‘Does the destruction of Cultural Heritage in Gaza prove that Israel has committed Crimes against Humanity & Genocide?’

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While excluded from the Genocide Convention, the concept of ‘Cultural Genocide’ is a useful tool for courts to link the destruction of cultural heritage with: (i) the Crime of Genocide; and (ii) Crimes against Humanity.

See Federico, Lenzerini, ‘Terrorism, Conflicts and the Responsibility to Protect Cultural Heritage’ (2016) 51(2) International Spectator 70, 78 (destruction carried out with discriminatory intent may constitute a crime against humanity or evidence of genocidal intent). See also UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage  (17 October 2003) (characterising in the Preamble the intentional destruction of Cultural Heritage as having ‘adverse consequences on human dignity and human rights’). [Cited in Footnote 81 on p.162 of ‘Cultural Objects and Reparative Justice’, by Patty Gerstenblith (2023) (OUP)].

‘The Rome Statute does not specify the destruction of cultural heritage as an independent crime against humanity or as a form of genocide. The policy of the Office of the Prosecutor treats attacks on or destruction of cultural heritage instrumentally as a means of establishing the required elements of discriminatory intent and targeting of the group in the commission of crimes against humanity or genocide. Recent decisions of the United States courts indicate an evolving definition of genocide to include acts that might be termed cultural genocide in determining what constitutes a violation of international law.’ (Gerstenblith p. 163).

Look at the images of what remains standing in Gaza.

Ask yourself – ‘Has Israel destroyed the Cultural Heritage of the Palestinian People in Gaza?’

Your answer must be a binary ‘Yes’ or ‘No’.

Before you answer that Q. as a corollary, ask yourself – ‘Could the scale of destruction as evidenced by photographs taken from the air and on the ground, have occurred without the involvement of the IDF?’

If the answer to this Q. is ‘No’, then your answer to the previous Q. must logically be ’Yes’.

In which case, I would submit that the only sensible conclusion which can rationally be drawn from the evidence, is that while the destruction of Cultural Heritage is not itself a crime against humanity or a form of genocide, because it can be used to establish the required elements of ‘discriminatory intent’ and ‘targeting of the group in the commission of Crimes against Humanity or Genocide’, that given the scale of destruction in Gaza, it does exactly that.

So, the evidence alone of the destruction of what appears to be almost the entire tangible Cultural Heritage of the Palestinian People in Gaza, appears to be sufficient to discharge the Burden of Proof in the Judicial determination by the ICJ at the Hague, of whether Israel has committed both: (i) Crimes against Humanity; and (ii) Genocide.

That legal proposition will of course soon be tested at the ICJ.

See also:

  • Gaza Strip: Damage assessment: Gaza Strip: Damage assessment | UNESCO
  • A ‘cultural genocide’: Which of Gaza’s heritage sites have been destroyed? – Nearly 200 sites of historical importance have been destroyed or damaged in Israeli air raids on the Palestinian enclave in the past 100 days.’

Comments added:

Cultural identity is considered to part of human dignity. It is linked to human rights because cultural heritage is of crucial importance to individuals and communities as part of their identity. As cultural heritage requires memory, this applies to both tangible and intangible heritage, because material and physical heritage needs to be placed in both a historical and cultural context, in order to understand its value.

‘The cultural heritage of a people is not limited to the tangible expressions of art, architecture, religion, poetry, or writing in general but also includes its intangible heritage, which is transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity. More generally, cultural heritage includes the expressions of the people’s spirituality, and the body of values which give meaning to life’  (Francioni, Francesco & Ana Filipa Vrdoljak‘ (2020) The Oxford Handbook of International Cultural Heritage Law, Oxford University Pres, p 77).

‘The real target of most acts of intentional destruction of cultural heritage is therefore, not the heritage in itself but the human communities for which such a heritage is of special significance.’ (‘Mens Rea of Intentional Destruction of Cultural Heritage’, by Federico Lenzerini, Chapter 4 of the Oxford Handbook of International Cultural Heritage Law’ (2020), Oxford University Press, page 77).

‘The destruction of heritage, and prohibition of cultural behaviours are used by certain conflict actors as “shaping operations”, where violence against the “Other” becomes normalised as communities, either incrementally or at once, lose their property, freedoms, and humanity. Culture is a shared set of values, ideas, and behaviours that enable a social group to function and survive. Cultural heritage maintains identity, social cohesion, and a sense of security through intangible practices, including rituals, music, language and skills, and tangible property such as artefacts, archaeology and places. Roosevelt’s four  freedoms link cultural behaviour – to freedom from fear and want. Targeting cultural heritage is an act of power that legitimises one group while diminishing others and is often a precursor for the most offensive form of cultural destruction: genocide.’ (Clack & Dunkley, p.301 – An interview with Colonel Rosie Stone. These are the words of Colonel Stone).

The destruction of cultural heritage as a tactic of Ethnic Cleansing and Genocide prompted the development of International Law to protect cultural heritage in times of armed conflict.

Hugo Grotius and Emmerich de Vattel, influential jurists in the development of the law of nations, argued that cultural objects, as they are not militarily useful, should be protected during armed conflict.

They argued that preserving such heritage honoured human society and did not strengthen the enemy.

Their arguments, rooted in principles of moderation and military necessity, laid the groundwork for later international conventions aimed at protecting cultural heritage during wartime.

Consequently, the intentional destruction of tangible Cultural Heritage, as a tactic in carrying out ‘Ethnic Cleansing’ and ‘Genocide’, is now recognized as being a grave violation of jus cogen norms of International Law that are erga omnes.

That is why there must be a universal ‘legal reckoning’, i.e. full legal accountability for all of those who are responsible either directly or indirectly, i.e. through complicity in the widespread commission of War Crimes.

Therefore, it is not only the survival of the Palestinian People that is at stake in Gaza, it is also the survival of International Law as a bulwark, in preserving and protecting the Cultural Heritage of all Humanity on this planet.

This is not some ‘Grandiose Statement’, because where the ‘Greater Israel Project’ of territorial expansion through: (i) land theft by Israeli settlers – at ‘gun-point’; (ii) Ethnic Cleansing; and (iii) Genocide – committed by the IDF; and (iv) endless war by Israel, is taking place and will spread, is ‘geographically’ in the heart of the Levant, which holds significant religious importance as the birthplace of major world religions and is considered to be a ‘Cradle of World Civilization’.

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