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Cultural Heritage & Property

During armed conflict, warring parties have looked to destroy, capture or take valuable items of cultural property of their enemy. IHL sets out a framework of special protection for such items during armed conflict, as well as measures that should be taken in peacetime.

Cultural Property and Armed Conflict

In situations of armed conflict cultural property is often vulnerable to attack, the looting of the Baghdad Museum in 2003, and the Dubrovnik attacks in 1991 are just two examples during armed conflict when cultural property has been attacked. Despite these occurrences it is important to note that IHL was in fact the first body of international law to look to afford cultural heritage, and specifically property, specific protections.

Culture and People

While this section will mainly focus on the protections afforded to cultural property, it is important to restate Article 27 of the Fourth Geneva Convention which states that:
Protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs.
While the term culture is not specifically referred to, the demand to respect manners and customs remains an important notion when considering culture.
Widespread and systematic attacks against people based on culture can also be a form of persecution falling under the category of Crimes Against Humanity.

Cultural Property and IHL

Firstly, Cultural property is afforded all the general protection afforded to civilian property under IHL, in particular in situations of occupation and hostilities. In addition Cultural property is provided additional protections during armed conflict. This extra protection is based on the notion that certain property represents cultural heritage of all mankind and hence this value must be protected.

The protection of cultural property is not new under IHL. Under Article 27 of the Hague Regulations of 1907, during hostilities 'all necessary steps should be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and place where the sick and wounded are collected’ as long as such are not used for military purposes.

Cultural property, while not specifically addressed by the Geneva Conventions, is provided with the same protections afforded to all civilian property. Any concern of this possible gap or lack of focus on cultural property was addressed through the adoption of the 1954 Hague Convention specifically addressing cultural property.

1954 Convention for the Protection of Cultural Property and 1999 Second Additional Protocol

The 1954 Convention on the Protection of Cultural Property during Armed Conflict, sets out clear obligations for both the State who owns the cultural property to protect such, as well as prohibiting parties to an armed conflict from directly targeting cultural property and avoid causing incidental damage.
The Second Additional Protocol to the Hague Convention provides more guidance on how and when protection could be lost as well as details on peacetime measures such as emergency measures for protection against fires or structural collapse, training and designation of competent authorities to safeguard the cultural property. The Second Protocol importantly applies equally to both international and non-international armed conflict. 
The protections afforded to cultural property are quite complex, as under the 1954 Convention there are two level of protection, general and special, with the Second Additional Protocol of 1999 developing and changing the protections and adding a third category of protection “enhanced”. Hence the criteria for both when such property can be used for military purposes and also when it can be attacked dependent upon whether it is general protection or special protection, and the secondly which legal treaty applies.

‘Special’ Protection

According to Article 8 of the 1954 Hague Convention, they is an elevated level of protection for a limited number of refugees intended to shelter movable cultural property. Such shelters need to be registered under the UNESCO International Register of Cultural Property under Special Protection. Warring parties are obligated under Article 9 to refrain from subjecting such property to any act of hostility, nor should it be used for purposes which are likely to expose it to destruction or damage during an armed conflict.

‘Enhanced’ Protection

As stated by the ICRC Given that the 1954 system of cultural property under special protection never worked, the Second Protocol of 1999 established a new system. Cultural property of the greatest importance for humanity can be placed under enhanced protection provided it is adequately protected by domestic law and not used for military purposes or to shield military sites. Enhanced protection is granted from the moment of entry in the List of Cultural Property Under Enhanced Protection.

Cultural Property and Occupied Territory:

Like many other issues addressed under IHL, under situations of Occupation there are additional protections. 
A key provision in customary international law, as set out by the ICRC CUIL Study in Rule 41, is that:

The occupying power must prevent the illicit export of cultural property from occupied territory and must return illicitly exported property to the competent authorities of the occupied territory.
 

Additional Protocols to the Geneva Conventions

It is important to state that cultural property is provided the same protections as all civilian property under the Additional Protocols to the Geneva Conventions and Customary international law during the conduct of hostilities. In addition Article 53 of the Additional Protocol One states that:

Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited:

(a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;

(b) to use such objects in support of the military effort;

(c) to make such objects the object of reprisals.

Read more about the basic rules on the conduct of hostilities

Individual Criminal Responsibility

Direct attacks against civilian property have been codified as grave breaches of the Geneva Convention and War Crimes under the Rome Statute.

In addition Article 15 of the Second Additional Protocol defines five acts which constitute serious violations requiring a criminal sanction if committed intentionally and in violation of the 1954 Convention or the Second Protocol:

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 [the Second] Protocol,

making cultural property protected under the Convention and [the Second ] Protocol the object of attack,

theft, pillage or misappropriation of, or acts of vandalism directed against, cultural property protected under the Convention.

In 2005 Pavle Strugar, commander of the Second Operational Group of Yugoslav People's Army was convicted to 8 years imprisonment for destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science, during the attacks on Dubrovnik.

Cultural Property and International Human Rights Law

There is significant overlap between human rights and IHL when it comes to the protection of cultural heritage.

Provisions relating to family life and privacy; right to education; freedom of expression, thought conscience and religion all play a role in protecting cultural heritage. These protections are set out in the International Covenant on Civil and Political Rights and The International Covenant Economic, Social and Cultural Rights (CESCR).