Practice Relating to Rule 38. Attacks against Cultural Property
Italy’s LOAC Elementary Rules Manual (1991) states:
13. Specifically protected objects … may not be attacked.
14. The immunity of a marked cultural object may be withdrawn in case of imperative military necessity.
55. [In attack] the immunity of a marked cultural object shall only be withdrawn when the fulfilment of the mission absolutely so requires. Advance warning shall give time for safeguard measures and information on withdrawal of immunity.
69. Marked cultural objects whose immunity has been withdrawn shall still be respected to the extent the fulfilment of the mission permits.
Italy’s IHL Manual (1991) states: “Cultural property and places of worship are entitled to protection in all circumstances provided they are not illicitly used for military purposes.”
The manual qualifies “indiscriminate attacks against … cultural property” as a war crime.
Italy’s Combatant’s Manual (1998) states:
Cultural Objects and the personnel responsible for their care are protected by the emblem “Quartered shield in the form of a white and blue Saint Andrew’s cross” (simple protection).
IT IS PROHIBITED to carry out hostile acts of any kind against people and objects protected by this emblem; your Commanding Officer can legitimately order you to ignore the protection accorded to a Cultural Object if there is a compelling military need to do so or if the cultural object is being used by enemy military forces.
If the protective emblem appears three times, the Cultural Object is subject to special protection.
In this case, the order to violate the protective emblem can be given by a Commanding Officer no lower in rank than Major-General.
[emphasis in original]
Italy’s Wartime Military Penal Code (1941) punishes a commander who
omits to adopt measures provided for by the laws or by international conventions regarding respect for: … historical monuments and buildings intended for science, art, charity or for practising religion, provided that they are not at the same time used for military purposes and that they are marked by means of the distinctive signs foreseen by the international conventions, or in any case previously communicated to the enemy, and easily recognizable even from a great distance and at high altitude.
The Code further provides for the punishment of anyone who, in enemy territory and without military necessity, “sets fire to or destroys or seriously damages historical monuments, works of art or science, i.e., monuments dedicated to religion, charity, education, arts or science belonging to the enemy State”.
Upon ratification of the 1977 Additional Protocol I, Italy stated: “If and so long as the objectives protected by Article 53 are unlawfully used for military purposes, they will thereby lose protection.”