CYIL vol. 11 (2020)

DALIBOR JÍLEK CYIL 11 (2020) dedicated to religion, art, science, or charitable purposes. During sieges and bombardments these immovable things must be spared by the hostile army. The besieged is under the duty to indicate the presence of such buildings by distinctive and visible signs. Second, the laws of war also contain the rules vis-à-vis property. The property of the institutions devoted to religion, charity and education, and arts and sciences has to be treated as private property despite the legal fact that the state or the public legal person as municipalities or districts is its proprietor. The said rule rejects a legal fiction formerly applied in the Lieber Instructions. In the event of war, those written rules ensure the cultural property only limited protection. The article provides some dissimilar results of the deontic analysis than presented by Jiří Toman. However, his substantial work has become the source of knowledge that wisely guides juristic interpretation of such rules. II. Duties in the Lieber Instructions A few provisions of the Lieber Instructions refer to the past. 1 But law is inherently prospective, it is linked with the future. Law as a normative system serves the society. Law should serve the benefit of individuals or groups of persons and public or private corporations. The law of war serves the belligerents, combatants, non-combatants, all its victims, as well as neutral states and their inhabitants. Its rules mould and shape certain conduct of all these persons and lead to the achievement of societal ends. Legal rules, usually their abstract descriptive part, sometimes mention facts that are retrospective in nature. Article 24 of the Lieber Instructions refers to the almost universal rule of remote times when harmless individual belonging to a hostile nation were forced to endure deprivation of liberty and protection. 2 The winner once had the right to kill the defeated. He could redeem his life from the winner at the cost of freedom. 3 His protection did not exist; it was only an exception sometimes and somewhere. 4 His things were not protected either. 5 In the ancient war individuals and things were treated the same way. According to the ancient ius in bello , sovereigns became, but even their subordinate soldiers could become the absolute proprietors of every movable thing that they forcibly took away from the enemy. After all, the Roman period of absolute nature of property rights did not last long. Absolute meant an exclusive dominion over things, a dominion that did not permit any external restriction; the dominion that was free from foreign intervention. Roman 1 Instructions for the Government of Armies of the United States in the Field (so called Lieber Code), 24 April 1863. SCHINDLER, D. and TOMAN, J. (eds.). The Laws of Armed Conflicts . A Collection of Conventions, Resolutions and Other Documents. Dordrecht: Martinus Nijhoff Publishers, Geneva: Henry Dunant Institute, 3 rd edition, 1988, pp. 3-23. 2 Article 24 states: “The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hostile country is destined to suffer every privation of liberty and protection, and every disruption of family ties. Protection was, and still is with uncivilized people, the exception.” 3 ROUSSEAU, J.-J. The Social Contract and Discourses by Jean-Jacques Rousseau . London and Toronto: J. M. Dent and Sons, 1923, p. 40. 4 Maccabees 8:1-29, Bible, Good News Translation (GNT) with Deuterocanonicals/Apocrypha, Today’s English Version, Second Edition, 1992, American Bible Society: “The Romans killed many of the Greeks, took their wives and children captive, plundered their possessions, occupied their land, tore down their fortresses, and made them slaves, as they are today. They also destroyed or made slaves of other kingdoms, the islands, and everyone who had ever fought against them.” 5 GROTIUS, H. On the Law of War and Peace ( De Iure Belli ac Pacis ). Kitchener: Batoche Books, 1991, p. 296.

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