Practice Relating to Rule 38. Attacks against Cultural Property
The Military Manual (1993) of the Netherlands restates the definition of cultural property provided for in Article 1 of the 1954 Hague Convention for the Protection of Cultural Property. The manual states that respect for cultural objects implies that “no acts of hostility may be committed against them” but that an exception can be made “in case military necessity requires such an exception. Hence, the protection is not at all absolute”.
The manual further provides that “attacking marked historic monuments, works of art or places of worship which are protected” in violation of IHL constitutes a grave breach.
With respect to non-international armed conflicts in particular, the manual states: “Acts of hostility against historic monuments, works of art and places of worship are prohibited.”
The manual recalls that, according to Article 19 of the 1954 Hague Convention for the Protection of Cultural Property, the provisions of that Convention on respect for cultural property apply, as a minimum, in non-international armed conflicts.
The IFOR Instructions (1995) of the Netherlands provides: “It is also prohibited to attack property with a strictly civilian or religious character, unless this property is used for military purposes.”
The Military Handbook (1995) of the Netherlands states that it is prohibited to attack “buildings that are used for worship, museums, historical monuments and other important cultural objects, unless they are used by the enemy for military purposes”.
The manual further states: “Cultural property, such as historical monuments, places of worship and museums may not be attacked, damaged or destroyed.”
The Military Manual (2005) of the Netherlands states: “The belligerents must, in particular, spare monuments, works of art, scientific collections, museums etc.”
In its chapter on behaviour in battle, the manual states:
0526. Respect for cultural property implies that … hostile acts against such property must be avoided …
Exceptions to the respect for cultural property may be allowed only on specific conditions. An attack may be directed at cultural property only in a case of unavoidable military necessity, if that cultural property, by virtue of its function, has changed into a military objective and there is no practical alternative means of obtaining equal military advantage. In a case of unavoidable military necessity, cultural property may be used for military purposes only if no practical and feasible alternative approach exists to such military use.
0528. Whether imperative military necessity exists may be determined only by the commanding officer of a unit of battalion size or of higher rank. If no other option exists in the circumstances, a commanding officer of lower rank may also take such a decision. In the case of an attack on cultural property as defined above, it must be possible in some way to give suitable advance warning.
0529. Precautionary measures in case of attacks
In combat operations, everything practically possible should be done to make sure that the objectives to be attacked are not cultural property …
0531. Cultural property may be placed under enhanced protection if it meets the following three conditions:
- it is cultural heritage of the greatest importance for humanity;
- it is protected by adequate national legal and administrative measures recognizing its exceptional cultural and historical value and ensuring the highest level of protection;
- it is not used for military purposes or to protect military sites and the relevant State has made a declaration confirming that it will not be so used.
0532. The parties to an armed conflict must ensure the immunity of cultural property that has been placed under enhanced protection, by refraining from any use of such property as objectives of attack or any use of the property or its direct environs in support of military action. Cultural property under enhanced protection can only forfeit such protection in most exceptional circumstances. Decisions on this may only be taken at the highest level of operational command.
In its chapter on non-international armed conflict, the manual states:
Hostile actions (deliberate attacks) against historic monuments, works of art and places where religious services are held are prohibited, provided that they do not constitute military objectives.
Under the Definition of War Crimes Decree (1946) of the Netherlands, the “wanton destruction of religious, charitable, educational and historic buildings and monuments” constitutes a war crime.
Under the International Crimes Act (1946) of the Netherlands, the following shall be guilty of a crime:
Anyone who commits, in the case of an international armed conflict, one of the grave breaches of the Additional Protocol (I), … namely:
(d) the following acts if committed intentionally and in violation of the Geneva Conventions and Additional Protocol (I):
(iv) making clearly recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, subparagraph (b), of Additional Protocol (I) and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives …
Anyone who, in the case of an international armed conflict, intentionally and unlawfully commits one of the following acts …:
(a) making the object of attack cultural property that is under enhanced protection as referred to in articles 10 and 11 of the [1999 Second Protocol to the Hague Convention for the Protection of Cultural Property]; …
(d) making cultural property that is under protection as referred to in (c) [under the protection of the 1954 Hague Convention for the Protection of Cultural Property or of the 1999 Second Protocol thereto] the object of attack …
Anyone who, in the case of an international armed conflict, commits one of the following acts:
(p) intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, … provided they are not military objectives …
Anyone who, in the case of an armed conflict not of an international character, commits one of the following acts: …
(d) intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, … provided they are not military objectives.
At the CDDH, the Netherlands stated:
Article 47 bis
[of the draft Additional Protocol I (now Article 53)] provided special protection for a limited category of objects which by virtue of their generally recognized importance constituted part of the cultural or spiritual heritage of mankind … The illegitimate use of those historical objects for military purposes would deprive them of the protection afforded by Article 47 bis
At the CDDH, the Netherlands explained its abstention on the vote on Article 20 bis of the draft Additional Protocol II (now Article 16) as follows:
Article 20 bis
unconditionally prohibits, in an internal conflict, any acts of hostility directed against historic monuments or works of art, which constitute the cultural heritage of peoples. The article does not provide for any possible derogation from the prohibition it contains … We note that the very well-balanced system of the [1954 Hague Convention for the Protection of Cultural Property], through its Article 19 that provides the rule to be applied in internal conflicts, contains a possibility of derogation where imperative reasons of military necessity so require. [The Netherlands] would have preferred a possibility of derogation to be explicitly contained in Article 20
. It is our understanding, however, that a derogation for imperative reasons of military necessity is indeed implied in Article 20 bis
by virtue of the clear reference to the  Hague Convention. It goes without saying that cessation of immunity from attack during such time as the cultural object is used by adversary armed forces is an example of such military necessity.
In an explanatory memorandum submitted to the Dutch Parliament in the context of the ratification procedure of the 1977 Additional Protocols, the Government of the Netherlands stated that cultural objects and places of worship “enjoy the general protection of civilian objects, as specified in Article 52 of Protocol I”.
Upon ratification of the 1977 Additional Protocol I, the Netherlands stated, with respect to Article 53 of the Protocol:
It is the understanding of the Government of the Kingdom of the Netherlands that if and for as long as the objects and places protected by this Article, in violation of paragraph (b), are used in support of the military effort, they will thereby lose such protection.
In 1998, at the Vienna expert meeting on the revision of the 1954 Hague Convention for the Protection of Cultural Property, the Netherlands stated: “As was the case in 1954, the Netherlands believes military necessity is a vital element to be included in a revised Convention.” It stressed:
Although used as an exception to certain rules set forth in humanitarian law instruments, military necessity is not a tool by which military commanders conveniently dismiss the laws of armed conflict when it would be useful or advantageous to do so”
Concerning the notion of “imperative military necessity”, the Netherlands relied upon the definition that “an imperative necessity presupposes that the military objective cannot be reached in any other manner” and that it “requires a careful evaluation of the items which could be affected”. It went on to say:
Although such considerations are inherent in the definition of military necessity, the emphasis placed on the requirement that the necessity must be “imperative” further seeks to limit the likelihood that a military commander will invoke this exception to the protection.