Practice Relating to Rule 40. Respect for Cultural Property
Switzerland’s Basic Military Manual (1987) states that respect for cultural property implies that it is prohibited “to use, steal, pillage or misappropriate cultural property”. The manual further states: “The property of municipalities, institutions dedicated to religion, charity and education, the arts and sciences, even when State property, must be treated as private property.”
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.
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.
- 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. 5 Theft and damage
I am not allowed to steal, damage or destroy CP.
I may not engage in any kind of retaliation against CP.
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 Military Criminal Code (1927), as amended in 2007, states:
Any person who, without the right to do so, has destroyed or damaged cultural property or material placed under the protection of the sign of cultural property,
is to be punished with three years’ or more imprisonment or with a monetary penalty or, in less serious cases, with a year imprisonment or less.
Switzerland’s Law on the Protection of Cultural Property (1966) states that protection includes respect for cultural property, which means, inter alia
, “to prohibit, prevent and put a stop to any form of theft, pillage or misappropriation, and any acts of vandalism; [and] to refrain from the requisitioning of movable cultural property”.
Switzerland’s Law on the Protection of Cultural Property (1966), as amended in 2008, states:
1. The protection of cultural property, in the sense of the present law, includes the safeguarding and respect for cultural property in case of armed conflict.
3. The respect for cultural property comprises:
- prohibiting, preventing and putting a stop to any form of theft or misappropriation as well as to any act of vandalism;
- prohibiting the requisitioning of movable cultural property.
Switzerland’s ABC of International Humanitarian Law (2009) states:
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 the preface to the inventory of cultural property of national importance, Switzerland’s head of the Federal Department of Defence, Civil Protection and Sports stated:
The bombing of Dubrovnik and Mostar, cities forming part of world heritage, during the Balkans war at the beginning of the 90s, the destruction of the Buddha statues by the Taliban in Afghanistan in 2001 or the pillage of museums in Iraq have shown the extent to which cultural property can be the target of armed attacks and terrorist acts.
Cultural property has an important symbolic and identity value for the population. It is therefore necessary to protect it to the extent possible from damage and destruction. This task falls to the protection of cultural property, which has military origins: it was the massive destruction of monuments and museums during World War II that led to the establishment of systematic protection measures. The Hague Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict, put into effect by UNESCO, is in certain respects its fundamental charter. By ratifying that text in 1962, Switzerland has engaged itself, like the about 120 other signatory States, to plan protection measures for cultural property already in time of peace. At the national level, legal prescriptions protect cultural property against natural dangers, fire, theft and vandalism.
Implementing that legislation requires an assessment of the main buildings, collections and archaeological sites of the country.
In 2011, in response to a motion in Parliament, Switzerland’s Federal Council stated:
By becoming a party to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict … Switzerland undertook to respect and protect cultural property on its territory and on the territory of other States Parties. The Federal law on the protection of cultural property in the event of armed conflict of 6 October 1966 (LPBC; RS 520.3) and its implementing ordinance (OPBC; RS 520.31) insofar provide for the general legal framework This protection is based on the one hand on precautionary measures in time of peace, and on the other on the respect for Swiss and foreign cultural property in the event of armed conflict.
In October 2010, the Federal Office for Civil Protection (FOCP) … has started to work on the revision of the Federal law on the protection of cultural property in the event of armed conflict, involving the cantons, which are entrusted with the implementation of the law. The revision will notably take into account protection against catastrophes, and the Second Protocol to the 1954 Hague Convention of 1999, and will concretize the preparatory measures taken in time of peace for the safeguarding of cultural property according to article 5 of that Protocol … and the “enhanced protection” stipulated in chapter 3 of the Protocol.
In 2012, in a statement during the opening session of the International Conference on the Protection of Cultural Property, the ambassador of Switzerland stated:
This conference is devoted to the challenges that the protection of cultural property faces. Those challenges are manifold, and I will touch on one aspect only. In my present function, I deal among other issues with International Humanitarian Law, the Law of Armed Conflict. Armed conflicts are not only tragedies in terms of losses of human lives, but they are every so often also cultural tragedies. In recent history again, several UNESCO world heritage sites have been destroyed, such as the shrines in Mali’s Timbuktu, the Buddha Statues of Bamiyan in Afghanistan or the old bridge in the city of Mostar and the historic city of Dubrovnik during the wars in the former Yugoslavia. We all agree that cultural property must remain protected, as cultural heritage of all mankind, irrespective of the reasons or motives why it may come under attack.
The protection of cultural property has long been included in the law of armed conflicts. The first binding international obligations emerged in the 1899 and 1907 Hague Conventions concerning the Laws and Customs of War on Land. These Conventions contained provisions prohibiting attacks on cultural property during hostilities and have been widely recognized as customary international law.
As a consequence of massive destruction of cultural heritage during World War II, the first specific international humanitarian law instruments for the protection of cultural heritage have been adopted: The 1954 Hague Convention for the protection of cultural property in armed conflict, together with its First Protocol. This Convention imposes two main duties on the Member States, namely to prepare for the safeguarding of cultural property in peace time and to respect cultural property in times of conflict. Effective protection during hostilities can only be achieved if adequate mechanisms of prevention and protection are established in peaceful periods.
This year, Ladies and Gentlemen, Switzerland celebrates its 50th anniversary of the ratification of the 1954 Hague Convention. The Swiss ratification in 1962 may be seen as a starting point of cultural property protection in Switzerland. The implementation process led to the adoption of the Federal Cultural Property Protection Act and, even more importantly, to the creation of a national inventory of significant cultural property.
The inventory was revised in 2009 for the third time and is now a detailed, comprehensive and up to date tool to be used to implement the measures prescribed by international and national law by all relevant authorities. …
The development of the legal framework protecting cultural property found its way into the classic regime of IHL in 1977, being included in some provisions of the two additional protocols to the  Geneva Conventions. The next milestone within the international context was the establishment of the Second Protocol to the 1954 Hague Convention in 1999. Switzerland was one of the driving forces in the process, and we consider the Protocol to constitute a significant improvement and reinforcement of the protective framework. Amongst other things, it established the system of “enhanced protection” for cultural heritage of the greatest importance for humanity.
Against the background of all these instruments, one of the main challenges – in all likelihood the main challenge – of international humanitarian law is lack of respect. As seen on many occasions, in times of armed conflicts, respect for the law is often weak. We firmly believe that in order to prevent future violations, there must be accountability for violations. Perpetrators of serious crimes must not go unpunished. Therefore, it was a primary objective of the Swiss delegation to include the principle of universal jurisdiction for grave breaches of provisions protecting cultural property in the draft of the Second Protocol.
The idea of establishing individual criminal responsibility for such violations is not entirely new. The 1954 Hague Convention already contained an article requesting State parties to impose sanctions on persons violating the convention. However, this provision was rarely applied because it did not contain a specific list of violations. The new Protocol now incorporates a criminal law approach featuring significant improvements: It defines five specific offences triggering individual criminal responsibility. …
Moreover, under the  Rome Statute of the International Criminal Court, attacks against buildings dedicated to religion, education, art, science or charitable purposes or historic monuments may amount to war crimes.
There is now a strong legal and institutional framework to fight impunity through effective criminal prosecution.
Over the last years, international tribunals have dealt with violations of provisions on the protection of cultural property.
A number of cases before the International Criminal Tribunal for the former Yugoslavia involved the destruction of cultural property. In its findings, the Court repeatedly referred to the 1954 Hague Convention and the Protocols to the Geneva Conventions.
More recently, the ICC Prosecutor Fatou Bensouda stressed that the deliberate destruction of the shrines of Muslim saints in the city of Timbuktu may constitute a war crime under Article 8 of the Rome Statute. On 13 July, the government of Mali referred the situation to the ICC while expressly mentioning in its letter to the Prosecutor “the destruction of churches, mausoleums and mosques”. A preliminary examination is currently in progress.
Unfortunately, both the Rome Statute and the Second Protocol to the 1954 Hague Convention are yet far from being universally accepted instruments. Despite the fact that the main rules pertaining to the protection of cultural property are part of customary international law, it is crucial that these treaties achieve very wide and ultimately universal acceptance.
Now, I am the first to say that the contribution that international tribunals make to the prosecution of crimes against cultural property is important. Having said this, though, it must also be must also be underlined that it is primarily
the duty of States
to take the necessary measures to ensure that cultural objects are protected and, if necessary, to investigate and prosecute those responsible for violations. Only when both pillars, the national and the international, are strong, will we achieve to effectively prevent cultural property from wanton destruction during conflicts.
[emphasis in original]