Rule 40. Respect for Cultural Property
Rule 40. Each party to the conflict must protect cultural property:A. All seizure of or destruction or wilful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science is prohibited.B. Any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, property of great importance to the cultural heritage of every people is prohibited.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
Article 56 of the Hague Regulations prohibits “all seizure of, and destruction, or intentional damage done to” institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science.[1] The violation of this provision was included among the violations of the laws and customs of war in the Statute of the International Criminal Tribunal for the Former Yugoslavia over which the Tribunal has jurisdiction.[2] Under the Statute of the International Criminal Court, destruction of buildings dedicated to religion, education, arts, science or charitable purposes and historic monuments and destruction and seizure that is not imperatively demanded by the necessities of the conflict constitute war crimes in both international and non-international armed conflicts.[3]
Many military manuals incorporate this provision.[4] Under the legislation of many States, it is an offence to seize, destroy or wilfully damage cultural property.[5] After the Second World War, France’s Permanent Military Tribunal at Metz in the Lingenfelder case in 1947 and the US Military Tribunal at Nuremberg in the Von Leeb (The High Command Trial) case in 1948 and the Weizsaecker case in 1949 convicted the accused of seizure and destruction of cultural property.[6]
Theft, pillage, misappropriation and acts of vandalism are prohibited in Article 4 of the Hague Convention for the Protection of Cultural Property, a provision applicable to both international and non-international armed conflicts.[7] 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.[8] 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 1995.[9] In addition, this rule is contained in other instruments pertaining also to non-international armed conflicts.[10]
The obligation to respect cultural property is set forth in numerous military manuals.[11] Failure to respect cultural property is an offence under the legislation of numerous States.[12] The rule is also supported by official statements made by States not, or not at the time, party to the Hague Convention.[13] The prohibition of pillage of cultural property is a specific application of the general prohibition of pillage (see Rule 52).
No official contrary practice was found. Violations of this rule have generally been denounced by States.[14] The United Nations and other international organizations have also condemned such acts. In 1998, for example, the UN Commission on Human Rights expressed its deep concern over reports of the destruction and looting of the cultural and historical heritage of Afghanistan, a State not party to the Hague Convention for the Protection of Cultural Property, and urged all the Afghan parties to protect and safeguard such heritage.[15] In 2001, there was widespread condemnation, in particular by UNESCO, of the Taliban regime’s decision to destroy a dozen ancient statues belonging to the Afghan National Museum and subsequently to destroy the Buddhas of Bamiyan.[16]
[1] Hague Regulations, Article 56 (cited in Vol. II, Ch. 12., §§ 355–356).
[2] ICTY Statute, Article 3(d) (ibid., § 366).
[3] ICC Statute, Article 8(2)(b)(ix) (ibid., § 19) and Article 8(2)(b)(xiii) (cited in Vol. II, Ch. 16, § 55), Article 8(2)(e)(iv) (cited in Vol. II, Ch. 12, § 19) and Article 8(2)(e)(xii) (cited in Vol. II, Ch. 16, § 56).
[4] See, e.g., the military manuals of Argentina (cited in Vol. II, Ch. 12, § 371), Australia (ibid., § 372), Canada (ibid., §§ 373–374), Germany (ibid., §§ 375–376), Italy (ibid., § 378), Netherlands (ibid., §§ 379–380), New Zealand (ibid., § 381), Nigeria (ibid., §§ 382–383), Sweden (ibid., § 384), United Kingdom (ibid., § 386) and United States (ibid., §§ 387–388).
[5] See, e.g., the legislation of Bulgaria (ibid., § 389), Estonia (ibid., § 392), Italy (ibid., § 393), Luxembourg (ibid., § 395), Netherlands (ibid., § 396), Nicaragua (ibid., § 397), Poland (ibid., § 399), Portugal (ibid., § 400), Romania (ibid., § 401), Spain (ibid., § 402) and Switzerland (ibid., § 403); see also the draft legislation of El Salvador (ibid., § 391) and Nicaragua (ibid., § 398).
[6] France, Permanent Military Tribunal at Metz, Lingenfelder case (ibid., § 405); United States, Military Tribunal at Nuremberg, Von Leeb (The High Command Trial) case (ibid., § 406) and Weizsaecker case (ibid., § 407).
[7] Hague Convention for the Protection of Cultural Property, Article 4 (ibid., § 357) and Article 19 (ibid., § 358).
[8] See, e.g., UNESCO General Conference Res. 3.5 (ibid., § 419); United States, Annotated Supplement to the Naval Handbook (ibid., § 388).
[9] ICTY, Tadić case, Interlocutory Appeal (ibid., § 428).
[10] See, e.g., UN Secretary-General’s Bulletin, Section 6.6 (ibid., § 370).
[11] See, e.g., the military manuals of Argentina (ibid., § 371), Australia (ibid., § 372), Canada (ibid., §§ 373–374), Germany (ibid., §§ 375–376), Israel (ibid., § 377), Italy (ibid., § 378), Netherlands (ibid., §§ 379–380), New Zealand (ibid., § 381), Nigeria (ibid., §§ 382–383), Sweden (ibid., § 384), Switzerland (ibid., § 385), United Kingdom (ibid., § 386) and United States (ibid., §§ 387–388).
[12] See, e.g., the legislation of Bulgaria (ibid., § 389), China (ibid., § 390), Estonia (ibid., § 392), Italy (ibid., § 393), Lithuania (ibid., § 394), Luxembourg (ibid., § 395), Netherlands (ibid., § 396), Nicaragua (ibid., § 397), Poland (ibid., § 399), Portugal (ibid., § 400), Romania (ibid., § 401), Spain (ibid., § 402), Switzerland (ibid., § 403) and Ukraine (ibid., § 404); see also the draft legislation of El Salvador (ibid., § 391) and Nicaragua (ibid., § 398).
[13] See, e.g., the statements of Azerbaijan (ibid., § 408), China (ibid., §§ 410–411) and United States (ibid., § 414).
[14] See, e.g., the statements of Azerbaijan (ibid., § 408), China (ibid., §§ 410–411), Islamic Republic of Iran (ibid., § 412) and United States (ibid., § 414).
[15] UN Commission on Human Rights, Res. 1998/70 (ibid., § 418).
[16] See, e.g., UNESCO, Press Release No. 2001-27 (ibid., § 421) and Press Release No. 2001-38 (ibid., § 422).
