القاعدة ذات الصلة
Australia
Practice Relating to Rule 38. Attacks against Cultural Property
Australia’s Commanders’ Guide (1994) states:
Additional Protocol I and specific cultural property conventions generally prohibit attacks against historical, religious and cultural objects and buildings. However, this protection may be lost if the facility is used for military purposes, e.g. a museum or church that contains an enemy sniper may be attacked to neutralise the threat. Care must be taken to ensure that only reasonable force is used.
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 409.
The manual further states:
960. LOAC provides that buildings dedicated to religion, art, science or charitable purposes, and historic monuments are immune from attack so long as they are not being used for military purposes and are marked with distinctive and visible signs and notified to the adverse party.
961. LOAC also extends immunity to cultural property of great importance to cultural heritage. This is irrespective of origin, ownership or whether the property is movable or immovable. LOAC requires such property to be protected, safeguarded and respected and not made the object of reprisals. Such protection is not absolute and is lost if cultural property is used for military purposes.
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, §§ 960–961.
Australia’s Defence Force Manual (1994) states:
926. LOAC provides for the specific protection of cultural objects and places of worship, which supplements the general protection given to civilian objects. Buildings dedicated to religion, science or charitable purposes, and historic monuments, are given immunity from attack as far as possible, so long as they are not being used for military purposes. Such places are to be marked with distinctive and visible signs which must be notified to the other party.
927. Cultural property is also protected. Cultural property includes movable and immovable objects of great importance to the cultural heritage of people, whether their state is involved in the conflict or not, such as historical monuments, archaeological sites, books, manuscripts or scientific papers and the buildings or other places in which such objects are housed. Obligations are placed upon all parties to respect cultural property … by refraining from any act of hostility directed against such property. These obligations may be waived where military necessity requires such waiver, as in the case where the object is used for military purposes.
928. Historic monuments, places of worship and works of art, which constitute the cultural and spiritual heritage of peoples, are protected from acts of hostility.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 926–928; see also §§ 540–542.
Australia’s LOAC Manual (2006) states:
5.45 Buildings devoted to religion, the arts, or charitable purposes; historic monuments; and other religious, cultural, or charitable facilities should not be attacked, provided they are not used for military purposes. It is the responsibility of the local population to ensure that such buildings are clearly marked with the distinctive emblem.
…
9.27. The LOAC provides for the specific protection of cultural objects and places of worship, which supplements the general protection given to civilian objects. Buildings dedicated to religion, science or charitable purposes, and historic monuments, are given immunity from attack as far as possible, so long as they are not being used for military purposes. Such places are to be marked with distinctive and visible signs which must be notified to the other party.
9.28. Cultural property is also protected. Cultural property includes movable and immovable objects of great importance to the cultural heritage of people, whether their state is involved in the conflict or not, such as historical monuments, archaeological sites, books, manuscripts or scientific papers and the buildings or other places in which such objects are housed. Obligations are placed upon all parties to respect cultural property … by refraining from any act of hostility directed against such property. These obligations may be waived where military necessity requires such waiver, as in the case where the object is used for military purposes.
9.29. Historic monuments, places of worship and works of art, which constitute the cultural and spiritual heritage of peoples, are protected from acts of hostility.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.45 and 9.27–9.29; see also § 5.46.
The manual also states that in the context of siege warfare:
Buildings devoted to religion, art, [and] science … should not be made the specific subject of attack unless they are being used for military purposes, subject to warning requirements. The besieged population should indicate by visible signs the buildings or places to be protected and should notify the attacking force of these signs.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.36.
In its chapter on “Compliance”, the manual states:
13.26 G. P. I [1977 Additional Protocol I] extends the definition of grave breaches to include the following … acts, when committed wilfully and in violation of the [1949 Geneva] Conventions or the Protocol:
…
- making the clearly recognised historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, the object of attack, causing as a result extensive destruction thereof, where there is no evidence that the adverse party is using such objects in support of the military effort and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives
…
13.30 Among other war crimes generally recognised as forming part of the customary LOAC are:
…
- attacking a privileged or protected building.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 13.26 and 13.30.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides that “a person who, in Australia or elsewhere, commits a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence”.
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 7(1).
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act 1995.
Australia’s Criminal Code Act (1995), as amended to 2007, states with regard to serious war crimes that are committed in the course of an international armed conflict:
268.46 War crime – attacking protected objects
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is any one or more of the following that are not military objectives:
(i) buildings dedicated to religion, education, art, science or charitable purposes;
(ii) historic monuments;
… and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.46, p. 331.
The Criminal Code Act further states with regard to serious violations of the laws and customs of war applicable in a non-international armed conflict:
268.80 War crime – attacking protected objects
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is any one or more of the following that are not military objectives:
(i) buildings dedicated to religion, education, art, science or charitable purposes;
(ii) historic monuments;
…
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.80, pp. 356–357.
The Criminal Code Act also states with regard to war crimes that are grave breaches of the 1977 Additional Protocol I:
268.101 War crime – attacking protected objects
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is any one or more of the following that are not used in support of the military effort and are not located in the immediate proximity of military objectives:
(i) clearly recognised historic monuments;
(ii) works of art;
(iii) places of worship; and
(c) the monuments, works of art and places of worship constitute the cultural or spiritual heritage of peoples and have been given special protection by special arrangement (for example, within the framework of a competent international organisation); and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
Australia, Criminal Code Act, 1995, as amended on 1 November 2007, taking into account amendments up to Act No. 177 of 2007, Chapter 8, § 268.101, p. 372.
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “attacking protected objects … that are not military objectives [including] buildings dedicated to religion, education, art, science or charitable purposes [and] historic monuments” in international and non-international armed conflicts.
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, §§ 268.46 and 268.80; see also § 268.101 (grave breaches of the 1977 Additional Protocol I).
At the CDDH, Australia stated that had Article 47 bis of the draft Additional Protocol I (now Article 53) been put to a vote, it would have abstained “because the article contains a prohibition against reprisals” even though it supported “proposals for rules to prohibit acts of hostility directed against historic monuments or works of art which constitute the cultural or spiritual heritage of peoples”.
Australia, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, pp. 219–220.
A report submitted by the Australian Government to the UNESCO Secretariat in 1994 emphasized: “All ADF [Australian Defence Force] personnel, prior to departure for services overseas, are briefed ‘on the necessity to respect [differences in culture] which would include respect for the cultural heritage of other peoples’.”
Australia, Department of Foreign Affairs and Trade, Report to UNESCO on Measures to Implement the Convention for the Protection of Cultural Property in the Event of Armed Conflict and Associated Regulations, 13 July 1994, § 2.
