No peace for the dead: legal questions about Israel’s destruction of cemeteries in Gaza

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In Gaza not even the dead are at peace. In mid-December the New York Times and the Euro-Med Human Rights Monitor first reported that Israel had destroyed several cemeteries in Gaza, bulldozing graves, scattering human remains, and even exhuming bodies, some of which were subsequently taken to Israel. Last week, CNN filed a report documenting the destruction of sixteen cemeteries by the IDF in Gaza, indicating, if not a systematic practice, then at least a pattern of involving cemeteries in hostilities. This pattern raises two legal questions. First, under what circumstances is attacking or destroying cemeteries prohibited? Second, what are the legal protections afforded to human remains? Can removing them to Israel ever be legal? I will address these questions, arguing that, while it is unlikely that this conduct is legal in all cases, and not unlikely to be criminal in some, the destruction of cemeteries and removal of human remains raises some questions without easy answers. International law will have to grapple with these questions if Israel, or other warring parties, continue to involve the dead in their battles.

Cemeteries in Armed Conflict

Cemeteries are not military objectives. They are objects “normally dedicated to civilian purposes”, like places of worship. That means they must not be intentionally attacked unless they become military objectives. What could turn a cemetery into a military objective? In response to a CNN request for comment, the IDF alleged that Hamas launches attacks from cemeteries and provided a photo (at 3:03) of a rocket launcher surrounded by gravestones. If this scenario was verified, dominant interpretations of the customary definition would still indicate that the rocket launcher was the military objective, while the cemetery and graves should be treated as surrounding civilian structures that need to be protected as much as possible. The same would be true if the IDF were targeting a tunnel under a cemetery, as claimed in another CNN report: the military target would be the tunnel and the cemetery as a civilian object would need to be protected as much as possible.

If a Hamas position was integrated into the cemetery and could therefore not be treated as separate or the use of the cemetery was ongoing and repeated, maybe owing to the strategic value of the territory on which the cemetery was built, then the cemetery could, in principle, lose its status as a civilian object and become a military objective by use. Crucially, the military use of the cemetery could not be speculative. Because cemeteries are normally civilian objects, in case of doubt, the IDF would have to assume the civilian status of the cemetery and refrain from an attack.

Even if a cemetery was a military objective by use, an attack would not automatically be legal. Four types of potential civilian harm would need to be considered. First, the cemetery would still also have a civilian use. An attack could impede the future operation of the cemetery, i.e. the possibility to bury the dead there. In times of war, space to bury the dead is critically important. It is an urgent need in Gaza. Second, when calculating civilian damage, the cultural and spiritual value of the damaged object can be considered, even if the object does not itself count as cultural property (ICRC expert guidance p. 22 and p. 61). Third, IHL protects persons taking no active part in hostilities even after they have died (more on this below), grounding the argument that damage to human remains is comprised in the broader category of injury to civilians. Finally, although this is not without contestation, significant mental harm can be considered injury to civilians (ICRC expert guidance p.33). The significant and foreseeable pain that the destruction of gravesites causes to the families of the deceased should therefore not be dismissed in a legal analysis. An attack against a cemetery would have to involve all feasible precautions to minimize these four types of civilian damage and civilian injury. And the IDF would have to consider whether the anticipated military advantage of attacking a specific cemetery was proportionate to these expected civilian harms.

Could a cemetery become a military object also by location? The classic case of a military object by location is a bridge over a river the destruction of which provides a definite military advantage because it will slow down the advance of the enemy. It is hard to imagine, though maybe not impossible, that the destruction of a cemetery in Gaza provides a definite military advantage to the IDF by depriving Hamas of a specific rocket launch site. The modest military advantage arising from such an attack – given that Hamas can move rocket launchers to other places – would cast doubt over the proportionality of such an attack given the four types of foreseeable civilian harm mentioned above. Of course, the facts of each case would need to be examined in detail to determine whether a cemetery was, in fact, a military object by use or location and, if so, whether an attack was reasonably expected to be proportionate. If a cemetery that was not a military objective was intentionally attacked, this would be a war crime, subject to the jurisdiction of the ICC (Article 8(2) b ii & ix, Article 8(2) e i & iv). Depending on the classification of the conflict, a clearly disproportionate attack launched intentionally against a cemetery, even if it was a military objective by use or location, would also be criminal (Article 8(2)b iv), though the crime of disproportionate attack is notoriously hard to diagnose.

Crucially, the location of cemeteries may be militarily relevant in another way, even if it does not turn a cemetery into a military objective. Hamas reportedly uses booby traps on the roads of Gaza. Driving next to the road, rather than on it, can therefore potentially reduce the risk to IDF personnel. In that case the destruction of the cemetery would not be the result of a deliberate attack, but it might count as an intentional destruction of enemy property, which is prohibited “unless required by imperative military necessity”. If the purpose was protecting friendly forces, the destruction would not be wanton, but would it be of “imperative military necessity”? In each case, the factual question is whether there was truly “no other option” (Prosecutor v. Katanga [Judgment] para. 894) but to destroy the cemetery? Again, only a detailed investigation of each case can tell, but if this is the logic behind the destruction of cemeteries in Gaza, then the number of cemeteries destroyed in this way would cast doubt over the stringency of the standard the IDF applies to determine imperative military necessity. The ICC Statute considers the intentional destruction of the adversary’s property without imperative military necessity a war crime (Article 8(2) b xiii Article 8(2) e xii), a rule long established as part of the laws and customs of war.

Beyond the protection from intentional attack or destruction that comes from being a civilian object or enemy property, some cemeteries may also count as cultural property. If so, the circumstances under which a cemetery could be intentionally damaged would be more limited, yet. Different levels of protection are afforded to different types of cultural property, depending on their importance. Any cemetery that would fall under the protections of The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which Israel has ratified, for instance, could not be attacked simply because it was a military objective. Only imperative military necessity in addition to having become a military objective could justify a waiver of immunity. It is beyond the scope of this post and the expertise of the author to judge whether any of the damaged cemeteries count as cultural property and, if so, how important they are. Even if none of the cemeteries meet this stringent standard though, they are protected from attack or destruction, unless the specific conditions outlined above, are met in each case.

Questions Regarding Human Remains

Independent of the legal status of cemeteries, IHL also protects the human remains potentially affected by their destruction. Two sets of provisions are relevant: first, IHL protects the dignity of persons even after they die, and second, IHL proffers an elaborate web of rules for the treatment of the remains of persons who died because of the armed conflict, i.e. the “war dead”. Let’s turn to dignity first. The protection that IHL affords persons who do not take a direct part in hostilities does not simply end with their death. Of course, not all protections are relevant to the dead, but the protection of dignity is. The prohibition of  “outrages upon personal dignity”, enshrined in Common Article 3 of the Geneva Conventions, is therefore widely understood to apply to the dead (Elements of Crimes p. 18 & 23). Outrages upon personal dignity are war crimes if intent can be established (Article 8(2) b xxi & c ii). While Common Article 3 particularly pertains to “persons taking no active part in the hostilities”, once dead, arguably all persons are “hors de combat”. This interpretation is also supported by the fact that the war dead (see below) are protected regardless of their conduct or legal status prior to death. In short, IHL protects the dignity of human remains, regardless of who a person was, what they did before their death, or how they died.

There are several recent cases before domestic European courts that illuminate what it means to criminally violate the dignity of a dead person in the context of armed conflict. The two most frequent actions are the mutilation of a body and/or its display for instance on social media. The parading of bodies of hostages in Gaza after the atrocities of October 7 and recent videos released by Hamas displaying deceased hostages are clear cases of outrages upon personal dignity. But what about Israel’s conduct? Scattering bodies during the destruction of a cemetery may not meet the requirement of intent regarding the mutilation of human remains. However, driving over a dead body, an allegation that the IDF denies, resembles conduct which case law has deemed intentional violations of the dignity of the dead. When it comes to defining what violates the dignity of a person, there is an objective element – conduct “generally recognized as an outrage upon personal dignity” (Katanga and Chui [Pretrial Confirmation Decision] para. 369) – but cultural elements are also important. Domestic courts have, for instance, considered the importance of the inviolability of the dead in Muslim culture. While outrages upon personal dignity must be committed in the context of an armed conflict to be considered war crimes, they do not have to be committed against a person who died because of the armed conflict. This is relevant because many cemeteries in Gaza are not primarily dedicated to the war dead.  

Still some bodies, specifically those exhumed by Israel in search for deceased hostages, likely died recently, not unlikely as a result of the devastating armed conflict. Let us therefore turn to how IHL protects the war dead. Customary international law demands that belligerents “must take all possible measures to prevent the dead from being despoiled.” (Rule 113) and “the dead must be disposed of in a respectful manner and their graves respected and properly maintained” (Rule 115). The commentary on Article 17 First Geneva Convention clarifies that respect for graves implies a prohibition on “such actions as vandalizing or removing headstones, razing or dismantling gravesites, and disinterring bodies, unless exhumation is authorized by international humanitarian law” (2016 Commentary Article 17 GV I, para 1689). When does IHL authorize exhumation? Article 34 API states that exhumation is only permissible to repatriate a body (on the request of the home country or the next of kin) or as “a matter of overriding public necessity, including cases of medical and investigative necessity”. This obligation (applicable in international armed conflict and under occupation) addresses the party on whose territory the grave is. It also concerns the human remains of persons who are “not nationals of the country in which they have died.” Yet, neither most customary rules on the treatment of the war dead and their graves nor the ICRC’s Guiding Principles on the Management of the Dead are specifically tied to territory or nationality. Exhumation not for the purpose of either repatriation or investigation by a party to the conflict outside its own territory therefore violates, if not this specific treaty provision, then at minimum the spirit of IHL and the customary obligation to respect graves.

Israel argues that it is exhuming bodies precisely for the purposes recognized by IHL: to investigate what happened to the hostages and to bring them home. Yet, in the process of searching for dead hostages, Israel has allegedly unearthed hundreds of bodies. CNN reports that Israel recently sent 80 bodies of Palestinians back to Gaza, bodies that are allegedly now unidentifiable. Though staggering, the legal problem is neither the number of bodies dug up nor the probability that they are hostages. When exhuming mass graves to identify bodies, often after a conflict, parties typically deal with many bodies whose identity they do not know in advance. Yet, such an exhumation is for the benefit of all exhumed bodies, meaning the aspirations of identification, memorialization and repatriation are invested in all bodies. In contrast, Israel is disturbing the peace of bodies without then seeking to identify or repatriate them (they were home already). Israel allows some persons to lose their identity after death to be able to account for others. If those are the facts, then the practice violates a fundamental principle of IHL, one relevant to the war dead: non-discrimination. IHL demands in several places that parties to the war discharge their obligations toward the dead “without adverse distinction”. Israel’s treatment of the dead in Gaza seems to run counter to IHL’s very quest to protect the war dead regardless of who they were.

Israel would be right to point out that Hamas, by obscuring the fate of the hostages, is violating yet another of its own legal obligations, namely to account for the war dead, to prevent them from becoming missing persons. However, it is one of IHL’s bedrock principles that violations by one party to the war do not relieve the other of its duties. Israel owes respect for the dead not to Hamas, but to the dead and their families, to humanity, and to itself.

Concluding thoughts

Even if the IDF destroys cemeteries in Gaza for military reasons, the number of these instances raises questions. Even if the graves of Palestinians are disturbed only for the purpose of finding hostages, the practice challenges IHL’s goal to protect the dead without adverse distinction. Until the facts of each case are revealed, and we can provide definitive answers to the legal questions raised, the symbolic meaning of destroying cemeteries and disturbing gravesites looms large. Conflicts in which cemeteries are attacked often have an element of religious persecution, of an assault not only on the physical life of the enemy, but their cultural and religious existence, as well. Israel’s own culture places great value on the dignity of the deceased, as evidenced by the fact that the IDF took pains to leave two cemeteries with Jewish veterans of war in Gaza unaffected when fighting in the vicinity. Moreover, since facing the allegation of genocide in front of the International Court of Justice, Israel is seeking to counter the framing of its military operations as an assault on Palestinian life in Gaza. From that perspective, it is not only legally and morally the right thing, but also in Israel’s interest to adhere to IHL’s demands to leave the dead in peace.

 

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Nicolas Boeglin says

February 1, 2024

Dear Professor Dill

Many thanks for this extremely interesting post with the valuable information provided. I'm not sure if South Africa included references to the destruction of cemeteries in Gaza by IDF before ICJ: another evidence of the intention of Israel that could have interested ICJ Judges.

When destroying all existing infrastructure in Gaza, including cemeteries, Israel could also be facing in the very coming future legal actions on damages and reparations.

With regards to the question of reparations, may I refer you and our colleagues of EJIL to this report published last year by UNDP on damages caused in Gaza during 2014 military operation in which we read that:

“According to this preliminary assessment, the value of damages resulted by this war are estimated to reach up to $1,727,027,316″ (see report, p. 26).

Source: https://www.un.org/unispal/wp-content/uploads/2021/09/UNDPGAZAASSESS_230914.pdf

I was wondering if there will be similar reports to come on Gaza, using the very same methodology and estimation of damages observed in different reports written in Europe concerning damages caused by Russia in Ukraine.

Yours sincerely

Nicolas Boeglin