1 UNESCO, “A Call to Save Iraq's Cultural Heritage”, 30 September 2014, available at: www.unesco.org/new/en/unesco/about-us/who-we-are/director-general/singleview-dg/news/a_call_to_save_iraqs_cultural_heritage/ (all internet references were accessed in December 2015).

2 UNESCO, “UNESCO Director-General Condemns the Destruction of the Arch of Triumph in Palmyra: ‘Extremists Are Terrified of History’”, 5 October 2015, available at: http://en.unesco.org/news/unesco-director-general-condemns-destruction-arch-triumph-palmyra-extremists-are-terrified.

3 See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), in particular Rules 38, 39, pp. 127–132.

4 ICTY, The Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgment, 2 March 2000, paras 227–228.

5 Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954 (entered into force 7 August 1956) (1954 Convention).

6 Roger O'Keefe, The Protection of Cultural Property in Armed Conflict, Cambridge University Press, Cambridge, 2006, p. 39.

7 UN, “Mali: Deux experts de l'ONU dénoncent les ‘violations des droits culturels et de la liberté religieuse’”, UN News Centre, 10 July 2012.

8 In ancient Greece, for example, sacred sites such as Delphi, Delos and Mount Olympus were recognized as inviolable in the event of armed conflict. No acts of hostility were allowed on these sites, and fleeing enemies could take refuge in them. These prohibitions had a spiritual and religious basis, and similar rules are found in many civilizations. See Pierre Ducrey, Guerres et guerriers dans la Grèce antique, Payot, Paris, 1969, p. 243.

9 As an example, the first Caliph, Abu Bakr Siddiq, gave this instruction to his soldiers fighting in Iraq and Syria: “You will come upon a people who live like hermits in monasteries, believing that they have given up all for Allah. Let them be and destroy not their monasteries.” See François Bugnion, “The Origins and Development of the Legal Protection of Cultural Property in the Event of Armed Conflict”, 14 November 2004, available at: www.icrc.org/eng/resources/documents/article/other/65shtj.htm.

10 M. Tulli Ciceronis, Actionis in C. Verrem secundae liber quartus (De signis): De officiis ad Marcum filium, cited in Nahlik, Stanislaw Edward, “Des crimes contre les biens culturels”, Annuaire de l'Association des auditeurs et anciens auditeurs de l'Académie de droit international de La Haye, Vol. 9, 1959, p. 14 Google Scholar.

11 Such as the “Peace of God” and the “Truce of God”, which enshrined the commitment by belligerents to obey numerous rules, some of which also protected cultural heritage, both tangible and intangible. Michel Balard, Jean-Philippe Genet and Michel Rouche, Le Moyen Âge en Occident, Hachette Superieur, Paris, 2003, pp. 104–105, 175.

12 These bodies of rules setting down prohibited conduct – the “capitularies”, or covenants – were binding on men in armed conflict, not on the States in question. The rules, moreover, formally protected not only sacred property but also private property, in accordance with the principle of military necessity. If the destruction of such property did not meet the requirement of conferring military advantage, it was unnecessary and therefore prohibited. See Theodor Meron, War Crimes Law Comes of Age, Oxford University Press, New York, 1998, p. 13.

13 This development grew out of the writings of various jurists and thinkers of the time, in particular those of Alberico Gentili. In his view, among the private property to be preserved in armed conflict, cultural property should also and especially be protected. See Alberico Gentili, De Jure Belli Libri Tres, cited in R. O'Keefe, above note 6, p. 6.

14 Thus, in France, on the initiative of a deputy, the Abbé Grégoire, a commission on historical monuments was established in 1830 aimed at countering the “vandalism” that had raged during the French Revolution of 1789 and after. See “Rapport sur les destructions opérées par le vandalisme, et sur les moyens de le réprimer”, in Œuvres de l'Abbé Grégoire, Vol. 2: Grégoire, député à la Convention nationale, KTO Press and EDHIS, Nendeln and Paris, 1977, p. 257.

15 For example, the 1868 Declaration of Saint Petersburg or the 1874 Brussels Declaration. The latter expressly regulated the treatment of property likely to be part of the cultural heritage.

16 Such property is expressly mentioned in Article 27 of the Regulations Annexed to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, 18 October 1907 (1907 Hague Regulations). Article 56 of the Regulations adds “education”. The choice of these buildings shows clearly that it is not only the property itself – the tangible heritage – that is protected, but the activities carried out and the knowledge transmitted in the property – the intangible heritage – as well.

17 The attacks on cultural heritage during these two major wars were considerable; some are emblematic, such as the attack on the Louvain university library during the First World War and on the Montecassino Abbey during the Second World War. The vagueness of the regulations, coupled with the imprecision of the weaponry of the time, greatly contributed to the large number of sites affected by these armed conflicts.

18 Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), applicable in the event of international armed conflict, profoundly transformed the regulation of the conduct of hostilities in relation to that prescribed by the 1907 Hague Regulations; Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), applicable in the event of non-international armed conflict, further developed the applicable law in such situations, which up to then had been governed only by Article 3 common to the four Geneva Conventions of 1949. Each of these two instruments contains a provision expressly prescribing the obligation of belligerents to ensure the protection of the “cultural or spiritual heritage of peoples”.

19 See above note 5.

20 The Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954 (entered into force 7 August 1956) (1954 Protocol), deals with the protection of cultural property in the event of military occupation; the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 26 March 1999 (entered into force 9 March 2004) (1999 Protocol), incorporated more recent developments in the law of armed conflict, such as those relating to the conduct of hostilities, into the system for protecting cultural property.

21 This applies in particular to Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV).

22 Like the UN covenants – i.e., the International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966 (entered into force 23 March 1976) (ICCPR), and International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, 16 December 1966 (entered into force 3 January 1976) (ICESCR).

23 According to UNESCO's mandate, which is to promote culture in particular, several instruments regarding cultural heritage have been adopted under its initiative, such as the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970 (entered into force 24 April 1972) (1970 Convention); the Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972 (entered into force 17 December 1975); the Convention for the Safeguarding of the Intangible Cultural Heritage, 17 October 2003 (entered into force 20 April 2006) (2003 Convention); and the Convention on the Protection and the Promotion of the Diversity of Cultural Expressions, 20 October 2005 (entered force 18 March 2007).

24 An armed conflict can consist of several phases: the hostilities phase, when fighting takes place between the adverse parties, followed by a phase in which one party falls into the power of the opposing party. This situation may stem from a military occupation, depending on the circumstances in each case. During this second phase, other provisions of the law of armed conflict govern situations of this type.

25 See UNESCO, “World Heritage Committee Calls for End to Destruction of Mali's Heritage and Adopts Decision for Its Support”, 3 July 2012, available at: www.unesco.org/new/en/media-services/single-view/news/world_heritage_committee_calls_for_end_to_destruction_of_malis_heritage_and_adopts_decision_for_its_support/#.VgPwpsuqpHw.

26 UN, above note 7.

27 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, para. 78.

28 The Declaration recognizes “[t]hat the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy” and “[t]hat this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men”; therefore, where the means and methods envisaged prove “useless” with regard to the outcome of military operations, military necessity ceases to exist.

29 See United Kingdom, Military Court at Hamburg, A. D. Case, 19 December 1949, p. 522, cited in Éric David, Principes du droit des conflits armés, Bruylant, Brussels, 2002, p. 270.

30 AP I, Art. 52(2), stipulates: “Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”

31 1999 Protocol, Art. 6(a), provides that, in order for military necessity to be invoked lawfully, the property in question must have “by its function, been made into a military objective”, on the one hand, and there must be “no feasible alternative available to obtain a similar military advantage”, on the other.

32 Under the regime of the 1907 Hague Regulations, the principle of distinction chiefly concerned the differentiation between “defended” and “undefended” cities and towns; Article 27 of the Regulations nonetheless provides that, even in the case of defended cities and towns, certain property – i.e., “buildings dedicated to religion, art, science, or charitable purposes” – must be spared “as far as possible”. Even in these circumstances, therefore, the principle of distinction must be observed.

33 The adoption of the concept of “military objective” in AP I was aimed at differentiating such objectives from civilian objects. Thus, even before an attack is launched, Article 52 of AP I requires belligerents, in accordance with the principle of distinction, to differentiate military objectives from civilian objects. Under this provision, therefore, civilian objects are, for the first time, expressly protected.

34 The 1999 Protocol specifies the conditions under which an object can be turned into a military objective by requiring that it be so transformed “by its function”; this requirement implies an immediate use of the object for military purposes, thereby enhancing its protection.

35 Depending on whether the object in question enjoys “general” protection, according to both the 1954 Convention and the 1999 Protocol, or “special” or “enhanced” protection, respectively regulated by Articles 8–11 of the 1954 Convention and Articles 10–14 of the 1999 Protocol.

36 Among the causes for an object's transformation into a “military objective”, Article 52 of AP I expressly refers to the object being “used” in such a way as to “make an effective contribution to military action”.

37 1999 Protocol, Art. 6(a)(ii); Article 7 of this instrument also dictates various precautions that constitute means of implementing the obligation to comply with the principle of distinction.

38 As the 1999 Protocol did not apply to this scenario, this analysis is hypothetical.

39 See Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge University Press, Cambridge, 2004, p. 163.

40 ICRC Customary Law Study, above note 3, p. 47.

41 See US Department of Defense, “Report to the Congress on the Conduct of the Persian Gulf War, Appendix O: The Role of the Law of War”, International Legal Materials, Vol. 31, 1992, p. 626 Google Scholar, cited in R. O'Keefe, above note 6, p. 219.

42 The existence of a specific emblem whose purpose is to facilitate the identification of protected cultural property by belligerents in the event of an armed conflict is prescribed in particular by Articles 16 and 17 of the 1954 Convention. The use of this emblem, the blue shield, is compulsory only for cultural property that has been granted the status of “special” protection.

43 The prescriptions in Part IV, Section I of AP I, and specifically in its Articles 52, 57 and 58, are restated in Articles 6 and 7 of the 1999 Protocol concerning cultural property. The purpose of the latter two norms was to clarify Article 4 of the 1954 Convention, according to which the obligation to “respect” cultural property could be lifted with only one condition, that of military necessity.

44 AP I, Art. 57, and 1999 Protocol, Art. 7, respectively.

45 AP I, Art. 57(2)(a)(i) and (ii).

46 See UNESCO, “Information on the Implementation of the Convention for the Protection of Cultural Property in the Event of Armed Conflict”, The Hague, 1954, 1989 Reports, Doc. CC/MD-11, December 1989, notes 4–8.

47 AP I, Art. 58(b).

48 Clémentine Bories, Les bombardements serbes sur la vieille ville de Dubrovnik: La protection internationale des biens culturels, Pedone, Paris, 2005, pp. 41, 47.

49 ICTY, The Prosecutor v. Pavle Strugar, Case No. IT-01-42, Judgment (Trial Chamber), 31 January 2005, para. 295.

50 The “similar situations” referred to here are those in which the cultural heritage is in the hands of enemy forces, but no military occupation has been formally recognized; aside from contested cases of military occupation, these situations also include non-international armed conflicts, in which the parties having control over the territory are also in control of its cultural heritage.

51 See UNESCO Executive Board, “Report of the UNESCO Technical Mission to the Old City of Jerusalem”, Doc. 176 EX/Special Plenary Meeting/INF.1, 12 March 2007.

52 Among the applicable provisions in this regard, mention can be made of Article 56 of the Hague Regulations and Article 52 of GC IV, as well as Article 5 of the 1954 Convention and Article 9 of the 1999 Protocol, specifically for “cultural property”.

53 The Rabinal Achí is a cultural and spiritual celebration held in Rabinal, Guatemala. It has been recognized by UNESCO as one of the Masterpieces of the Oral and Intangible Heritage of Humanity.

54 These objects were regarded as mere civilian property by the Guatemalan armed forces in whose power they were being held. Hence, their destruction was not prohibited by common Article 3, the only one of the norms of the four Geneva Conventions that applies to internal armed conflicts. Nor does AP II expressly forbid the destruction of such property; its Article 16 alone proscribes all attacks against the “cultural and spiritual heritage of peoples”, to which, in the eyes of the soldiers present, these objects did not belong.

55 For example, ICESCR, Art. 15, which enshrines everyone's cultural rights; and ICCPR, Art. 27, which protects the cultural rights of “ethnic, religious or linguistic minorities”.

56 M. Abou Khalaf, “Profanation des sites islamiques en Palestine”, in Protection des sanctuaires chrétiens et islamiques en Palestine, Islamic Educational, Scientific and Cultural Organization, 2000; Amira Samir, “Mosquées transformées en autre chose que leur objectif naturel”, Al-Ahram Hebdo, 17–23 March 2010.

57 Clément, Etienne and Quinio, Fabrice, “La protection des biens culturels au Cambodge pendant la période des conflits armés, à travers l'application de la Convention de La Haye de 1954”, International Review of the Red Cross, Vol. 86, No. 854, 2004, p. 395 Google Scholar.

58 “Anastasia Resort Hotel (Lapithos)”, press release, Embassy of Cyprus in Paris, 21 June 2008.

59 Namely, 1907 Hague Regulations, Art. 56(2), and 1954 Hague Convention, Arts 4(3), 5.

60 Rory McCarthy and Maev Kennedy, “Babylon Wrecked by War”, The Guardian, 15 January 2005.

61 Neither the United Kingdom nor the United States were party to the 1954 Convention. The United States did not ratify it until 2008.

62 In addition to Article 5 of the 1954 Convention, which imposes on the occupying forces an abstention requirement, Article 4(1) prohibits “any use … likely to expose [the objects] to destruction or damage”. This provision also applies in the event of military occupation.

63 1999 Protocol, Art. 9(1)(c), requiring in particular the condition of intent, could not have applied in this scenario.

64 In particular, Articles 28 and 47 of the 1907 Hague Regulations, Article 33(2) of GC IV and, in the event of internal armed conflict, Article 4(2)(g) of AP II; for cultural property alone, Article 4(3) of the 1954 Convention prohibits such acts in all armed conflicts, and Article 19(1) specifically in armed conflicts not of an international character. To this is added, in the event of any armed conflict, the Article 15(e) of the 1999 Protocol, criminalizing such acts and thus facilitating the implementation of the prohibition against pillage.

65 Article 4(3) of the 1954 Convention expressly prohibits “theft”, “misappropriation … of cultural property”, “acts of vandalism” and “requisitioning movable cultural property situated in the territory of another High Contracting Party”. The 1954 Protocol, which is applicable in the event of military occupation, prohibits the exportation of such property from an occupied territory, even if the latter is not party to the Protocol. The 1999 Protocol reiterates this prohibition in its Article 9(1)(a), proscribing “any illicit export, other removal or transfer of ownership of cultural property”.

66 International Institute for the Unification of Private Law (UNIDROIT), Convention on Stolen or Illegally Exported Cultural Objects, Rome, 24 June 1995.

67 It should be noted that, within the framework of the 1954 Convention, the designation of property as cultural property falls under the jurisdiction of the State holding the property. However, in armed conflicts, it is the enemy forces that are required to spare cultural property, especially in the context of hostilities. If these forces have not been previously notified by the holding State or by an authority such as UNESCO of the presence of protected cultural property, it is nevertheless their responsibility to identify such property. In the event of armed conflicts with a religious, ethnic or cultural character, such identification may prove difficult, and there is a risk that the property in question may then be considered mere civilian property. Even in such cases, the property nonetheless continues to enjoy the protection due to it under the law of armed conflict, which is applicable under both treaty law and customary law.

68 ICRC Customary Law Study, above note 3, Rules 38–39 and 7–10 recognize the prohibition (subject to certain conditions) against attacks and damage by belligerents on both civilian and cultural property as a rule of customary law, applicable in the event of both international and non-international armed conflict.

69 AFP, “UNESCO: Plainte jordanienne sur la propriété des manuscrits de la mer Morte”, press release, Le Point.fr, 11 January 2010.

70 For example, among other provisions, see GC I, Art. 24; AP I, Art. 15(5); AP II, Art. 9.

71 It should be recalled in this regard that there are only a few of the freedoms enshrined in international human rights law, such as freedom of thought, conscience and religion (ICCPR, Art. 18), from which no derogation is permissible in times of armed conflict; other rights, like freedom of expression (ICCPR, Art. 19), may be derogated from and/or restricted if the requisite conditions are met, including the emergence of situations similar to an armed conflict. Nevertheless, while the application of these provisions may be restricted, such restrictions cannot undermine these rights.

72 The purpose of these various instruments' stipulations protecting cultural heritage and the human rights relating thereto is not only to prohibit constraints on the manifestations of that heritage, but also, in some cases, to require that they be supported to ensure the heritage's continuation.

73 Such as freedom of movement (ICCPR, Art. 12) and freedom of assembly (ICCPR, Art. 21).

74 The obligation to respect “religious convictions and practice” is set out in Article 46 of the 1907 Hague Regulations. For its part, Article 27(1) of GC IV provides that persons in the power of enemy military forces “are entitled … to respect for … their religious convictions and practices”.

75 Various provisions of the law of armed conflict lay down the obligation to respect the daily lives of people who are in the power of enemy military forces. Among them, Article 27(1) of GC IV requires the military forces in whose power enemy civilian populations are held to respect their “manners and customs”. Article 43 of the 1907 Hague Regulations further requires that the “laws in force” in a militarily occupied country also be respected, and Article 46(1) states that “family honour and rights [and] the lives of persons” shall be respected.

76 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, paras 108, 112.

77 The binding norms protecting intangible cultural heritage, along with various rights related to the cultural identity of indigenous peoples, appear in the 2003 Convention and in ILO Convention No. 169. As for WIPO, deliberations are now taking place within that body on the possible adoption of regulations concerning traditional knowledge, traditional cultural expressions and genetic resources.

78 The applicability of such norms in the event of armed conflict is extensively analyzed and demonstrated in the author's research work. See Christiane Johannot-Gradis, Le patrimoine culturel matériel et immatériel: Quelle protection en cas de conflit armé?, Schulthess, Geneva, 2013, pp. 149–184.

79 During its 10th session (10–11 December 2015), the Committee for the Protection of Cultural Property in the Event of Armed Conflict adopted Decision 10.COM 4 para. 6, whereby the Committee expressly invites its Bureau to develop synergies with the 2003 Convention, parallel to those with the 1970 and 1972 Conventions.

80 See UNESCO Committee for the Protection of Cultural Property in the Event of Armed Conflict, “Development of Synergies with Other Relevant UNESCO Normative Instruments and Programmes and Strengthening Partnerships”, Doc. CLT-14/9.COM/CONF.203/7, 18–19 December 2014.

81 The Committee for the Safeguarding of Intangible Cultural Heritage, at its 10th session (Windhoek, 30 November–4 December 2015), emphasized the necessity of promoting the application of the 2003 Convention “including in situations of armed conflict”: Decision 10 COM/15a, Annex para. 5.