Practice Relating to Rule 38. Attacks against Cultural Property
Sweden’s Military Manual (1976) states that it is forbidden to wilfully destroy cultural property such as museum collections, churches, historical monuments and other cultural sites.
Sweden’s IHL Manual (1991) states:
Since the Second World War, great interest has been devoted to creating protection in international law for cultural values. According to the 1954 Hague Convention on the protection of cultural values, the parties shall respect cultural objects of different kinds so that these may receive protection as far as possible – exceptions are made if military necessity can be claimed. By cultural values are understood according to the Convention both fixed and movable property of great importance for a people’s cultural and spiritual heritage. As such are considered buildings of historical or religious importance, collections of historically important buildings, museums and libraries, works of art, books and scientific collections. The Convention also contains precise rules for the marking of buildings, historic monuments, etc., and provisions covering the storage of movable cultural objects in special shelters … A condition is that none of these cultural values may be used for military purposes. If this should happen, the adversary is no longer obliged to extend protection to these objects.
During the [CDDH] it was again wished to introduce rules for protecting cultural objects. Initially, it was not clear whether the protection should include all or only certain cultural objects in a country waging war. Some states wished the provisions of the cultural convention to be supplemented so that all objects of this nature would receive specific safeguards. Other states, however, reacted strongly against including all churches and historic buildings, etc. in the protected category. A rule like this would have been very difficult to follow in practice, which would probably have meant the protection being weakened. The final solution was that only those cultural values that were considered to belong to a people’s “cultural and spiritual heritage” would be included in this special protection.
The new provision in Additional Protocol I (AP I Art. 53) could be seen as a replacement for the 1954 Cultural Convention, which, however, is not at all the intention. The Additional Protocol article is only intended to be a confirmation of the rules existing in a much more precise form in the 1954 Convention. A further reason for introducing Article 53 was that many states had not ratified the 1954 Convention.
All civilian objects enjoying special protection according to Articles 53–56 also have general protection according to Article 52, but this is clearly stated in the Protocol text only in the case of the places used for religious purposes … As Article 53 aims at giving these objects protection equivalent to that of hospitals, the intention has obviously been that no such object shall be used for military purposes of any kind. If such an object should be so used, there is no longer any requirement upon the adversary to respect the safeguard.
This is not, however, the same as saying that an attack may be launched against, for example, a cathedral or national museum without further ado. The party contemplating such an attack must first judge whether the object can, according to the criteria of Article 52:2, make an effective contribution to its adversary’s military operations; and above all whether their total or partial destruction would afford a clear military advantage. The commander who is to make these assessments should also bear in mind that a wilful attack on the object in question may later be judged to be a grave breach of international humanitarian law (AP I Art. 85:4).
In Article 53 [of the 1977 Additional Protocol I] it is not only prohibited to attack the protected objects but to commit any kind of “hostile act” whatsoever against them, and this is a more far-reaching commitment. This can in fact also be taken to imply prohibition of intentional destruction instigated by one’s own authorities. Burnt earth tactics, which are a permitted method of combat, may thus not include destruction of one’s own cultural objects, which are safeguarded according to Article 53. It follows both from Article 53 and from the interpretation of some Western states that only the most important objects of a historical, cultural or religious nature may enjoy the protection of the article. In practice, therefore each party to Additional Protocol I must select which objects it considers shall enjoy this qualified protection. Additional Protocol I does not, however, state how this selection is to be made. One suitable way would be to select the objects using the criteria given in the Cultural Convention of 1954.
[emphasis in original]
Under Sweden’s Penal Code (1962), as amended in 1998, “arbitrarily destroying and extensively damaging property which enjoys special protection under international law” constitutes a crime against international law.