CUSTOMARY INTERNATIONAL LAW
AND THE LAWS OF ARMED CONFLICT

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.

UNESCO Protection of Cultural Property Military Manual, 2016, p.6.

front cover of the Protection of Cultural Property Military Manual.

LOAC stands for the Laws of Armed Conflict. It covers the important concepts of

  • Distinction;
  • Proportionality;
  • Necessity;
  • Limitation;
  • Good faith;
  • Humane treatment; and
  • Responsibility.

These concepts must underpin any consideration of IHL and cultural property protection, and frame our understanding and interpretation of key laws.

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).

graffiti left by Soviet soldiers covers the pillars inside the ruins of the German Reichstag building in Berlin. A British soldier is standing among the ruins and looking at those pillars.

On 3 July 1945, graffiti left by Soviet soldiers covers the pillars inside the ruins of the German Reichstag building in Berlin. A British soldier is standing among the ruins and looking at those pillars.
By Hewitt (Sergeant), No 5 Army Film & Photographic Unit.
Photograph BU 8582 from the collections of the Imperial War Museums, via Wikimedia Commons

Visit the ICRC online database of the rules of customary international law and State practice on their website

Return to the Blue Shield Overview of Customary Law, International Humanitarian Law, and the Laws Of Armed Conflict