3.2 The Hague Convention in practice
The basic strength of the Convention is that it grants all significant heritage at least some immunity from destruction. Even if this immunity can be waived in specific circumstances, it is necessary to justify precisely why the immunity was waived. Cultural heritage can never be freely attacked without a legitimate military reason vindicating the decision.
Yet, applying the Hague Convention is not always as straightforward as it was in Activity 3. Many of its key terms are ambiguous or imprecise, which allows for different interpretations of the text and, therefore, different judgements about the permissibility of certain actions.
Here are some potential points of confusion or disagreement.
- Ranking or categorising heritage. Different levels of protection are offered to heritage sites based on certain criteria (specifically, varying levels of importance to people). However, there is room for disagreement about the extent to which any particular piece of heritage fulfils these criteria. In addition, people might object to the criteria themselves, and believe that the requirements for Special or Enhanced protection, say, ought to be different.
- Identifying heritage on the ground. The Blue Shield emblem is not generally used to identify important heritage. Hence, soldiers face difficulties recognising which buildings are cultural heritage and which are not.
- Assessing military objectives. For something to count as a military objective, it must make an effective contribution to the opponent’s efforts and attacking it must provide an advantage to your own forces. But sometimes these factors can be unclear, especially in the absence of sufficient information.
- Assessing ‘feasibility’. For an attack on heritage to be permitted on the grounds that it provides a military advantage, there must have been no other ‘feasible’ alternative for securing that advantage. Yet, the word ‘feasible’ can be interpreted in different ways. In addition, even if people agree on the meaning of the word, they could disagree on its application in various cases. Would additional deaths make an alternative course of action unfeasible? What about achieving your objective a week late, or using twice the resources?
The Hague Convention did not exist at the time of the bombing of Monte Cassino. The decision to carry out the air raid was taken according to prevailing historic standards which differ from our own. Yet, as a case study, we can wonder whether the bombing would have been ruled as impermissible or permissible according to the Hague Convention.
Remember, for the attack to have been permissible, the abbey would have to be (1) making an effective contribution to the German military effort and (2) attacking it would have to have secured an advantage for the Allied forces which no feasible alternative could have secured. In addition, if the circumstances permitted, the assault would have to be (3) approved by a sufficiently high-ranking authority, (4) carried out after a warning and (5) using means that would do minimal damage to the heritage. Did the attack satisfy these requirements?
- The Allied troops falsely assumed that the Germans were using the abbey as an observation post, based on the intelligence they had gathered. This means, from the Allies perspective, the abbey was contributing to the German’s military effort. However, whether the Allies were reasonable or justified in making this assumption is debatable.
- Bombing the abbey did not secure a military advantage in actuality. The Germans were not using it at the time of the bombing, nor did the bombing prevent them using it later on. Nevertheless, was it unreasonable for the Allies to believe the bombing would produce these benefits? This is an important question, but it is also debatable.
- The decision to bomb the abbey was made by General Alexander, so this requirement appears to be satisfied.
- A warning was offered to the Germans. On the day before the bombing, the Allied forces dropped flyers over the German positions informing them that ‘with very heavy hearts we are going to have to turn our weapons on the abbey’.
- Could the Allied troops have captured the abbey from the Germans without utterly destroying it with bombs? Allied commanders looked for alternative means of attack and determined that further ground assaults would have been fruitless given the solid construction of the building. Yet, the abbey was eventually taken by soldiers attacking on foot, months after the bombing, although with a high cost of life. Perhaps the additional reinforcements which arrived through April and May would have been successful even if the abbey was still intact?
The fundamental question is whether or not imperative military necessity demanded the bombing of Monte Cassino. This is unclear on several grounds. The Hague Convention is far from decisive here – and is similarly indecisive in many other real-world scenarios. That said, it does provide a framework to aid our thinking. The five points above help identify some of the key questions that need to be answered to assess the permissibility of military attacks on cultural heritage.
A large part of the problem at Monte Cassino was that the Allied forces were unable to gather comprehensive information about the situation they were in: whether the Germans occupied the abbey, whether attacking it would assist their mission, whether less damaging means of attacking it could have been effective, etc. However, as you will see in Section 4, even with complete information, the justifiability of some military decisions regarding cultural heritage can still be profoundly uncertain.
Activity 4 The legality of the Monte Cassino bombing
As noted above, whether or not the bombing would have satisfied the requirements of the 1954 Hague Convention is unclear. It depends on how one interprets the military scenario in several key respects. Additionally, it is once again worth stressing that the account you have read is limited and cannot possibly portray the full picture of the events surrounding Monte Cassino. Decisions were made in a stressful and complex environment and we are applying guidelines here which were not yet created at that time. We should not make judgements too hastily or harshly.