CYIL vol. 11 (2020)

CYIL 11 (2020) CULTURAL PROPERTY IN THE LAWS OF WAR The legal argumentation did not call for absolute protection of such properties of public interest. If the use of otherwise protected public property or its destruction was an indispensable measure of war, the commander was undoubtedly entitled to do so. The commander balanced the necessities of against the protection of such properties. In the emerging combat situation, necessitas belli , determined by objective and subjective circumstances, was superior to the protection of public properties. Likewise, such objects could not be protected from accidental damage or destruction. It was attributed to the unfortunate consequences of war. 10 Indeed, some rules of Lieber Instructions have cognitive elements. Article 22 states how civilization has progressed in recent centuries, especially in waging land war. The principle of distinction has become established in the laws of war. The origin of this principle arose, among other things, from philosophical discourse. 11 The idea that wars do not establish a relationship between private individuals, but between public entities, sovereign states, has taken hold among politicians or lawyers. 12 The decisive linkage is the public relationship between the state and the individual and not the private relationship of the individual to the individual, although each of them may belong to a different state. Nationals of states that are opposites in the war are not enemies. Their situation, status and relationships are of a private nature. Only individuals who enjoy public position find themselves in a hostile relationship. They either acquired such status due to a public act (total or partial mobilization, a military summons), or they spontaneously engaged in hostilities. Article 22 of the Instructions distinguishes between a private person belonging to the hostile country and the hostile country itself, with its men in arms (combatants). 13 The provision strictly separates the legal status of both groups of individuals based on inoffensiveness or participation and non-participation in hostilities. It validates the principle of distinction. An unarmed citizen as a private person had to be spared, his private property protected, to the extent that the exigencies of war admitted. Contrary to the previous laws or customs of war, a harmless citizen of the hostile country could enjoy protection only exceptionally. 14 Besides, in its rather cognitive part, Article 23 refers to the fact that private citizens are no longer murdered, enslaved, or carried off to distant parts. This principle of distinction is not only covered private persons, that also relate to things. Lieber Instructions distinguishes between public and private property and their socio- 10 DE VATTEL, E., op. cit. 7, p. 368. 11 ROUSSEAU, J.-J., op. cit. 3, p. 40: “War then is a relation, not between man and man, but between State and State, and individuals are enemies only accidentally, not as men, nor even as citizens, but as soldiers; not as members of their country, but as its defenders. Finally, each State can have for enemies only other States, and not men; for between things disparate in nature there can be no real relation.” 12 ZIMMERMANN, M. A. Historický vývoj mezinárodního práva v XIX a XX. století . [Historical Development of International Law in XIX and XX Century] Praha: Nákladem vlastním, tiskem Státní tiskárny v Praze, 1929, pp. 16-17. 13 Article 22 states: “Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.” 14 Article 24 states: “In modern regular wars of the Europeans, and their descendants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions.”

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