Practice Relating to Rule 38. Attacks against Cultural Property
France’s Disciplinary Regulations (1975), as amended, provides that soldiers in combat must “spare buildings dedicated to religion, art, science or charitable purposes, and historic monuments, provided they are not being used for military purposes”.
France’s LOAC Summary Note (1992) provides: “The specific immunity granted to certain persons and objects by the law of war [including marked cultural property] must be strictly observed … They may not be attacked.”
The manual further states:
The immunity of specifically protected objects may only be lifted under certain conditions and under the personal responsibility of the commander. Military necessity justifies only those measures which are indispensable for the accomplishment of the mission.
The manual qualifies “attacks against marked property” as a war crime.
France’s LOAC Teaching Note (2000) states that “the law of armed conflict grants specific protection to certain specially marked installations and zones”, including certain works and installations containing dangerous forces.
The Teaching Note further states:
In general, cultural property (religious building, place of worship, monument, museum, important work of art …) is protected. Its immunity may be lifted only in case of imperative military necessity and according to an order received from a higher authority. In such a case, prior warning must be given to allow the civilian population to seek refuge or to evacuate the combat area. The means of combat must be proportionate in order to limit, as much as possible, damage to such cultural property.
France’s LOAC Manual (2001) restates the definition of cultural property set out in Article 1 of the 1954 Hague Convention for the Protection of Cultural Property.
The manual adds:
The protection enjoyed by such property may be lifted only if military necessity so demands or if such property is used for military purposes by the enemy. Only a commander of a division or larger unit has the authority to lift the immunity. This measure must be notified to the adverse party sufficient time in advance.
France’s Penal Code (1992), as amended in 2010, states in its section on war crimes common to both international and non-international armed conflicts:
Intentionally launching attacks against buildings dedicated to religion, education, art, science or charitable purposes, [or] historical monuments … provided that they are not used for military purposes, is punishable by 20 years’ imprisonment.
In a position paper on the 1997 Revised Lauswolt Document, France expressed the view that “military necessity may be admitted only where an express provision allows recourse to it”. It concluded that the wording of Articles 4(2) and 11(2) of the 1954 Hague Convention for the Protection of Cultural Property should be maintained.
This view was repeated in a position paper submitted in 1998 to the Vienna expert meeting on the revision of the 1954 Hague Convention for the Protection of Cultural Property, at which France referred to the principle whereby it was not permitted to use more violence than absolutely necessary.
In 1998, in a working document submitted to the Vienna expert meeting on the revision of the 1954 Hague Convention for the Protection of Cultural Property, France stated:
1. The Convention for the protection of cultural property in the event of armed conflict, signed at The Hague on 14 May 1954, mentions the concept of military necessity in respect of all cultural property . …
2. Although such provisions gave rise to much debate during the preparation of the text of the Convention, they are not new. The idea of military necessity is a classic part of the law of armed conflict. [reference to Article 23(g) 1907 Hague Regulations and Article 53 Geneva Convention IV]
3. If the idea of military necessity is expressly recognized in the law of war as well as in humanitarian law, it is not because it represents an attack on the general principle of limitation which should govern the behaviour of States during armed conflicts, but rather because it is an additional safety measure for the implementation of this principle of limitation. The recourse to military necessity is never arbitrary: military necessity only makes sense in conformity with the customary principles of international humanitarian law and of the law of war, in the context of the application in good faith of the international obligations which bind states.
4. It is therefore wrong to think that military necessity represents a threat to cultural property: its implementation is closely constrained by four cumulative conditions:
– military necessity is controlled, since the rule of law should include such an exception;
– as for all exceptions, the application of military necessity should be limited in time;
– military necessity can only justify means which are indispensable to achieve the aim;
– the means of implementing military necessity must be legal.
5. It can be seen that these four conditions must be respected in all cases of the implementation of military necessity, either for property under general protection or for property under special protection. These conditions are linked to the customary principles of humanitarian law and of the law of war, and not to various levels of protection by which the property is covered.
During the intergovernmental meeting on the revision of the 1954 Hague Convention for the Protection of Cultural Property in The Hague in 1999, the French delegation stressed that the protection from attack enjoyed by cultural property can be lifted only in case of military necessity.
The Report on the Practice of France states: “The French authorities condemn all acts that are likely to seriously damage cultural and religious property, whether in the context of international or non-international armed conflicts.”
Upon ratification of the 1977 Additional Protocol I, France declared: “If property protected under Article 53 of the 1977 Additional Protocol I is used for military purposes, it loses the protection which it could enjoy according to the provisions of the Protocol.”