Rule 38. Each party to the conflict must respect cultural property:A. Special care must be taken in military operations to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments unless they are military objectives.B. Property of great importance to the cultural heritage of every people must not be the object of attack unless imperatively required by military necessity.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
To the extent that cultural property is civilian, it may not be made the object of attack (see Rule 7). It may only be attacked in case it qualifies as a military objective (see Rule 10). The Statute of the International Criminal Court therefore stresses that intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes or historic monuments is a war crime in both international and non-international armed conflicts, “provided they are not military objectives”.
The obligation to take special care to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments, provided they are not used for military purposes, is set forth in many military manuals.
It is also restated in the legislation of numerous States, under which it is a punishable offence to attack such objects.
Attacks against such objects have been condemned by States, the United Nations and other international organizations, for example, with respect to the conflicts in Afghanistan and Korea, between the Islamic Republic of Iran and Iraq and in the Middle East and the former Yugoslavia.
While in any attack against a military objective, all feasible precautions must be taken to avoid, and in any event, to minimize incidental damage to civilian objects (see Rule 15), special care is required to avoid damage to some of the most precious civilian objects. This requirement was already recognized in the Lieber Code, the Brussels Declaration and the Oxford Manual and was codified in the Hague Regulations.
The Report of the Commission on Responsibility set up after the First World War identified the “wanton destruction of religious, charitable, educational and historic buildings and monuments” as a violation of the laws and customs of war subject to criminal prosecution.
The requirement of special care has also been invoked in official statements.
The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, called on all parties to an armed conflict to protect cultural property and places of worship, in addition to respecting the total ban on directing attacks against such objects.
With respect to property of “great importance to the cultural heritage of every people”, the Hague Convention for the Protection of Cultural Property has sought to reinforce its protection by encouraging the marking of such property with a blue-and-white shield,
but also by limiting the lawfulness of attacks to very exceptional situations where a waiver can be invoked in case of “imperative military necessity”.
At the time of writing, the Hague Convention was ratified by 111 States. The fundamental principles of protecting and preserving cultural property in the Convention are widely regarded as reflecting customary international law, as stated by the UNESCO General Conference and by States which are not party to the Convention.
The application of the Hague Convention under customary international law to non-international armed conflicts was recognized by the International Criminal Tribunal for the Former Yugoslavia in the Tadić case
Many military manuals specify the obligation to respect and protect property of great importance to the cultural heritage of every people.
These include manuals of States not, or not at the time, party to the Hague Convention.
Under the legislation of numerous States, it is an offence to attack property of great importance to the cultural heritage of every people.
The Second Protocol to the Hague Convention for the Protection of Cultural Property, adopted by consensus in 1999, brings the Hague Convention up to date in the light of developments in international humanitarian law since 1954. It is significant in this respect that the Second Protocol has maintained the waiver in case of imperative military necessity, as requested by many States during the preparatory meetings, but has sought to clarify its meaning. It provides that a waiver on the basis of imperative military necessity may only be invoked when and for as long as: (1) the cultural property in question has, by its function, been made into a military objective; and (2) there is no feasible alternative to obtain a similar military advantage to that offered by attacking that objective.
The Second Protocol further requires that the existence of such necessity be established at a certain level of command and that in case of an attack, an effective advance warning be given whenever circumstances permit.
During the negotiation of the Second Protocol, this interpretation of the waiver in case of imperative military necessity was uncontroversial.
This rule should not be confused with the prohibition on attacking cultural property contained in Article 53(1) of Additional Protocol I and Article 16 of Additional Protocol II, which do not provide for a waiver in case of imperative military necessity.
As underlined by numerous statements at the Diplomatic Conference leading to the adoption of the Additional Protocols, these articles were meant to cover only a limited amount of very important cultural property, namely that which forms part of the cultural or spiritual heritage of “peoples” (i.e., mankind), while the scope of the Hague Convention is broader and covers property which forms part of the cultural heritage of “every people”.
The property covered by the Additional Protocols must be of such importance that it will be recognized by everyone, even without being marked. At the Diplomatic Conference leading to the adoption of the Additional Protocols, several States indicated that notwithstanding the absence of a waiver, such highly important cultural property could become the object of attack in case it was used, illegally, for military purposes.