Part 2: Serious violation of the Second Protocol Section 3: Offence of serious violation of Second Protocol
Subsection (1) creates a new criminal offence, a serious violation of the Second Protocol, which is committed where a person intentionally does an act listed in Article 15(1) of the Second Protocol knowing that the property to which the act relates is cultural property. The five acts listed in Article 15(1) are as follows:
making cultural property under enhanced protection the object of attack;
using cultural property under enhanced protection or its immediate surroundings in support of military action;
extensive destruction or appropriation of cultural property protected under the Convention and the Second Protocol;
making cultural property protected under the Convention and the Second Protocol the object of attack; and
theft, pillage or misappropriation of, or acts of vandalism directed against, cultural property protected under the Convention.
	Subsection (1)(b) stipulates that the act concerned must violate the Convention or the Second Protocol (which reflects the wording of Article 15(1)). In order to prosecute an offence based on Article 15(1) of the Second Protocol it is therefore necessary to identify how the act set out at Article 15(1) violates the Convention or Second Protocol. For example, if the military forces of a Party to the Convention were to make cultural property protected by the Convention and Second Protocol the object of an attack (an act specified in Article 15(1)(d)), this would constitute a violation of the obligation in Article 4(1) of the Convention to refrain from any act of hostility against such property. In contrast, the same act would not constitute such a violation if the obligation in Article 4(1) was waived on the basis of military imperative as permitted by Article 4(2)1. Acts will not be covered if they occur in peacetime – relevant provisions of the Convention and the Second Protocol2 apply in the event of war or armed conflict between two or more Parties3 or an occupation of the territory of a Party4 as well as in the event of armed conflicts "not of an international character" occurring within the territory of one of the Parties5.
	Articles 15(1)(a) and (b) of the Second Protocol set out offences against cultural property under "enhanced protection". The Second Protocol sets out a system whereby cultural property in countries which are parties to the Second Protocol can be granted enhanced protection6. Such protection is only granted to cultural property which is "of the greatest importance for humanity"7. Enhanced protection status is very rare; there are currently only 10 pieces of cultural property that have received enhanced protection worldwide and they are all World Heritage Sites. Article 12 of the Second Protocol obliges the Parties to a conflict to refrain from making cultural property under enhanced protection "the object of attack or from any use of the property or its immediate surroundings in support of military action." The threshold for receiving enhanced protection is very high and therefore it is unlikely that such offences will in practice be committed.
	Article 15(1)(c) and (d) deal with offences against cultural property which is protected by both the Convention and the Second Protocol. Damage to cultural property in a country which is not a Party to both the Convention and the Second Protocol will not be covered by these offences.
	Article 15(1)(e) covers theft, pillage or misappropriation, or acts of vandalism directed against, cultural property protected under the Convention. This offence is the most likely to be prosecuted of the five Article 15 offences since it will apply to offences against cultural property committed in the many countries which have ratified the Convention regardless of whether they are also Parties to the Second Protocol.
	Action taken by the armed forces of a country which is not a Party to the Convention or the Second Protocol, and is not therefore bound by the obligations set out in the Convention and the Protocol, will not amount to an offence under this section, since the requirement under section 3(1)(b) that there must be a violation of the Convention or the Second Protocol will not be satisfied. Article 16(2)(b) of the Second Protocol makes it clear that members of the armed forces and nationals of a State which is not a Party to that Protocol do not incur individual criminal responsibility by virtue of the Second Protocol unless they are serving in the armed forces of a State which is a Party to the Protocol.
	The remaining subsections of this section make provision about jurisdiction, implementing the requirements of Article 16(1) of the Second Protocol. Subsection (2) makes it clear that for each of the offences described in Article 15(1) of the Second Protocol, the act can take place within the United Kingdom or in another country.
	By subsection (3) both United Kingdom and non- United Kingdom nationals can be prosecuted for a serious violation of the Second Protocol in relation to the acts set out at Article 15(1)(a)-(c) of the Second Protocol.
	In contrast, subsection (4) provides that in relation to the acts set out at Article 15(1)(d)-(e) of the Second Protocol (which are considered less serious) the criminal offence can only be committed outside the United Kingdom by a United Kingdom national or a person subject to United Kingdom service jurisdiction.
	Subsections (5) and (6) define the terms "United Kingdom national" and "person subject to United Kingdom service jurisdiction" for the purposes of Part 2 of the Act.