With Few Exceptions, Cultural Sites Are Normally Off-Limits

January 7, 2020 Updated: January 7, 2020
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Commentary

As the conflict between the United States and Iran continues to escalate, so does the rhetoric between the two nations.

Iran has threatened to avenge the death of its top general, Qasem Soleimani, at the hands of the United States. In response, President Donald Trump threatened to attack sites “at a very high level & important to Iran & the Iranian culture.”

Specifically, Trump stated:

“Iran has been nothing but problems for many years. Let this serve as a WARNING that if Iran strikes any Americans, or American assets, we have targeted 52 Iranian sites … some at a very high level & important to Iran & the Iranian culture, and those targets, and Iran itself, WILL BE HIT VERY FAST AND VERY HARD. The USA wants no more threats!”

“They’re allowed to kill our people. They’re allowed to torture and maim our people. They’re allowed to use roadside bombs and blow up our people. And we’re not allowed to touch their cultural sites? It doesn’t work that way,” Trump told reporters, referring to Iran.

While the president’s strong stance is commendable, he should tread very carefully, as cultural sites are typically protected against military action.

According to Article 4, Section (1) and (2) of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 1954 (The Hague Convention):

1. The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility, directed against such property.

2. The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.

Based on these provisions, it appears that cultural sites (which are defined in the Hague Convention) are off-limits unless a cultural site has been turned into a military objective and attacking it is deemed to be militarily necessary and imperative. As such, attacking such sites for any other reason would likely fall outside of these allotted parameters.

The language in the Department of Defense Law of War Manual is also instructive. Specifically, Section 5.18.5 states:

“In general, acts of hostility may not be directed against cultural property, its immediate surroundings, or appliances in use for its protection. Acts of hostility may, however, be directed against cultural property, its immediate surroundings, or appliances in use for its protection, when military necessity imperatively requires such acts.”

Moreover, Section 5.18.5.1 states:

“5.18.5.1 Imperative Military Necessity Waiver. Acts of hostility may be directed against cultural property, its immediate surroundings, or appliances in use for its protection when military necessity imperatively requires such acts. The requirement that military necessity imperatively require such acts should not be confused with convenience or be used to cloak slackness or indifference to the preservation of cultural property. This waiver of obligations with respect to cultural property is analogous to the requirement that enemy property may only be seized if imperatively required by the necessities of war.”

For example, if cultural property is being used by an opposing force for military purposes, then military necessity generally would require its seizure or destruction.

Similarly, if an opposing force uses an area surrounding a cultural property to protect military objectives, then the attack of those military objectives may be imperatively required.

Even where the waiver of protection may be warranted for reasons of military necessity, the risk of harm to the cultural property must be considered in a proportionality analysis, and feasible precautions should be taken to reduce the risk of harm to the cultural property.

And, even where warranted as a matter of law, as a matter of policy, decision-makers may still seek to refrain from harming cultural property.

These various provisions tend to support the widely recognized and general law that cultural property is protected from attack. While the protection is not “absolute,” a party choosing to attack a cultural site will need to show that military necessity imperatively requires such an attack and that all reasonable precautions were taken to reduce the harm to the property, when possible.

Moreover, according to the UNESCO Military Manual relating to the Protection of Cultural Property, the general rule is that “parties to an armed conflict are prohibited from making cultural property the object of an attack unless the property constitutes at the time a military objective and there is no feasible alternative available for obtaining a similar military advantage.”

Much of this language is derived from the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999, which the United States has not signed and is not a party to.

Therefore, while this protocol is not binding on the United States, its language further emphasizes the importance of protecting cultural property in the absence of an applicable waiver and imposes further responsibilities on those who seek to attack cultural property, including the need to provide advance warning when circumstances permit.

In an ideal world, the United States and Iran would avoid any additional escalation or conflict. Since this is somewhat unlikely, the president should tread very carefully when it comes to how he approaches Iran’s cultural sites.

As is evident, these sites are generally protected and are to be left alone unless there is compelling evidence that Iran is using one or more of these sites improperly and that military necessity imperatively requires their seizure or destruction. Even then, reasonable precautions should be taken to protect the sites, when possible.

In the absence of such overwhelming evidence, it might be better to leave such sites alone.

Elad Hakim is a writer, commentator, and attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker, and other online publications.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.