Practice Relating to Rule 38. Attacks against Cultural Property
With reference to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states: “The IDF [Israel Defense Forces] does not intentionally target historic monuments, works of art or places of worship.” It further points out: “The policy may not apply in cases of such structures being used for hostile purposes or in cases in which military necessity imperatively requires otherwise.”
Israel’s Manual on the Laws of War (1998) states, in a section entitled “Places of prayer and cultural property”:
These are buildings dedicated to religion, art, science or similar property that form a part of the spiritual heritage of a people. Though one could maintain that the existence of such edifices has an impact on the military morale of the adversary’s side, they are not considered a legitimate target.
A provision imposing the obligation to spare such buildings in the course of war, inasmuch as possible, appeared for the first time in the Hague Conventions. The massive destruction of cultural property during World War II (ancient bridges, cathedrals) resulted in the laws of war devoting a convention, following the war, to define the ban on attacking or damaging cultural property, known as the 1954 Hague Convention for the Protection of Cultural Property. IDF [Israel Defense Force] soldiers are obligated to comply with this convention whenever it is likely to be relevant, by virtue of GHQ Regulation 33.0133. It clearly follows from here, that an attack on mosques or churches, which pose no direct danger to our armed forces, is prohibited.
Israel’s Manual on the Rules of Warfare (2006) states:
Shrines and cultural property
: These are the structures devoted to religion, beliefs or knowledge and constitute part of the spiritual or cultural heritage of a people. It is possible to claim, nevertheless, that these structures affect the military morale of the opposing side, but they are not considered as legitimate targets. The provision imposing the duty to spare such structures as far as possible during hostilities first appeared in the Hague Rules. Following the massive destruction of cultural property during World War II (ancient bridges, cathedrals) a convention was formulated in The Hague in 1954 for the protection of cultural property. The soldiers of the IDF [Israel Defense Forces] are compelled to act everywhere according to this Convention by virtue of the General Staff Order 33.1033. This clearly shows that attacks are forbidden on mosques or churches which are not perceived as posing a threat to our forces. The Convention defines cultural property as “property of great importance to the cultural heritage of every nation, such as architectural, art or historical monuments, whether religious or secular; archaeological 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 archaeological interest; as well as scientific collections and important collections of books or archives or reproductions of the property
[emphasis in original]
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Israel’s IDF General Staff Order 33.0133 of 1982 requires all soldiers of the Israel Defense Forces (IDF) “to act, with regard to ‘Cultural Property’ situated within the State of Israel or any other country, in accordance with the provisions of the [1954 Hague Convention for the Protection of Cultural Property]”. It provides, in particular, that IDF soldiers shall abstain from attacking or causing damage to historic monuments, works of art or places of worship.
However, according to the Report on the Practice of Israel, the prohibition not to target cultural property as contained in the Order does not apply to cases in which cultural property is used for “hostile purposes”.
In 1998, at the Vienna expert meeting on the revision of the 1954 Hague Convention for the Protection of Cultural Property, Israel advocated the inclusion of an additional paragraph in the draft Article 1 of the Revised Lauswolt Document, which would provide:
The provisions of this instrument shall not prejudice or derogate from accepted customary principles of the laws of war, including, inter alia
, the principles of proportionality, distinction and military necessity.
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
Religious institutions were similarly protected from attack [i.e. “should be provided absolute protection from attack, unless they were being used by the enemy for military activities”] … Cultural property was protected from attack unless used for military activities or in the case of imperative military necessity.
The report further stated: “The IDF’s [Israel Defense Forces’] operational plans and rules of engagement order special precautions with regard to military activity in proximity to … religious sites”.
The report also stated: “In accordance with the Law of Armed Conflict, IDF rules of engagement expressly forbid attacks directed against sacred places, unless they are used for military purposes.”