CYIL vol. 11 (2020)

DALIBOR JÍLEK CYIL 11 (2020) protected sacred things that were ceremoniously consecrated. The public status of res sacrae , being special religious significance, was usually attached to temples or holy places such as oracles. These buildings were a manifestation of external spirituality and collective religious life. Graves and tombs, as well as movables buried with the remains of the deceased were included among the rerum religiosae ; whereas the city walls and gates had the legal status of res sanctae . Normally, war attacks were deliberately directed against these kinds of fortifications. Sacred things were protected by the Roman state. Their legal or genuine protection demonstrated his sovereignty. Things promised to the gods, no matter whether movable or immovable, permanently turned man to a deity or to a single god. These things enjoyed the legal status of public property, which satisfied the common interest. All the temples, things of religious worship were the ownership of the Roman people. Earlier in Hellenistic times, some cities, islands, or places were declared sacred and inviolable. Delphi tried to avoid the war. The local temple dedicated to Apollo was declared autonomous in 435 BC (Peace of Nicias) and access to it was free of any obstacles. The Roman Senate most likely decided in 165 BC that the temple was inviolable. The small Greek island of Délos, which had been purified several times, enjoyed de facto “holy neutrality”. The inviolability of cities and provinces was based exclusively on special rudiments, lacking universal, erga omnes scope of application. Those particular rules were of different geographical origin. It stemmed either from Roman law, formerly from Hellenic particularisms, but it could also have been an outgrowth of God’s command: ius divinum . Ius gentium did not oblige states to respect objects of religious cult. The belligerent was permitted to remove or take for war exigences, sometimes pleasures, religious things, including offerings to the gods. The conqueror could also take the religious items to his homeland. Once the belligerent seized the holy place or religious objects of the enemy, these things lost the property of holy inviolability. After two years of the conquest of Syracuse, the Roman general Marcellus entered the city and had the decoration of a temple removed. The prizes were transported to Rome. In any event Marcellus did not behave wrongly. He acted in accordance with the rules of the ancient law of war. Even the oldest religion, Hinduism, forbade attacks on temples and prayer rooms. Similarly, Islam has commanded the protection of Christian or Jewish places of prayer, including monasteries. The war ethos of chivalry was ordered to protect churches and monasteries. From the 16th century, Japanese sei-satu war instructions forbade warriors from invading temples and shrines. Special rules have settled in different parts of the world at different times. In the times of enlightenment, there was a shift in the understanding of the protection of holy places across Europe. Thinking had deviated from religious superstitions and strict spiritual reasoning. There came times of secularizing, rational thinking, but also of political acts introducing the separation of church and state. The juristic rationalism, which was separated from the faith, began to be promoted. 9 Protection should not have been exclusively focused on religious buildings. During the war, buildings that honoured human society were to be spared: public buildings or works of remarkable beauty.The protected public objects were buildings, structures, temples, museums, the complete or partial destruction of which did not offer any of the belligerents a military advantage. Their destruction was pointless in terms of achieving the legitimate ends of war.

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9 LOCKE, J. Dopis o toleranci . [Letter of Tolerance] Brno: Atlantis, 2000, pp. 64-65.