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Commentary - Protection of cultural objects and of places of worship
    [p.639] Article 53 -- Protection of cultural objects and of places of worship

    [p.640] General remarks

    2039 In the draft the ICRC did not include a provision relating to the protection of cultural objects as this had been provided for by an international instrument especially designed for this purpose already in 1954, i.e., the Hague Convention concluded under the auspices of UNESCO. (1)

    2040 However, the Diplomatic Conference considered that the Protocol should contain a provision of this type thereby revealing its concern for the cultural heritage of humanity. In this respect the fact that the 1954 Convention had by no means entered into force worldwide was taken into consideration. (2) In any case the article is short, limited to the essential points, prohibiting the making of cultural objects into military objectives, as well as prohibiting their destruction.

    2041 Thus during the second session a proposal was submitted as an amendment (3) to Committee III. It formed the basis of this article.

    2042 Although all the delegations quickly agreed to the protection of historic monuments and works of art, the question of places of worship led to lengthy discussions. Some considered that all places of worship should be protected without exception, while others considered that this should apply only to some important places of worship which constitute the "heritage of peoples".

    2043 Committee III adopted a first draft (4) which opted for the second solution, i.e., that only some important places of worship were covered. In the light of discussion on the same subject when Article 16 of Protocol II ' (Protection of cultural objects and of places of worship) ' (5) was examined, Committee III returned to this matter and adopted a second version of the article (6) in which any reference to places of worship had disappeared. (7) In fact places of worship had been mentioned without restriction in Article 52 ' (General protection of civilian objects), ' paragraph 3, as one of several examples of objects normally used for civilian purposes -- and they must therefore be presumed to have a civilian character and enjoy the general protection to which such objects are entitled. In addition, places of worship which fall under historic monuments or works of art covered by Article 53 would benefit from the protection accorded under this article.

    2044 In the plenary meetings the Conference considered that it was useful to reintroduce the reference to places of worship, specifying that the provision only [p.641] applies to those which constitute the "spiritual heritage of peoples". (8) The article was finally adopted by consensus. (9)

    2045 The first few words of the article specify that it is not aimed at replacing the relevant existing international instruments. The second part lays down three prohibitions which constitute special protection for the protected objects.

    First part -- Reference to other international instruments

    2046 The protection laid down in this article is accorded "without prejudice" (10) to the provisions of other relevant international instruments. From the beginning of the discussions regarding Article 53 it was agreed that there was no need to revise the existing rules on the subject, but that the protection and respect for cultural objects should be confirmed. It was therefore necessary to state at the beginning of the article that it did not modify the relevant existing instruments. For example, this means that in case of a contradiction between this article and a rule of the 1954 Convention the latter is applicable, though of course only insofar as the Parties concerned are bound by that Convention. If one of the Parties is not bound by the Convention, Article 53 applies. Moreover, Article 53 applies even if all the Parties concerned are bound by another international instrument insofar as it supplements the rules of that instrument.

    2047 The Diplomatic Conference adopted Resolution 20, which stresses the fundamental importance of the Hague Convention of 1954, and states that the adoption of Article 53 will not detract from the application of that Convention in any way; moreover, it urges States which have not yet done so to become Parties to it.

    ' The Hague Convention of 1954 '

    2048 The Convention is accompanied by Regulations for its execution, which form an integral part of it, as well as a Protocol (11) aimed primarily at preventing the export of cultural objects from occupied territory.

    2049 The Convention contains first of all a definition of cultural property; this covers basically movable or immovable property of great importance to the cultural heritage of peoples.

    [p.642] 2050 The complete definition given in Article 1 of the Convention reads as follows:

    ' "Definition of cultural property '
    For the purposes of the present Convention, the term "cultural property" shall cover, irrespective of origin or ownership:
    (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular, archeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;
    (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositaries of archives, and refuges intended to shelter, in the event of an armed conflict, the movable cultural property defined in sub-paragraph (a);
    (c) centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as "centres containing monuments"."

    2051 Protection is accorded automatically to all objects which fall under the definition. It comprises two aspects: safeguarding and respect for such property. The Convention does not specify the form which such ' safeguarding ' should take; it simply imposes an obligation upon the Contracting Parties to take "such measures as they consider appropriate" in time of peace (Article 3).

    2052 Article 4 , relating to ' respect ' is more detailed:

    "' Respect for cultural property '
    1. The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the 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.
    2. The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where the military necessity imperatively requires such a waiver.
    3. The High Contracting Parties further undertake to 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. They shall refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party.
    4. They shall refrain from any act directed by way of reprisals against cultural property.
    5. No High Contracting Party may evade the obligations incumbent upon it under the present Article, in respect of another High Contracting Party, by reason of the fact that the latter has not applied the measures of safeguard referred to in Article 3 ."

    [p.643] 2053 The Convention also provides for a system of ' special protection ' (12) (Articles 8 -11; Regulations for Execution, Articles 11 -17). Places falling under such protection include refuges intended to shelter movable cultural property in the case of armed conflict, centres containing monuments and other immovable cultural property of very great importance, provided that:

    -- they are situated at an adequate distance from any important military objective;
    -- they are not used for military purposes; and
    -- they are entered (13) in the "International Register of Cultural Property under Special Protection" held by the Director-General of UNESCO.

    2054 Property under special protection granted immunity by the Convention must be marked with a special emblem (14) and be subject to international control.

    2055 The Convention also contains important provisions on the transport of cultural property and the personnel assigned to the protection of cultural property.

    ' Other instruments '

    1. ' The Hague Conventions of 1907 '

    2056 Two Hague Conventions of 1907 contain provisions relating to cultural property, viz., Convention IV, particularly its Regulations Concerning the Laws and Customs of War on Land, (15) and Convention IX, Respecting Bombardment by Naval forces in Time of War. (16)

    2057 Article 27 of the Regulations annexed to Convention IV reads as follows:

    "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.
    It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand."

    2058 Article 5 of Convention IX contains a similar provision, but gives a description of the sign to be used:

    "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.
    It is the duty of the inhabitants to indicate such monuments, edifices, or places by visible signs, which shall consist of large, stiff rectangular panels divided diagonally into two coloured triangular portions, the upper portion black, the lower portion white." (17)

    2059 Article 56 of the Regulations annexed to Convention IV, which applies in the case of occupation, provides that:

    "The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, shall be treated as private property. (18)
    All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science is forbidden, and should be made the subject of legal proceedings."

    [p.645] 2060 Even for States Parties to the Hague Convention of 1954 these provisions remain applicable to cultural property not covered by the more recent Convention, i.e., to property referred to in Articles 27 of the Regulations and 5 of Convention IX, which is not of "great importance for the cultural heritage of peoples", and to buildings dedicated to charitable purposes and education, as well as property of municipalities. In the context of the Protocol such property is protected by virtue of its civilian character (Article 52 -- ' General protection of civilian objects ').

    2. ' The Roerich Pact '

    2061 Another relevant instrument, with a limited geographical scope, since it was concluded under the auspices of a regional organization, is the Treaty for the Protection, in Time of War and Peace, of Historic Monuments, Museums and Institutions of Arts and Science (Roerich Pact), signed in Washington on 15 April 1935 by the members of the Pan-American Union, which later became the Organization of American States. (19) The main provisions of this treaty are contained in Articles 1 and 5 :

    "Article 1.
    The historic monuments, museums, scientific, artistic, educational and cultural institutions shall be considered as neutral and as such respected and protected by belligerents.
    The same respect and protection shall be due to the personnel of the institutions mentioned above.
    The same respect and protection shall be accorded to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well as in war."

    "Article 5.
    The monuments and institutions mentioned in Article 1 shall cease to enjoy the privileges recognized in the present Treaty in case they are made use of for military purposes."

    3. ' Two UNESCO Conventions of 1970 and 1972 '

    2062 Two international conventions adopted by the General Conference of UNESCO deserve a special mention: the Convention on the Means of Prohibiting [p.646] and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted in 1970, (20) and the Convention of 16 November 1972 Concerning the Protection of the World Cultural and Natural Heritage. (21)

    Second part -- Definition of protected objects; three prohibitions

    ' Definition of protected objects '

    2063 The special protection conferred by Article 53 applies to three categories of objects: historic monuments, works of art, and places of worship, provided they constitute the cultural or spiritual heritage of peoples. (22) The initial draft referred to the heritage of a country, but it was considered preferable to use the term heritage "of peoples" as problems of tolerance could arise with regard to religions which do not belong to the country in question, and with respect to places where worship takes place.

    2064 Article 1 of the Hague Convention of 1954 refers to property which is "of great importance to the cultural heritage" and not, as in the present Article 53 , to objects which "constitute the cultural or spiritual heritage". Despite this difference in terminology, the basic idea is the same. (23) However, the reference to places of worship and to the spiritual heritage clarifies the qualification of protected objects by introducing the criterion of spirituality. It was stated that the cultural or spiritual heritage covers objects whose value transcends geographical boundaries, and which are unique in character and are intimately associated with the history and culture of a people. (24)

    2065 In general the adjective "cultural" applies to historic monuments and works of art, while the adjective "spiritual" applies to places of worship. However, this should not stop a temple from being attributed with a cultural value, or a historic monument or work of art from having a spiritual value. The discussions in the Diplomatic Conference confirmed this. However, whatever the case may be, the expression remains rather subjective. In case of doubt, reference should be made in the first place to the value or veneration ascribed to the object by the people whose heritage it is.

    2066 Thus all objects of sufficient artistic or religious importance to constitute the heritage of peoples are protected, (25) including those which have been renovated or restored. (26)

    [p.647] 2067 The Conference rejected the idea which was put forward by some delegations of including any and all places of worship, as such buildings are extremely numerous and often have only a local renown of sanctity which does not extend to the whole nation. Thus the places referred to are those which have a quality of sanctity independently of their cultural value and express the conscience of the people. Article 53 lays down a ' special ' protection which prohibits the objects concerned from being made into military objectives and prohibits their destruction. This protection is additional to the immunity attached to civilian objects; all places of worship, regardless of their importance, enjoy the protection afforded by Article 52 ' (General protection of civilian objects). '

    2068 Historic monuments and works of art must be considered as generic terms: in case of doubt, reference should be made to the detailed definition given in the 1954 Hague Convention.

    ' Sub-paragraph (a) '

    2069 It is prohibited to commit any acts of hostility directed against the protected objects.

    2070 The 1954 Hague Convention contains a similar provision: "by refraining from any act of hostility directed against such property" (Article 4 , paragraph 1). The Roerich Pact simply provides that the objects shall be "respected and protected by belligerents" (Article 1 ). An act of hostility must be understood as any act arising from the conflict which has or can have a substantial detrimental effect on the protected objects. (27) In fact the article prohibits not only substantial detrimental effect, but all acts ' directed ' against the protected objects. For a violation of the article to take place it is therefore not necessary for there to be any damage.

    2071 The obligation here is stricter than that in the Hague Regulations of 1907. According to Article 53 of the Protocol: "it is prohibited to commit", while Article 27 of the Hague Regulations requires: "to spare, as far as possible".

    2072 The obligation is also stricter than that imposed by the 1954 Hague Convention, since it does not provide for any derogation, even "where military necessity imperatively requires such a waiver". (28) As long as the object concerned is not made into a military objective by those in control -- and that is not allowed -- no attack is permitted.

    2073 As there are no exceptions, the obligation must be considered to apply to all objects concerned, regardless of the territory where they are situated.

    [p.648] 2074 It should be noted that attacks against historic monuments, works of art or places of worship may constitute a grave breach. (29)

    ' Sub-paragraph (b) '

    2075 It is prohibited to use protected objects in support of the military effort.

    2076 The 1954 Hague Convention contains a similar rule, which seeks to prohibit any use of protected objects which could put them in danger of becoming military objectives: it prohibits "any use of the 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" (Article 4 , paragraph 1).

    2077 This prohibition forms the essential counterpart for the respect due under sub-paragraph (a): the use of such objects "in support of the military effort" would in fact be clearly incompatible with the obligation for the adversary to respect them.

    2078 The "military effort" is a very broad concept, encompassing all military activities connected with the conduct of a war. It is prohibited to benefit from protected objects (passive support), as well as to use them (active support), for example, by including them in a defence position.

    2079 If protected objects were used in support of the military effort, this would obviously constitute a violation of Article 53 of the Protocol, though it would not necessarily justify attacking them. To the extent that it is admitted that the right to do so does exist with regard to objects of exceptional value, such a right would depend on their being a military objective, or not, as defined in Article 52 ' (General protection of civilian objects), ' paragraph 2. A military objective is an object which makes "an effective contribution to military action" for the adversary, and whose total or partial destruction, capture or neutralization "in the circumstances ruling at the time, offers a definite military advantage" for the attacker. (30) These conditions are therefore stricter than the simple condition that they must be "in support of the military effort". For example, it is not permitted to destroy a cultural object whose use does not make any contribution to military action, nor a cultural object which has temporarily served as a refuge for combatants, but is no longer used as such. In addition, all preventive measures should be taken to terminate their use in support of the military effort (warnings, injunctions etc.) in order to prevent the destruction or damage of cultural objects. However, if it is decided to attack anyway, the principle of proportionality should be respected, which means that the damage should not be excessive in relation to the concrete and direct military advantage anticipated, and all the precautions required by Article 57 ' (Precautions in attack) ' should be taken.

    ' Sub-paragraph (c) '

    2080 It is prohibited to make protected objects the object of reprisals. (31)

    2081 This reiterates a prohibition which applies to all civilian objects (see Article 52 -- ' General protection of civilian objects, ' paragraph 1).

    2082 As in the 1954 Hague Convention there can be no derogation from this prohibition.

    ' C. F. W. '

    NOTES$ (1) [(1) p.640] Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954;

    (2) [(2) p.640] At 31 December 1984, 72 States were Party to the 1954 Convention, cf. infra, p. 1549;

    (3) [(3) p.640] O.R. III, p. 213, CDDH/III/17;

    (4) [(4) p.640] O.R. XV, p. 307, CDDH/215/Rev.1, Annex;

    (5) [(5) p.640] Ibid., pp. 394-395, CDDH/236/Rev.1, paras. 60-63;

    (6) [(6) p.640] Ibid., p. 485, CDDH/407/Rev.1, Annex;

    (7) [(7) p.640] Ibid., p. 456, CDDH/407/Rev.1, para. 30;

    (8) [(8) p.641] O.R. VI, pp. 170-173, CDDH/SR.41, para. 157-181;

    (9) [(9) p.641] Ibid., pp. 205-206, CDDH/SR.42, paras. 1-11;

    (10) [(10) p.641] In the French text of Article 16 of Protocol II the term "sans préjudice" is replaced by the term "sous réserve", though there is no difference in meaning; see Actes VII, p. 145, CDDH/SR.53. para. 12. The English version of the text uses the same terms in both articles: "without prejudice";

    (11) [(11) p.641] At 31 December 1984, 72 States were Parties to the Convention and 60 to the Protocol, Parts I and II;

    (12) [(12) p.643] Art. 9:
    "' Immunity of cultural property under special protection '
    The High Contracting Parties undertake to ensure the immunity of cultural property under special protection by refraining, from the time of entry in the International Register, from any act of hostility directed against such property and, except for the cases provided for in paragraph 5 of Article 8, from any use of such property or its surroundings for military purposes."
    Art. 11:
    "' Withdrawal of immunity '
    1. If one of the High Contracting Parties commits, in respect of any item of cultural property under special protection, a violation of the obligations under Article 9, the opposing Party shall, so long as this violation persists, be released from the obligation to ensure the immunity of the property concerned. Nevertheless, whenever possible, the latter Party shall first request the cessation of such violation within a reasonable time.
    2. Apart from the case provided for in paragraph 1 of the present Article, immunity shall be withdrawn from cultural property under special protection only in exceptional cases of unavoidable military necessity, and only for such time as that necessity continues. Such necessity can be established only by the officer commanding a force the equivalent of a division in size or larger. Whenever circumstances permit, the opposing Party shall be notified, a reasonable time in advance, of the decision to withdraw immunity.
    3. The Party withdrawing immunity shall, as soon as possible, so inform the Commissioner-General for cultural property provided for in the Regulations for the execution of the Convention, in writing, stating the reasons.";

    (13) [(13) p.643] Article 11 of the Regulations provides an exception for "improvised refuges" set up in the course of a conflict; such refuges may benefit from special protection before they are entered in the Register;

    (14) [(14) p.643] "The distinctive emblem of the Convention shall take the form of a shield, pointed below, per saltire blue and white (a shield consisting of a royal-blue square, one of the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either side being taken up by a white triangle" (Convention, Art. 16, para. 1). Property under special protection must display this emblem repeated three times; other property may only display the emblem alone (ibid., Art. 17);

    (15) [(15) p.644] ' International Red Cross Handbook, ' 12th ed., Geneva, 1983, pp. 322-332;

    (16) [(16) p.644] Ibid. pp. 336-337;

    (17) [(17) p.644] Article 36 of the 1954 Hague Convention provides that the new emblem provided replaces that of Hague Convention IX of 1907;

    (18) [(18) p.644] This is a reference to Article 46: the principle of respect for private property; Article 47: pillage forbidden; and Articles 52 and 53: restrictions on requisitions in kind and seizure;

    (19) [(19) p.645] This treaty was drawn up at the suggestion of Professor Nicolas Roerich of New York and was discussed by the International Office of Museums of the League of Nations. Private conferences took place in Bruges in 1931 and 1932, and in Washington in 1933, recommending governments to adopt it. In 1933 the 7th Conference of American States recommended its signature, which took place in 1935. Article 36, paragraph 2, of the 1954 Hague Convention supplements the Roerich Pact and substitutes its distinctive emblem (red circle with a triple red sphere in the circle on a white background) by the new emblem. On 31 December 1984, 11 States were Parties to the Pact;

    (20) [(20) p.646] At 31 December 1984, 53 States were Parties to this Convention;

    (21) [(21) p.646] At 31 December 1984, 53 States were Parties to this Convention;

    (22) [(22) p.646] The concept of a people should be understood here in a cultural sense and not in the legal sense used in Article 1, para. 4, of the Protocol;

    (23) [(23) p.646] During the CDDH there was no question of creating a new category of cultural objects;

    (24) [(24) p.646] O.R. XV, p. 220, CDDH/III/SR.59, para. 68;

    (25) [(25) p.646] The text of the article is clear. The absence of a comma before the words "which constitute the [...] heritage" clearly shows that only objects complying with this condition are covered. If there were a comma, the clause introduced by the relative pronoun would be a statement or a commentary, which is unusual in an international convention;

    (26) [(26) p.646] O.R. XV, pp. 277-278, CDDH/215/Rev.1, paras. 68-70;

    (27) [(27) p.647] An act of hostility includes in particular the destruction of any specially protected object by any Party to the conflict, either by way of attack or by demolition of objects "under its control" (cf. M. Bothe, K.J. Partsch, W.A. Solf, op. cit., p. 334, para. 2.5.2);

    (28) [(28) p.647] When the Parties to the Protocol are also Parties to the Hague Convention of 1954, these derogations continue to apply, though it is understood that an attack may never be launched against an objective which is not a military objective in the sense of the Protocol. If one of them is a Party to the Protocol and not to the 1954 Hague Convention, no derogation is possible. Also see infra, note 30;

    (29) [(29) p.648] See Art. 85, para. 4 (d), and the commentary thereon, infra, p. 1002;

    (30) [(30) p.648] The prohibition on attacking objects which are not military objectives, as well as the definition of the latter given in Article 52, para. 2, also apply when the Hague Convention of 1954 is applicable: thus the effect of Article 52 of Protocol I is to limit the possibilities of derogations allowed by the Hague Convention. This is an important development for the protection of cultural objects;

    (31) [(31) p.649] On the question of reprisals in general, see introduction to Part V, Section II, infra, p. 981;