Practice Relating to Rule 39. Use of Cultural Property for Military Purposes
The Military Manual (1993) of the Netherlands states that respect for cultural objects implies that “the objects may not be used in case of armed conflict” but that an exception can be made “in case military necessity requires such an exception. Hence, the protection is not at all absolute.”
With respect to non-international armed conflicts in particular, the manual states that historic monuments, works of art and places of worship “may not be used in support of the military effort” and recalls Article 19 of the 1954 Hague Convention for the Protection of Cultural Property.
The Military Handbook (1995) of the Netherlands stresses that cultural property “may not be used for military purposes, except in case of imperative military necessity”.
The Military Manual (2005) of the Netherlands states:
0526. Respect for cultural property implies that the objects cannot be used in case of armed conflict …
Exceptions to respect for cultural property may be allowed only on specific conditions … In a case of unavoidable military necessity, cultural property may be used for military purposes only if no practical and feasible alternative approach exists to such military use.
0528. Whether imperative military necessity exists may be determined only by the commanding officer of a unit of battalion size or of higher rank. If no other option exists in the circumstances, a commanding officer of lower rank may also take such a decision …
0531. Cultural property may be placed under enhanced protection if it meets the following three conditions:
- it is cultural heritage of the greatest importance for humanity;
- it is protected by adequate national legal and administrative measures recognizing its exceptional cultural and historical value and ensuring the highest level of protection;
- it is not used for military purposes or to protect military sites and the relevant State has made a declaration confirming that it will not be so used.
0532. The parties to an armed conflict must ensure the immunity of cultural property that has been placed under enhanced protection, by refraining from any use of such property as objectives of attack or any use of the property or its direct environs in support of military action. Cultural property under enhanced protection can only forfeit such protection in most exceptional circumstances. Decisions on this may only be taken at the highest level of operational command.
In its chapter on non-international armed conflict, the manual states:
Hostile actions (deliberate attacks) against historic monuments, works of art and places where religious services are held are prohibited, provided that they do not constitute military objectives. They may therefore not be used in support of military action.
In its chapter on peace operations, the manual states: “Cultural heritage property, in particular, should be spared.”
Under the International Crimes Act (2003) of the Netherlands, “using cultural property that is under enhanced protection as referred to in [Articles 10 and 11 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property] or the immediate vicinity of such property in support of military action” is a crime when committed in an international armed conflict.
At the CDDH, the Netherlands stated, with respect to Article 47 bis
of the draft Additional Protocol I (now Article 53): “The illegitimate use of those historical objects for military purposes
would deprive them of the protection afforded by Article 47 bis
Upon ratification of the 1977 Additional Protocol I, the Netherlands stated, with respect to Article 53 of the 1977 Additional Protocol I:
It is the understanding of the Government of the Kingdom of the Netherlands that if and for as long as the objects and places protected by this Article, in violation of paragraph (b), are used in support of the military effort
, they will thereby lose such protection.