What is the international law to preserving the cultural sites?

Question

After taking down the Iranian general Soleimani, Iranians vowed retaliation against USA. To which Trump tweeted that USA has targeted 52 locations of Iranian interests including the Cultural sites.

It is this lawyer that has tweeted it is wrong.

Answer 1

The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) requires signatories to try and avoid destruction of cultural heritage sites since they are all part of our shared cultural heritage.

The USA was involved in the creation of the convention in 1954, but didn't actually accede to the treaty until 2009: during the cold war it was feared that the treaty could impact the USA's ability to use nuclear weapons due to the possibility of damaging cultural sites.

Deliberately targeting Iranian cultural sites would be in violation of the convention that the US helped create, had ratified and acceded to, so it is reasonable to describe it at as illegal under international law that the US has agreed to be bound by. Presumably the US could always withdraw from the convention, but really international law isn't about enforceability anyway, but about what countries agree to regard as acceptable or unacceptable behaviour, so being in or out of the convention has little effect on that.

I've no idea whether the US acceeding to the convention would make the ordering of such an attack illegal under US law or not.

Answer 2

With regard to the convention:

It requires signatories to institute laws which forbid its military from damaging cultural properties including ensuring that its judicial system is equipped to enforce the regulations.

In the US Navy's case, it would require that JAG or Shore Patrol document and prosecute violations committed by US officers.

A civilian employee could do so, but would risk being prosecuted by a civilian US court (I think) or the ICC.

A military officer being ordered to attack a church or mosque, then does so would be a criminal and officers in the chain of command would also be, so smart generals and admirals will simply say no.

This would match the prohibition against:

• Destruction and appropriation of property
• Willfully causing great suffering

Which all are classified as war crimes in an international conflict and are seen as crimes which are subject matter in the ICC.

A number of countries in Europe are parties to the ICC and have laws which include civilian arrest of suspects (I believe the Netherlands is one.)

This is an excerpt from FM 6-27

PRACTICAL GUIDANCE FOR COMMANDERS AND SOLDIERS OR MARINES

8-6. All Soldiers and Marines must: (1) comply with LOAC in good faith; and (2) refuse to comply with clearly illegal orders to commit violations of LOAC

8-7. When appropriate, Soldiers and Marines should ask questions through appropriate channels and consult with the command legal adviser on issues relating to LOAC

8-9. Commands and orders should not be understood as implicitly authorizing violations of LOAC where other interpretations are reasonably available

Violations of the law of armed conflict

8-10. For purposes of this publication, a violation of LOAC is an act or omission that contravenes a rule of international law applicable to the conduct of hostilities or the protection of war victims. Depending on the context, violations of the law of neutrality, jus ad bellum, or occupation law may also be considered to be violations of LOAC. (chapter 8)

State Reponsibility

8-11. Each State Party to the 1949 Geneva Conventions is obligated “to respect and to ensure respect” for the Conventions “in all circumstances” (Common Article 1 of GWS, GWS Sea, GPW and GC). Although this provision does not reflect an obligation to ensure implementation of the conventions by other States or parties to a conflict, the United States, as a matter of policy, often seeks to promote adherence to LOAC by others (see DOD Law of War Manual, 18.1.2.1). Additionally, a State is responsible for ensuring that its armed forces and others acting on its behalf comply with LOAC (Hague IV art. 3; consider AP I art. 91). Compensation referred to in these references is a matter to be determined between States; compensation of individual victims is not an obligation of LOAC

The obligation to ensure LOAC compliance applies even if the enemy fails to comply with LOAC

Hague IV was ratified by Congress in November 1909 without any reservations.

WHO MAY BE HELD ACCOUNTABLE

8-27. Those personnel who commit a war crime may be held individually responsible. In addition to the individual, others may be held responsible, such as the commander, those who aided and abetted an offense, and those who conspired with them to commit the crime—and even those who conspire to commit a war crime that does not occur. Other theories of criminal responsibility under international law include joint criminal enterprise responsibility, command responsibility and responsibility for planning, instigating, or ordering the crime. Under the UCMJ, a person who aids, abets, counsels, commands, or procures the commission of an offense may be punishable

This also means that civilian persons in the administration is punishable.

This an excerpt from the DoD Law of War manual:

18.22 PRINCIPLES OF INDIVIDUAL CRIMINAL RESPONSIBILITY FOR CRIMES UNDER INTERNATIONAL LAW

Individual criminal responsibility exists for certain violations of the international law.

18.22.1 Individual Criminal Responsibility for Acts Constituting Crimes Under International Law. Any person who commits an act that constitutes a crime under international law is responsible therefor and liable to punishment. International law imposes duties and liabilities on individuals as well as States, and individuals may be punished for violations of international law.

18.22.2 Absence of Penalty Under Domestic Law Does Not Relieve a Person of Responsibility. The fact that internal law does not impose a penalty for an act that constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law

18.22.3 Official Position Does Not Relieve a Person of Responsibility. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him or her of responsibility under international law

5.18 PROTECTION OF CULTURAL PROPERTY DURING HOSTILITIES

Certain types of property receive additional protection as cultural property. Cultural property, the areas immediately surrounding it, and appliances in use for its protection should be safeguarded and respected

Some obligations with respect to cultural property apply during non-international armed conflict. There are also obligations with respect to cultural property during occupation and peacetime. Certain treaty obligations with respect to cultural property may only apply on the territory of Parties to the 1954 Hague Cultural Property Convention, but the United States has previously identified some of these obligations as customary international law. DoD personnel, therefore, in the absence of contrary guidance by competent authority, should act as if they were legally bound by the rules for the protection of cultural property in the 1954 Hague Cultural Property Convention during hostilities even when conducting operations in the territory of a State that is not a Party to the 1954 Hague Cultural Property Convention.

5.18.1 Definition of Cultural Property. For the purpose of the 1954 Hague Cultural Property Convention and this manual, cultural property includes, irrespective of origin or ownership:

movable or immovable property of great importance to the cultural heritage of every people;

buildings intended to shelter cultural property;

centers containing monuments.

1. This a bit complicated
2. I can't help the feeling that the President and the DoD intentionally isn't educating their service men (and the american public) of HOW far their personal responsibility goes - the Spectre attack on the MSF hospital in Kunduz is one example.

With regards to that, i think it would have been good if general John F. Campbell personally would have explained the laws with regards to protected civilian structures, personnel and rules of engagements.

Acronyms:

• DoD = United States Department of Defense
• FM = Field Manual, issued by Department of Army and Department of the Navy encompasses personnel in the US Army and Navy.
• JAG = Joint Attorney General, the legal arm of the US Navy provides legal assistance and defense to servicemen, prosecutes and provides legal assistance to commanders.
• ICC = International Criminal Court, enacted by the Rome statute (which the US hasn't signed, and because the US is a superpower US servicemen basically doesn't risks ending up there.)
• LOAC = Laws of Armed Combat
• GWS = The First Geneva Convention "for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field", which apply for the Army and Air Force.
• GWS Sea = The Second Geneva Convention "for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea"
• GPW = Geneva Convention Relative to the Treatment of Prisoners of War
• GC = (The Fourth) Geneva Convention Relative to the Protection of Civilian Persons in Time of War
• MSF = Médecins Sans Frontière
• UCMJ = Uniform Code of Military Justice

Answer 3

The other answers do a fine job to define when a cultural property should not be targeted.

However, there are conditions that allow for targeting those sites anyway if those sites are used for military purposes. Putting military assets near cultural sites does not protect those assets.

It's the obligation of all countries not to put military assets near cultural sites.

It is a common trait of all Geneva Conventions that protection does not apply if it is used to shield military targets.

The International Red Cross comments on the Second protocol: (emphasis mine)

1. Basic protection: The 1954 Convention was adopted well before the 1977 Protocols. It was drafted against the background of the Second World War at a time when it was still considered inevitable that entire cities would be attacked. In the midst of such a war, the 1954 Convention sought to protect valuable cultural property. It provides that cultural property can only be attacked in case of "imperative military necessity" without defining this exception. In 1977, Protocol I did away with this approach. Henceforth, only military objectives - more clearly defined and more carefully selected - should be made the object of attack. It appeared self-evident that any improvement of the 1954 Convention should reflect this modern approach: cultural property is civilian property and it should not be attacked unless when it becomes a military objective. In addition, cultural property can only be attacked when there is no other feasible alternative. The updating of the 1954 Convention in light of Protocol I also led to the inclusion of rules concerning precautions in attack that are found in Protocol I.

The full text of the "1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict" can be found here. Similar for Second protocol. All emphasis in the quotes below are mine.

Article 4. Respect for cultural property

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.

[..]

Similar for temporary stashes of artifacts:

Article 8. Granting of special protection

1. There may be placed under special protection a limited number of refuges intended to shelter movable cultural property in the event of armed conflict, of centers containing monuments and other immovable cultural property of very great importance, provided that they:

[..]

(b) are not used for military purposes.

And in general:

Article 11. Withdrawal of immunity

[..]

2. Apart from the case provided for in paragraph 1 of the present Article, immunity shall be withdrawn from cultural property under special protection only in exceptional cases of unavoidable military necessity, and only for such time as that necessity continues. Such necessity can be established only by the officer commanding a force the equivalent of a division in size or larger. Whenever circumstances permit, the opposing Party shall be notified, a reasonable time in advance, of the decision to withdraw immunity.

To avoid endless discussions about "unavoidable military necessity", the Second Protocol tries to clarify things:

Article 6 Respect for cultural property

With the goal of ensuring respect for cultural property in accordance with Article 4 of the Convention:

a. a waiver on the basis of imperative military necessity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to direct an act of hostility against cultural property 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;

[..]

Which will likely result in endless discussions about "no feasible alternative."