Rule 39. The use of property of great importance to the cultural heritage of every people for purposes which are likely to expose it to destruction or damage is prohibited, 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.
This rule is contained in Article 4 of the Hague Convention for the Protection of Cultural Property, a provision applicable to both international and non-international armed conflicts.
The fundamental principles of protecting and preserving cultural property in the Hague 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.
Its application under customary international law to non-international armed conflicts was recognized by the International Criminal Tribunal for the Former Yugoslavia in the Tadić case
In addition, this rule is contained in other instruments pertaining also to non-international armed conflicts.
The prohibition on using property of great importance to the cultural heritage of every people for purposes which are likely to expose it to destruction or damage unless imperatively required by military necessity is set forth in numerous military manuals.
These include manuals of States not party to the Hague Convention.
In addition, several military manuals state that the use of a privileged building for improper purposes constitutes a war crime.
There are also specific references in State practice to the prohibition on using cultural property in order to shield military operations.
The Second Protocol to the Hague Convention for the Protection of Cultural Property has clarified the meaning of the waiver in case of imperative military necessity with regard to the use of cultural property. It considers that a waiver on the basis of imperative military necessity may only be invoked to use cultural property for purposes which are likely to expose it to destruction or damage “when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage”.
The Protocol further requires that the existence of such necessity be established at a certain level of command.
At the negotiation of the Second Protocol, this interpretation did not give rise to any controversy.
This rule should not be confused with the prohibition on using cultural property contained in Article 53(2) 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.