CUSTOMARY INTERNATIONAL HUMANITARIAN LAW
Although they are the most widely known, the Geneva Conventions are not the only source of customary international humanitarian law (IHL). The International Committee of the Red Cross (ICRC) conducted a study into customary IHL which looked at state practice across the world. The report 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. The rules that relate to cultural heritage protection specifically are:
Rule 38. Attacks Against Cultural Property
Each party to the conflict must respect cultural property:
A. Special care must be taken in military operations to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments unless they are military objectives.
B. Property of great importance to the cultural heritage of every people must not be the object of attack unless imperatively required by military necessity.
Rule 39. Use of Cultural Property for Military Purposes
The use of property of great importance to the cultural heritage of every people for purposes which are likely to expose it to destruction or damage is prohibited, unless imperatively required by military necessity.
Rule 40. Respect for Cultural Property
Each party to the conflict must protect cultural property:
A. All seizure of or destruction or wilful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science is prohibited.
B. Any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, property of great importance to the cultural heritage of every people is prohibited.
Rule 41. Export and Return of Cultural Property in Occupied Territory
The occupying power must prevent the illicit export of cultural property from occupied territory and must return illicitly exported property to the competent authorities of the occupied territory.
Although they are less specific, a number of other customary rules include cultural heritage protection as a part of the rules governing the treatment of property in other States.
Rule 51. Public and Private Property in Occupied Territory
In occupied territory:
(a) movable public property that can be used for military operations may be confiscated;
(b) immovable public property must be administered according to the rule of usufruct; and
(c) private property must be respected and may not be confiscated;
except where destruction or seizure of such property is required by imperative military necessity.
Read the ICRC study on customary international humanitarian law: all language versions of the summary article and list of rules are available on their website.
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