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 and provisions for the protection of cultural property during military operations. DOD must adhere to these obligations under international law.
In addition, all DOD operations and undertakings must adhere to the 1972 World Heritage Convention to prevent direct and adverse effects to properties that are included on the World Heritage List. These obligations and duties are briefly discussed at the bottom of this page.
With 126 state parties and four state signatories to date, the 1954 Hague Convention is considered customary international law. This means all nations as well as non-state actors are bound by the terms of the Convention, and violations can be prosecuted under international law, whether the accused party signed/ratified the Convention 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 (for definition of “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 refrain 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.” And “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 (the “Blue Shield”) (click to view), indicating that the property, structure, repository or persons responsible for safeguarding these assets are protected. See sidebar discussion to the left.
- DOD’s obligations under Article 4 of the 1954 Hague Convention —
• to not target, attack or direct any act of hostility against the cultural property of another nation; and
- • to not use such property in a way that might expose it to harm during hostilities
— “may be waived only in cases where military necessity imperatively requires such a waiver”.
Rule 39 (“Use of Cultural Property for Military Purposes”) states: “a waiver on the basis of imperative military necessity may only be invoked to use cultural property for purposes which are likely to expose it to destruction or damage ‘when and for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage’ ”.
Who decides whether “imperative military necessity” exists? According to Rule 39:
- 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.
- Take into account, and have procedures, expertise and data in place to determine, whether the undertaking will have a direct and adverse effect to the World Heritage List property;
- Give notice of such effect to host country’s cultural heritage authority or authorized officials whenever possible; and
- Consider alternatives to mitigate or eliminate such adverse effect to the World Heritage List property, as required under the National Historic Preservation Act, which was amended in 1980 to incorporate the World Heritage Convention into U.S. Law. (The World Heritage Convention is the international treaty that governs the protection of WHL properties worldwide.)
It is essential that commanders inform and work with the Host Nation’s cultural heritage authority or authorized officials, whenever possible, to provide adequate notice and develop acceptable solutions.