Practice Relating to Rule 39. Use of Cultural Property for Military Purposes
South Africa’s LOAC Manual (1996) protects buildings dedicated to religion and cultural objects such as historic monuments. It provides: “Misuse of protected places [buildings dedicated to religion and cultural objects such as historic monuments] for military purposes may make them the subject of an armed attack.”
South Africa’s LOAC Teaching Manual (2008) states:
2.5 Specific Protection: Cultural Objects, Places of Worship, Works Containing Dangerous Forces
Cultural and Religious Objects
Protection of Cultural Objects of High Cultural Value ( Additional Protocol I Article 53, General Cultural Object)
- Introduction. This article recognises the protection granted to cultural property in the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments and specifies that it does not prejudice such protection. The provisions of article 53 therefore co-exist with the Hague Convention and other international agreements.
- What is Protected?
- This article applies to objects that represent a high cultural value as such, i.e. objects that constitute the cultural heritage of peoples.
- Such articles are historic monuments, works of art, etc of which the value is so self-evident that it does not necessary[il]y require any special identification.
- Nature of the Protection
- It is prohibited to[:]
- Use such objects in support of the military effort; …
- Contrary to that of marked cultural objects, the immunity of these cultural objects may not be withdrawn.
Protection of Religious Objects of High Spiritual Value (Additional Protocol I Article 53)
- The protection of religious objects of high spiritual value is also provided for in article 53 of Additional Protocol I.
- Again, this article recognises the protection granted to cultural property in the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments and specifies that it does not prejudice such protection. This article therefore co-exists with the said Hague Convention and other international agreements.
- What is Protected?
- This article applies to objects with important religious dedication independent of any cultural value, i.e. [o]bjects that constitute the spiritual heritage of peoples.
- Such articles are places of worship[,] etc of which the value is so self-evident that it does not require any special identification.
- Nature of the Protection
- It is prohibited to[:]
- Use such objects in support of the military effort; …
- Contrary to that of marked religious objects, the immunity of these religious objects may not be withdrawn.
Protection of Marked Cultural and Religious Objects (Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954)
- This Convention applies to objects representing cultural value. The cultural value of such objects can either be of a religious or secular nature.
- The term “cultural objects” is defined as the following objects (irrespective of origin or ownership thereof)[:]
- Moveable or immoveable property of great importance to the cultural heritage of every people, such as;
- Monuments of architecture, art or history, whether religious or secular;
- Archeological sites;
- Groups of buildings which, as a whole, are of historical or artistic interest;
- Works of art;
- Manuscripts, books and other objects of artistic, historical or archeological interest; and
- Scientific collections and important collections of books or archives; or reproductions of these objects;
- Buildings whose main and effective purpose it to preserve or exhibit the abovementioned moveable cultural property, such as museums, large libraries, and depositories of archives, as well as refuges intended to shelter this type of moveable cultural property in time of armed conflict;
- Centres containing a large amount of cultural property as defined in both of the above paragraphs, to be known as “centres containing monuments”. (Article 1)
- Regarding the above, it should be noted that monetary value of any cultural object does not play a role regarding its classification as a cultural object. However, in view of the definition of cultural objects under special protection, as discussed below, monetary value may also be a determining factor to determine special protection. Although it might seem as if the emphasis is on collections or places where large numbers of these objects are concentrated, it does not mean that individual items of a cultural nature are not protected. However, the principle of proportionality, as will be discussed under the topic Means and Methods of Warfare, will play an important role here.
- Nature of the Protection of Cultural Property (Articles 2 to 5 and 7)
- Rule. Cultural property shall at all times be safeguarded and respected. (Article 2.)
- Respect (Article 4)
- Parties to the Convention must respect the cultural property inside their own territory as well as in the territory of other Parties by refraining from:
Any use of
- Such property and its immediate surroundings; or
- Of the appliances in use for its protection;
- For purposes which are likely to expose it to destruction or damage in the event of armed conflict; …
- The obligation to respect cultural property may only be waived in cases where such waiver is imperatively required by military necessity.
- The fact that one Party to a conflict did not take the necessary measures to safeguard its cultural property does not allow other Parties to evade their responsibilities to respect the cultural property of such Party.
- Occupation (Article 5)
- It goes without saying that the duty to safeguard and respect cultural property also extends to Occupying Powers towards such property in occupied territories.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the  Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus
and/or opinio juris
have not been met. See Petane
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus
has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris