CYIL vol. 11 (2020)

DALIBOR JÍLEK CYIL 11 (2020) is not open but closed. The adversaries shall treat such property as private, which does not preclude requisitions in kind. According to the second paragraph, institutions, historic monuments, works of art, and science deserve stronger protection. All forms of seizure, destruction, or intentional damage are forbidden. Religious institutions seem to occupy a particular position. Rerum sacrae should include the buildings of all religions, not just the major religions such as Hinduism, Christianity, Islam, Buddhism and all their branches. Various temples, churches, shrines, prayer houses, and other holy places receive the identical standard of protection. In line with the a fortiori argument, it would also be possible to provide protection for a buildings of small religious societies or local communities whose beliefs are both polytheistic and monotheistic. Arguments of religious tolerance and the human right to freedom of religion testify in support of their protection. National legislation can prevent this by official recognizing only certain churches, religious societies, or sects. The provisions of both regulations do not entirely answer some hermeneutic questions. As in the previous instruments, the enumeration is not accompanied by any legal definition of protected objects. The interpretation is left to the parties. In the interpretative context, the standard of protection of buildings devoted to religion, as in the case of Article 27, seems to be unclear and ambiguous. In the current jurisprudence, there appears an interpretative argument that the buildings of all religions without exception are under absolute protection, in contrast to other protected objects. Absolute protection precludes any reservations on grounds of military or other necessity. 43 Furthermore, the Peace Conference meticulously codified rules for naval forces only towards ports, cities, and buildings. 44 The Convention (IX) discerns between defended and undefended objects. Limited protection against bombardment by naval forces is provided to immovable things such as sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected. 45 Historic monuments were not originally inserted in the group of immovable things. The catalogue was expanded at the suggestion of the Greek delegate. 46 In relation to Article 27 of the Hague Convention (IV), the provision expressly refers to sacred edifices. The duty to take all necessary measures before the bombardment of ports and cities was attributed to the commander of the naval fleet or warship. He was subjected to the duty to avoid attacks against protected objects of cultural character. A fortiori , the commander 43 TOMAN, J. The Protection of Cultural Property in the Event of Armed Conflict. Commentary on the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocol, signed on 14 May 1954 in The Hague, and on other instruments of international law concerning such protection. London and New York: Routledge, Taylor & Francis Group, UNESCO Publishing, 1996, p. 11. 44 Convention (IX) concerning Bombardment by Naval Forces in Time of War. The Hague, 18 October 1907. SCHINDLER, D. and TOMAN, J. (eds.), op. cit. 1, pp. 812-815. 45 Article 5 states in French: “Dans le bombardement par des forces navales, toutes les mesures nécessaires doivent être prises par le commandant pour épargner, autant que possible, les édifices consacrés aux cultes, aux arts, aux sciences et à la bienfaisance, les monuments historiques, les hôpitaux et les lieux de rassemblement de malades ou de blessés, à condition qu’ils ne soient pas employés en même temps à un but militaire. Le devoir des habitants est de désigner ces monuments, ces édifices ou lieux de rassemblement, par des signes visibles, qui consisteront en grands panneaux rectangulaires rigides, partagés, suivant une des diagonales, en deux triangles de couleur, noire en haut et blanche en bas.” 46 SCOTT, J. B., op. cit. 39, p. 117.

294