The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is the principal international treaty that sets forth obligations provisions for the protection of cultural property during military operations.
This means that all nations, as well as non-state actors, are bound by the terms of the Convention and can be prosecuted under international law for violating the Convention, whether they have formally signed/ratified the treaty or not.
1. Respect, safeguard, protect and not interfere with cultural property situated within their own territory as well as within the territory of another state party to the Treaty without imperative military necessity (see Rule 39);
2. Not make “any use of [a state party's cultural] property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property”; this obligation can only be waived by imperative military necessity (see Rule 39);
3. “Prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property … [and] refrain from requisitioning movable cultural property situated in the territory of another [state party]“;
4. “Refrain from any act directed by way of reprisals against cultural property”;
5. “Prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate”;
6. In the event that one state party occupies the whole or part of the territory of another state party, the occupying party shall “as far as possible support the competent national authorities of the occupied country in safeguarding and preserving its cultural property.” In addition, “Should it prove necessary to take measures to preserve cultural property situated in occupied territory and damaged by military operations, and should the competent national authorities be unable to take such measures, the Occupying Power shall, as far as possible, and in close co-operation with such authorities, take the most necessary measures of preservation.“
7. Immovable cultural property, or persons engaged in its protection, or persons responsible for regulation of the Convention may be marked with a distinctive Blue and White Emblem (click to view), indicating that the cultural property, structure, monument, repository or persons responsible for safeguarding these assets are protected. However, marking with the Blue and White Emblem is not an absolute requirement; failure to display the Emblem does not, by itself, indicate that a site or structure is not cultural property.
Key Definition: “Imperative Military Necessity”
Article 4 of the Treaty states that nations are to avoid jeopardizing cultural property by refraining from using such property in a way that might expose it to harm during hostilities. This means that nations should not locate strategic or military equipment near cultural property or use cultural property for a strategic or military purpose. A belligerent nation should not target, attack or direct any act of hostility against the cultural property of another nation. These obligations “may be waived only in cases where military necessity imperatively requires such a waiver”.
- Military necessity is determined by a commander at a battalion level or higher.
- A commander of a force smaller in size may make the determination when circumstances do not permit the decision to be made by a commander of a larger force.
- In the event that cultural property on a “no-strike” list is to be intentionally targeted, the final decision must be approved at the Combatant Commander level.
Intentional Destruction of Cultural Property is considered a War Crime. Military leaders have been prosecuted under the earlier Hague Conventions and under customary international law for the targeting and destruction of cultural property when not justified by military necessity.In the aftermath of the Balkan wars during the 1990s, the Serbian General Pavle Strugar was tried and convicted by the International Criminal Tribunal for the former Yugoslavia for the destruction or willful damage of institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science (among other war crimes) in connection with the shelling of the Old Town of Dubrovnik, a site listed on the World Heritage List. Strugar was sentenced to eight years in prison. Another commander, Miodrag Jokic, pled guilty to similar charges and was sentenced to seven years in prison.
Whenever considering any undertaking or project that may alter something that might be an historic property, it is necessary to seek additional legal advice before proceeding. Contacting and working with appropriate host country cultural heritage officials to develop acceptable solutions is essential.