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Memorial MGU.doc
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B. Cultural heritage of outstanding universal value enjoys absolute protection

Customary international law charges States with an obligation to protect cultural heritage of peoples during armed conflicts without any exception, i.e.provides for the absolute protection for such property. Development of this customary rule is evident through treaty practice of States. This rule was fixed in its ultimate form in Art.53 of Protocol I and Art.16 Protocol II to the Geneva Conventions, currently ratified by the overwhelming majority of States.181States which are not parties to the said two instruments follow the rule established therein as well.182Judicial decisions and scholars uphold that absolute protection of the cultural heritage of mankind is a principle of customary nature.183

Aprophe is likely to argue that the standard of protection under customary international law is not absolute and that damage to cultural property is allowed when it is dictated by military necessity, basing its claim on Art.4 of the Hague Convention on Protection of Cultural Property in the Event of Armed Conflict.184However, that treaty provision does not reflect the state of customary law. During the diplomatic conference of 1954 States displayed clear disagreement about inclusion of the military necessity exception into the Hague Convention: a proposal to delete any reference to military necessity was rejected by 22 votes to 8 with 8 abstained and 8 being absent.185In the course of the adoption of the Second Protocol of 1999 to the Hague Convention sound resistance to the military necessity exception was again clearly declared.186Thus, the treaty rule in question is no more than a highly disputable diplomatic compromise and not a codification of custom.

Absolute protection of cultural heritage is further established in WHC, to which both Rantania and Aprophe are parties.187Art.4 of WHC imposes a duty to protect cultural property without providing for any possibility of derogation. Therefore, both customary international law and treaty law demanded that Aprophe grant absolute protection to the Mai-Tocao Temple. However, Aprophe blatantly disregarded this requirement.

C. Alternatively, even if the military necessity exception constitutes a part of the customary international law, Aprophe cannot invoke it in the case at hand

Even assuming that customary IHL permits to derogate from the obligation to protect cultural property where military necessity so requires, this rule cannot be invoked in the case at hand since it only applies to attacks as opposed to “all other acts of hostility against cultural property”, the latter being absolutely prohibited.188

Waiver in cases of military necessity in principle cannot apply to international destruction of cultural heritage already in the hands of the party to a conflict since the fundamental precondition for applicability of the waiver, namely, that the cultural property be a “military objective”189would never be fulfilled.190

The requirement that cultural property should “by its function, [be] made into a military objective” 191means that such property makes “an effective contribution to the military action” of the adverse party.192The Mai-Tocao Temple was never used to support the military activities of ENI forces. Quite the contrary, it was used by the Andler’s forces to shield itself from ENI attacks.193In such circumstances the waiver could not have been applied, and therefore Aprophe is responsible for the unlawful destruction of one of the building in the Mai-Tocao complex.

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