Israel’s ongoing armed conflict with Hamas in the Gaza Strip has recently involved the destruction of some cultural and environmental sites close to its coast. A report by Forensic Architecture has shown that attacks by Israeli forces have damaged historical places of cultural importance to the Palestinians and hurt places of natural importance along the coast of Gaza. This damage was sustained during the course of hostilities being conducted in the area of Gaza’s Al-Shati refugee camp. These military operations could be in violation of international humanitarian law.
As I wrote in my last article, Israeli Forces have to wear a humanitarian lens when conducting hostilities. Objects of cultural heritage and the natural environment in occupied territory can represent a people’s identity. In selecting targets, the Israel Defense Forces must take into account the importance of these objects and the special protection they are entitled to under IHL before launching an attack.
Cultural Heritage in Armed Conflict
After the Second World War, states negotiated international treaties to protect cultural objects during armed conflict. The first such treaty is the 1954 Hague Convention on Cultural Property, drafted to safeguard and conserve cultural property during armed conflicts. This convention has two protocols, the First and the Second Protocol to the 1954 Hague Convention of 1954 and 1999. The First Protocol protects cultural property during an occupation, while the Second Protocol expands the application of the Hague Convention to include non-international armed conflicts (NIACs).
Article 1 of the Hague Convention of 1954 defines cultural property as ‘movable or immovable property of great importance to the cultural heritage of every people’ which includes monuments, sites, groups of buildings, works of art or manuscripts. States are to avoid intentionally targeting cultural property unless an imperative military necessity exists to do so. Under Article 6(b) of the 1999 Protocol, the military necessity exception can only be applied for so long as ‘that cultural property has, by its function, been made into a military objective’ and ‘there is no feasible alternative available to obtain a similar military advantage’.
While Israel and Palestine are both parties to the 1954 Hague Convention and its First Protocol, only Palestine has ratified the Second Protocol which is applicable to NIACs. While the conflict between Hamas and Israel is a NIAC, the Gaza Strip remains occupied territory (i.e., an international armed conflict). It may be that the Second Protocol, with its caveated military necessity exception, would not apply to this situation at all and only the 1954 Hague Convention and its First Protocol, as well as customary IHL, would govern Israel’s conduct.
Cultural Heritage under IHL
Geneva Law also protects cultural property. Article 53 of Additional Protocol I to the Geneva Conventions of 1949 (API) prohibits directing hostilities towards any historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples. They also cannot be made the object of reprisals. Pictet’s commentary explains that ‘in general the adjective “cultural” applies to historic monuments and works of art, while ‘spiritual’ applies to places of worship. However, this should not stop a temple from being attributed with a cultural value, or a historical monument or work of art from having spiritual value.’ This was confirmed by discussions at the Diplomatic Conference. A breach of Article 53 of API is considered a war crime. The Eritrea-Ethiopia Claims Commission confirmed that destroying archaeological monuments in occupied territory is a violation of customary IHL (para 113). The Commission relied upon customary IHL as neither state was party to the Hague Convention.
Violations of the Law
The Palestinians’ cultural heritage is currently under attack in Gaza. According to Forensic Architecture, the IDF has targeted cultural heritage despite it constituting a visible expression of human identity. For the Palestinians, their culture forms ‘the backbone of their right to self-determination’. Moreover, Al-Haq argues that Israel’s differential treatment of archaeological sites, in which it preserves those under its territorial control while destroying those of Palestinian heritage, is an inherent aspect of Israeli apartheid. As a result, not only could the attack on Gaza’s Al-Shati refugee camp constitute a war crime (so long as there is no military necessity to the attack), but it could also be a crime against humanity if conducted in a widespread and systematic way.
Harm to the Environment
In addition to the impact on cultural property, the report connects ‘Israel’s destruction of Palestinian cultural heritage to the environmental damage caused by pumping seawater into Gaza’s aquifer’ which they argue could constitute ‘evidence of Israeli officials and military’s intent to erase and destroy the Palestinian people in Gaza’.
IHL also protects the natural environment in an armed conflict as it is a civilian object which is governed by cardinal rules of IHL, the principles of distinction, proportionality and precaution. It is further directly protected by Article 35(3) and 55 of API.
The ICRC further identified rules 43, 44 and 45 of customary IHL that are applicable to the environment in both IACs and NIACs. Those protections can be summarised as prohibiting (i) attacks against the environment or using weapons which can cause widespread, long-term and severe damage; (ii) damage to objects indispensable to human survival; (iii) injuries or harm to human life through environmental damage; (iv) attacks against objects that contain dangerous forces; and (v) looting or pillaging of civilian resources.
However, a key criticism of the direct protection offered to the environment under IHL is the fact that its threshold is very high. It requires damage which would last decades spread out over several hundred square kilometres and which results in a severe disruption of the ecosystem. Though the threshold is high it is absolute and so ‘any widespread, long term and severe damage to the natural environment is prohibited regardless of necessity or proportionality considerations’. The Al-Haq report notes that the flooding of Gaza’s only functioning aquifer would leave a ‘lasting impact for generations to come…worsening the…“uninhabitable” situation in Gaza’. This aquifer is indispensable to the civilian population, its flooding may have disproportionate effects on the people of Gaza, and it may even satisfy the criteria for long-term under the relevant provisions of API.
Cross-Protection under IHL
In this somewhat unique situation, the seawater pumped into the aquifer may cause environmental damage in violation of IHL. Furthermore, seawater pumped into underwater tunnels could destroy cultural heritage sites also in contravention of this regime. In both situations, these objects are protected under the Additional Protocols. Moreover, the cultural sites, especially those along the coastline, could also encompass an attack on the natural environment where it causes erosion. These complex ecosystems are interconnected and require a humanitarian application of IHL which takes into account the reverberating effects of such attacks. The overlapping of these scenarios raise questions about their treatment during war.
As Jorge Luis Borges said in the tale The Immortal, ‘In the end, Rufus realises that he has incorporated the experiences and words of Homer into his tale, but concludes that ‘I have been Homer; soon, like Ulysses, I shall be Nobody; soon, I shall be all men—I shall be dead’. Culture and spirituality is the heritage of humanity and signifies the immortality of human beings. As the Preamble to the Hague Convention states, ‘damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind’. It is necessary that we uphold the protections afforded to the Palestinian’s cultural heritage, as its loss is a loss to all mankind.
