Cultural Property Under the Law of Armed Conflict
The atrocities committed by Daesh (the self-proclaimed “Islamic State”) against the people of Iraq and Syria extend beyond murder, mutilation, and enslavement to the destruction of cultural property. It should surprise no one that such deliberate destruction of cultural property is prohibited by international law.
The Hague Regulations Respecting the Laws and Customs of War on Land (1907) prohibit ‘all seizure of, and destruction, or intentional damage done to’ institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science. This prohibition has long since passed into customary international law.
The destruction of cultural property was prosecuted as a war crime after World War II as well as after the conflict in the former Yugoslavia. More recently, the Rome Statute of the International Criminal Court reaffirmed that ‘[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, [or] historic monuments’ is a war crime ‘provided the[se buildings] are not military objectives.’ As far as I know, none of the cultural properties destroyed by Daesh were military objectives, that is, none of these properties had been put to military use by opposing forces and Daesh did not destroy any of them in order to to obtain any recognizable military advantage.
The facts leave little room for theory. Here, as elsewhere, Daesh is clearly violating international law and committing war crimes. Moreover, the law Daesh is violating is itself morally justified. Perhaps some philosopher could imagine a scenario in which an attack on cultural property would be morally permissible, even if that cultural property has not been put to military use. However, any corresponding legal permission would be systematically abused and rarely (if ever) conscientiously used.
Indeed, in some respects international law should offer stronger (not weaker) protection to cultural property than it does now. For example, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) rightly prohibits ‘any act of hostility directed against [cultural] property.’ However, this legal prohibition may be ‘waived . . . in cases where military necessity imperatively requires such a waiver.’
“Perhaps some philosopher could imagine a scenario in which an attack on cultural property would be morally permissible, even if that cultural property has not been put to military use. However, any corresponding legal permission would be systematically abused and rarely (if ever) conscientiously used.”
This exception, for cases of imperative military necessity, might seem appropriately narrow. However, according to the Second Protocol to the Hague Convention (1999), such imperative military necessity exists ‘when and for as long as: i. that cultural property has, by its function, been made into a military objective; and ii. there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective.’
In other words, it is lawful to attack cultural property whenever it has been put to military use and attacking it is necessary to obtain any military advantage, however small relative to the value of the cultural property attacked.
This legal regime seems far too weak to protect cultural property in armed conflict. Fortunately, the problem can be ameliorated through a fairly simple and independently desirable interpretation of international law.
Many military lawyers believe that any civilian object put to military use loses its protected legal status and becomes a military objective like any other (a tank, say). Since damage to a military objective cannot render an attack on that very same military objective unlawfully disproportionate, it seems to follow that damage to civilian property put to military use cannot render an attack on that very same property unlawfully disproportionate. For example, the Israeli Defense Forces apparently take the view that if a single apartment is used for a military purpose then the entire apartment building becomes a military objective. On this view, it is lawful to destroy the entire building even if the military advantage anticipated from its destruction pales in comparison to the value of the building to its civilian residents.
This prevailing view seems hard to accept. The value of civilian property does not disappear when that property is put to military use. In particular, cultural property does not belong to any party to a conflict but rather to the civilian population. It should follow that no party can deprive civilian property (including cultural property) of any aspect of its legal status by (lawfully or unlawfully) putting that property to military use.
Unsurprisingly, the prevailing view produces bizarre results. Suppose that one party to a conflict puts a cultural property (say an ancient church) to military use. On the prevailing view, the opposing party may directly attack the property even if such an attack is necessary to obtain only a slight military advantage, irrespective of the cultural value of the property.
“The value of civilian property does not disappear when that property is put to military use. In particular, cultural property does not belong to any party to a conflict but rather to the civilian population.”
Now suppose that there is a second cultural property near the first (say an equally ancient church) that has not been put to military use. On the prevailing view, the opposing party may not attack the first property if doing so will collaterally harm the second property, unless the expected military advantage from attacking the first property is sufficiently great to render collateral damage to the second property proportionate. Yet it seems irrational to ignore the cultural value of the first property while attending to the cultural value of the second property. After all, their respective cultural value is unaffected by the actions of either party.
Even more bizarre results follow if the first property has greater cultural value than the second. On those facts, the greater cultural value of the first property counts for nothing while the lesser cultural value of the second property might render an attack unlawful.
What we need, then, is an interpretation of international law according to which damage to civilian property (including cultural property) put to military use can render an attack on that very same property unlawfully disproportionate. Simply put, the proportionality principle must extend to civilian property put to military use. In particular, combatants must compare the cultural value of property put to military use with the military advantage of attacking that very same property.
Here, as elsewhere, we must apply the proportionality principle to both easy cases and hard cases. It is disproportionate to destroy an ancient church to eliminate a small cache of rifles. It is proportionate to destroy the same ancient church if absolutely necessary to destroy an adversary’s command and control center. Most cases will lie in between. Here, as elsewhere, the law of armed conflict aims not to make war just but rather to make war less unjust. In this context, an imperfect rule is better than no rule at all.
 John J. Merriam & Michael N. Schmitt, Israeli Targeting: A Legal Appraisal, Naval War College Review (forthcoming Fall 2015), manuscript at 10, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2596836.
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