Immovable cultural property consists of buildings, sites and monuments that cannot be moved without being dismembered or destroyed.
The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict defines cultural property to include “monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest.”
This definition encompasses historic structures, religious buildings (such as churches, mosques and synagogues), and archaeological sites. Nations are obligated to avoid inflicting intentional harm through attack on or targeting of cultural sites.
a. The 1954 Hague Convention
i. Article 4. Nations are to avoid jeopardizing cultural property by refraining from using such property in a way that might expose it to harm during hostilities. This means that nations should not locate strategic or military equipment near cultural property or use cultural property for a strategic or military purpose. A belligerent nation should not target, attack or direct any act of hostility against the cultural property of another nation. However, these obligations “may be waived only in cases where military necessity imperatively requires such a waiver.”
(a) Military necessity is determined by a commander at a battalion level or higher. A commander of a force smaller in size may make the determination when circumstances do not permit the decision to be made by a commander of a larger force.
(b) If cultural property that is on a “no-strike” list is to be intentionally targeted, the decision must be approved at the Combatant Commander level.
ii. Nations should refrain from directing any act of reprisal against cultural property.
iii. Immovable cultural property may be marked with the blue and white shield indicating a cultural structure, monument or repository. However, marking with the blue shield is not a requirement, and so lack of the mark does not, by itself, indicate that a site or structure is not cultural property.
b. War Crimes: Military leaders have been prosecuted under the earlier Hague Conventions and under customary international law for the targeting and destruction of cultural property when not justified by military necessity.
The most recent war crimes prosecutions for attacks carried out on cultural sites occurred as a result of the Balkan wars during the 1990s. The Serbian General Pavle Strugar was convicted by the International Criminal Tribunal for the former Yugoslavia for the destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science (among other war crimes) in connection with the shelling of the Old Town of Dubrovnik, a site listed on the World Heritage List. Strugar was sentenced to eight years in prison. Another commander, Miodrag Jokic, pled guilty to similar charges and was sentenced to seven years in prison. Trials of other commanders for attacks on cultural sites in the Balkans are ongoing.
National Historic Preservation Act, 16 U.S.C. §§470-470w-6 (NHPA): The NHPA applies to historic properties located overseas, 16 U.S.C. § 470a-2, as well as to those located within the United States. It applies to those historic properties that are listed on the World Heritage List and to those listed on the foreign nation’s equivalent of the U.S.’s National Register of Historic Sites.
The applicability of the NHPA to overseas historic properties was recently litigated in Okinawa Dugong (Dugon Dugon) v. Gates, 543 F. Supp. 2d 1082 (N.D. Cal. 2008). In any situation in which a construction project or other alteration of an historic site may occur, either as the result of a U.S. federal agency decision or with federal funding, then a consultation process must occur.
When considering undertaking such a project that will alter something that might be an historic property, it is necessary to seek additional legal advice first. Contacting appropriate host country cultural heritage officials and working with them to develop acceptable solutions is essential.
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