Military Necessity as an Exception in the Context of Cultural Heritage Protection: Exploring the Role Played by the Proportionality Principle

During times of war, cultural heritage enjoys protection under the relevant rules of International Humanitarian Law. However, even if the rule considers any attack illegal, be it a bombing or even the looting/theft of cultural objects, there are exceptions to it. These are when goods/property is used for military purposes and whenever a military necessity exists. They are great challenges to be faced by the law today since the destruction of a heritage object/good ends up being allowed no matter how important they are for a certain region or its people, even if representing a potential limitation for the achievement of cultural and memory rights of future generations. Therefore, this text aims to consider the exceptions that allow bombing/destructing cultural heritage amid armed conflicts, focusing, nevertheless, on the military necessity one. To this end, not only is the protection granted by International Humanitarian Law to these objects the object of our study but also, and especially, the requirements that involve the correct use of the military necessity plea, particularly the questions involving the balance between the ends to be achieved and the potential damages that might be caused if the use of force is authorized against a cultural heritage site. Furthermore, aspects related to the principle of proportionality and the doctrine of the reasonable military commander are also explored, as they are considered potentially relevant for the military necessity exception to be legally determined.