CUSTOMARY INTERNATIONAL LAW
Although there are a large number of international and customary laws protecting heritage in armed conflict
whether a state has complied during armed conflict with its…obligations in relation to cultural property is to be assessed by reference to the standards provided by the relevant rules of LOAC.
LOAC stands for the Laws of Armed Conflict. It covers the important concepts of
- Good faith;
- Humane treatment; and
These concepts must underpin any consideration of IHL and cultural property protection, and frame our understanding and interpretation of key laws.
The definition of a military objective is also found in customary law. A good summary can be found in the UNESCO Military Manual, paragraph 87:
A ‘military objective’ is defined by the law of armed conflict as ‘an object which by its nature, location, purpose or use makes 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’.
As the definition makes clear, the test is twofold. To constitute a military objective, cultural property must not only make an effective contribution to military action by means of one or more of its nature, location, purpose or use but, in addition, the destruction, capture or neutralization of that property must, at the time of the attack, promise a definite military advantage to the attacking party. The definition also emphasizes, through the words ‘effective’ and ‘definite’ respectively, that the contribution made to military action by the cultural property and the military advantage offered by its targeting must both be concrete, not just theoretical or speculative. The reference too is to military ‘action’, meaning actual combat, rather than to the broader notion of the military ‘effort’. In other words, the cultural property must, by its nature, location, purpose or use, contribute to the fighting. It is crucial to stress as well that whether the destruction, capture or neutralization of the cultural property offers a definite military advantage to the attacker may change and that the question must be answered by strict reference to the circumstances ruling at the time of the attack.
The International Committee of the Red Cross (ICRC) identified 161 customary rules of IHL, divided into 6 Chapters, that are binding on all parties in all armed conflicts, including non-State actors in internal conflicts. These rules (and the State practice behind them) are available in the ICRC online database. Chapter 1 covers the 24 rules of the Principles of Distinction. It is against these standards that military conduct should be assessed, and it is this framework that allows proper implementation of the 1954 Hague Convention. For example, the Convention acknowledges that in certain circumstances, it may be necessary to attack cultural property: it is this framework that should be used to interpret the military necessity of the action. The ICRC website contains a broader discussion of military necessity; leading CPP Lawyer Patty Gerstenblith has discussed the issue specifically in relation to cultural property, in her open access article “The Destruction Of Cultural Heritage: A Crime Against Property Or A Crime Against People?” (available on the website of the John Marshall Review Of Intellectual Property Law).
Visit the ICRC online database of the rules of customary international law and State practice on their website
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