Practice Relating to Rule 38. Attacks against Cultural Property
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) identifies the following as a serious violation of the laws and customs of war applicable in both international and non-international armed conflicts:
Intentionally directing attacks against buildings which do not constitute military objectives, and are dedicated to religious, educational, artistic, scientific or charitable purposes, or against historic monuments.
In its judgment in the Al-Anfal case in 2007, the Iraqi High Tribunal listed the following elements for the crime of intentionally directing attacks against buildings dedicated to religious, educational, artistic, scientific or charitable purposes, or against historic monuments, hospitals and places where the sick and wounded are collected:
1. The perpetrator must induct a raid.
2. The raid must target one building or more, of those designated for religious, educational, artistic, scientific, and charitable purposes, or against historical sites, or wounded and patients’ gathering centres which are not considered military targets.
3. The perpetrator must premeditatedly make the raid’s target one or more buildings designated for religious, educational, artistic, scientific, and charitable purposes, or against historical sites, or wounded and patients’ gathering centres which are not considered military targets.
4. The conduct must be issued within the context of national armed dispute correlated with it.
5. The perpetrator must be aware of factual conditions which prove the existence of armed conflict.
The Tribunal further stated:
The elements of proof of a crime as that of war are: evidences that the rebellious side have an organized armed force as well as a responsible authority perpetrating acts in a specific geographic sector and respects Geneva Conventions, the perpetrated act occurred in a time and geographic frames under armed dispute, damages in civil properties, destruction, religious aspect, evidence that those samples were not used by armed forces for the absence of military establishments seen in naked eyes. Evidence that perpetrated actions designate intent to engender damages or destroying those protected samples.
And the elements of the evidence for the war crime represented in the attack of protected properties … is proof of the damage caused to the civilian properties … and proof of the non existence of military establishments in or on the properties … and the non presence of military establishments near the properties … and proof of activities which were committed and indicated to the intention of making these damages or the destruction of guarded properties.
But if it was possible to recognize the properties obviously as religious or educational establishments which were not used for military purposes, during military operations occurrence, hence their destruction or confiscation by hostile armed forces is considered as premeditated conditioned that the aforementioned establishments are not located at the vicinity of military targets.
The Report on the Practice of Iraq states that there exists an outright prohibition on attacks on cultural property “for any reason”.