International humanitarian law, also known as the law of armed conflict (“ius in bello”) regulates the conduct in times of armed conflict and, unlike human rights law, is only applicable during such times. An armed conflict can be of either an international or non-international nature. The former describes classical State versus State warfare and commences as soon as the first shot is fired, the latter term deals with conflicts within a State involving non-state actors and describes internal disturbances that reach the threshold of ‘protracted armed violence’ (para 70, Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY). The determination of when such a struggle is happening is generally made by the International Committee of the Red Cross.
During times when international humanitarian law applies, international human rights law is not suspended, but complemented. Only when an irreconcilable conflict between the two legal regimes arises does international humanitarian law take precedence as the more specific regime balancing military necessity and humanitarian concerns (see para 106, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, International Court of Justice).
Substantive rules protecting cultural heritage are especially rich in international humanitarian law and are most elaborate in the Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 1954 (“Hague Convention”) and its two Protocols.
In times of peace, State Parties to the Hague Convention are obliged to prepare measures safeguarding their cultural property against the foreseeable effects of armed conflict, Article 3 Hague Convention. Article 5 of the Second Protocol gives the following examples:
- the preparation of inventories,
- the planning of emergency measures for protection against fire or structural collapse,
- the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and
- the designation of competent authorities responsible for the safeguarding of cultural property.
Furthermore, State Parties are required to introduce military regulations ensuring observance of the Convention and to maintain services and specialists whose task it is to secure respect for cultural property within the armed forces, Article 7 Hague Convention. The Hague Convention also allows for cultural property to be marked with the Blue Shield, a special emblem denoting its protected status, Articles 6 and 16-17 of the Hague Convention.
System of general protection
Article 4 of the Hague Convention establishes a system of general protection that immediately applies to all cultural property and forbids
- any use of cultural property or its immediate surroundings which is likely to expose it to damage, and
- any hostility directed against cultural property.
This protection may only be waived in cases of imperative military necessity, Article 4 (2) of the Hague Convention. To make this vague term operational, Article 6 of the Second Protocol to the Hague Convention elaborates:
An attacker may only invoke imperative military necessity when, and only for as long as
- by its function cultural property has been turned into a military objective,
- there is no feasible alternative to obtain a similar military advantage,
- effective advance warning is given, and
- the decision to attack is taken by the commander of a force the size of a battalion or larger.
A defender may only use cultural property under the imperative military necessity waiver when and for as long as
- there is no feasible alternative to obtain a similar military advantage, and
- the decision to use it militarily is taken by the commander of a force the size of a battalion or larger.
Additionally, Article 7 of the Second Protocol requires Parties to take further precautions during an attack, inter alia,
- verifying that property under attack is not protected under the Convention and its Protocols, and
- using proportionate means and methods of attack to avoid or minimise incidental damage, and
- ensuring that no attack causes incidental damage that is excessive in relation to the military advantage sought.
Attacks that cannot satisfy these conditions must be cancelled or suspended.
Theft, pillage and misappropriation of movable cultural property are prohibited under Article 4 (3) Hague Convention and States must prevent and stop any such looting. This protection is not subject to a waiver under imperative military necessity.
Special and Enhanced Protection
Chapter II of the Hague Convention establishes a system of Special Protection that offers additional safeguards for cultural property registered in the International Register of Cultural Property under Special Protection. Sadly, this system of protection never became relevant, for it requires that cultural property is located an “adequate distance from any large industrial center or from any important military objective constituting a vulnerable point”, a condition which is almost impossible to fulfill, as most cultural property is located near or in population centers.
To remedy this situation, the Second Protocol to the Hague Convention created a new system of Enhanced Protection which does not suffer from this shortcoming. Cultural property is eligible for inscription, Article 10 Second Protocol, if,
- it is cultural heritage of the greatest importance for humanity,
- it is protected by adequate domestic legal and administrative measures recognising its exceptional cultural and historic value and ensuring the highest level of protection, and
- it is not used for military purposes or to shield military sites and a declaration has been made by the Party which has control over the cultural property, confirming that it will not be so used.
Enhanced protection raises the legal bar over general protection by granting immunity from attack and military use. Enhanced protection is only lost, Article 13 Second Protocol, if, and only for as long as,
- such property has become a military objective,
- the primary reason of the attack is terminating its military use,
- all feasible precautions are taken to avoid and/or minimise damage,
- the attack is ordered at the highest level of operational command,
- effective advance warning is issued requiring termination of military use,
- reasonable time is given to redress the situation.
Requirements IV, V and VI do not apply in cases of immediate self-defence.
Fund for the Protection of Cultural Property in the Event of Armed Conflict
Article 29 of the Second Protocol to the Hague Convention establishes a fund to finance precautionary measures during peacetime and emergency measures in times of armed conflict.
Article 28 of the Hague Convention requires State Parties “to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the present Convention”.
State Parties to the Second Protocol must ensure, as per Article 15, that the following violations are punishable as criminal offences under domestic law:
- making cultural property under enhanced protection the object of attack;
- using cultural property under enhanced protection or its immediate surroundings in support of military action;
- extensive destruction or appropriation of cultural property protected under the Convention and this Protocol;
- making cultural property protected under the Convention and this Protocol the object of attack
- theft, pillage or misappropriation of, or acts of vandalism directed against, cultural property protected under the Convention.
States must also establish universal jurisdiction over these offenses, Article 16 Second Protocol, and either prosecute the perpetrators themselves or extradite them to another State willing to do so, Article 17 Second Protocol (“aut dedere aut iudicare”).
Other notable provisions in international humanitarian law
In international armed conflicts
- Article 53 of the 1977 Protocol I to the Geneva Conventions of 1949, which prohibits acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, their use in military efforts and reprisals against them
- Article 52 (1) of the 1977 Protocol I to the Geneva Conventions of 1949, which prohibits acts of hostility against civilian objects
- Article 57 of the 1977 Protocol I to the Geneva Conventions of 1949, which requires verification that no protected object is being targeted, taking precautions that civilian objects suffer no damage, giving effective advance warnings and choice of military objectives in such a way that civilian damage is minimised
In non-international armed conflicts
- Article 16 of the 1977 Protocol II to the Geneva Conventions of 1949, which prohibits acts of hostility directed against cultural property in non-international armed conflicts
Customary international law applicable in both international and non-international armed conflicts
- Article 27 of the Regulations annexed to Hague Convention IV of 1907 states that “in sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.”
- Article 5 of the Hague Convention IX of 1907 states that “In bombardments by naval forces all the necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are not used at the same time for military purposes.”
The provisions of the Hague Conventions of 1907 are widely accepted as “intransgressible principles of customary international law” (paras 79 to 82, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, International Court of Justice).