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Switzerland
Practice Relating to Rule 38. Attacks against Cultural Property
Switzerland’s Teaching Manual (1986) states that the immunity enjoyed by cultural property under general protection “may be lifted, in case of imperative military necessity, by a responsible commander”. 
Switzerland, Droit des gens en temps de guerre, Programme d’instruction fondé sur le Manuel 51.7/III “Lois et coutumes de la guerre”, Cours de base pour recrues de toutes les armes 97.2f, Armée suisse, 1986, p. 88.
Switzerland’s Basic Military Manual (1987) states:
Art. 52. Cultural property consists of movable and immovable property of great importance for the cultural heritage.
Art. 53. In the event of armed conflict, the cultural property, movable or immovable, located in the territory of a Party to the conflict must be respected and safeguarded.
Art. 54. The obligation to respect may only be derogated from in case military necessity imperatively so demands. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Articles 52–54; see also Article 30(b).
The manual qualifies the following act as a grave breach of the 1977 Additional Protocol I:
making the clearly recognized 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, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, sub-paragraph b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 193(2)(d).
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states with regard to the protective sign for the “Protection of cultural properties (simple or reinforced protection)”:
Correct behaviour
- Cultural properties, storage location or means of transport for cultural assets as well as carriers of the distinctive sign or objects marked with signs must be respected and spared;
- The distinctive signs may only be used by persons entitled and only for their intended purpose.
Prohibited is/are …
- Attacks against persons or objects carrying this distinctive sign[.] 
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Chart of Protective Signs.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
12.1 The principle of distinction
159 Hostilities must be directed exclusively against combatants and military objectives. …
3 Protected persons are persons who are not or no longer taking part in combat or enjoy specially protected status, such as medical and religious personnel, civil protection or cultural property protection personnel, as well as wounded persons and prisoners of war.
14 Protected objects
14.2 Cultural property
207 In the event of an armed conflict, cultural property of national importance is marked with the blue and white shield for the protection of cultural property, the distinctive sign to facilitate their identification. It must be respected by the armed forces. Destruction and pillaging of such property are prohibited. Their use for military purposes must in principle be avoided.
15 Methods of warfare
15.2 Prohibited methods of warfare
225 Indiscriminate attacks, i.e. attacks which cannot distinguish between protected persons/objects and military objectives, as well as attacks directed against protected persons/objects or acts of revenge are prohibited in any place and at any time.
17 Sanctions for violations of the international law of armed conflict
237 The following in particular are criminal offences: … harmful acts against internationally protected persons and objects. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 159(3), 207, 225 and 237.
[emphasis in original]
Switzerland’s Regulation on Ten Basic Rules for the Protection of Cultural Property (2013) states:
Term - Definition of cultural property (CP)
CP includes property and objects that are of great importance as regards cultural heritage, for example:
- structures of artistic and historic value, art and historic monuments
- sacred buildings (churches, monasteries, temples, mosques, synagogues)
- museums, large libraries, archives, collections
- archaeological sites (on land or under water)
- works of art, historical manuscripts, valuable books
- relics from the history of technology, industry and traffic.
Rule No. 1 Protection of cultural property during war times
Cultural property requires special protection in military conflicts. The Law of Armed Conflict provides for three types of protection during armed conflicts:
1. CP of national importance is granted general protection as CP. This is guaranteed by the state. The relevant information is stated in the “Swiss inventory of cultural property of national importance”.
2. A limited number of CPs are under special protection, e.g. Vatican City. At the request of a country UNESCO may consider entry in the “International Register of Cultural Property under Special Protection” to grant special protection.
3. A small number of CPs that are of particular importance as world-cultural-heritage are under enhanced protection. In times of armed conflict, at the request of a country enhanced protection is granted by the (international) Committee for the Protection of Cultural Property in the Event of Armed Conflict.
Rule No. 3 Respect and protection
I respect and protect CP.
Respecting means:
- refraining from attacking CP.
Protecting means:
- preventing damage to CP during combat;
- taking appropriate precautionary measures.
Rule No. 4 Cultural property personnel, material, means of transport and installations
I will spare and respect personnel, installations, material and means of transport involved in the protection of cultural property, except if they are used in a military manner against me and my fellow soldiers.
Rule No. 6 Military use of and attack on CP
Military use of and attack on CP of national importance and its immediate vicinity (500 m) is only permitted in exceptional cases, e.g.:
- if absolutely necessary
- if authorised by a superior with at least the rank of a battalion commander.
If circumstances permit, such an attack must be preceded by a warning.
Rule No. 8 Attack on cultural property under enhanced protection
I may only attack CP under enhanced protection if:
- the CP is still being used for military purposes despite an effective warning; and
- attacking is the only way to prevent its further military use.
Such an attack is subject to authorisation from Armed Forces Command.
Rule No. 9 Punishment of violations of the regulations on the protection of cultural property
My breach of the regulations on the protection of cultural property will result in disciplinary measures or prosecution under the Military Criminal Code.
A serious violation of the protection of cultural property is considered a war crime. 
Switzerland, Ten Basic Rules for the Protection of Cultural Property, Regulation 51.00705e, issued on the basis of Article 10 of the Ordinance on the Organization of the Federal Department of Defence, Civil Protection and Sports of 7 March 2003, signed on 21 March 2013, entry into force on 1 July 2013, Definition and Rules No. 1, 3–4, 6 and 8–9.
Switzerland’s Military Criminal Code (1927), as amended, punishes anyone who “unlawfully destroys or damages cultural property or material placed under the protection of the distinctive sign of cultural property”. 
Switzerland, Military Criminal Code, 1927, as amended, Article 111.
Switzerland’s Military Criminal Code (1927), as amended in 2007, states:
Any person who has undertaken hostile acts against places under the protection of … the emblem of cultural property, or has prevented them from exercising their functions,
is to be punished with three years’ or more imprisonment or with a monetary penalty or, in less serious cases, with a year imprisonment or less. 
Switzerland, Military Criminal Code, 1927, as amended in 2007, Article 110.
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 110
Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
Art. 112
1 The penalty shall be a custodial sentence of not less than three years for any person who in the context of an armed conflict directs an attack against:
e. cultural property or persons entrusted with its protection or vehicles for its transport, against buildings dedicated to religion, art, education, science or charitable purposes, provided they are protected by international humanitarian law. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 110 and 112(1)(e).
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
Art. 264d
1 The penalty shall be a custodial sentence of not less than three years for any person who in the context of an armed conflict directs an attack against:
e. cultural property or persons entrusted with its protection or vehicles for its transport, against buildings dedicated to religion, art, education, science or charitable purposes, provided they are protected by international humanitarian law. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b and 264d (1)(e).
Switzerland’s Law on the Protection of Cultural Property (1966) states that protection includes respect for cultural property, which means, inter alia, “to renounce acts which could expose these objects to destruction or deterioration”. 
Switzerland, Law on the Protection of Cultural Property, 1966, Article 2(3).
Switzerland’s Law on the Protection of Cultural Property (1966), as amended in 2008, states:
1. The immunity of cultural property placed under special protection … may only be lifted in exceptional cases of inevitable military necessity, and only for as long as this necessity persists. The existence of such military necessity may only be determined by the commander of a military formation that corresponds to or supersedes a division.
2. The immunity of cultural property which is not placed under special protection … may only be lifted in exceptional cases if imperatively required by military necessity, and only for as long as this necessity persists. The existence of such military necessity may only be determined by a local competent commander. 
Switzerland, Law on the Protection of Cultural Property, 1966, as amended in 2008, Article 21.
Switzerland’s ABC of International Humanitarian Law (2009) states:
Civilian objects
International humanitarian law distinguishes between Civilian objects and Military objectives, prohibiting acts of violence against the former. Other provisions provide special protection for certain specific civilian objects, some of which are expected to bear distinctive signs: … places of worship, cultural property … Civilian objects are all objects which are not military objectives.
Cultural property
Cultural property includes movable and immovable objects that are important to the cultural heritage of humanity, and the buildings in which they are stored or displayed. In the event of an Armed conflict cultural property is accorded special protection under international law. Not only are hostile acts against cultural property prohibited, but it is also forbidden to make use of such property in support of military operations or as a target of Reprisals. An exception is only forseen for cases of imperative military necessity. Protected items are marked by a distinctive sign. The way cultural property is to be treated is regulated in the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict of 1954 and its two Additional Protocols. The First Protocol concerns the protection of cultural property during an occupation (Occupied territory), while the second strengthens the protection, extending it to non-international Armed conflicts, and also defines individual criminal responsibility. 
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 12 and 14–15.
In 2009, in response to a motion by a member of the National Council, Switzerland’s Federal Council stated:
Secondly, the Federal Council considers that, even if the crime of genocide does not include acts of “cultural genocide”, international law as applicable in Switzerland provides extensive protection against such acts. In particular, we refer to:
- international humanitarian law, notably the prohibition of deliberate attacks against cultural property and places dedicated to religion[.] 
Switzerland, National Council, Response by the Federal Council to Motion No. 08.3789, 13 May 2009, p. 2.
In 2010, in the preface to the inventory of cultural property of national importance, the head of Switzerland’s Federal Department of Defence, Civil Protection and Sports stated:
The bombing of Dubrovnik and Mostar, cities forming part of the world heritage, during the Balkans war at the beginning of the 90s, the destruction of the Buddha statues by the Taliban in Afghanistan in 2001 or the pillage of museums in Iraq have shown the extent to which cultural property can be the target of armed attacks and terrorist acts.
Cultural property has an important symbolic and identity value for the population. It is therefore necessary to protect it to the extent possible from damage and destruction. This task falls to the protection of cultural property, which has military origins: it was the massive destruction of monuments and museums during World War II that led to the establishment of systematic protection measures. The Hague Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict, put into effect by UNESCO, is in certain respects its fundamental charter. By ratifying that text in 1962, Switzerland has committed itself, along with some 120 other signatory States, to plan protection measures for cultural property already in time of peace. At the national level, legal prescriptions protect cultural property against natural dangers, fire, theft and vandalism.
Implementing that legislation requires an assessment of the country’s main buildings, collections and archaeological sites. 
Switzerland, Inventory of Cultural Property, 4 May 2010, p. 10.
In 2011, in response to a motion in Parliament, Switzerland’s Federal Council stated:
By becoming a party to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict … Switzerland undertook to respect and protect cultural property on its territory and on the territory of other States Parties. The Federal law on the protection of cultural property in the event of armed conflict of 6 October 1966 (LPBC; RS 520.3) and its implementing ordinance (OPBC; RS 520.31) insofar provide for the general legal framework This protection is based on the one hand on precautionary measures in time of peace, and on the other on the respect for Swiss and foreign cultural property in the event of armed conflict.
In October 2010, the Federal Office for Civil Protection (FOCP) … has started to work on the revision of the Federal law on the protection of cultural property in the event of armed conflict, involving the cantons, which are entrusted with the implementation of the law. The revision will notably take into account protection against catastrophes, and the Second Protocol to the 1954 Hague Convention of 1999, and will concretize the preparatory measures taken in time of peace for the safeguarding of cultural property according to article 5 of that Protocol … and the “enhanced protection” stipulated in chapter 3 of the Protocol. 
Switzerland, Opinion of the Federal Council in response to motion 10.4150 in Parliament regarding protection of cultural property, 23 February 2011.
In 2012, in a statement during the opening session of the International Conference on the Protection of Cultural Property, the ambassador of Switzerland stated:
This conference is devoted to the challenges that the protection of cultural property faces. Those challenges are manifold, and I will touch on one aspect only. In my present function, I deal among other issues with International Humanitarian Law, the Law of Armed Conflict. Armed conflicts are not only tragedies in terms of losses of human lives, but they are every so often also cultural tragedies. In recent history again, several UNESCO world heritage sites have been destroyed, such as the shrines in Mali’s Timbuktu, the Buddha Statues of Bamiyan in Afghanistan or the old bridge in the city of Mostar and the historic city of Dubrovnik during the wars in the former Yugoslavia. We all agree that cultural property must remain protected, as cultural heritage of all mankind, irrespective of the reasons or motives why it may come under attack.
The protection of cultural property has long been included in the law of armed conflicts. The first binding international obligations emerged in the 1899 and 1907 Hague Conventions concerning the Laws and Customs of War on Land. These Conventions contained provisions prohibiting attacks on cultural property during hostilities and have been widely recognized as customary international law.
As a consequence of massive destruction of cultural heritage during World War II, the first specific international humanitarian law instruments for the protection of cultural heritage have been adopted: The 1954 Hague Convention for the protection of cultural property in armed conflict, together with its First Protocol. This Convention imposes two main duties on the Member States, namely to prepare for the safeguarding of cultural property in peace time and to respect cultural property in times of conflict. Effective protection during hostilities can only be achieved if adequate mechanisms of prevention and protection are established in peaceful periods.
This year, Ladies and Gentlemen, Switzerland celebrates its 50th anniversary of the ratification of the 1954 Hague Convention. The Swiss ratification in 1962 may be seen as a starting point of cultural property protection in Switzerland. The implementation process led to the adoption of the Federal Cultural Property Protection Act and, even more importantly, to the creation of a national inventory of significant cultural property.
The inventory was revised in 2009 for the third time and is now a detailed, comprehensive and up to date tool to be used to implement the measures prescribed by international and national law by all relevant authorities. …
The development of the legal framework protecting cultural property found its way into the classic regime of IHL in 1977, being included in some provisions of the two additional protocols to the [1949] Geneva Conventions. The next milestone within the international context was the establishment of the Second Protocol to the 1954 Hague Convention in 1999. Switzerland was one of the driving forces in the process, and we consider the Protocol to constitute a significant improvement and reinforcement of the protective framework. Amongst other things, it established the system of “enhanced protection” for cultural heritage of the greatest importance for humanity.
Against the background of all these instruments, one of the main challenges – in all likelihood the main challenge – of international humanitarian law is lack of respect. As seen on many occasions, in times of armed conflicts, respect for the law is often weak. We firmly believe that in order to prevent future violations, there must be accountability for violations. Perpetrators of serious crimes must not go unpunished. Therefore, it was a primary objective of the Swiss delegation to include the principle of universal jurisdiction for grave breaches of provisions protecting cultural property in the draft of the Second Protocol.
The idea of establishing individual criminal responsibility for such violations is not entirely new. The 1954 Hague Convention already contained an article requesting State parties to impose sanctions on persons violating the convention. However, this provision was rarely applied because it did not contain a specific list of violations. The new Protocol now incorporates a criminal law approach featuring significant improvements: It defines five specific offences triggering individual criminal responsibility. …
Moreover, under the [1998] Rome Statute of the International Criminal Court, attacks against buildings dedicated to religion, education, art, science or charitable purposes or historic monuments may amount to war crimes.
There is now a strong legal and institutional framework to fight impunity through effective criminal prosecution.
Over the last years, international tribunals have dealt with violations of provisions on the protection of cultural property.
A number of cases before the International Criminal Tribunal for the former Yugoslavia involved the destruction of cultural property. In its findings, the Court repeatedly referred to the 1954 Hague Convention and the Protocols to the Geneva Conventions.
More recently, the ICC Prosecutor Fatou Bensouda stressed that the deliberate destruction of the shrines of Muslim saints in the city of Timbuktu may constitute a war crime under Article 8 of the Rome Statute. On 13 July, the government of Mali referred the situation to the ICC while expressly mentioning in its letter to the Prosecutor “the destruction of churches, mausoleums and mosques”. A preliminary examination is currently in progress.
Unfortunately, both the Rome Statute and the Second Protocol to the 1954 Hague Convention are yet far from being universally accepted instruments. Despite the fact that the main rules pertaining to the protection of cultural property are part of customary international law, it is crucial that these treaties achieve very wide and ultimately universal acceptance.
Now, I am the first to say that the contribution that international tribunals make to the prosecution of crimes against cultural property is important. Having said this, though, it must also be must also be underlined that it is primarily the duty of States to take the necessary measures to ensure that cultural objects are protected and, if necessary, to investigate and prosecute those responsible for violations. Only when both pillars, the national and the international, are strong, will we achieve to effectively prevent cultural property from wanton destruction during conflicts. 
Switzerland, Statement by the ambassador of Switzerland during an opening session of the International Conference on the Protection of Cultural Property, Bern, 1 October 2012, pp. 1–4.
[emphasis in original]