Would attacking sites “important” to “Iranian culture” be a “war crime”? (Not always)

Recently, Representatives Alexandria Ocasio-Cortez and Ilhan Omar accused President Trump of “threatening to commit ‘war crimes’ against Iran.”  Actually, although international law does provide special protection to certain cultural sites, attacking them (or threatening to do so) is not always a war crime as the legislators seem to think, and here’s why.

The context

In the aftermath of the drone strike that killed Maj. Gen. Qassim Suleiman, Iran’s United Nations Ambassador, Majid Takht Ravanchi “vowed that it would be met with ‘revenge, a harsh revenge’.”  In response, Trump tweeted “Let this serve as a WARNING that if Iran strikes any Americans, or American assets, we have…..

The reference to sites “important” to “Iranian culture” seems have led to Ocasio-Cortez’s and Omar’s accusations.  Is targeting a site that is “at a very high level & important to Iran & the Iranian culture” necessarily a war crime?  No.  Indeed, Secretary of State, Mike Pompeo did not contradict the President, but insisted that in the event it becomes necessary to use force against Iran, “[e]very target that we strike will be a lawful target, and it will be a target designed with a singular mission — defending and protecting America.”  Let’s unpack why it is possible that a target “at a very high level & important to Iran & the Iranian culture” might lawfully be struck.

What special protections does international law provide cultural property?

There are a variety of treaties and agreements that speak to the protection of cultural sites in wartime, but the most important is the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (CCP).  (The U.S. is a party to the CCP).

The International Committee for the Red Cross (ICRC) fact sheet provides a good summary of the protections of the CCP provides, and an extract is below (emphasis added):

Protection: Parties to the Convention must safeguard their own cultural property against foreseeable effects of armed conflict (CCP, Art. 3).

States Parties must also respect all cultural property by:

1. 1. not using cultural property for any purpose likely to expose it to destruction or damage in the event of armed conflict;

1. 2. not directing any act of hostility against cultural property;

1. 3. prohibiting, preventing and, if necessary, putting a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property; and,

1. 4. refraining from requisitioning movable cultural property situated in the territory of another State Party (CCP, Art. 4).

In addition to the CCP, the ICRC contends that customary international law (CIL) – which applies to all nations whether parties to a particular treaty or not – protects cultural property.  It describes that protection in Rule 38 of its CIL compendium:

1. 1. 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.

1. 1. Property of great importance to the cultural heritage of every people must not be the object of attack unless imperatively required by military necessity. (Emphasis added).

Lawful targets in general

Don’t forget that in order for anything – “cultural” or not – to even be considered for targeting, it must be a lawful military objective.  The ICRC says that:

[M]ilitary objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

Obviously, a particular site could constitute a military objective and also be important to a nation’s culture.  For example, in an international armed conflict an enemy could lawfully consider the Pentagon to be a military objective even though the Secretary of Defense’s Historical Office (HO) says it is one of three buildings in Washington that have “come to be regarded as national monuments and have become part of national and international history.”  The HO adds that the Pentagon is a “symbol to the nation and the world since its beginning, the Pentagon above all is a metaphor of American power and influence….”   Would that make it a protected “cultural” site?  Not in my book.

What qualifies as a “cultural” property under the CCP?

Here’s the text of the CCP:

Article 1. For the purposes of the present Convention, the term “cultural property” shall cover, irrespective of origin or ownership:

(a)       movable or immovable property of great importance to the cultural heritage of every people, such as 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; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;

(b)       buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a);

(c)       centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as “centres containing monuments”.

As the ICRC points out:

The criterion is that this property should have a certain value.  Not every church or every monument would be protected as cultural property, although they would be protected under IHL [International Humanitarian Law or the law of war] as civilian objects.  It’s true, though, that in many cases, assessing the value in order to determine if something can be regarded as cultural property is a difficult and sometimes even controversial process. (Emphasis added).

The U.S. Department of Defense (DoD) Law of War (LoW) Manual (issued by the Obama Administration but retained without change by the Trump administration) discusses in ¶ 5.18 et seq. the international law related to cultural property and notes that the CCP is somewhat narrower than other instruments, but says:

Property must be “of great importance to the cultural heritage of every people” to qualify as cultural property. Ordinary property (such as churches or works of art) that are not of great importance to the cultural heritage of every people would not qualify as cultural property, although such property may benefit from other protections, such as those afforded civilian objects or enemy property.

The question of whether cultural property is “of great importance to the cultural heritage of every people” may involve delicate and somewhat subjective judgments.  Items that can easily be replaced would not qualify as being of great importance.  On the other hand, irreplaceable items may be of great cultural importance, even if they have little monetary value. (Emphasis added; citations omitted).

Importantly, the DoD LoW Manual also points out in ¶ 5.18.1.3 that “[n]atural sites of great beauty are not included within the definition of cultural property.” 

When can the protections for qualifying cultural property be waived?

The ICRC fact sheet about the CCP provides the summary of its waiver provisions as follows:

The obligation to respect all cultural property, described above, may be waived on the basis of imperative military necessity (CCP, Art. 4). This waiver may be invoked:

1. 1. to use cultural property for purposes likely to endanger it, only if there is no feasible alternative available to obtain a similar military advantage (P2, Art. 6);

1. 2. to attack cultural property, only when that property has, by its function, been made into a military objective and there is no feasible alternative available to obtain a similar military advantage. Effective advance warning must be given, circumstances permitting (P2, Art. 6).

The DoD LoW Manual (¶ 5.18.3) elaborates on “[u]ses that would be likely to expose cultural property to destruction or damage” as including:

• • using the cultural property for military purposes;

• • placing military objectives near cultural property; or

• • using the cultural property in such a way that an adversary would likely regard it as a military objective. For example, such uses would include billeting military personnel in buildings that constitute cultural property, or emplacing artillery, mortars, or anti-air systems on the grounds of cultural property.

In addition, it is prohibited to use deliberately the threat of potential harm to cultural property to shield military objectives from attack, or otherwise to shield, favor, or impede military operations. There is no waiver of this obligation in cases of imperative military necessity. (Emphasis added; citations omitted) 

Thus, if Iran decided, for example, to use all or part of the Golestan Palace complex as a military headquarters in the hopes that its cultural character would shield the headquarters from attack, any portion being used for military purposes could lose its status as a protected cultural site and become a military objective subject to being targeted.

If Iran does attack, can the U.S. strike back and, if so, what are the rules?   

Likely, yes – and there are rules limiting acts in self-defense.  As I noted here, Article 51 of the UN Charter permits the U.S. to use of force to defend against ongoing attacks, or attacks that are reasonably determined to be imminent.  Of course, lawfulness depends upon the facts as they are known at the time. 

If the U.S. again acts in self-defense, its response must be necessary and proportional relative to the attack (or threat posed).  However, that does not necessarily limit the U.S. to a “tit for tat” response “in kind.”

It has long been the U.S. position that the scope of a defensive response could lawfully extend beyond merely halting an ongoing attack.  It may also be designed to “prevent and deter further attacks.” Whether such a response could extend to “52” targets is fact-dependent on the nature of the threat.  It would not, however, be lawful to conduct an operation for any other purposes than the limited ones of stopping an ongoing attack, or preventing or deterring further ones.

In addition, before any attack – to include a limited defensive one – all feasible measures need to be taken to avoid civilian losses.  The losses to be avoided would include civilian property not being used for military purposes, even if it does not meet the definition of “cultural” property.  Specifically, as the ICRC puts it:

Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited. (Emphasis added).

In other words, incidental damage or loss of civilian property not being used for military purposes  – to include cultural property – is tolerated under international law if proper precautions have been taken to limit such damage or loss, and it isn’t “excessive” in relation to the military advantage sought.  Additionally, we should note that the DoD LoW Manual (¶5.12.2.1) has a somewhat different take on the law than what might be suggested by this ICRC view.  DoD says (and I agree) that the “military advantage” is not assessed on the basis of an individual attack.  Rather, it says that the “military advantage expected from an attack is intended to refer to the advantage gained from the attack considered as a whole, rather than only from isolated or particular parts of an attack. 

Finally, is Iran even entitled to attack the U.S. because of the Soleimani operation? 

No.  As I explained in this post, international law does not entitle any country to use force simply for the purpose of “harsh revenge” as Ambassador Ravanchi insists Iran is planning to do.

Moreover, if Suleiman was, in fact, plotting terrorist attacks against Americans and their allies as U.S. officials claim, Iran would have no right to defend Suleiman or any other terrorist against force being used by the U.S. or any country in an otherwise lawful act of anticipatory self-defense.  It is something akin to the reasoning as to why criminals can’t lawfully shoot police who are trying to stop them from committing crime. 

In short, if Iran does not further threaten the U.S., there is no risk to its cultural sites from America.

Bottom Line:

The U.S. cannot target anything that does not qualify as a military objective and, in particular, it cannot target a site that meets the definition of “cultural property” simply because it is a cultural site. 

However, if the cultural property (or site) it is being used in a way that qualifies it as a military objective, it can be attacked although feasible alternatives need to be sought, and damage that’s excessive to the military advantage anticipated must be avoided.

Any defensive response must also be limited to scope of the threat.  Whether or not striking “52” targets would lawfully be within the ambit of self-defense depends upon the specific facts. 

That said, it is simply inaccurate to suggest that an attack on cultural property is inevitably a war crime because there are, in fact, circumstances that could render such property a lawfully-targetable military objective.  Cultural property could also lawfully suffer damage or even destruction incidental to an otherwise proper attack on another military objective.

Still, as we like to say on Lawfire^®, check the facts and the law, assess the arguments, and decide for yourself!