In 1977, two additional Protocols were created to reflect advances in international law. These contained general provisions relating to the protection of civilian property (which includes cultural property), and specific clauses relating to cultural property.
THE GENEVA CONVENTIONS (1949) AND ADDITIONAL PROTOCOLS (1977)
There are a number of clauses in the Geneva Conventions (1949), and their Additional Protocols (1977) relating to cultural property protection.
Geneva Convention (IV) (1949) relative to the Protection of Civilian Persons in Time of War has a clause (Article 147) relating to excessive destruction of civilian property (cultural property is a form of civilian property), and grave breaches of law.
Article 147 – Penal Sanctions II. Grave Breaches:
Grave breaches … shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: … extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
The ICRC Commentary on Article 147 of the Convention adds, “To constitute a grave breach, such destruction and appropriation must be extensive: an isolated incident would not be enough.”
Damaged Church, Termonde, Belgium, 1914.
Several men, including a priest, inspect the damage as they stand amid rubble and debris in the damaged church at Termonde.
© Photo public domain, via Wikimedia Commons
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 is often referred to simply as Additional Protocol 1.
Article 48 – Basic Rule:
Parties to a conflict “shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”
Article 52 – General protection of civilian objects:
1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.
2. 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.
3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.
Article 53 – Protection of cultural objects and of places of worship:
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.
The general protection given to civilian objects in article 52 should not be confused with the protection granted to cultural property in under Article 4 of the 1954 Hague Convention, which also commonly referred to as general protection. However, the definition of cultural property in Article 53 is considered to be a shorthand for the definition of cultural property in article 1 of the 1954 Hague Convention.
A key difference between article 53, and article 4 of the Hague Convention is that article 53 has no waiver for military necessity. However, the Geneva Convention Additional Protocols exist “without prejudice” to the 1954 Convention and as of 2021, all signatories of the Hague Convention had also signed Additional Protocol I, and therefore remain bound by its provisions – including the waiver of military necessity.
In addition, article 52 does not fully define a military objective. This definition can today be found in the laws of armed conflict, and is part of customary law (and is repeated in Article 6 of the 1999 Second Protocol).
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, often called Additional Protocol II, also has a clause related directly to the protection of cultural objects and of places of worship (Article 16):
Article 16 – Protection of cultural objects and of places of worship:
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, it is prohibited to commit any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military effort.
Although they are widely regarded as customary international law and so applicable to all parties in a conflict, the Geneva Conventions themselves are applicable in international armed conflicts (IACs); however, once signed by a State Party, Additional Protocol II widens their applicability to non-international armed conflicts (NIACs).