相关规则
Colombia
Practice Relating to Rule 38. Attacks against Cultural Property
Colombia’s Basic Military Manual (1995) considers that “abstaining from attacks against objects … which are part of its culture” is a way to protect the civilian population.
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 22, § 2; see also p. 29, § 2(a).
The manual defines cultural property as
all the objects that are the expression of a people’s culture and that, because of their importance, must be protected against the effects of hostilities (monuments of architecture, archaeological sites, works of art, manuscripts, museums, archives, libraries, etc.).
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, pp. 25–26, § 3.
Colombia’s Military Penal Code (1999) punishes “anyone who during military service and without proper cause, destroys buildings, places of worship, archives, monuments or other public property”.
Colombia, Military Penal Code, 1999, Article 174.
Colombia’s Penal Code (2000) provides for the punishment of
whoever, at the occasion of and during armed conflict, attacks or destroys, without any justification based on imperative military necessity, and without previously taking adequate and opportune measures of protection, historical monuments, works of art, educational institutions or places of worship, constituting the cultural or spiritual heritage of peoples, which are duly marked with the conventional signs.
Colombia, Penal Code, 2000, Article 156.
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
International humanitarian law, in its treaty and customary form applicable in internal armed conflicts, provides for the special protection of certain categories of persons and property particularly vulnerable to the effects of war. The main categories of persons specially protected [include] … cultural property.
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 120.
The Court also held:
International humanitarian law binds parties to an internal armed conflict to respect and protect cultural property, understood to mean both (i) cultural property in general – “buildings dedicated to religious and charitable purposes, education, arts or science, and against historic monuments, works of art or science” – and (ii) cultural property of special importance for the heritage of peoples – “historic monuments, works of art or places of worhip which constitute the cultural or spiritual heritage of peoples”. These two types of property are protected by specific treaty provisions – the former by the 1954 Hague Convention, the latter by the [1977] Additional Protocol II – and such protection is also considered to be a part of customary international humanitarian law.
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 120.
[footnotes in original omitted]The Court further held:
Although cultural property falls within the general category of “civilian property” and as such is protected by the principles of distinction and precaution, … international humanitarian law imposes a duty on all parties to an armed conflict to provide cultural property with special care, respect, prevention and protection. In this sense, guarantees aimed at protecting cultural property – including resort to penal sanctions – constitute lex specialis in relation to the principles of distinction and precaution. A violation of these special protection guarantees for cultural property is a war crime under international humanitarian treaty and customary law.
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 121.
[footnotes in original omitted]The Court added that “[w]ithin the category of cultural property, religious institutions are subject to special protection under international humantiarian treaty and customary law applicable in internal armed conflict”.
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 121.
The Court further stated:
The protection of cultural and religious property is not dependent on the property being identified with a distinctive emblem. Although the 1954 Hague Convention provides in its Articles 6 and 16 that specially relevant cultural property may bear the distinctive emblem provided, this is by no means an obligation and the use of the emblem is not a condition for the full application of treaty and customary safeguards granted by international humanitarian law.
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 122.
[emphasis in original]Colombia’s National Plan for the Dissemination of IHL states that the immunity of the spiritual and cultural heritage is absolute, and that the destruction of religious and cultural objects can neither serve any military need whatsoever nor provide any military advantage.
Colombia, Presidency, Office of the High Commission for Peace, National Plan for the Dissemination of IHL, 1994, p. 7.
