Destruction of cultural heritage as a structure of violence in Palestine

The destruction of cultural heritage during armed conflict is not a new phenomenon. Historically, it was and continues to be a feature of almost every armed conflict. In the case of Palestine, however, the destruction of cultural heritage is not merely a feature of Israel’s settler-colonial project, nor is it an event. Rather, it is a structure of violence rooted in the erasure of Palestinians as a social entity with its own shared history, collective memory, generational trauma of ongoing dispossession and colonization, and variant modes of resistance in face of Israel’s ongoing settler colonialism, which incrementally takes the land of Palestine without its native population.Footnote ¹⁶ This structure of violence dates back to the 1948 Nakba (Palestinian Catastrophe), which refers to the establishment of Israel through the conquest and mass expulsion of Palestinians from their ancestral homes, leading to the forced displacement of 750,000 Palestinians (80% of the Arab population).Footnote ¹⁷ To understand the destruction of cultural heritage as a process of erasure that is ongoing in Gaza, it is thus important to situate it within the context of the 1948 Nakba as our departure point, wherein hundreds of historical towns and villages were depopulated and destroyed.Footnote ¹⁸ Between late 1947 and early 1949, these towns and villages were obliterated and eventually de-Arabized.Footnote ¹⁹ Emphasizing the harms stemming from Israel’s destructions in the 1948 war, Mohammed Nijim writes “the war was not only a loss of land or bricks but most importantly horrible devastation of existing life, social groups, a collective memory, cultural production.”Footnote ²⁰

With this historical context of the Nakba in mind, it becomes obvious that what we witness in Gaza today is nothing but a continuation of the Nakba as a structure of social and cultural destruction. This process of destruction particularly manifests itself these days through Israel’s systematic attacks on Gaza’s old cities, towns, mosques, and churches,Footnote ²¹ as well as its use of starvation to destroy the Palestinians as a physical and social group.Footnote ²² The continuation of the Nakba can be also seen in Israel’s attempts to forcefully displace the entire Palestinian population in Gaza through “relocating them” to third countries as it did in 1948.Footnote ²³ One of the effects of forced displacement on cultural heritage, as observed by the OTP, include “the destruction of family and social structures … , [thus making it] impossible to carry on with certain traditions and to pass them on to future generations.”Footnote ²⁴ Furthermore, the continuation of the Nakba is also evident in Israel’s constant denial of a distinct Palestinian identity and the right of Palestinians to self-determination, which are inextricably linked with their inalienable right to culture as enshrined under the UN Declaration and several legal instruments.Footnote ²⁵ Unsurprisingly, Israel’s attacks and restrictions on the presence and activities of the United Nations in the Occupied Palestinian Territory (OPT)Footnote ²⁶ is an attempt to not only isolate Palestine from an international legal arena underlined by respect for the rule of law and enforcement of human rights norms, but also to target and delegitimize the very institutions that recognize, uphold, and affirm the rights of the Palestinian people, including their right to human dignity, self-determination, sovereignty, and return to their homes and lands that they were forcefully displaced from in 1948. One of the ramifications of such restrictions is that the role of UNESCO as the only specialized agency in the protection and safeguarding of Palestinian cultural heritage is threatened more than ever before due to Israel’s refusal to grant access to UN entities and fact-finding missions to Gaza, which was addressed by the Court in its latest advisory opinion on the Obligations of Israel in relation to the Presence and Activities of the United Nations, Other International Organizations and Third States in and in relation to the Occupied Palestinian Territory.Footnote ²⁷

The status of Gaza under international law

The issue of whether Gaza is an occupied territory has been subject to controversy among scholars. In accordance with the Israeli government’s disengagement plan, Israel withdrew its military forces from Gaza in 2005.Footnote ²⁸ As such, a few scholars argue that due to the physical withdrawal of its ground military forces, Israel no longer controlled Gaza, thus leading to the termination of occupation.Footnote ²⁹ Despite withdrawing its ground troops from Gaza, Israel continued to have control over its land, airspace, and territorial sea. Israel has also imposed a blockade on Gaza since Hamas came to power in 2007 after winning the Palestinian elections in 2006.Footnote ³⁰ The blockade has resulted in high levels of food insecurity, intensified restrictions on freedom of movement, and restrictions on the import of basic construction materials.Footnote ³¹

Given that Israel has been exercising its remote control over Gaza since 2005, UN Special RapporteursFootnote ³² and the International Committee of the Red Cross (ICRC) consider Gaza as still occupied. According to the ICRC, Israel “continues to be bound by certain obligations under the law of occupation that are commensurate with the degree to which it exercises control over it.”Footnote ³³ Scholars who are supportive of this view argue that Gaza remains occupied based on several grounds, including “the relatively small size of Gaza in connection with the technological superiority of the Israeli air force allows Israeli boots to be present in Gaza within a reasonable response time,”Footnote ³⁴ along with the fact that “all imports, exports in and out of Gaza, and any movement of persons are fully controlled and regulated by Israel.”Footnote ³⁵ In addition, other scholars argue that through its denial that Gaza is an occupied territory while agreeing to allow provisions for basic needs, Israel has attempted to reduce its obligations under the laws of armed conflict, thereby treating the issue of provision as a matter of political will rather than an international obligation that Israel is required to fulfil as the occupying power.Footnote ³⁶

Most significantly is the view of the ICJ that Gaza remains occupied. In its 2024 advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, the Court stated that:

The Court has recognized that not only was Gaza an occupied territory before October 7, but also that Israel exercises even more effective control over Gaza following October 7. The Court, however, does not mention whether October 7 is a continuation of the same international armed conflict between Israel and Palestine or constitutes a separate conflict in itself. Because Israel’s recent war in Gaza was and continues to be in response to the attacks by Hamas (an armed group), it can be said that such a conflict should be classified as a non-international armed conflict. And given that Gaza remains occupied as established by the ICJ and other international bodies, it can be also said that there is an international armed conflict between Israel and Palestine. That is to say, two conflicts are simultaneously taking place, which is the view adopted by the OTP. In its announcement of the applications for arrest warrants in respect of the Situation in the State of Palestine, the OTP stated that “the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas running in parallel.”Footnote ³⁸ This paper endorses the OTP’s approach and the view of some scholars that Israel’s military conduct in Gaza should be regulated by the law of international armed conflict and the law of non-international armed conflict.Footnote ³⁹

The 1954 Hague Convention and its First Protocol complements the legal protection afforded by international humanitarian law to cultural property, specifically the 1949 Fourth Geneva Convention and the 1907 Hague Regulations.Footnote ⁴⁰ Under Article 5 of the 1954 Hague Convention, which applies only to belligerent occupation, Israel as the occupying power is required “as far as possible [to] support the competent national authorities of the occupied territory in the safeguarding and preserving of its cultural property.”Footnote ⁴¹ While the concept of “safeguarding” under Article 5(1) deals with measures designed to protect cultural property from the foreseeable effects of an armed conflict, the concept of “preserving” refers to measures taken following the cessation of active hostilities in cooperation with the competent national authorities to conserve and protect cultural property in the occupied territory.Footnote ⁴² If the competent national authorities are unable to take measures to preserve cultural property, the “Occupying Power shall, as far as possible, and in close co-operation with such authorities, take the most necessary measures of preservation.”Footnote ⁴³ As such, the regulation and administration of matters concerning cultural property are the primary responsibility of the competent national authorities.Footnote ⁴⁴ In the context of Israel’s war in Gaza, the Palestinian Ministry of Tourism and Antiquities in Bethlehem, West Bank is the official governmental body that is responsible for protecting and preserving cultural heritage in the OPT, including East Jerusalem, the West Bank, and Gaza. The Department of Antiquities and Cultural Heritage (DACH), which operates under the auspices of the ministry, is considered the competent national body when it comes to the management, safeguarding, preservation, conservation, and excavation of cultural heritage in this Territory.Footnote ⁴⁵ Contrary to Israel’s obligations under Article (5) of the Convention, the work of DACH has been historically curtailed by the Israeli authorities, who have been infamously carrying out archaeological excavations without the consent of the Palestinian authorities, particularly in the West Bank and East Jerusalem.Footnote ⁴⁶ With Israel’s full closure of the Gaza strip and its indiscriminate attacks on civilians and cultural objects, the work of the Palestinian Ministry of Tourism and Antiquities and its DACH have been curtailed more than ever before, making it impossible to assess, safeguard, conserve, and preserve damaged heritage in Gaza.Footnote ⁴⁷

Legitimizing the destruction of Palestinian cultural heritage through military necessity

In its report examining violations of international human rights law, international humanitarian law, and possible international crimes committed by Hamas and Israel since 7 October 2023, the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel, emphasized that both the 7 October attack in Israel and Israel’s military response to the attack must be understood within the context of Israel’s illegal occupation, its denial of the right of the Palestinian people to self-determination through continuous dispossession and forced displacement, its imposition of a 17-year blockade on Gaza, as well as the expansion of Israeli settlements in the West Bank.Footnote ⁴⁸

On 7 October 2023 at 6:30 a.m., Hamas and other Palestinian armed groups launched a coordinated attack against Israeli civilian targets and military bases in southern Israel. According to Israeli sources, the attack resulted in the killing of more than 1,200 persons and injuring thousands more. In addition, around 252 people were abducted and held hostage in Gaza. In light of such attacks on civilians, the Commission found that Hamas and other Palestinian groups violated the principle of distinction through killing, attacking, and injuring the civilian population, and indiscriminately launching rockets from Gaza into Israel.Footnote ⁴⁹ Such rockets, according to an investigative report by Amnesty International, were fired by Hamas from densely populated areas, including camps for displaced civilians and makeshift tented camps. Members of the Hamas armed group were also present in schools and camps, where internally displaced people took shelter, thereby risking the lives of civilians in areas designated by Israel as “humanitarian zones.”Footnote ⁵⁰

In response to the attack by Hamas, Israel launched airstrikes on Gaza in the early morning of October 7. On the following day, Israel announced the commencement of an extensive military operation. Israel stated that the aim of the military operation was to destroy Hamas and its governmental functions, and to secure the release of hostages. Israeli airstrikes, however, appeared to be attacking civilian and civilian objects at a level that is unprecedented in the entire history of the conflict.Footnote ⁵¹ At the time of writing, Gaza’s Ministry of Health reported the killing of more than 53,000 Palestinians, the majority of whom are women and children.Footnote ⁵² According to the United Nations (UN), Israel has damaged or destroyed nearly 60% of Gaza’s civilian infrastructure, including hospitals, homes, and schools, as well as displacing 90% of Palestinians in Gaza.Footnote ⁵³ As of 25 April 2025, UNESCO has verified damage to 150 sites since 7 October 2023.Footnote ⁵⁴ In its monitoring and documentation of the situation in Gaza, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has found that the unprecedented level of killing civilians and destroying civilian infrastructure “was a direct consequence of the Israeli Defence Forces’ (IDF) failure to comply with fundamental principles of international humanitarian law (IHL)—namely the principles of distinction, proportionality and precautions in attack.”Footnote ⁵⁵

It is within this broader context of Israel’s indiscriminate attacks on civilians and civilian objects that we need to situate Israel’s systematic and deliberate attacks on Gaza’s historical, cultural, and religious sites. Interestingly, Israel generally tends to refute allegations of targeting hospitals, universities, and homes,Footnote ⁵⁶ but almost never engages with specific allegations concerning the intentional destruction of Palestinian cultural heritage. This in itself is reflective of Israel’s denial of an Indigenous Palestinian presence rooted in a sense of belonging, which is characterized by a specific relation to ancestral land and ways of tending it, especially through planting olive trees in face of Israel’s longstanding campaign to uproot olive trees as a way of facilitating an ongoing settler-colonial process of taking over as much Palestinian land as possible.Footnote ⁵⁷ As part of this brutal ongoing campaign, Israel has uprooted 800,000 olive trees since its occupation of the West Bank and Gaza in 1967.Footnote ⁵⁸

While Israel has not ratified the Additional Protocols to the 1949 Geneva Conventions, the legal advisor of Israel’s Permanent Mission to the United Nations affirmed that Israel “is fully committed to the customary law rules that are reflected in some of their provisions.”Footnote ⁵⁹ In the Targeted Killings case, the Supreme Court of Israel emphasized that customary rules of international law are part of Israeli law, including those in the 1977 Additional Protocol I to the Geneva Conventions of 1949.Footnote ⁶⁰ Under Protocol I, attacks on civilian population and civilian objects are prohibited, restricting the purpose of an attack to strictly military objectives and excluding civilian infrastructure.Footnote ⁶¹ Notably, Protocol I prohibits excessive incidental harm to civilian population and civilian objects as well as cultural objects, namely “historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.”Footnote ⁶² As a customary rule of international law, the strict rule of proportionality in relation to incidental damage under article 51(5)(b) of Protocol I requires that death and injury to protected persons and damage to protected objects are weighed against the concrete and direct military advantage anticipated.Footnote ⁶³ In a similar manner to Article 53 of Protocol I, Article 16 of Protocol II prohibits directing any acts of hostility against cultural objects and using them in support of the military effort.Footnote ⁶⁴

While there have been documented instances of Hamas using civilian objects for military purposes that risked the lives of Palestinian civilians,Footnote ⁶⁵ this does not automatically make such objects a legitimate military objective. When it comes to cultural property, it is prohibited to attack such property, except if at the time of the attack the property constitutes a military objective and there is no feasible alternative for obtaining a similar military advantage.Footnote ⁶⁶ As a definition of customary status under international humanitarian law, a military objective is considered “an object which by its nature, location, purpose, or use makes an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”Footnote ⁶⁷ This definition clearly indicates that in order for cultural property to constitute a military objective, two specific hurdles need to be overcome: First, cultural property must make an effective contribution to military action by its nature, location, purpose, or use. Second, the total or partial destruction, capture, or neutralization of the property at the time of the attack must offer a definite military advantage.Footnote ⁶⁸ And even when these two hurdles are overcome in order for cultural property to constitute a military objective, attacks on such a property are not lawful unless there is no feasible alternative for obtaining a similar military advantage.Footnote ⁶⁹ In the context of Israel’s systematic attacks on Gaza’s cultural heritage, there does not seem to be any evidence that Hamas used cultural property for military purposes, which is a conclusion reached by Amnesty International in its investigation of the destruction of cultural heritage in Gaza.Footnote ⁷⁰ In fact, since the beginning of its indiscriminate attacks on Gaza’s cultural heritage until now, Israel has not provided any evidence that any of Gaza’s cultural properties have made an effective contribution to military action by their nature, location, purpose, or even their use. Nor has it proven that the partial or whole destruction of any of Gaza’s historic mosques, churches, and harbors has offered a definite military advantage and that there was no feasible alternative for obtaining a similar military advantage before attacking such cultural objects. As such, it appears that Israel has deemed all of Gaza’s cultural heritage targetable based on its mere speculation that Hamas embeds itself everywhere in Gaza as shown subsequently.

Contrary to the customary norms underpinning the definition of a military objective as outlined previously, Israel’s overall conduct of hostilities in Gaza is predicated on the mere assumption that many civilians and civilian objects in Gaza are likely to become legitimate military targets given that Hamas allegedly embeds itself everywhere in Gaza. This flawed logic is reflected in a policy document published by Israel’s Ministry of Foreign Affairs, where it offers an overview of the “key principles governing Israeli military operations.” The document states that because of “Hamas’s unlawful strategy of systematically embedding its military activity and assets in populated areas (including residential and commercial buildings, places of worship and hospitals), many ostensibly civilian objects may become legitimate targets.”Footnote ⁷¹ The document goes on to emphasize that “it cannot be concluded from the mere fact that seeming ‘civilians’ or ‘civilian objects’ have been targeted, that an attack was unlawful.”Footnote ⁷² Some legal scholars have suggested along similar lines with regards to mass civilian casualties in Gaza that it is difficult to determine if Israel’s use of force has been legally necessary and proportionate given that Hamas is “deliberately ensconced among civilians” and ultimately seeks the total annihilation of Israel.Footnote ⁷³ Such arguments are emblematic of Israel’s longstanding efforts to advance jus in bello (the international law on the use of force) interpretations that seek to legalize violence against an occupied people, but also support Israel’s ultimate goal of destroying Palestinians as a physical and social group.Footnote ⁷⁴ It, therefore, appears that Israel’s continuing war on Gaza and its wanton destruction of Gaza’s cultural heritage have been engineered through “legal work that is a prerequisite”Footnote ⁷⁵ to its genocidal campaign of targeting Palestinians and their heritage. In other words, the massive level of destruction inflicted on Gaza’s cultural heritage should be understood as the culmination of a “sustained targeting campaign”Footnote ⁷⁶ that Israel has only been able to maintain, justify, and normalize through its reliance “on the language and law of war.”Footnote ⁷⁷

The precarious logic underpinning Israel’s statement that “many ostensibly civilian objects may become legitimate targets” characterizes Israel’s relation to law in the OPT and its treatment of Palestine as a site of legal exception, whereby Israel refuses to apply international human rights law and international humanitarian law in the West Bank and Gaza since it does not consider Palestinians as sovereign.Footnote ⁷⁸ Indeed, Israel’s demand for exception to the protections of Palestinian civilians, civilian objects, and cultural objects is an extension of Israel’s treatment of the West Bank and Gaza as territories of sui generis (Latin for of its own kind) status, and thus “not subject to strict legal regulation by any existing body of law,” which prompts the need to create new law in light of the absence of applicable legal precedent or analogy.Footnote ⁷⁹ In this sense, Israel is demanding not just an exception to the protections afforded to civilian objects under international law, but also an exception to the application of international legal frameworks that particularly deal with the protection and safeguarding of cultural property during armed conflict.

Israel’s invocation of the military necessity exception as the default of its conduct in its war on Gaza is an attempt to utilize this nebulous principle of international law in order to further legitimize its indiscriminate attacks on Gaza’s cultural heritage. Such a fraught use of military necessity is not merely a loophole within international law. Rather, it should be understood as a structural feature of international law that provides states invoking military necessity with an opportunity to further their own ends as deemed necessary. David Luban’s work is particularly relevant here. According to Luban, it is “military necessity [that] forms the unshakable foundation” of the law of armed conflict (LOAC), a term that is commonly used by military lawyers.Footnote ⁸⁰ While the LOAC vision begins with armed conflict and ascribes primary status to military necessity and the imperatives of warmaking, international humanitarian law (IHL) is premised on humanitarianism and gives primary status to human rights and human dignity.Footnote ⁸¹ As noted by Luban, these two visions have resulted in “two structured systems that stand in opposition to each other. Both have ample support within recognized sources of law; neither is frivolous (strategic) or tendentious on its face, although, of course, both can be used tendentiously (but all law can be used tendentiously).”Footnote ⁸² As such, it seems that Israel’s strategic (read disingenuous) invocation of military necessity in Gaza is facilitated through recognized sources of law, which “exposes a generic and enduring problem in the international legal order,”Footnote ⁸³ especially when it comes to military necessity.

Based on Israel’s distorted logic of international law that disregards principles of distinction and proportionality, all of Gaza’s cultural heritage sites from mosques, churches, harbors, museums, public libraries, to historical streets are deemed targetable. This settler-colonial logic of erasure disguised as “military necessity” serves to justify Israel’s systematic destruction of Gaza’s cultural heritage as a means of materializing its ultimate goal of the complete removal of Palestinian natives from their homeland. In fact, what we witness in Gaza through Israel’s fraught invocation of military necessity is yet another example of what Fayez Sayegh characterizes as “the unfished business of Zionism,”Footnote ⁸⁴ namely the denial of Palestinian cultural identity and the destruction of their heritage as a means of territorial expansion, which is one of the core tenants of Zionism as a European settler-colonial movement and underpins Israel’s long-term vision of an exclusive ethno-nationalist state for Jews in Palestine. At the heart of this vision is the assumption that Palestinians are interchangeable with any Arab population and hence do not have a culture of their own.Footnote ⁸⁵ In this respect, there appears to be a fundamental tension between the obligation to protect cultural heritage and the denial of the unique cultural identity that forms the object of this legal protection.

As a settler-colonial movement for Jewish settlement in Palestine, Zionism was never ambiguous about its goal of destroying to replace.Footnote ⁸⁶ As noted in the work of Theodor Herzl, the founding father of Zionism, “If I wish to substitute a new building for an old one, I must demolish before I construct.”Footnote ⁸⁷ The materialization of this vision is not only evident in Israel’s genocidal campaign in Gaza and its attempt to justify it through law, but is also reiterated again and again these days in the statements of the Israeli government’s most far-right politicians, including its minister of national security, Itamar Ben-Gvir, who has been calling for “conquer[ing] all of Gaza” and “encoura[ging] voluntary emigration,”Footnote ⁸⁸ as well as the statement by the defence minister of Israel, Yoav Gallant, to Israeli troops on the Gaza border on October 9 2023: “We will eliminate everything. If it doesn’t take one day, it will take a week, it will take weeks or even months, we will reach all places.”Footnote ⁸⁹ In the face of Israel’s genocidal campaign as emboldened through such public statements and the recent Israeli Parliament/Knesset’s vote on the full annexation of the occupied West Bank,Footnote ⁹⁰ the protection of Palestinian cultural heritage is yet another example of what Nimer Sultany describes as a “litmus test for international law and the human rights system.”Footnote ⁹¹

Israel’s use of the military necessity exception in its war on Gaza is not an entirely new tactic, but is symptomatic of a larger legal context, where Israel has repeatedly invoked the military necessity exception to obscure its colonial interests through land seizure and the social-cultural destruction of the Palestinian people. It is noteworthy that this permissive interpretation of international humanitarian law was previously rejected by the ICJ in its advisory opinion on the legal consequences arising from Israel’s construction of the Separation Wall,Footnote ⁹² one of them being “the disappearance of vast amounts of property, notably private agricultural land and olive trees, wells, citrus grows and hothouses upon which tens of thousands of Palestinians rely for their survival.”Footnote ⁹³ Elaborating in a separate opinion on the Court’s finding that the destructions carried out by Israel could not have been rendered absolutely necessary by military operations, Judge Nabil Elaraby states:

The Court’s rejection of Israel’s disingenuous invocation of military necessity and the supporting opinion of the judge offer hope when it comes to deciding on the merits of South Africa’s genocide case against Israel, where it used the same logic of military necessity to justify its genocidal campaign that resulted in the wanton destruction of Palestinian cultural heritage, claiming that Hamas has “systematically” embedded itself in heavily populated civilian areas.Footnote ⁹⁵

It is established that the intentional destruction of cultural heritage is prohibited under customary international law. In the context of international and non-international armed conflicts, such status has been unequivocally confirmed by the International Criminal Tribunal for the Former Yugoslavia (ICTY). Even in peacetime, the prohibition of the deliberate destruction of cultural heritage constitutes customary international law by a rule finding its rationale in the fact that heritage of great importance surpasses national borders and thus belongs to the international community as a whole. These two rules are therefore the source of erga omnes obligations upon all states, as well as complement other legal instruments,Footnote ⁹⁶ namely the Hague Conventions and Annexed Regulations of 1899 and 1907,Footnote ⁹⁷ the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict,Footnote ⁹⁸ and the Rome Statute of the ICC.Footnote ⁹⁹

Under Article 4 of the 1954 Hague Convention,Footnote ¹⁰⁰ Israel has an obligation to respect cultural property, which is the “most fundamental obligation undertaken by High Contracting Parties to the Convention.”Footnote ¹⁰¹ The concept of respect under this article entails four distinct obligations: “refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict”;Footnote ¹⁰² “refraining from any act of hostility, directed against such property”;Footnote ¹⁰³ “prohibit[ing], prevent[ing] and, if necessary, put[ing] a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property,” and “refrain[ing] from any act directed by way of reprisals against cultural property.”Footnote ¹⁰⁴ As Article 4(1) of the Convention clearly indicates, such obligations apply to cultural property situated within a state party’s own territory as well as the territory of another party. As the occupying power, Israel is bound by these obligations along with those posited under Article 5 of the Convention. And while Article 4(2) of the Convention may waive such protective obligations “only in cases where military necessity imperatively requires such a waiver,”Footnote ¹⁰⁵ this does not mean that military necessity can be invoked as a blanket statement, where every single cultural property in Gaza is turned into a legitimate military objective. Not only does this claim have no legal basis under international law when it comes to the protection of civilian objects regardless of their nature,Footnote ¹⁰⁶ but it stands in contravention of customary international law and general principles of international law,Footnote ¹⁰⁷ including the principle of proportionality, which has to be applied when determining if an act is mandated by military necessity.Footnote ¹⁰⁸

Additionally, the 1999 Second Protocol to the Hague Convention of 1954 supplements the Convention, yet its customary character under international law remains contested.Footnote ¹⁰⁹ The fact that Israel has not ratified the Second Protocol shows that Israel is choosing to “remain outside [what is considered to be] the most important international regime for the prohibition and suppression of cultural property destruction in time of war.”Footnote ¹¹⁰ Israel’s reluctance to ratify the Second Protocol should be situated within the context of its withdrawal from UNESCO in 2017,Footnote ¹¹¹ which came in response to increasing local, regional, and international efforts to protect and safeguard Palestine’s cultural heritage through strategic engagement with the UN system as a whole and the UNESCO protection regime in particular given Israel’s continuing delegitimization of a Palestinian presence in the region,Footnote ¹¹² as well as the rise in state-backed settler violence in the West Bank as part of a systematic ongoing campaign to confiscate more and more Palestinian land.Footnote ¹¹³ Through its membership in UNESCO and its “accession to various UNESCO conventions,”Footnote ¹¹⁴ Palestine has been able to affirm that “no other sovereign controls its cultural heritage and property,”Footnote ¹¹⁵ especially that for more than a century Palestinian cultural heritage has been either captured or destroyed by other states.Footnote ¹¹⁶

Article 6 of the 1999 Second Protocol clarifies the conditions under which a state party may invoke military necessity to waive its obligations under Article 4(1) of the Convention. More specifically, Article 6 stipulates that a state may invoke the exception of military necessity in accordance with article 4(2) of the Convention to direct an act of hostility against cultural property only if two cumulative conditions are met.Footnote ¹¹⁷ First, if the cultural property “has, by its function, been made into a military objective.”Footnote ¹¹⁸ Second, “there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective.”Footnote ¹¹⁹ Significantly, the term “function” under Article 6(a)(i) can be interpreted in two ways: A state could adopt the lower standard of protection by holding that cultural property can become a military objective by its nature, location, purpose, or use.Footnote ¹²⁰ A state could also adopt the higher standard of protection by holding that cultural property can become a military objective by its use only.Footnote ¹²¹ Thus far, neither of the two cumulative conditions have been met in the context of Israel’s enormous damage and destruction of Gaza’s cultural heritage. Therefore, such damage and destruction to Gaza’s cultural, historical, and religious sites appear to be intentional and give rise to serious violations of the protocol and the Convention itself, namely under Article 15 of the 1999 Second Protocol.Footnote ¹²²

According to Article 7 of the Protocol, states have to take a number of precautions to avoid attacks on cultural property.Footnote ¹²³ More specifically, states shall “do everything feasible to verify that the objectives to be attacked are not cultural property protected,”Footnote ¹²⁴ as well as “tak[ing] all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental damage to cultural property.”Footnote ¹²⁵ Equally important, an attack should be canceled or suspended if it “may be expected to cause incidental damage to cultural property … which would be excessive in relation to the concrete and direct military advantage anticipated.”Footnote ¹²⁶ Indeed, what can be established from the clear and stringent language of the 1999 Second Protocol is that extensive destruction of cultural heritage is not justified, making attacks on cultural property an exception rather than the norm and subject to very strict criteria. As for the extent of incidental damage that may be occasionally caused to cultural property, this involves both qualitative and quantitative factors. That is, the incidental damage caused to cultural objects is not only a question of square meters, but also of the cultural value of Gaza’s cultural objects.Footnote ¹²⁷

The International Court of Justice as a site of narrating cultural genocide in Gaza

The ICJ is known as the World Court for all nations and is the principal judicial organ of the United Nations. Under its statute, the ICJ entertains two types of cases: advisory opinions and contentious cases. Whereas the UN General Assembly and the UN Security Council may request the ICJ to give an advisory opinion on any legal question,Footnote ¹²⁸ only states can bring contentious cases before the Court.Footnote ¹²⁹ Generally, matters concerning cultural heritage are rarely raised before the ICJ.Footnote ¹³⁰ Nonetheless, cultural heritage was expressly mentioned in two inter-state disputes before the Court, namely in Temple of Preah Vihear (Cambodia v. Thailand) Footnote ¹³¹ and Armenia v. Azerbaijan. Footnote ¹³² These two cases demonstrate the Court’s “readiness to adjudicate issues involving international cultural heritage law for the first time.”Footnote ¹³³ However, they are not reflective of the wider work of the Court, particularly when it comes to examining the obligation of states to prevent and punish genocide in situations entailing the destruction of cultural heritage.

Before unpacking the South Africa v. Israel case and its role in giving visibility to the destruction of cultural heritage in Gaza, it is worth noting that the ICJ has historically played an important role in tackling complex legal issues concerning Israel’s practices and policies in the OPT in several key cases, including two significant advisory opinions. In its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court concluded that the construction of the wall by Israel is contrary to international law.Footnote ¹³⁴ Most recently, in its advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, the Court has found that Israel’s continued presence in the OPT is unlawful and constitutes an international wrongful act entailing its international responsibility.Footnote ¹³⁵ As significant as these advisory opinions are, the Court does not explicitly mention in either of them the destruction of cultural heritage as one of the legal consequences arising from Israel’s construction of the Separation Wall, as well as its unlawful practices and policies in the OPT. More specifically, the Court does not seem to recognize at all how the central issues it addresses with regards to self-determination, state responsibility, military necessity, Israel’s settlement expansion, and reparations are all closely tied to cultural heritage, its protection, and the accountability issues surrounding it. Despite all of this, the genocide case that South Africa has brought against Israel offers some hope, and the ICJ has an important role to play in this regard as discussed subsequently.

On 29 December 2023, South Africa instituted proceedings against Israel before the ICJ, alleging violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide in Gaza.Footnote ¹³⁶ The South Africa v. Israel case is the only case that explicitly mentions the destruction of Palestinian cultural heritage in Gaza before the ICJ. South Africa’s accusation that Israel is committing the crime of genocide is based on two related but distinct techniques of genocideFootnote ¹³⁷ that were identified by Raphael Lemkin at the time of drafting the Genocide Convention: a physical-biological destruction of the group as expressed under Article II of the 1948 Genocide Convention,Footnote ¹³⁸ and a socio-cultural destruction of the group through cultural genocide.Footnote ¹³⁹ At the time of drafting, cultural genocide was omitted from the final text of the 1948 Genocide Convention.Footnote ¹⁴⁰ Nevertheless, the position that the ICJ has adopted with regards to the destruction of cultural heritage in the cases of Bosnia & Herzegovina v. Serbia & Montenegro and Croatia v. Serbia set out an important precedent. In the two cases, the ICJ endorsed the position of the ICTY that it may take account of “simultaneous attacks on the cultural and religious property and symbols of the targeted group” as evidence of genocidal intent.Footnote ¹⁴¹ And while it is unlikely that the ICJ will engage with the specific legal frameworks that ensure the protection and safeguarding of cultural heritage during armed conflict, there is a strong likelihood that the Court will take into consideration the destruction of Palestinian heritage as evidence of genocidal intent.

South Africa requested nine provisional measures “as a matter of extreme urgency,”Footnote ¹⁴² including one measure on the prevention of “the destruction of Palestinian life in Gaza,”Footnote ¹⁴³ which particularly deals with the destruction of Palestinian cultural heritage. This important component of the case is meticulously expressed in its application in a section titled “Destruction of Palestinian Life in Gaza,”Footnote ¹⁴⁴ wherein South Africa claims that Israel’s destruction of Palestinian life encompasses the destruction of Gaza’s tangible and intangible cultural heritage. To do so, South Africa drew on the language of the Genocide Convention, namely Article II(c),Footnote ¹⁴⁵ in an attempt to narrate specifically how Palestinians, as a social group, experienced the destruction of their social life and all that is subsumed into it, including attacks on their cultural heritage as follows:

South Africa’s representation of the non-physical-biological dimension of the genocide in Gaza stands out from the fairly compartmentalized and property-based one in the case of Bosnia & Herzegovina v. Serbia & Montenegro,Footnote ¹⁴⁷ where Bosnia-Herzegovina claimed in a section titled “Destruction of Historical, Religious and Cultural Property” that “Serb forces engaged in the deliberate destruction of historical, religious and cultural property of the protected group in an attempt to wipe out the traces of their very existence.”Footnote ¹⁴⁸ Indeed, South Africa’s representation of Palestinian cultural heritage embodies the wholeness of Palestinian cultural heritage and all that is concomitant of it: the tangible, the intangible, the natural, the social, the cultural, the intellectual, the educational, the historical, the intergenerational, the artistic, and the religious.

In response to South Africa, Israel argued that there is no dispute between itself and South Africa, that the Court lacks jurisdiction, and that it is exercising its right to self-defense in response to the October 7 attacks by Hamas.Footnote ¹⁴⁹ Nevertheless, the Court not only found “the existence of a dispute between [South Africa and Israel] relating to the interpretation, application or fulfilment of the Genocide Convention,”Footnote ¹⁵⁰ but also that “at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention.”Footnote ¹⁵¹ In other words, the Court declared that South Africa presented a plausible case that Palestinians in Gaza have the right to be protected from genocide and other related prohibited acts.Footnote ¹⁵² As for the nine provisional measures requested by South Africa, the ICJ adopted six of them.Footnote ¹⁵³ Unsurprisingly, the Court did not make any reference to the measure concerning the destruction of Palestinian cultural life, which entails the systematic destruction of cultural heritage. In fact, the Court never indicated provisional measures concerning the protection of cultural heritage in any of the genocide cases it had previously dealt with. However, the significance of the South Africa v. Israel case lies in the fact that this is the first time that a state used the Court as a site of narrating the systematic destruction of Palestinian cultural heritage given its historical invisibility within the work of the Court. Accordingly, the role of the ICJ should not be underestimated when it comes to the destruction of Palestinian cultural heritage, which may provide insight into genocidal intent if viewed by the Court in a holistic capacity. As Nafziger indicates, “the concept of cultural genocide is still simply a useful evidentiary tool to establish the requisite mens rea of an intent to commit a genocidal act rather than a definition of a distinct atrocity in itself.”Footnote ¹⁵⁴

UNESCO’s response to the destruction of cultural heritage in Gaza

In response to Israel’s indiscriminate attacks on Gaza’s cultural heritage, UNESCO issued a statement on 18 December 2023, stressing that it is “deeply concerned about the impact of the ongoing fighting on cultural heritage,” as well as reminding Palestine and Israel that they are parties to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.Footnote ¹⁵⁵ UNESCO’s response to the situation in Gaza was prompted by a draft resolution titled: “Impact and consequences of the current situation in the Gaza Strip/Palestine in all aspects of UNESCO’s mandate.” The resolution was proposed by the Arab Group and formed the basis of UNESCO’s response to the situation in Gaza, as well as the several measures its committees have taken to safeguard Gaza’s cultural heritage.Footnote ¹⁵⁶ The resolution was proposed amid the backdrop of a series of grave violations committed by Israel, which UN experts perceived as pointing “to a genocide in the making” at the time,Footnote ¹⁵⁷ including Israel’s deliberate and ongoing destruction of much of Gaza’s ancient cultural heritage at an unprecedented level.Footnote ¹⁵⁸

As part of the 42nd session of the UNESCO General Conference, which took place on 8 November 2023, the Republic of Yemen proposed on behalf of Arab states to include the draft resolution as an item in the agenda of the General Conference, which was later adopted by a majority vote of member states.Footnote ¹⁵⁹ Noticeably, only few states from the “Western World” voted in favor. The fact that the Arab group took the lead on putting forward the resolution is not surprising when considering that “the League of Arab States has been the Palestinians’ foremost allies in UN bodies for decades.”Footnote ¹⁶⁰ Significantly, the Arab Group’s resort to UNESCO out of all UN agencies at an early but already critical stage of Israel’s offensive on Gaza is a strategic move to address and ameliorate the situation in Gaza on all fronts in accordance with UNESCO’s mandate. While the United States of America, recently readmitted to UNESCO, could still have political influence on other member states along with Israel, which left the organization in 2017, the United States has no power to veto resolutions within UNESCO as it did on 20 November 2024 in a UN Security Council draft resolution that demanded an immediate ceasefire in Gaza,Footnote ¹⁶¹ as well as when UN Secretary General António Guterres invoked the rarely used Article 99 of the UN Charter.Footnote ¹⁶² The resolution begins by reiterating “the urgent need for immediate action to guarantee protection from further damage and harm to cultural heritage in Gaza, in compliance with the relevant UNESCO Conventions.”Footnote ¹⁶³

With this resolution and its emphasis on the protection of cultural heritage in Gaza in mind, UNESCO has been involved in the damage verification of Gaza’s historical, religious, and cultural sites. Such efforts are particularly crucial as they constitute a credible and authoritative source for the documentation of Israel’s destruction of cultural heritage, which Israel has a history of either denying or destroying the evidence of.Footnote ¹⁶⁴ Through its damage verification of many sites in Gaza, UNESCO implicitly affirmed the territorial integrity and sovereignty of Gaza as belonging to Palestinians at a time when Israel and the United States are not even hiding their intention to “take over” Gaza through the forced displacement of an entire population, which would amount to a war crime under the Geneva Conventions of 1949 and a crime against humanity under the Rome Statute of the ICC.Footnote ¹⁶⁵ Another value to the documentation of damaged sites is that UNESCO experts will draw on these efforts to assess “the extent of the damage inflicted and to plan for restoration, reconstruction, and recovery,”Footnote ¹⁶⁶ which is an area that will be dependent on both the political will and financial support of Member States. In this respect, Palestine should consider applying for the Fund for the Protection of Cultural Property in the Event of Armed Conflict as set out in Article 29 of the 1999 Second Protocol.Footnote ¹⁶⁷ The main purpose of the “Fund” is to offer technical and financial assistance in relation to emergency, provisional, or other measures to protect cultural property during a period of armed conflict, or for immediate recovery once hostilities come to an end.Footnote ¹⁶⁸

Since its first damage verification on 25 January 2024 of 22 sites,Footnote ¹⁶⁹ UNESCO has been assessing the damage inflicted on other sites and updating the list accordingly. “As of 25 April 2025, UNESCO has verified damage to 102 sites since 7 October 2023 [including], 13 religious sites, 69 buildings of historical and/or artistic interest, 3 depositories of movable cultural property, 9 monuments, 1 museum [,] and 7 archaeological sites.”Footnote ¹⁷⁰ UNESCO’s verified list of heritage sites seems conservative in comparison with the findings of a report compiled by the Centre for Cultural Heritage Preservation (CCHP) in Bethlehem. Funded through the British Council and conducted by Oxford University’s Endangered Archaeology in the Middle East and North Africa (EAMENA) team in coordination with a CCHP team in Gaza, the key findings of their assessment using satellite imagery were as follows: a total of 138 sites from historic buildings, monuments, natural heritage, to archaeological locations were severely damaged; 61 sites were moderately damaged; and 27 sites were minimally damaged, with 90 sites left undamaged, comprising 28% of the total sites.Footnote ¹⁷¹ Such findings seem relatively closer in number to the preliminary findings by Gaza’s Ministry of Culture until January 7, 2024, where it reported, inter alia, on the damage to 195 historical buildings.Footnote ¹⁷² While the Ministry stressed that their data is only preliminary due to the difficulty in accessing any of the sites in light of Israel’s ongoing offensive, the categories of damage identified in the report are more expansive than those mentioned by UNESCO and the CCHP, reflecting a mix of tangible and intangible cultural heritage like murals, historical streets, garments, and embroidered items. One figure that stands out in the Ministry’s report is the loss of 2,100 garments (Thobes) and embroidered items (Tatreez),Footnote ¹⁷³ which are inscribed on the Representative List of the Intangible Cultural Heritage of Humanity under the category of “the Art of Embroidery in Palestine, Practices, Skills, Knowledge, and Rituals.”Footnote ¹⁷⁴ The destruction of this element of intangible cultural heritage is only the tip of the iceberg given the unprecedented scale of destruction that Israel has inflicted on the people of Gaza and their heritage for over two years. Thus far, the impact of internal displacement, forced displacement, starvation, and the targeting of civilian and cultural objects on Palestinian intangible heritage remains absent from any scholarly analysis. In a recent report examining human rights violations and possible international crimes committed by Israel against educational facilities and cultural and religious heritage sites, the Independent International Commission of Inquiry on the Occupied Palestinian Territory has concluded that:

One of these intangible cultural elements that seems to be immensely affected is Gazan traditional recipes, whose preservation as an intrinsic aspect of Palestinian culture and identity is urgently needed, especially in face of Israel’s starvation of an entire civilian population and its history of appropriating Palestinian culture.Footnote ¹⁷⁶ In a report exploring the implications and impact of Israel’s starvation on the Palestinian people’s food sovereignty, the Special Rapporteur on the right to food, Michael Fakhri, particularly examines the stark difference before and after the war in Gaza between two ingredient lists for Summaqiyyah, a popular Gazan festive dish dating back to the eleventh century CE. Following the war, the Special Rapporteur notes, people in Gaza have not been able to access the most basic ingredients to make this dish during Eid al-Adha, leaving people to improvise with limited ingredients to make this dish.Footnote ¹⁷⁷

As indicated by the Special Rapporteur, “these recipes [referring to Summaqiyyah] like many recipes, are embedded in knowledge about the Palestinian people’s ongoing relationship with their land, territory and history. Collecting and sharing recipes is so much more than developing a cooking guide since it is a practice that preserves local knowledge, and changes as more people cook.”Footnote ¹⁷⁸ What is clearly at stake here, in light of Israel’s starvation of an Indigenous community who has a specific cultural relation to food, is the loss of local knowledge through the very people who carry and create such recipes.Footnote ¹⁷⁹ As a State Party to the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, the State of Palestine can utilize the Convention to ensure international awareness about Gaza’s intangible cultural heritage, but also to press the need for the safeguarding and preservation of such heritage. This could entail nominating Gaza-specific practices, knowledge, and skills for inscription on the Representative List of the Intangible Cultural Heritage of Humanity in order to create more visibility and awareness around their value and significance.Footnote ¹⁸⁰ In addition to this measure and in light of the immense impact of starvation on Palestinian cuisine as an integral element of intangible cultural heritage, Palestine may consider nominating Summaqiyyah for inscription on the Urgent Safeguarding List in accordance with Article 17(3) dealing with the inscription of items of intangible heritage “in cases of extreme agency.”Footnote ¹⁸¹ One of the criteria for inscription on the List of Intangible Cultural Heritage in Need of Urgent Safeguarding is that the “element is in extremely urgent need of safeguarding because it is facing grave threats as a result of which it cannot be expected to survive without immediate safeguarding.”Footnote ¹⁸² Indeed, this is exactly the case when it comes to traditional Palestinian recipes like Summaqiyyah, whose survival appears to be at risk in face of Israel’s attack on Palestinian food sovereignty, and the very people who maintain and bear knowledge of such sovereignty as an essential element of Palestinian heritage.

When it comes to safeguarding Palestinian tangible cultural heritage in Gaza, Palestine could utilize the safeguarding mandate of other particularly relevant conventions and protocols. Palestine has already started this process since the beginning of Israel’s attacks on Gaza’s cultural heritage as shown subsequently. As a State Party to the 1972 World Heritage Convention,Footnote ¹⁸³ Palestine could nominate more of Gaza’s rich cultural and natural sites for inscription on the World Heritage List. Thus far, Palestine has 12 sites on the Tentative List for potential inscription on the World Heritage List. All of these sites are located in the West Bank, except Anthedon Harbour (cultural) and Wadi Gaza Coastal Wetlands (natural), which are located in Gaza.Footnote ¹⁸⁴ Since its ratification of the Convention in 2011, Palestine has only been recently able to inscribe one cultural site (Ancient Jericho / Tell es-Sultan) for inclusion on the World Heritage List.Footnote ¹⁸⁵ Notably, its four other cultural sites that are on the World Heritage ListFootnote ¹⁸⁶ have been included on this list through engaging with the emergency inscription procedure provided for under Article 11 of the Convention, which has been particularly effective given Israel’s intense practices and policies that have resulted in the damage and destruction of Palestinian historical, cultural, and religious sites since its occupation of the Palestinian territory in 1967.Footnote ¹⁸⁷

Given Israel’s 17-year siege on Gaza, the political divisions between the Palestinian Authority (PA) and the Hamas government that have resulted in a fragmented local regime of heritage protection, as well as the longstanding negligence of the Hamas government to safeguard and preserve Gaza’s cultural heritage,Footnote ¹⁸⁸ one of the main challenges for the State of Palestine when engaging with the process of inscription of a site in Gaza on the World Heritage List is to demonstrate pursuant to the Operational Guidelines for the Implementation of the World Heritage Convention that “[a]ll properties inscribed on the World Heritage List must have adequate long-term legislative, regulatory, institutional and/or traditional protection and management to ensure their safeguarding.”Footnote ¹⁸⁹ In response to some of the anticipated technical, administrative, financial, and political difficulties that it may encounter in preparing inventories of properties for potential inscription on the World Heritage List, Palestine could address such issues through international assistance and educational programs in accordance with Articles 19–28 of the Convention.Footnote ¹⁹⁰ Other common challenges associated with the inscription on the World Heritage List include the very time-consuming nature of the inscription process, as well as the politically motivated voting procedure by the 21 state members of the World Heritage Committee.Footnote ¹⁹¹

Considering Israel’s disproportionate military response that has left much of Gaza’s valuable cultural heritage at imminent risk of severe harm and destruction, Palestine has activated the emergency inscription procedure provided for under Article 11 of the World Heritage Convention,Footnote ¹⁹² as well as based on the provisions under Paragraph 161 of the Operational Guidelines concerning nomination dossiers to be processed on an emergency basis.Footnote ¹⁹³ Such nominations “would constitute an emergency situation for which an immediate decision by the Committee is necessary to ensure their safeguarding and to unquestionably justify Outstanding Universal Value.”Footnote ¹⁹⁴ In response to Palestine’s request on 26 July 2024 to the World Heritage Centre to process the nomination of Tell Umm Amer on an emergency basis, the World Heritage Committee, in its 46th Session, simultaneously inscribed Tell Umm Amer on the World Heritage List based on criteria (ii), (iii), and (vi), and on the List of World Heritage in Danger.Footnote ¹⁹⁵ Through its utilization of the emergency inscription procedure, Palestine affirmed the outstanding universal value of Tell Umm Amer and the need to protect it from danger. While the extent of damage inflicted on Tell Umm Amer remains unknown,Footnote ¹⁹⁶ Palestine may in accordance with Article 23 of the 1954 Hague Convention call upon UNESCO for technical assistance in organizing the protection of Tell Umm Amer.Footnote ¹⁹⁷ In this respect, the obligation imposed on Israel as the occupying power by Article 5(1) would include “the obligation to grant the Organisation’s representatives access to the property in question, to refrain from obstructing their work and even to lend them assistance, as far as possible.”Footnote ¹⁹⁸ With the intensification of Israel’s indiscriminate attacks on Gaza’s civilian objects, Palestine may also consider inscribing Anthedon Harbour and Wadi Gaza Coastal Wetlands on an emergency basis in order to ensure their safeguarding from danger and affirm their value as well.

In addition to its strategic utilization of the emergency procedure under the World Heritage Convention, Palestine has utilized the enhanced protection procedure provided for under the 1999 Second Protocol.Footnote ¹⁹⁹ On 12 December 2023, in accordance with Article 11(9) of the 1999 Second Protocol,Footnote ²⁰⁰ the State of Palestine requested, “on an emergency basis, enhanced protection of cultural property under its jurisdiction or control.” Upon receiving the request for the granting of provisional enhanced protection, the Secretariat of UNESCO communicated the request to the Committee for the Protection of Cultural Property in the Event of Armed Conflict. In its 18th Session on 14 December 2023, the Committee decided to grant provisional enhanced protection to the cultural property Tell Umm Amer. This decision was made after the Committee had determined that Palestine’s request for provisional inscription particularly met the conditions stipulated under paragraphs (a) and (c) of Article 10 of the 1999 Second Protocol, namely being of the greatest importance for humanity and not being used for military purposes, respectively.Footnote ²⁰¹ While the Committee recognized “that the outbreak of hostilities in the territory of the State of Palestine does not allow for providing information concerning the adequate domestic legal and administrative measures recognizing [Tell Umm Amer]’s exceptional cultural and historic value and ensuring the highest level of protection,”Footnote ²⁰² it encouraged Palestine to provide such information “whenever circumstances allow” and to submit a request for granting the site enhanced protection in order to inscribe it on the International List of Cultural Property under Enhanced Protection through the regular procedure.Footnote ²⁰³ Notably, the committee does not seem to acknowledge the role of Israel in preventing the Palestinian Ministry of Tourism and Antiquities and its national bodies from preserving and protecting cultural heritage in Gaza. As such, the careful use of the phrase “whenever circumstances allow” by the Committee seems to obscure the underlying reason behind Palestine’s inability to promptly provide such information – that is, Israel’s closure of the Gaza strip through its refusal to allow foreign journalists, UN fact-finding missions, and relevant UN agencies into Gaza in accordance with its obligations as the occupying power and as a member of the United Nations.

With Israel’s blatant disregard of its obligations under the Hague Convention of 1954 and its indiscriminate attacks on Gaza’s cultural heritage, Palestine could invoke the Protecting Powers procedure under Article 21 and the conciliation procedure under Article 22, respectively. According to Article 21 of the 1954 Hague Convention, the Convention and its Regulations are to be applied “with the co-operation of the Protecting Powers responsible for safeguarding the interests of the Parties to the conflict.”Footnote ²⁰⁴ In this sense, Palestine could designate a third state to perform certain functions on its behalf vis-à-vis Israel. Pursuant to Article 22(1), the protecting powers are required to “lend their good offices in all cases where they may deem it useful in the interests of cultural property, particularly if there is disagreement between the Parties to the conflict as to the application or interpretation of the provisions” of the Convention or Regulations.Footnote ²⁰⁵ As such, Palestine may benefit from the conciliation procedure provided for under Article 22(2), in which each of the protecting powers may “either at the invitation of one Party, of the Director-General of the United Nations Educational, Scientific and Cultural Organization, or on its own initiative, propose to the Parties to the conflict a meeting of their representatives,” particularly the authorities responsible for the protection of cultural property. The meeting will be chaired by a neutral person proposed by the protecting powers or presented by UNESCO, and such a person will have to be approved of by the parties to the conflict.Footnote ²⁰⁶

Accountability for the destruction of Palestinian heritage

In addition to the important role of UNESCO and the ICJ in respectively pressing the need for the protection and taking account of the destruction of Palestinian heritage as evidence of genocidal intent, international criminal law constitutes the main avenue for ensuring the prosecution of perpetrators of the crime of intentional destruction of cultural property through international tribunals.Footnote ²⁰⁷ Under such law, it is established that the deliberate destruction of cultural property bears individual criminal responsibility as a war crime and a crime against humanity.Footnote ²⁰⁸ While the emphasis on individual criminal responsibility offers a limited form of accountability through punishing the authors of such crimes regardless if such crimes were carried out as a matter of state policy, the intentional destruction of cultural property is considered an internationally wrongful acts that gives rise to state responsibility under international law.Footnote ²⁰⁹

In recent years, the international community has devoted particular attention to the destruction of heritage as a pressing global issue that poses a threat to world peace and security. This global endeavor was prompted by the cultural destruction and looting by ISIS and Al-Qaeda extremist armed groups in Syria and Iraq, leading the international community with the guidance of UNESCO to put cultural heritage on the international security agenda.Footnote ²¹⁰ To do so, a number of UNSC resolutions concerning heritage emerged with a particular focus on the destruction and looting in Iraq and Syria.Footnote ²¹¹ Significantly, the first UNSC resolution dedicated to the protection of cultural heritage emphasized the important role that UN Peacekeeping Operations can play in the protection of cultural heritage from destruction during armed conflict, affirming that:

Despite Israel’s history of targeting, looting, and excavation of Palestinian cultural heritage,Footnote ²¹³ none of the UNSC resolutions on heritage destruction have made any reference to Israel’s longstanding attacks on Palestinian heritage. Given the highly politicized nature of the UNSC and its failure to impose sanctions on Israel for its countless flagrant violations of international law, it is very unlikely that the council will ever consider deploying peacekeeping operations in Gaza or anywhere else in the OPT to assist with the protection of Palestinian heritage. Undoubtedly, the invisibility of Palestine and its increasingly endangered heritage from such resolutions is an extension of the nefarious role that the United States has historically played in the UN Security Council through diminishing the efforts of Palestinians to resolve the question of Palestine based on the international rule of law rather than hegemonic peace processes, facilitating the expansion of Israeli settlements in the West Bank, impeding the Palestinian Authority (PA) from seeking the jurisdiction of the ICC, as well as continuously opposing Palestine’s request for full UN membership.Footnote ²¹⁴ Even recently, out of the 13 draft UNSC resolutions that touched on a range of issues from calling for a ceasefire, release of all captives, to unhindered aid to Gaza, only three of them were adopted with the rest being vetoed by the United States.Footnote ²¹⁵ The United States’s insistence on vetoing ceasefire resolutions is a continuation of its decades-long policy of shielding Israel from legal accountability,Footnote ²¹⁶ thus not only justifying and legitimizing at an unprecedented scale the destruction of an entire people and their centuries-long heritage through policy and law, but also preventing the sheer possibility of a civilian population and their cultural heritage to survive.

In the past ten years, Palestine has used international law as a tool to advance its struggle for justice and self-determination, particularly through joining UNESCO as a full member, ratifying core human rights treaties, and seeking the jurisdiction of the ICC. The engagement with the latter started in 2014 when Palestine acceded to the Rome Statute. In so doing, the Palestinian Authority (PA) referred the situation in Palestine to the ICC,Footnote ²¹⁷ leading then Prosecutor Fatou Bensouda to open an investigation into the Situation in the State of Palestine.Footnote ²¹⁸ Noticeably, the destruction of heritage is not mentioned at all in the Referral among the alleged crimes that Israel may have committed. The scope of the ongoing investigation, however, could cover Israel’s recent systematic attacks on Gaza’s cultural heritage, which would fall within the scope of Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the Rome Statute.Footnote ²¹⁹ Commenting on the ongoing investigation and Israel’s recent actions in Gaza, the Prosecutor himself confirmed on 30 October 2023 that his “Office has an ongoing investigation with jurisdiction over Palestine that goes back to 2014 and any crimes committed on the territory of Palestine by any party. And this includes jurisdiction over current events in Gaza and also current events in the West Bank.”Footnote ²²⁰ As part of his statement, the Prosecutor not only emphasized the protection of schools, hospitals, mosques, and churches under international humanitarian law, but that his office would scrutinize any attacks on them.Footnote ²²¹ The OTP’s confirmation of an ongoing investigation into the Situation in the State of Palestine along with the emphasis on scrutinizing information with regard to attacks on churches and mosques was meant to act as a deterrent, thus showing awareness of potential attacks on Gaza’s cultural heritage, some of which reportedly took place even before the announcement by the OTP.

With the intensification of Israel’s aerial bombardment on civilians and civilian objects and its blockade of humanitarian aid into Gaza, Pre-Trial Chamber I of the ICC issued arrest warrants for Benjamin Netanyahu and Yoav Gallant on 21 November 2024 for the war crime of starvation as a method of warfare and the crimes against humanity of murder, persecution, and other inhumane acts. It also issued an arrest warrant for Mohammed Diab Ibrahim Al-Masri for crimes against humanity and war crimes.Footnote ²²² The arrest warrants are significant since they challenged the discourse around Israel being above the rule of law, affirming that perpetrators of international crimes shall be held accountable regardless of where they are committed or by whom. While the warrants on their own will not deliver justice for the Palestinian people and their cultural heritage, we cannot undermine the reputational damage that such requests inflict on suspected war criminals. The impact of this reputational damage is even more immense with Israel being on the dock for genocide.

What is particularly promising about the arrest warrants is the fact that the Chamber has reasonable grounds to believe that other inhumane acts have been committed, which could possibly include crimes against Gaza’s cultural heritage. According to the OTP, “crimes against or affecting cultural heritage that cause great suffering or serious injury to the mental and physical health of the victim could constitute ‘other inhumane acts’ under article 7(1)(k) of the Statute if they are similar in nature and gravity to other acts listed in article 7(1) of the Statute.”Footnote ²²³ Given Israel’s continuing systemic attacks on civilians and the increasing issuance of so-called evacuation orders meant to forcibly displace Palestinians as warned by Ravina Shamdasani, the spokesperson for the UN High Commissioner for Human Rights,Footnote ²²⁴ there is a strong case to make that crimes against or affecting Gaza’s cultural heritage are very likely to constitute other inhumane acts of similar character, especially that the Chamber already recognizes murder as one of the crimes against humanity that Netanyahu and Gallant may have committed. It is noteworthy that in the case of Al Mahdi before the ICC, the Court found that the extensive destruction of cultural heritage in the 2012 non-international armed conflict in Mali was tantamount to a war crime.Footnote ²²⁵ In this specific case, it was the first time that the ICC convicted an individual of intentionally directing attacks against religious, historical, and cultural buildings, including mosques and mausoleums in the World Heritage Site of Timbuktu.Footnote ²²⁶ Equally important, the Al Mahdi case “represented the first time that the ICC found that victims, who were not the physical target of the attack, could still be recognized as direct or indirect victims and receive reparations for harm sustained as a result of the attacks.”Footnote ²²⁷ It thus remains to be seen if the ICC will take account of the extensive destruction of Gaza’s cultural, historical, and religious sites in its ongoing investigation into the Situation in the State of Palestine, as well as deliver an order for collective reparations in order to recognize the Palestinian community as a victim of the cultural harm resulting from such deliberate heritage destruction.