Practice Relating to Rule 38. Attacks against Cultural Property
New Zealand’s Military Manual (1992) restates Article 27 of the 1907 Hague Regulations and refers to Article 5 of the 1907 Hague Convention (IX). It then quotes the definition of cultural property found in Article 1 of the 1954 Hague Convention for the Protection of Cultural Property and points out: “The protection of cultural property is not, however, absolute. If cultural property is used for military purposes, an opposing belligerent is released from the obligation to ensure immunity so long as the particular violation persists.” The manual further states that for many of the parties to the 1907 Hague Regulations, the 1907 Hague Convention (IX) and the 1954 Hague Convention for the Protection of Cultural Property, “their protection and obligations are overlaid by the protection and obligations of [Article 53 of the 1977 Additional Protocol I]”. With respect to this overlap, the manual notes:
At the time [the 1977 Additional Protocol I] was being negotiated it was clear, therefore, that not all historical, cultural and religious establishments are protected by this article; only such places as the Blue Mosque, the Coliseum, St. Paul’s Cathedral, the Dome of the Rock, and the like. The special protection is confined to a limited class of objects which, because of their recognised importance, constitute a part of the cultural heritage of mankind. This approach may be regarded as culturally narrow today and could well result in a move to widen the protection.
The manual further qualifies the following act as a grave breach of the 1977 Additional Protocol I:
making the clearly-recognised historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been accorded by special arrangement, the object of attack causing extensive destruction thereof, where there is no evidence of prior use of such objects in support of the adverse Party’s military effort, and when such places are not located in the immediate proximity of military objectives.
With respect to non-international armed conflicts in particular, the manual restates Article 16 of the 1977 Additional Protocol II.
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, provides:
Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence.
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(b)(ix) and (e)(iv) of the 1998 ICC Statute.