A) The international humanitarian law applies to the conflict between the Aprophe and Rantania

Inasmuch as Rantanian air strikes should be considered as act of aggression, the norms of international humanitarian law are applicable. This fact is confirmed by the provisions of Article 1 and Article 2 common to the four Geneva Conventions of 1949 Aprophe and Rantania are parties to. Article 1 provides that “The High Contracting Parties undertake to respect and ensure respect for the present Convention in all circumstances”[75] that emphasizes the binding character of the Conventions of 1949. The further common Article 2 prescribes that Geneva Conventions are applied to “all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties.”[76] The applicability of humanitarian law to the act of aggression is also affirmed by the Commentary on the Geneva Conventions published by the International Committee of the Red Cross stating that “The application of the Convention does not depend on the character of the conflict. Whether a war is ‘just’ or ‘unjust’, whether it is a war of aggression or of resistance to aggression, the protection and care due to the wounded and sick are in no way affected.”[77] Therefore the international humanitarian law governs the conflict developed between Aprophe and Rantania.

B) Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 applies to Aprophe’s destruction of a building of the Mai-Tocao Temple

As it follows from the Compromise Aprophe and Rantania are not parties to theConvention for the Protection of Cultural Property in the Event of Armed Conflict of 1954[78]. But by the reason that this convention does not have a binding force for all States, the Diplomatic Conference on International Humanitarian Law, included articles about preservation of cultural property in the two additional Protocols to the Geneva Conventions. In accordance with the Article 53 of Protocol I and Article 16 of the Protocol II it is prohibited “without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954”[79] to commit hostile acts against cultural heritage and refrain from using such objects for military activity. In addition “It is generally agreed that these provisions are an expression of customary rules which, as such, apply to all belligerents, whether or not they are bound by the Additional Protocols.”[80] Therefore Aprophe and Rantania are obliged to obey them.

Furthermore it is worth noting that both Article 53 of Protocol I and Article 16 of Protocol II by the words “without prejudice to the provisions of The Hague Convention of 14 May 1954” make reference on this Convention and thereby acknowledge their complementary nature. Moreover the Hague Convention of 1954 includes provisions stating that the cultural property belongs to all humanity and that damage to such property is considered as “damage to the cultural heritage of all mankind.”[81] And “the reference to cultural property as "the cultural heritage of all mankind" has been interpreted by some scholars, particularly John Henry Merryman, as indicating the universality of the Hague Convention.”[82] Therefore notwithstanding that the Applicant and Respondent are not parties to theConvention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 it applies to the Aprophe’s destruction of a building of the Mai-Tocao Temple because of its universal character and strong connection with the Protocols additional to the Geneva Conventions of 1949.

C) Aprophe did not violate international law because of imperative military necessity

Date: 2015-12-17; view: 633