2069 It is prohibited to commit any acts of hostility directed against the protected objects.
2070 The 1954 Hague Convention contains a similar provision: "by refraining from any act of hostility directed against such property"
, paragraph 1). The Roerich Pact simply provides that the
objects shall be "respected and protected by belligerents" (Article
). An act of hostility must be understood as any act arising from
the conflict which has or can have a substantial detrimental effect
on the protected objects. (27) In fact the article prohibits not only
substantial detrimental effect, but all acts ' directed ' against the
protected objects. For a violation of the article to take place it is
therefore not necessary for there to be any damage.
2071 The obligation here is stricter than that in the Hague Regulations of 1907. According to Article 53
of the Protocol: "it is
prohibited to commit", while Article 27
of the Hague Regulations
requires: "to spare, as far as possible".
2072 The obligation is also stricter than that imposed by the 1954 Hague Convention, since it does not provide for any derogation, even
"where military necessity imperatively requires such a waiver". (28)
As long as the object concerned is not made into a military objective
by those in control -- and that is not allowed -- no attack is
2073 As there are no exceptions, the obligation must be considered to apply to all objects concerned, regardless of the territory where
they are situated.
[p.648] 2074 It should be noted that attacks against historic monuments, works of art or places of worship may constitute a grave breach. (29)
' Sub-paragraph (b) '
2075 It is prohibited to use protected objects in support of the military effort.
2076 The 1954 Hague Convention contains a similar rule, which seeks to prohibit any use of protected objects which could put them in danger
of becoming military objectives: it prohibits "any use of the
property and its immediate surroundings or of the appliances in use
for its protection for purposes which are likely to expose it to
destruction or damage in the event of armed conflict" (Article 4
2077 This prohibition forms the essential counterpart for the respect due under sub-paragraph (a): the use of such objects "in support of
the military effort" would in fact be clearly incompatible with the
obligation for the adversary to respect them.
2078 The "military effort" is a very broad concept, encompassing all military activities connected with the conduct of a war. It is
prohibited to benefit from protected objects (passive support), as
well as to use them (active support), for example, by including them
in a defence position.
2079 If protected objects were used in support of the military effort, this would obviously constitute a violation of Article 53
Protocol, though it would not necessarily justify attacking them. To
the extent that it is admitted that the right to do so does exist
with regard to objects of exceptional value, such a right would
depend on their being a military objective, or not, as defined in
' (General protection of civilian objects), ' paragraph 2.
A military objective is an object which makes "an effective
contribution to military action" for the adversary, and whose total
or partial destruction, capture or neutralization "in the
circumstances ruling at the time, offers a definite military
advantage" for the attacker. (30) These conditions are therefore
stricter than the simple condition that they must be "in support of
the military effort". For example, it is not permitted to destroy a
cultural object whose use does not make any contribution to military
action, nor a cultural object which has temporarily served as a
refuge for combatants, but is no longer used as such. In addition,
all preventive measures should be taken to terminate their use in
support of the military effort (warnings, injunctions etc.) in order
to prevent the destruction or damage of cultural objects. However, if
it is decided to attack anyway, the principle of proportionality
should be respected, which means that the damage should not be
excessive in relation to the concrete and direct military advantage
anticipated, and all the precautions required by Article 57
' (Precautions in attack) ' should be taken.
' Sub-paragraph (c) '
2080 It is prohibited to make protected objects the object of reprisals. (31)
2081 This reiterates a prohibition which applies to all civilian objects (see Article 52
-- ' General protection of civilian
objects, ' paragraph 1).
2082 As in the 1954 Hague Convention there can be no derogation from this prohibition.
' C. F. W. '
NOTES$ (1) [(1) p.640] Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May
(2) [(2) p.640] At 31 December 1984, 72 States were Party to the 1954 Convention, cf. infra, p. 1549;
(3) [(3) p.640] O.R. III, p. 213, CDDH/III/17;
(4) [(4) p.640] O.R. XV, p. 307, CDDH/215/Rev.1, Annex;
(5) [(5) p.640] Ibid., pp. 394-395, CDDH/236/Rev.1, paras. 60-63;
(6) [(6) p.640] Ibid., p. 485, CDDH/407/Rev.1, Annex;
(7) [(7) p.640] Ibid., p. 456, CDDH/407/Rev.1, para. 30;
(8) [(8) p.641] O.R. VI, pp. 170-173, CDDH/SR.41, para. 157-181;
(9) [(9) p.641] Ibid., pp. 205-206, CDDH/SR.42, paras. 1-11;
(10) [(10) p.641] In the French text of Article 16 of Protocol II the term "sans préjudice" is replaced by the term "sous
réserve", though there is no difference in meaning; see
Actes VII, p. 145, CDDH/SR.53. para. 12. The English
version of the text uses the same terms in both articles:
(11) [(11) p.641] At 31 December 1984, 72 States were Parties to the Convention and 60 to the Protocol, Parts I and II;
(12) [(12) p.643] Art. 9:
"' Immunity of cultural property under special protection '
The High Contracting Parties undertake to ensure the immunity of cultural property under special protection by
refraining, from the time of entry in the International
Register, from any act of hostility directed against such
property and, except for the cases provided for in
paragraph 5 of Article 8, from any use of such property or
its surroundings for military purposes."
"' Withdrawal of immunity '
1. If one of the High Contracting Parties commits, in respect of any item of cultural property under special
protection, a violation of the obligations under Article
9, the opposing Party shall, so long as this violation
persists, be released from the obligation to ensure the
immunity of the property concerned. Nevertheless, whenever
possible, the latter Party shall first request the
cessation of such violation within a reasonable time.
2. Apart from the case provided for in paragraph 1 of the present Article, immunity shall be withdrawn from
cultural property under special protection only in
exceptional cases of unavoidable military necessity, and
only for such time as that necessity continues. Such
necessity can be established only by the officer
commanding a force the equivalent of a division in size or
larger. Whenever circumstances permit, the opposing Party
shall be notified, a reasonable time in advance, of the
decision to withdraw immunity.
3. The Party withdrawing immunity shall, as soon as possible, so inform the Commissioner-General for cultural
property provided for in the Regulations for the execution
of the Convention, in writing, stating the reasons.";
(13) [(13) p.643] Article 11 of the Regulations provides an exception for "improvised refuges" set up in the course of
a conflict; such refuges may benefit from special
protection before they are entered in the Register;
(14) [(14) p.643] "The distinctive emblem of the Convention shall take the form of a shield, pointed below, per
saltire blue and white (a shield consisting of a
royal-blue square, one of the angles of which forms the
point of the shield, and of a royal-blue triangle above
the square, the space on either side being taken up by a
white triangle" (Convention, Art. 16, para. 1). Property
under special protection must display this emblem repeated
three times; other property may only display the emblem
alone (ibid., Art. 17);
(15) [(15) p.644] ' International Red Cross Handbook, ' 12th ed., Geneva, 1983, pp. 322-332;
(16) [(16) p.644] Ibid. pp. 336-337;
(17) [(17) p.644] Article 36 of the 1954 Hague Convention provides that the new emblem provided replaces that of
Hague Convention IX of 1907;
(18) [(18) p.644] This is a reference to Article 46: the principle of respect for private property; Article 47:
pillage forbidden; and Articles 52 and 53: restrictions on
requisitions in kind and seizure;
(19) [(19) p.645] This treaty was drawn up at the suggestion of Professor Nicolas Roerich of New York and was discussed by
the International Office of Museums of the League of
Nations. Private conferences took place in Bruges in 1931
and 1932, and in Washington in 1933, recommending
governments to adopt it. In 1933 the 7th Conference of
American States recommended its signature, which took
place in 1935. Article 36, paragraph 2, of the 1954 Hague
Convention supplements the Roerich Pact and substitutes
its distinctive emblem (red circle with a triple red
sphere in the circle on a white background) by the new
emblem. On 31 December 1984, 11 States were Parties to the
(20) [(20) p.646] At 31 December 1984, 53 States were Parties to this Convention;
(21) [(21) p.646] At 31 December 1984, 53 States were Parties to this Convention;
(22) [(22) p.646] The concept of a people should be understood here in a cultural sense and not in the legal sense used
in Article 1, para. 4, of the Protocol;
(23) [(23) p.646] During the CDDH there was no question of creating a new category of cultural objects;
(24) [(24) p.646] O.R. XV, p. 220, CDDH/III/SR.59, para. 68;
(25) [(25) p.646] The text of the article is clear. The absence of a comma before the words "which constitute the [...]
heritage" clearly shows that only objects complying with
this condition are covered. If there were a comma, the
clause introduced by the relative pronoun would be a
statement or a commentary, which is unusual in an
(26) [(26) p.646] O.R. XV, pp. 277-278, CDDH/215/Rev.1, paras. 68-70;
(27) [(27) p.647] An act of hostility includes in particular the destruction of any specially protected object by any
Party to the conflict, either by way of attack or by
demolition of objects "under its control" (cf. M. Bothe,
K.J. Partsch, W.A. Solf, op. cit., p. 334, para. 2.5.2);
(28) [(28) p.647] When the Parties to the Protocol are also Parties to the Hague Convention of 1954, these derogations
continue to apply, though it is understood that an attack
may never be launched against an objective which is not a
military objective in the sense of the Protocol. If one of
them is a Party to the Protocol and not to the 1954 Hague
Convention, no derogation is possible. Also see infra,
(29) [(29) p.648] See Art. 85, para. 4 (d), and the commentary thereon, infra, p. 1002;
(30) [(30) p.648] The prohibition on attacking objects which are not military objectives, as well as the definition of
the latter given in Article 52, para. 2, also apply when
the Hague Convention of 1954 is applicable: thus the
effect of Article 52 of Protocol I is to limit the
possibilities of derogations allowed by the Hague
Convention. This is an important development for the
protection of cultural objects;
(31) [(31) p.649] On the question of reprisals in general, see introduction to Part V, Section II, infra, p. 981;