‘A House Divided Against Itself, Cannot Stand’
Evaluating the Reliability of the 1954 Hague Convention in Relation to the Destruction of Cultural Heritage in Gaza (Reflections on “Military Necessity” Clauses)
By: Liv Siefert, Macquarie University
The first time I detailed the importance of Gaza's cultural heritage in relation to the current armed conflict, was on the 5th of November in 2023. What started as a small excerpt in my undergraduate thesis, belligerently extended into a pertinent dialogue on the vital nature of scholarship discussing the role of war in the idolatrous mentality that has fed off of the "total destruction of the Gaza cultural heritage.”[1] At the time of that submission in November, only nine sites had been highlighted 'at risk' of becoming military targets for the Israeli Defence Force ('IDF').[2] As of the 2nd of February in 2024, 200 sites (out of the 325 that are registered) have been destroyed in the Gaza Strip.[3]
After more than 170 days of "intensive bombardment", this statistic was reported by the Palestinian Committee for the International Council on Monuments and Sites ('ICOMOS').[4] The latest of the three reports not only details the martyred citizens and heritage of Palestine, but also provides a wider context into the rejection of humanitarian law clauses since the occupation in 1967. This includes the IDF's ongoing use of incendiary white phosphorus, which has been retroactively restricted under Article 1 of Protocol III of the Convention on Certain Conventional Weapons, since 1983.[5] Alongside repudiations of international law pertaining to the displacement of Gaza's population (including the 85% of Gaza citizens who have been evacuated to the south in recent months), the report covers the tangible and intangible history that has now been lost; some of which had been dated to the Neolithic Age.[6] Palestine's ICOMOS reports will indefinitely become a consequential resource to remind heritage practitioners, especially those working within Market States, of privileged apolitical research in the study of cultural patrimony.
The Western tendency of academic literature and mainstream media to dilute the gravity of the conflict in Gaza, has long polluted its ability to develop as well as execute diplomatic heritage policy that exists outside of impartial politicisations.[7] The first modern codification of war that extended instruments to the protection of cultural property, hails from the Lieber Code, with Articles 35 and 36 labelling the importance of heritage institutions as requiring the same level of protection as hospitals.[8] However, acting as a direct descendant of this legislation, the promulgating law of the 1954 Hague Convention represents a 'tautology' that has exposed the need for a complete judicial overhaul.[9]
The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, represents the legislative framework enforced after the widespread destruction of cultural property and subsequent looting witnessed during World War II.[10] Marking its 70th year of entry in 2024, the instrument obliges both the Source State and Occupying Force to safeguard heritage during times of armed conflict.[11] The International Committee of the Red Cross actively continues to socially monitor the placement of this legal mechanism in current geopolitics and states that, "the deliberate destruction of monuments… is a sign of degeneration into total war. It is sometimes the other face of genocide."[12] For the sake of this dialogue, it is worth noting that Israel acceded the Convention in 1958 and is therefore bound by law to support the restrictions of the mechanism, including the affirmation of protection given to immovable and movable heritage.[13]
Under Article 5, Israel as the current occupying constituent of Gaza, is required to safeguard local cultural property during periods of peacetime, including the six-day ceasefire that occurred from the 24th-30th of November in 2023.[14] ICOMOS' second report (December 19, 2023) details that whilst humanitarian aid was permitted to enter Gaza (temporarily halted due to UNRWA intelligence leak Hamas investigations), no formal preparations to protect heritage from further military damage were made.[15] Jan Hladík of the International Standards Section of the Division of Cultural Heritage for UNESCO, reviewed the Convention and its 1999 Second Protocol, and provides much on the notion of "military necessity". I have drawn on his commentary, to extend on the Convention’s socio-quasi aptitude for ‘discreditation’ in Articles 4, 8, and 11.[16]
Whilst all cultural property is afforded 'general protection' under both civilian and military law, Article 4, Paragraph 2 details the "imperative military necessity" that belligerent States are afforded based on the invocation of the corresponding United Nations waiver.[17] Although this is so, this instrument has drawn significant criticism as the outlined term is not formally defined in the Convention.[18]
Pursuant to Article 8, 'special protection' can be granted to movable cultural heritage that has been evacuated to external shelters for recognition of their "very great importance" including the moving of patrimony to evicted museum or gallery spaces.[19] Once again, this instrument is limited in that the refuge must be away from "large industrial centres or any important military objective."[20] For this case study, the residents of Gaza would also not be able to use such spaces as 'shields' and therefore, succeeding IDF justifications for the destruction of cultural heritage, including possible uses as insurgent bases, are not recognised and have often been disproven.[21] Additionally, further immunity to the destruction of heritage is afforded in Article 11, whereby "unavoidable military necessity" can be invoked in order to use such spaces for external protection.[22] Legal scholars have noted however, the 'stringent requirements and practical difficulties' of registering for extended protection, as most museum or gallery spaces that might be utilised as evacuation bases are very often located in city centres and major infrastructure.[23] Ultimately, 'military necessity' as an objective concept is not defined in the entire Convention, and therefore the IDF and other Occupying Forces are possibly able to utilise this terminological nuance for any heritage destruction that may occur.
Although it is an issue within itself, the inclusion of 'military necessity' clauses in humanitarian law, such as the 1954 Hague Convention, raises vital questions relating to the future of movable and immovable heritage once armed conflict has ceased. Article 7 states that there is no requirement to educate civilians on the importance of protecting cultural heritage as a nationalistic (as well as oftentimes ideological) representation of humanity.[24] In addition, the International Committee of the Red Cross and the United Nations are not required to meet regularly on the implementation of this Convention. Whilst reports must be prepared for UNESCO every four years, human as well as open-source intelligence from heritage personnel currently stationed in Gaza and Palestine, have proven to be significantly more reliable in their results.[25] These citizens are often named as key informants in both the aforementioned ICOMOS reports as well as 'First Aid Response' handbooks developed by organisations such as the International Centre for the Study of the Preservation and Restoration of Cultural Property.[26] These intelligence products have proven to be far superior in both their effective outcomes and their disaster management frameworks in the current armed conflict in Gaza as well as the ongoing repair of heritage in Ukraine.
The destruction of cultural heritage under the 1954 Hague Convention is not considered a war crime and therefore prosecuted persons cannot be taken to international judicial committees, such as the International Court of Justice.[27] It is worth noting that immovable and movable heritage afforded protection under the 1949 Geneva Convention is considered a "grave breach" and is, under their instruments, legally a war crime.[28] It is worth noting that this is partially due to the Convention and its 1977 Protocols having been ratified by more Member States, and therefore further belligerent forces may be held under the scrutiny of this international humanitarian law.[29]
Currently, more than 7,000 civilians of Gaza remain under the debris and wreckage of bombarded buildings.[30] Whether these destroyed sites are registered as culturally significant or not, it is clear that universal citizens sit at the precipice of witnessing a total genocide that will continue to haunt both the people and heritage of Gaza long after armed conflict ceases. Not only has the aggression of the IDF extended far beyond any etymological definition of 'military necessity' under humanitarian laws, but it has also succeeded in exposing the privileged consciousness of those of us who will not feel the impact of this war.[31] Traditional scholarship has long maintained an eliminative stance on discussions relating to the ethical factors involved in developing heritage legislation, instead prioritising the empirical data that has been produced as a result of the ideological destruction of such places.[32] Furthermore, monumental places continue to receive elevated sources of finance, and often do not extend such care to intangible heritage that will be lost due to the lack of temporal and spatial contexts.
Military counterinsurgency manuals and their corresponding legislative mechanisms, have failed to account for the debilitating use of cultural heritage as a source of warfare, ultimately highlighting a new socio-genesis of ratified propagandisation.[33] So whilst the death toll in Gaza has risen to an undercounted amount of 32,000 civilians, legislation continues to celebrate its ability to overlook data that links systemic cultural destruction to its profitability on both the licit and illicit markets.[34] Economist Henry Hazlitt’s ‘Broken Window Fallacy’, may provide a future applicable framework on this punitive paradox. The symbolic destruction of culture in Gaza demonstrates a modern security challenge that cannot be solved through world actors modelling solutions from European post-war constructions of its industrial complex.[35] This unprecedented proxy battle is enacted through a myriad of ‘stakeholder as combatant’ belligerents, and requires a conscious reframing of the past as an active phenomenon that is not always monumental in stature nor legal depiction.
The Grand Mosque of Gaza, built in the 5th century, was largely destroyed by an Israeli airstrike on 7 December 2023.
Maison Bonfils, Grande Mosquée de Gaza, 1867, photography, Gaza Strip, Palestine.
Notes
[1] Wiliam Hunter, “The Archaeological Sites At Risk of Being Wiped in the Israeli-Palestinian Conflict - From the Oldest Christian Church in Gaza to an ‘Unprecedented’ Roman Necropolis Containing At Least 130 Tombs,” Daily Mail (London, UK), October 22, 2023, https://www.dailymail.co.uk/sciencetech/article-12649597/The-archaeological-sites-risk-wiped-Israeli-Palestinian-conflict-oldest-Christian-Church-Gaza-unprecedented-Roman-necropolis-containing-130-tombs.html. Reported by French archaeologist Jean-Baptiste Humbert, who has worked on Palestinian and wider Gaza excavations for decades.
[2] Hunter. Both the LIDAR and standard geographical maps of possible cultural heritage sites at risk of damage are vital for comparison. This includes the excavation of historical sites below modern housing and other infrastructure that was targeted in earlier attacks.
[3] ICOMOS, “Initial Report on the Cultural Heritage Devastations in Gaza Strip and the Palestinian Occupied Territories: Documentation and Gathering of Evidence During the Humanitarian Truce,” Anata, Jerusalem, 2023. This initial report was published by the National Palestinian Committee of the International Council on Monuments and sites, on November 30, 2023.
[4] ICOMOS, “Report #3: New Evidence Indicating the Devastation in Palestine: Genocide, Urbicidem and Genocide (Documentation and Evidence Gathered: December 16th 2023 - January 31st 2024),” Anata, Jerusalem, 2024. The third report was published on 2 February 2024. Released one month after the Hunter article, 13 sites had then experienced widespread attacks.
[5] ICOMOS, 2024. Other infringements on restricted weapons used by the IDF include the use of ‘dummy bullets’. Both weapons are mentioned in this report.
[6] Indlieb Farazi-Saber, “A ‘Cultural Genocide’: Which of Gaza’s Heritage Sites Have Been Destroyed?,” AlJazeera (Doha, Qatar), January 14, 2024, https://www-aljazeera-com.cdn.ampproject.org/c/s/www.aljazeera.com/amp/news/2024/1/14/a-cultural-genocide-which-of-gazas-heritage-sites-have-been-destroyed. For detailed heritage reviews of specific sites that have been targeted. The article also covers museums, libraries, mosques, churches, and cemetery complexes that have been attacked.
[7] Vidya Krishnan, “Western Coverage of Gaza: A Textbook Case of Coloniser’s Journalism,” AlJazeera (Doha, Qatar), February 2, 2024, https://www.aljazeera.com/opinions/2024/2/2/western-coverage-of-gaza-a-textbook-case-of-colonisers-journalism. For further calls into the decolonisation of media discussing the ongoing conflict, see also the Middle East Council on Global Affairs:(https://mecouncil.org/blog_posts/western-media-has-failed-to-properly-cover-gaza-conflict/).
[8] Erika J. Techera, “Protection of Cultural Heritage in Times of Armed Conflict: The
International Legal Framework Revisited,” Macquarie Journal of International and Comparative Environmental Law 4, no. 1 (2007). The Lieber Code was developed during the American Civil War and was only bound to military forces in the USA. However, to a great extent these articles laid the framework for the 1954 Hague Convention in their protection during active military objectives.
[9] Patty Gerstenblith, “Beyond the 1954 Hague Convention,” in Cultural Awareness in the Military: Developments and Implications for Future Humanitarian Cooperation, ed. by Roberto Albro and Bill Ivey (New York: Palgrave MacMillan, 2014), 95.
[10] Gerstenblith, 84 . For modern context into the development of both the Convention and Blue Shield after WWII, Gerstenblith highlights both in light of their contemporary legal regimens used to sign such agreements.
[11] “Convention for the Protection of Cultural Property in the Event of Armed Conflict: 70th Anniversary,” Blue Shield, Blue Shield, April 1, 2024, https://theblueshield.org/news-activities/hague-convention-70th-anniversary/. For further information on their commemoration of the Convention, see their PR package in the bibliography.
[12] Francois Bugnion, “The Origins and Development of the Legal Protection of Cultural Property in the Event of Armed Conflict,” International Committee of the Red Cross, November 14, 2004, https://www.icrc.org/en/doc/resources/documents/article/other/65shtj.htm. Provides good historical context for the development of international humanitarian law that pertains to cultural heritage protection, but does risk validity of findings in its use of informal and charged language relating to the International Committee of the Red Cross.
[13] “Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict,” UNESCO, The Hague, Netherlands, 1954, https://www.unesco.org/en/legal-affairs/convention-protection-cultural-property-event-armed-conflict-regulations-execution-convention. Convention for Protection of Cultural Property in the Event of Armed Conflict. Even though Israel (along with The Holy See and Liechtenstein are not voting members of UNESCO), they have all acceded to the convention and are bound to its restrictions. Israel has, however, not acceded to the Second Protocol from 1999.
[14] “Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict,” See Ch I (General Provisions Regarding Protection): Article 5, Clause 1.
[15] ICOMOS, “Initial Report on the Cultural Heritage Devastations in Gaza Strip and
the Palestinian Occupied Territories: Documentation and Gathering of Evidence During the Humanitarian Truce,” Anata, Jerusalem, 2023. See the second report, ‘The Cultural Heritage Devastation in Gaza Strip and the Palestinian Occupied Territories (Documentation and Evidence Gathered): October 7th-December 16th 2023)’.
[16] Jan Hladík, “The 1954 Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict and the Notion of Military Necessity,” International Review of the Red Cross no. 835, Paris, France, 1999, 622. This review was written within the same year of the induction of the Second Protocol. Whilst his military necessity clause dialogue is pertinent framework for the proceeding discussion, a level of nuance has been applied in its application due to the time difference between writing and the current conflict in said discussion.
[17] Hladík, 622. Hladík details that this necessity is differentiative from “unavoidable” destruction of cultural heritage. However, this depends on the rank of the military officer who invokes the waiver exception, and their obligation to give official warning prior to the beginning of military operations (between recommended or obligatory).
[18] Hladík, 622. Whilst an explicit definition of “military necessity” is consciously absent from both protocols, Hladík does state that the Secretariat of UNESCO (dated May 1998), did differentiate between general and special protection offered to sites.
[19] “Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict,” See Ch I (General Provisions Regarding Protection): Article 1, Clause B.
[20] “The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict: States Parties.” UNESCO, Paris, France, 1956. https://en.unesco.org/protecting-heritage/convention-and-protocols/states-parties. See Ch II (Special Protection): Article 8, Clause 1(a).
[21] Louisa, Loveluck, Evan Hill, Jonathan Baran, Jarrett Ley, and Ellen Nakashima, “The Case
of al-Shifa: Investigating the Assault on Gaza’s Largest Hospital,” The Washington Post (Washington, D.C.), January 21, 2024, https://www.washingtonpost.com/world/2023/12/21/al-shifa-hospital-gaza-hamas-israel/. See the al-Shifa hospital raid, described now as a deliberate intelligence failure. IDF claimed on October 27, that the complex was used specifically as a “command center” that directed attacks and fighter squadrons. These claims were found to be false in December 2023 and have raised humanitarian concerns into direct attacks on other known civilian complexes.
[22] “Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict.” See Ch II (Special Protection): Article 11, Clause 2.
[23] Chadha (2001). For further analysis on other semantic paradoxes presented in the Convention, Chadha’s article also discusses the nuance between the Second Protocol and other attacks including Non-International Armed Conflicts (‘NIAC’s’) and potential sanctions of violations.
“Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict.” See Ch I (General Provisions Regarding Protection): Article 7, Clause 1 and 2. Both clauses were drawn to foster a ‘spirit of respect’ for the cultural heritage but neither provision specifies the diffusion of such spiritual education that is systemically fostered by the claimant or occupant.
[25] Geraldine Kendall Adams, “Widescale Destruction of Cultural Heritage in Gaza,” Museums Association (London, UK), January 30, 2024, https://www.museumsassociation.org/museums-journal/news/2024/01/widescale-destruction-of-cultural-heritage-in-gaza/#.
Numbers that are regularly updated have been confirmed often by the ICOMOS reports or Gaza’s Media Office.
[26] Aparna Tandon, First Aid to Cultural Heritage in Times of Crisis. Handbook, Rome, Italy,
2018, 27.
[27] However, the South African case presented to the ICJ against Israel, noted that the destruction of Palestinian cultural heritage is an act of ‘genocide’ that requires immediate attention to “protect against further, severe, and irreparable harm to the rights of the Palestinian people.” (January 11, 2024).
[28] Techera, 11. See Article 85 of Protocol 1, of the 1949 Geneva Convention. There is no corresponding instrument in Protocol 2.
[29] Techera, 11. Further proceedings can also be brought against States or individuals pursuant to the Rome Statute of the International Criminal Court. However, this does only apply to immovable heritage rather than wider cultural patrimony. Details pertaining to both Protocols can be found in the Geneva Convention Relating to the Protection of Civilian Persons in Times of War of August 12, 1949.
[30] Human Rights Watch, “Israel and Palestine Events of 2023,” World Report, New York, 2023. For wider information on the statistics reported since October 7 2023, view their 2024 World Report.
[31] Rhea Nayyar,“Video of Israeli Soldiers Handling Gaza Antiquities Raises Outrage,”
Hyperallergic (Brooklyn, NY), February 7, 2024. https://hyperallergic.com/868269/video-of-israel-soldiers-handling-gaza-antiquities-raises-outrage/. This analysis contains video and photographic footage posted on X (formerly Twitter), of the Israeli Antiquities Authority Director-General handling Gaza antiquities in both a storeroom and the Knesset. This article was prepared in conjunction with Librarians and Archivists in Palestine (LAP) who have continued to document other cultural centres that have come under physical fire, since the 1948 Nakba.
[32] O’Keefe, 12. Further reference is given here specifically to the ongoing difficulty of military objective intervention in the safeguarding of civilian infrastructure, in the development of such instruments.
[33] Kaamil Ahmed, “Everything Beautiful Has Been Destroyed: Palestinians Mourn a City in
Tatters,” The Guardian (Surry Hills, NSW, Australia), February 4, 2024. https://amp-theguardian-com.cdn.ampproject.org/c/s/amp.theguardian.com/world/2024/feb/04/everything-beautiful-has-been-destroyed-palestinians-mourn-a-city-in-tatters.
[34] Farah Najjar, Urooba Jamal, and Stephen Quillen, “Israel’s War on Gaza Live Feed,”
AlJazeera (Doha, Qatar), April 2, 2024. https://www.aljazeera.com/news/liveblog/2024/4/2/israels-war-on-gaza-live-five-aid-workers-killed-after-delivering-food. This figure comes from the Health Ministry in Gaza’s daily press releases, and was reported at time of peer-review submission on 2 April 2024. Over 75,000 people have also been injured, and an Australian aid worker volunteering for World Central Kitchen was reported dead as of 24 hours ago.
[35] Henry Hazlitt, Economics in One Lesson, New York: Crown Currency, 1988, 11. Whilst this fallacy has been applied to the lasting effects of economic damage, this social principle can be very easily transferred to cultural heritage hailing from the war in Gaza, that will inevitably appear on the black and grey antiquities markets.
