Practice Relating to Rule 38. Attacks against Cultural Property
Germany’s Military Manual (1992) provides:
901. The term “cultural property” means, irrespective of origin or ownership, movable or immovable objects of great importance to the cultural heritage of all peoples (e.g. monuments of architecture, art or history, be they of secular or religious nature, archaeological sites and collections).
902. Apart from this actual cultural property, a number of indirect cultural objects shall also be protected. These indirect cultural objects include:
–buildings for preserving or exhibiting cultural property (museums, archives etc.);
–refuges intended to shelter cultural objects; and
–centres containing monuments, i.e. centres containing a large amount of cultural property.
Protected cultural objects in the Federal Republic of Germany are documented in regional Lists of Cultural Objects which are available with the territorial command authorities.
903. … Any acts of hostility directed against cultural property shall be avoided.
904. In addition, civilian objects, such as churches, theatres, universities, museums, orphanages, homes for the elderly and other objects, shall also be spared as far as possible, even if they are of no historical or artistic value.
905. General protection shall be granted to all cultural objects and does not require any entry in a special register. Cultural property placed under general protection shall neither be attacked nor otherwise damaged …
906. An exception to this rule shall be permissible only in cases of imperative military necessity. The decision is to be taken by the competent military commander. Cultural property which the enemy uses for military purposes shall also be spared as far as possible.
The manual further provides that grave breaches of IHL are in particular ”extensive destruction of cultural property and places of worship”.
Germany’s IHL Manual (1996) states:
Movable or immovable property of great importance to the cultural heritage of every people (e.g. architectural, artistic or historical monuments, places of worship, libraries) shall neither be attacked nor damaged in any other way.
Germany’s Soldiers’ Manual (2006) states:
The Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 provides that movable or immovable property of great importance to the cultural heritage of every people (e.g. monuments of architecture, art or history, places of religious worship, books, scientific collections) may neither be attacked nor damaged in any other way.
If cultural property is used for military purposes it loses its protection and becomes a military objective. It shall nevertheless be spared as far as possible.
Germany’s Law Introducing the International Crimes Code (2002) provides for the punishment of:
whoever in connection with an international armed conflict or with an armed conflict not of an international character … directs an attack by military means against … buildings dedicated to religion, education, art, science or charitable purposes [or] historic monuments.
In 2008, in the Kurdish Refugee case
, Germany’s Higher Administrative Court for the Federal Land of Bavaria found that a Kurdish refugee claimant from Turkey was to be excluded from refugee protection inter alia
because there were serious reasons for considering that he had committed war crimes during his involvement with the Kurdistan Workers’ Party. The Court held: “Deliberate attacks against buildings dedicated to education are … war crimes (on the law in international armed conflict, see Art. 8 para. 2 sub-para. b no. ix of the  Rome Statute, [on the law] in civil war see Art. 8 para. 2 sub-para. 2 no. iv of the Rome Statute).”
In a debate in the German Parliament in 1991 on the situation in the city of Dubrovnik, a member of parliament labelled attacks on Dubrovnik as “acts of barbarism”. This view was shared by a large majority of members of parliament.
In 1996, during a debate in the UN General Assembly, Germany called upon the parties to the conflict in Afghanistan “to preserve the cultural heritage of their country”.
In 1997, in its position paper concerning a revision of the 1954 Hague Convention for the Protection of Cultural Property (Revised Lauswolt Document), Germany stated that “the definition of cultural property in Article 1 of the Convention should form the basis of the new legal instrument” because the non-exhaustive list contained in Article 1 had been “accepted by the international community” and the incorporation of definitions from other instruments was “inadvisable”. Germany further stated:
The principle of military necessity as a core element of international humanitarian law cannot be dispensed with … The idea that, in certain cases and under certain circumstances, military necessity would take priority over the humanitarian protection of civilian objects … today is an integral part of Customary International Law … Military necessity does not take precedence over the law, but is subject to it. Including the concept of military necessity in the formulation of legal regulations takes account of the fact that international humanitarian law is very often necessarily a compromise between military and humanitarian requirements.