Practice Relating to Rule 38. Attacks against Cultural Property
Ukraine’s IHL Manual (2004) states that personnel responsible for the defence and protection of cultural property are “protected under international humanitarian law” and that directing attacks against such persons or “clearly identifiable cultural property” constitutes “a serious violation of international humanitarian law”.
The manual provides the following definitions regarding cultural property:
1.2.39. “Cultural property” means objects of great importance to the cultural heritage of peoples that play an important role in their spiritual life (such as monuments of architecture and history; works of art; religious or secular monuments; archaeological sites; museums; libraries; archives; theatres).
1.2.41. “Personnel engaged in the protection of cultural property” means persons charged with the task to protect cultural property. Such personnel [are] authorized to possess personal small arms for self-defence.
The manual further states:
1.2.40. Cultural property of exceptional importance is guaranteed special protection. The number of such objects is limited and they are included in the International Register of Cultural Property under Special Protection.
1.3.2. The following methods of warfare shall be prohibited:
- destruction of cultural property, historical sites, places of religion, objects, constituting the cultural or spiritual heritage of the people; it is also prohibited to use such objects to succeed in the warfare.
The manual also states that during the conduct of hostilities:
2.2.4 … In exceptional circumstances … the commander (commanding officer) may designate:
- the direction of the main attack (primary effort) that includes objects protected under international humanitarian law;
- withdrawal of immunity of cultural property in case of its use by the enemy and fire damage to the enemy positioned at the objects protected by the laws of war.
The decision to withdraw protection from cultural property that enjoys special status … shall be made by a commander at least of the level of brigade commander (or of an equal level).
18.104.22.168. In case of military necessity … withdrawal of immunity of cultural property shall be limited in time and concern the least important parts thereof.
In 1998, at the Vienna expert meeting on the revision of the 1954 Hague Convention for the Protection of Cultural Property, Ukraine expressed the view that:
The irrelevance of entering the word “military necessity” when drafting the document is accounted for by the following reasons: military doctrine of Ukraine is of a defensive nature: the Constitution of Ukraine doesn’t define it; the internal legislation of Ukraine regarding the protection of national monuments doesn’t define it.