Related Rule
United States of America
Practice Relating to Rule 39. Use of Cultural Property for Military Purposes
The US Field Manual (1956) states:
In the practice of the United States, religious buildings, shrines, and consecrated places employed for worship are used only for aid stations, medical installations, or for the housing of wounded personnel awaiting evacuation, provided in each case that a situation of emergency requires such use. 
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, § 405(c).
The manual further states:
In addition to the “grave breaches” of the Geneva Conventions of 1949, the following acts are representative of violations of the law of war (“war crimes”):
h. Improper use of privileged buildings for military purposes. 
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, § 504(h).
The US Air Force Pamphlet (1976) states:
In addition to the grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility:
(7) wilful and improper use of privileged buildings or localities for military purposes. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(7).
The US Air Force Commander’s Handbook (1980) states: “If possible, US forces should avoid using cultural property for military purposes, or to support the military effort.” 
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 Instructor’s Guide (1985) states: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … improperly using privileged buildings for military purposes such as a church steeple as an observation post”. 
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-defence.” 
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, § D.
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:
USING PROTECTED PROPERTY AS A SHIELD.
a. Text. “Any person subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused positioned or otherwise took advantage of the location of protected property;
(2) The accused did so with the intent to shield a military objective from attack, or to shield, favor, or impede military operations; and
(3) The act took place in the context of and was associated with armed conflict.
c. Maximum punishment. Confinement for life. 
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(10), p. IV-8.
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 commission:
USING PROTECTED PROPERTY AS A SHIELD.
a. Text. “Any person subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused positioned or otherwise took advantage of the location of protected property;
(2) The accused did so with the intent to shield a military objective from attack, or to shield, favor, or impede military operations; and
(3) The act took place in the context of and was associated with hostilities.
c. Maximum punishment. Confinement for life. 
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(10), p. IV-8.
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:
“ …
“(10) USING PROTECTED PROPERTY AS A SHIELD.—Any person subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, 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)(10).
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 … prohibits the use of any cultural property to shield any legitimate military targets from attack … .
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:
“ …
“(10) USING PROTECTED PROPERTY AS A SHIELD.—Any person subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2009, § 950t(10).
At the CDDH, the United States stated, with respect to Article 47 bis of the draft Additional Protocol I (now Article 53): “The use of these objects in support of the military effort is a violation of this article.” 
United States, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, pp. 240–241.
In 1992, in its final report to Congress on the conduct of hostilities in the Gulf War, the US Department of Defense stated that contrary to the 1954 Hague Convention for the Protection of Cultural Property and
certain principles of customary law codified in [the 1977 Additional Protocol I], the Government of Iraq placed military assets (personnel, weapons, and equipment) in civilian populated areas and next to protected objects (mosques, medical facilities, and cultural sites) in an effort to protect them 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. 624.
The report further described how Iraq had used “cultural property to protect legitimate targets from attack”:
A classic example was the positioning of two fighter aircraft adjacent to the ancient temple of Ur … While the law of war permits the attack of the two fighter aircraft, with Iraq bearing responsibility for any damage to the temple, Commander-in-Chief, Central Command (CINCCENT) elected not to attack the aircraft on the basis of respect for cultural property and the belief that positioning of the aircraft adjacent to Ur (without servicing equipment or a runway nearby) effectively had placed each out of action, thereby limiting the value of their destruction by Coalition air forces when weighed against the risk of damage to the temple. Other cultural property similarly remained on the Coalition no-attack list, despite Iraqi placement of valuable military equipment in or near those 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. 626.
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 US and its Coalition partners in Desert Storm recognized that they were fighting in the “cradle of civilization” and took extraordinary measures to minimize damage to cultural property. Regrettably, these precautionary steps were met by Iraqi use of cultural property within its control to shield military objects from attack. A classical example is the positioning of two MiG-21 fighter aircraft at the entrance of the ancient temple of Ur. Although the law of war permitted their attack, and although each could have been destroyed utilizing precision-guided munitions, US commanders recognized that the aircraft for all intents and purposes were incapable of military operations from their position, and elected against their attack for fear of collateral damage to the temple. 
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. 204.