Related Rule
United States of America
Practice Relating to Rule 38. Attacks against Cultural Property
The US Field Manual (1956) reproduces Article 27 of the 1907 Hague Regulations. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 45.
The manual also recalls that the United States is party to the 1935 Roerich Pact, “which accords a neutralized and protected status to historic monuments, museums, scientific, artistic, educational and cultural institutions in the event of war”. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 57.
The US Rules of Engagement for the Vietnam War (1971) stated:
(1) The enemy has shown by his actions that he takes advantage of areas or places normally considered as nonmilitary target areas. These areas are typified by those of religious background or historical value to the Vietnamese. When it is found that the enemy has sheltered himself or has installed defensive positions in such places or in public buildings and dwellings, the responsible senior brigade or higher commander in the area may order an attack to insure prompt destruction of the enemy. The responsible commander must identify positive enemy hostile acts either in the execution or preparation. Weapons and forces used will be those which will insure prompt defeat of enemy forces with minimum damage to structures in the area.
The exception to this policy is the palace compound in the Hue Citadel. For this specific area, commanders will employ massive quantities of CS agents and will take all other possible actions to avoid damage to the compound. 
United States, Rules of Engagement for the Employment of Firepower in the Republic of Viet-Nam, US Military Assistance Command Viet-Nam, Directive No. 525-13, May 1971, unclassified contents reprinted in Eleanor C. McDowell, Digest of United States Practice in International Law, 1975, US Department of State Publication 8865, Washington, D.C., 1976, pp. 814–815, § 6(c).
The US Air Force Pamphlet (1976) states:
Buildings devoted to religion, art, or charitable purposes as well as historical monuments may not be made the object of aerial bombardment. Protection is based on their not being used for military purposes … When used by the enemy for military purposes, such buildings may be attacked if they are, under the circumstances, valid military objectives. Lawful military objectives located near protected buildings are not immune from aerial attack by reason of such location but, insofar as possible, necessary precautions must be taken to spare such protected buildings along with other civilian objects. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 5-5(c).
The US Air Force Commander’s Handbook (1980) states:
During military operations, reasonable measures should be taken to avoid damaging religious and cultural buildings, such as churches, temples, mosques, synagogues, museums, charitable institutions, historic monuments, archaeological sites, and works of art. These structures may lawfully be attacked if the enemy uses them for military purposes, though even then, the rules of engagement may place additional restrictions on US military operations. During World War II, for example, the Japanese city of Kyoto was never subjected to bombing because of the many historic and cultural monuments in the city. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 3-5(a).
The US Soldier’s Manual (1984) instructs soldiers:
Don’t attack protected property. You are required to take as much care as possible not to damage or destroy buildings dedicated to cultural or humanitarian purposes or their contents. Examples are buildings dedicated to religion, art, science, or charitable purposes; historical monuments; hospital and places where the sick and wounded are collected and cared for; and schools and orphanages for children. These places are considered protected property as long as they are not being used at the time by the enemy for military operations or purposes. 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 9.
The US Instructor’s Guide (1985) states:
And remember that in attacks and shellings all necessary measures must be taken to spare, as far as possible, nonmilitary facilities to include buildings dedicated to religion, art, science, or charitable purposes. The same applies to historic monuments and hospitals, provided these buildings and places are not being used for military purposes. 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 7.
The manual further states: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … firing on facilities which are undefended and without military significance such as churches.” 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 13.
The US Rules of Engagement for Operation Desert Storm (1991) states: “Churches, shrines, schools, museums, national monuments, and any other historical or cultural sites will not be engaged except in self-defense.” 
United States, Desert Storm – Rules of Engagement, Pocket Card, US Central Command, January 1991, reprinted in Operational Law Handbook, International and Operational Law Department, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, 1995, pp. 8-7 and 8-8, § C.
The US Naval Handbook (1995) provides:
Buildings devoted to religion, the arts, or charitable purposes; historic monuments; and other religious, cultural or charitable facilities should not be bombarded, provided they are not used for military purposes. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 8.5.1.6; see also § 8.6.2.2 (protected objects).
The Annotated Supplement to the US Naval Handbook (1997) states: “While the United States is not a Party to the 1954 Hague Convention [for the Protection of Cultural Property], it considers it to reflect customary law.” 
United States, Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, prepared by the Oceans Law and Policy Department, Center for Naval Warfare Studies, Naval War College, Newport, Rhode Island, November 1997, § 8.5.1.6, footnote 122.
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, defines protected property as follows:
The term “protected property” means property specifically protected by the law of war (such as buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, or places where the sick and wounded are collected), if such property is not being used for military purposes or is not otherwise a military objective. Such term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(a)(3), p. IV-3.
The manual includes in the list of crimes triable by military commissions:
ATTACKING PROTECTED PROPERTY.
a. Text. “Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused engaged in an attack;
(2) The object of the attack was protected property;
(3) The accused intended such protected property to be an object of the attack;
(4) The accused knew or should have known of the factual circumstances that established the property’s protected status; and
(5) The attack took place in the context of and was associated with armed conflict.
c. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.
d. Maximum punishment. Confinement for 20 years.  
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(4), p. IV-5.
The US Naval Handbook (2007) states: “Buildings devoted to religion, the arts, or charitable purposes; historic monuments; and other religious, cultural, or charitable facilities should not be bombarded, provided they are not used for military purposes.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 8.9.1.6.
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, defines protected property as follows:
The term “protected property” means property specifically protected by the law of war (such as buildings dedicated to religion, education, art, science or charitable purposes, historic monuments …), if such property is not being used for military purposes or is not otherwise a military objective. Such term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 1(a)(3), p. IV-1.
The manual includes in the list of crimes triable by military commissions:
ATTACKING PROTECTED PROPERTY.
a. Text. “Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused engaged in an attack;
(2) The object of the attack was protected property;
(3) The accused intended such protected property to be an object of the attack;
(4) The accused knew or should have known of the factual circumstances that established the property’s protected status; and
(5) The attack took place in the context of and was associated with hostilities.
c. Comment. The intent required for this offense precludes its applicability with regard to collateral damage or death, damage, or injury incident to a lawful attack.
d. Maximum punishment. Confinement for 20 years. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(4), p. IV-5.
Under the US War Crimes Act (1996), violations of Article 27 of the 1907 Hague Regulations are war crimes. 
United States, War Crimes Act, 1996, Section 2441(c)(2).
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 950v. Crimes triable by military commissions
“(a) DEFINITIONS AND CONSTRUCTION.—In this section:
“ …
“(3) PROTECTED PROPERTY.—The term “protected property” means property specifically protected by the law of war (such as buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, or places where the sick and wounded are collected), if such property is not being used for military purposes or is not otherwise a military objective. Such term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective.
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(4) ATTACKING PROTECTED PROPERTY.—Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2626, §§ 950v(a)(3) and (b)(4).
In 2008, the US Senate approved the ratification of the 1954 Hague Convention for the Protection of Cultural Property, subject to certain understandings and a declaration:
Section 1. Senate Advice and Consent Subject to Understandings and a Declaration.
The Senate advises and consents to the ratification of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, concluded on May 14, 1954 (Treaty Doc. 106–1(A)), subject to the understandings of section 2 and the declaration of section 3.
Section 2. Understandings.
The advice and consent of the Senate under section 1 is subject to the following understandings, which shall be included in the instrument of ratification:
(1) It is the understanding of the United States of America that “special protection,” as defined in Chapter II of the Convention, codifies customary international law in that it … allows all property to be attacked using any lawful and proportionate means, if required by military necessity and notwithstanding possible collateral damage to such property.
(2) It is the understanding of the United States of America that any decision by any military commander, military personnel, or any other person responsible for planning, authorizing, or executing military action or other activities covered by this Convention shall only be judged on the basis of that person’s assessment of the information reasonably available to the person at the time the person planned, authorized, or executed the action under review, and shall not be judged on the basis of information that comes to light after the action under review was taken.
(3) It is the understanding of the United States of America that the rules established by the Convention apply only to conventional weapons, and are without prejudice to the rules of international law governing other types of weapons, including nuclear weapons.
Section 3. Declaration.
The advice and consent of the Senate under section 1 is subject to the following declaration:
With the exception of the provisions that obligate the United States to impose sanctions on persons who commit or order to be committed a breach of the Convention, this Convention is self-executing. This Convention does not confer private rights enforceable in United States courts. 
United States, Advice and Consent to ratification of the 1954 Hague Convention for the Protection of Cultural Property, 2008, Sections 1–3.
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950p. Definitions; construction of certain offenses; common circumstances
“(a) DEFINITIONS.—In this subchapter:
“ …
“(3) The term ‘protected property’ means any property specifically protected by the law of war, including buildings dedicated to religion, education, art, science, or charitable purposes, historic monuments … but only if and to the extent such property is not being used for military purposes or is not otherwise a military objective. The term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective. 
United States, Military Commissions Act, 2009, § 950p(a)(3).
The Act also states:
§ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(4) ATTACKING PROTECTED PROPERTY.—Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2009, § 950t(4).
On 26 May 1944, General Eisenhower, Supreme Allied Commander in Europe, preparing to invade Europe, issued the following order concerning the preservation of historical monuments:
1. Shortly we will be fighting our way across the Continent of Europe in battles designed to preserve our civilization. Inevitably, in the path of our advance will be found historical monuments and cultural centers which symbolize to the world all that we are fighting to preserve.
2. It is the responsibility of every commander to protect and respect these symbols whenever possible.
3. In some circumstances the success of the military operation may be prejudiced in our reluctance to destroy these revered objects. Then, as at Cassino, where the enemy relied on our emotional attachments to shield his defense, the lives of our men are paramount. So, where military necessity dictates, commanders may order the required action even though it involves destruction of some honored site.
4. But there are many circumstances in which damage and destruction are not necessary and cannot be justified. In such cases, through the exercise of restraint and discipline, commanders will preserve centers and objects of historical and cultural significance. Civil Affairs Staffs at higher echelons will advise commanders of the locations of historical monuments of this type, both in advance of the front lines and in occupied areas. This information, together with the necessary instructions, will be passed down through command channels to all echelons. 
United States, Memorandum from General Dwight D. Eisenhower, 26 May 1944, reprinted in US, Annotated Supplement to the Naval Handbook (1997), § 8.5.1.6, footnote 122.
At the CDDH, the United States stated:
It is the understanding of the United States that [Article 47 bis of draft Additional Protocol I (now Article 53)] was not intended to replace the existing customary law prohibitions reflected in Article 27 of the 1907 [Hague Regulations] protecting a variety of cultural and religious objects. Rather the article establishes a special protection for a limited class of objects which because of their recognized importance constitute a part of the special heritage of mankind. Other monuments, works of art or places of worship which are not so recognized, none the less represent objects normally dedicated for civilian purposes and are therefore presumptively protected as civilian objects in accordance with the provisions of Article 47 [of the draft Additional Protocol I (now Article 52)].
We note that the use of these objects in support of the military effort is a violation of this article. Should they be used in support of the military effort it is our clear understanding that these objects will lose the special protection under this article. 
United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, pp. 240–241.
In 1987, in submitting the 1977 Additional Protocol II to the US Senate for advice and consent to ratification, the US President, commenting on Article 16, stated:
To avoid confusion, US ratification should be subject to an understanding confirming that the special protection granted by this article is only required for a limited class of objects that, because of their recognized importance, constitute a part of the cultural or spiritual heritage of peoples, and that such objects will lose their protection if they are used in support of the military effort. 
United States, Message from the US President transmitting the 1977 Additional Protocol II to the US Senate for advice and consent to ratification, Treaty Doc. 100-2, 29 January 1987, Comment on Article 16.
In 1991, in a report submitted to the UN Security Council on operations in the Gulf War, the United States stated: “Despite false reports by Iraqi authorities there is no evidence of damage caused by coalition forces to the four main Shiah holy sites in Iraq.” 
United States, Letter dated 30 January 1991 to the President of the UN Security Council, UN Doc. S/22173, 30 January 1991, p. 1.
In 1991, in a report submitted to the UN Security Council on operations in the Gulf War, the United States stated that the coalition air sorties were not flown against “religious targets”. 
United States, Letter dated 8 February 1991 to the President of the UN Security Council, UN Doc. S/22216, 13 February 1991, p. 1.
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
Whether in territory Coalition forces occupied or in parts of Iraq still under Iraqi control, US and Coalition operations in Iraq were carefully attuned to the fact those operations were being conducted in an area encompassing “the cradle of civilization”, near many archeological sites of great cultural significance. Coalition operations were conducted in a way that balanced maximum possible protection for those cultural sites against protection of Coalition lives and accomplishment of the assigned mission.
While Article 4(1) of the 1954 Hague Convention [for the Protection of Cultural Property] provides specific protection for cultural property, Article 4(2) permits waiver of that protection where military necessity makes such a waiver imperative; such “imperative military necessity” can occur when an enemy uses cultural property and its immediate surroundings to protect legitimate military targets in violation of Article 4(1). Coalition forces continued to respect Iraqi cultural property, even where Iraqi forces used such property to shield military targets from attack. However, some indirect damage may have occurred to some Iraqi cultural property due to the concussive effect of munitions directed against Iraqi targets some distance away from the cultural sites. 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 621.
The report further stated: “Cultural and civilian objects are protected from direct, intentional attack unless they are used for military purposes, such as shielding military objects from attack.” 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 622.
In 1992, during a debate in the Sixth Committee of the UN General Assembly, the United States noted: “The coalition forces in the Gulf conflict, desiring to spare the historic temples at Ur, had not bombed them even though MiG aircraft had been stationed there.” 
United States, Statement before the Sixth Committee of the UN General Assembly, UN Doc. A/C.6/47/SR.9, 6 October 1992, p. 11, § 51.
In 1993, in its report to Congress on the protection of natural and cultural resources during times of war, the US Department of Defense stated:
The United States considers the obligations to protect natural, civilian, and cultural property to be customary international law … Cultural property, civilian objects, and natural resources are protected from intentional attack so long as they are not utilized for military purposes. 
United States, Department of Defense, Report to Congress on International Policies and Procedures Regarding the Protection of Natural and Cultural Resources During Times of War, 19 January 1993, p. 202; see also p. 204.
The report further states:
Other steps were taken to minimize collateral damage. Although intelligence collection involves utilization of very scarce resources, these resources were used to look for cultural property in order to properly identify it. Target intelligence officers identified the numerous pieces of cultural property or cultural property sites in Iraq; a “no-strike” target list was prepared, placing known cultural property off limits from attack, as well as some otherwise legitimate targets if attack of the latter might place nearby cultural property at risk of damage. Target folders were annotated regarding near-by cultural property, and large-format maps were utilized with “non-targets” such as cultural property highlighted. In examining large-format photographs of targets, each was reviewed and compared with other known data to locate and identify cultural property.
To the degree possible and consistent with allowable risk to aircraft and aircrews, aircraft and munitions were selected so that attacks on targets in proximity to cultural objects would provide the greatest possible accuracy and the least risk of collateral damage to the cultural property … Aircrews attacking targets in proximity to cultural property were directed not to expend their munitions if they lacked positive identification of their targets. 
United States, Department of Defense, Report to Congress on International Policies and Procedures Regarding the Protection of Natural and Cultural Resources During Times of War, 19 January 1993, p. 205.
In 1999, in submitting the 1954 Hague Convention for the Protection of Cultural Property and its 1999 Second Protocol to the US Senate for advice and consent to ratification, the US President noted: “United States policy and the conduct of operations are entirely consistent with the Convention’s provisions.” The letter also stated:
In conformity with the customary practice of nations, the protection of cultural property is not absolute. If cultural property is used for military purposes, or in the event of imperative military necessity, the protection afforded by the Convention is waived, in accordance with the Convention’s terms. 
United States, White House, Submission of the Hague Convention on Cultural Property to the Senate, Presidential Message, Congressional Record, 6 January 1999, pp. S35–S36, reprinted in Yearbook of International Humanitarian Law, Vol. 2, 1999, p. 422.
The Report on US Practice states: “It is the opinio juris of the United States that cultural and religious objects should be respected to the extent permitted by military necessity.” 
Report on US Practice, 1997, Chapter 4.3.