Practice Relating to Rule 38. Attacks against Cultural Property
In a statement at a meeting of EU experts in 1998, Austria maintained that “it is this ‘formula’ [military necessity] which last but not least has led to the fact that a large number of reluctant States resolved to vote for the convention and to ratify it”.
In a fact sheet on military necessity prepared for the 1998 Vienna expert meeting on the revision of the 1954 Hague Convention for the Protection of Cultural Property, Austria stated:
1. … In modern IHL, military necessity does not function as a general waiver to the limitations imposed by IHL on the parties to an armed conflict, but can only be invoked in cases where conventional law explicitly so provides. In order to emphasize the exceptional character of this concept, it is often further qualified by narrowing terms.
2.1 While the arguments against the inclusion of a waiver clause based on military necessity in the text of the 1954 Hague Convention were mainly based on the fear that this would be regarded as a retrograde step in relation to previous international law and would diminish the protection, the arguments for the inclusion of such a waiver were manifold and superseded the former. For the inclusion of a waiver clause based on military necessity spoke the need to make the Convention militarily applicable, the recognition of humanitarian reasons (to allow for the primacy of the protection of human lives over that of objects), the desire to make the Convention acceptable to as many States as possible, and the intent to be in line with existing IHL, in particular with the Geneva Conventions of 1949. The compromise finally negotiated allows for the recognition of military necessity only by way of exception and solely in relation to specific obligations.
2.2 … The 1954 Hague Convention does not define what constitutes imperative military necessity. It is therefore up to each State Party to interpret these terms along the rules of interpretation applicable to international treaties. According to the wording of the waiver clause, and in light of the object and purpose of the Convention as well as the drafting history, it must be interpreted restrictively. It definitely goes beyond mere considerations of military convenience and involves a certain level of command to assess the situation and to decide on the application of the waiver.
The waiver clause currently contained in Art. 4 para. 2 of the Convention serves an important protective function. Without this clause, the protection of cultural property would automatically be lost when a party to the armed conflict uses the object for military purposes … As a consequence of its – unlawful – use the formerly protected cultural property would change its status and become a legitimate military target.
The existing waiver clause, however, ensures the protection of cultural property from damage or destruction even if the cultural property concerned or its surroundings are used for military purposes, since the obligation to respect cultural property, in particular the obligation to refrain from any act of hostility directed against such property, may only be waived in cases where military necessity imperatively requires such a waiver. Thus, according to Art. 4 para. 2 of the Convention, cultural property used in violation of the Convention must not be attacked without imperative military necessity to do so.
As it is formulated now, the waiver clause contained in Art. 4 para. 2 of the Convention reflects a proper balance between the military needs, on the one hand, and the need for the protection of cultural property against damage or destruction during armed conflict, on the other, and should, therefore, be retained. To further improve the protective function of the waiver clause, a common understanding of the States Parties as to the interpretation of its terms seems to be useful.
3.1 In addition to that, one might consider to introduce the following elements into the waiver clause or the protection regime in relation to cultural property under “normal” protection:
- compulsory warnings;
- a minimum time for the other party to redress the situation;
- a certain command level where the decision on the waiver has to be taken;
- certain requirements with regard to an attack on the property concerned in case of imperative military necessity:
- precautions in attack;
- no alternative means reasonably available;
- the limitation of means and methods to those which are strictly necessary to counter the threat posed.