Practice Relating to Rule 39. Use of Cultural Property for Military Purposes
Switzerland’s Military Manual (1984) provides that marked cultural property “must not be used for military purposes. In certain well-defined circumstances, the protection may be lifted by a responsible commander.”
Switzerland’s Basic Military Manual (1987) states that respect for cultural property implies that it is prohibited “to use this property, the appliances in use for its protection and its immediate surroundings for purposes which are likely to expose it to destruction or damage. The obligation to respect may only be derogated from in case military necessity imperatively so demands.”
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states with regard to the protective sign for the “Protection of cultural properties (simple or reinforced protection)”:
Prohibited is/are …
- Placing military targets or combatants close to marked objects.
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
14.2 Cultural property
207 In the event of an armed conflict, cultural property of national importance is marked with the blue and white shield for the protection of cultural property, the distinctive sign to facilitate their identification. It must be respected by the armed forces. Destruction and pillaging of such property are prohibited. Their use for military purposes must in principle be avoided.
208 Establishing military facilities and emplacements within a 500-metre radius is prohibited.
209 In the case of absolute military necessity, a request to downgrade a protected cultural property may be submitted to the competent battalion commander by the sector commander. In that case, the distinctive signs must be removed. If possible, the object is to be protected by additional protective measures.
210 As a precautionary measure prior to a conflict, the competent civil defence units must remove and secure mobile cultural property.
Switzerland’s Regulation on Ten Basic Rules for the Protection of Cultural Property (2013) states:
Term - Definition of cultural property (CP)
CP includes property and objects that are of great importance as regards cultural heritage, for example:
- structures of artistic and historic value, art and historic monuments
- sacred buildings (churches, monasteries, temples, mosques, synagogues)
- museums, large libraries, archives, collections
- archaeological sites (on land or under water)
- works of art, historical manuscripts, valuable books
- relics from the history of technology, industry and traffic.
Rule No. 1 Protection of cultural property during war times
Cultural property requires special protection in military conflicts. The Law of Armed Conflict provides for three types of protection during armed conflicts:
1. CP of national importance is granted general protection as CP. This is guaranteed by the state. The relevant information is stated in the “Swiss inventory of cultural property of national importance”.
2. A limited number of CPs are under special protection, e.g. Vatican City. At the request of a country UNESCO may consider entry in the “International Register of Cultural Property under Special Protection” to grant special protection.
3. A small number of CPs that are of particular importance as world-cultural-heritage are under enhanced protection. In times of armed conflict, at the request of a country enhanced protection is granted by the (international) Committee for the Protection of Cultural Property in the Event of Armed Conflict.
Rule No. 3 Respect and protection
I respect and protect CP.
- refraining from establishing military targets and troop accommodation in CP or its immediate vicinity (500m);
- preventing damage to CP during combat;
- taking appropriate precautionary measures.
Rule No. 4 Cultural property personnel, material, means of transport and installations
I will spare and respect personnel, installations, material and means of transport involved in the protection of cultural property, except if they are used in a military manner against me and my fellow soldiers.
Rule No. 6 Military use of and attack on CP
Military use of and attack on CP of national importance and its immediate vicinity (500 m) is only permitted in exceptional cases, e.g.:
- if absolutely necessary
- if authorised by a superior with at least the rank of a battalion commander.
If CP is used by the military, the CP signs must be removed.
Rule No. 7 Prohibition of military use of cultural property under enhanced protection
During armed conflicts military forces and military material are not permitted to come within a 500 m radius of CP areas under any circumstances.
Rule No. 8 Attack on cultural property under enhanced protection
I may only attack CP under enhanced protection if:
- the CP is still being used for military purposes despite an effective warning; and
- attacking is the only way to prevent its further military use.
Such an attack is subject to authorisation from Armed Forces Command.
Rule No. 9 Punishment of violations of the regulations on the protection of cultural property
My breach of the regulations on the protection of cultural property will result in disciplinary measures or prosecution under the Military Criminal Code.
A serious violation of the protection of cultural property is considered a war crime.
Switzerland’s ABC of International Humanitarian Law (2009) states:
International humanitarian law distinguishes between Civilian objects and Military objectives, prohibiting acts of violence against the former. Other provisions provide special protection for certain specific civilian objects, some of which are expected to bear distinctive signs: … places of worship, cultural property … Civilian objects are all objects which are not military objectives.
Cultural property includes movable and immovable objects that are important to the cultural heritage of humanity, and the buildings in which they are stored or displayed. In the event of an Armed conflict
cultural property is accorded special protection under international law. Not only are hostile acts against cultural property prohibited, but it is also forbidden to make use of such property in support of military operations or as a target of Reprisals
. An exception is only foreseen for cases of imperative military necessity. Protected items are marked by a distinctive sign. The way cultural property is to be treated is regulated in the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict
of 1954 and its two Additional Protocols. The First Protocol concerns the protection of cultural property during an occupation (Occupied territory
), while the second strengthens the protection, extending it to non-international Armed conflicts
, and also defines individual criminal responsibility.
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.3 Increasing use of guerrilla tactics …
International humanitarian law in force treats these cases in a relatively complete manner, binding non-State and State actors alike. … The use of human shields constitutes equally a serious violation of international humanitarian law, as does the abusive and deliberate use of protected objects (religious buildings, hospitals, cultural property) to protect military objectives or to serve as a base for combat operations.
[footnotes in original omitted]