Conquest and occupation throughout the centuries have been accompanied on many occasions by a victorious power's seizure of a defeated country's antiquities and works of art and the destruction of its national monuments. One only has to think of Napoleon's plunder of the major art collections of Italy in the late eighteenth and early nineteenth century or Germany's confiscation of all types of cultural property in the territories that it occupied during World War II or, more recently, during the Gulf War of 1990, Iraq's removal of the contents of Kuwait's major museums to Baghdad and Iraq's loss of a large number of its own archaeological artifacts during the subsequent occupation of Iraq. It is perhaps not surprising therefore to discover that during its 30-year occupation of the West Bank and the Gaza Strip, Israel has indulged in the plunder of antiquities and has been responsible for damaging and even destroying historic monuments.

There has been widespread documentation of Israeli human rights abuses and breaches of international humanitarian law in the Occupied Palestinian Territories (OPT), particularly since the beginning of the Palestinian Intifada (uprising) in 1987. In contrast, little is known about Israel's systematic violation of the international rules regarding protection of cultural property during armed conflict. The question attracted a great deal of media attention during the early 1970s, particularly after UNESCO's General Conference voted to cut off assistance to Israel because of Israel's persistent refusal to comply with the resolutions of the UNESCO Executive Board and General Conference requesting Israel to desist from carrying out archaeological excavations in East Jerusalem. There has, however, been little discussion of Israeli abuses outside Jerusalem, even though no area of the West Bank and the Gaza Strip remains unaffected by Israel's actions with regard to cultural property.

This report attempts to provide a comprehensive legal analysis of Israel's policies concerning cultural policy in the OPT. For the purposes of this study, the definition of cultural property contained in the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention of 1954) will be used. Section 2 of this study describes and analyses the relevant provisions of international law on protection of cultural property. Section 3 discusses how these rules have been applied in the OPT and specifically examines Israel's position on the applicability of these rules to the OPT and the use of the enforcement mechanisms provided by the Hague Convention of 1954. In Section 4 the provisions of domestic law concerning protection of cultural property are described. Section 5 looks at the various types of violations committed by Israel in the OPT: illegal excavations, removal of cultural artifacts, seizure of movable cultural property, and damage to and destruction of immovable cultural property. It is beyond the scope of this report to provide comprehensive details on violations and therefore Section 5 is confined to identifying patterns and providing case studies. Section 6 explains Israeli obligations to make reparations for these breaches of international law by paying financial compensation, returning movable cultural property to the OPT, and prosecuting persons who have authorised or perpetrated these abuses.

This report is particularly timely as it is published after the formal opening of Israeli-Palestinian negotiations to achieve a permanent settlement to the Israeli-Palestinian conflict. Under the terms of the Declaration of Principles on Interim Self-Government
Arrangements for Palestinians (DOP), these negotiations must be completed by May 1999. The settlement of Palestinian claims against Israel for the return of all cultural property removed from the OPT since 1967 is postponed until these negotiations. Section 6 examines the question of whether Israel is, as claimed by the Palestine Liberation Organisation and Palestinian National Authority, under a duty to return all these artifacts.

Section 7 provides recommendations to all concerned parties - Israel, the PLO, the PNA, the international community and non-governmental bodies, such as museums - as to how the implementation of international law of cultural property can be improved with regard to the OPT.

1. Introduction

2. International Standards Relevant to the Protection of Cultural Property in Occupied Territory

2.1 Introduction
2.2 The Hague Regulations of 1907
2.3 The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949
2.4 The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954

2.4.1 The Legality of Archaeological Excavations in Occupied Territory under the Hague Convention
2.4.2 Mechanisms for the Execution of the Hague Convention

2.5 The Hague Protocol of 1954
2.6 Summary of International Standards on Treatment of Cultural Property during Armed Conflict
2.7 International Council of Museum's Code of Professional Ethics of 1986

3. The Application of the International Law of Cultural Property to the Israeli-Palestinian Conflict

3.1 Israel's Position on the Applicability of International Law

3.1.1 The Israeli Government
3.1.2 The Israeli High Court of Justice

3.2 Measures to Secure the Implementation of International Law in Relation to Cultural Property in the Occupied Palestinian Territories

3.2.1 The Commissioners-General
3.2.2 UNESCO

4. Domestic Legislation Applicable in the Occupied Palestinian Territories

4.1 The Gaza Strip
4.2 The West Bank excluding East Jerusalem
4.3 East Jerusalem
4.4 Analysis of Israeli Amendments to Domestic Legislation
4.5 The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip

5. Israeli Violations of the International Law of Cultural Property in the Occupied Palestinian Territories

5.1 Israeli Excavations in the Occupied Palestinian Territories

5.1.1 Case Study: Digging in the Tunnel Running North of the Western Wall of the Haram al-Sharif
5.1.2 Case Study: Excavations at the Cemetery of Deir al-Balah
5.1.3 Case Study: Excavation of Samaritan Sites in the Northern West Bank
5.1.4 Case Study: Operation Scroll and Subsequent Excavations in the Jericho Area
5.1.5 Analysis of the Case Studies

5.2 Removal of Cultural Property from the Occupied Palestinian Territories

5.2.1 Case Study: Material form Deir al-Balah
5.2.2 Case Study: Sebastiya
5.2.3 Case Study: The Temple Scroll

5.3 Temporary Exhibitions outside Israel of Artifacts from the Occupied Palestinian Territories
5.4 Seizure of Cultural Property

5.4.1 Case Study: Seizure of the Palestine Archaeological Museum
5.4.2 Case Study: Seizure of the Madrasa al-Tankaziya and Its Vaults

5.5 Damage and Destruction of Cultural Property

5.5.1 Case Study: Destruction of a Major Part of the Moroccan Quarter
5.5.2 Case Study: Damage to the Buildings above or near the Tunnel Running North of the Western Wall of the Haram al-Sharif

6. The Legal Consequences of Israeli Violations of International Law in Relation to Cultural Property in the Occupied Palestinian Territories

6.1 Payment of Financial Compensation and Restitution of Cultural Property Removed from Occupied Territory and Payment of Financial Compensation

6.1.1 Customary International Law
6.1.2 The Hague Protocol of 1954
6.1.3 The Israel-Egypt Agreement of 1993 for the Return of Cultural Property from Occupied Egyptian Territory

6.2 Prosecution

6.2.1 The Fourth Hague Convention and Regulations of 1907
6.2.2 The Fourth Geneva Convention of 1949
6.2.3 Obligation to Prosecute or Extradite for War Crimes or Grave Breaches of the Fourth Geneva Convention of 1949
6.2.4 The Hague Convention of 1954
6.2.5 Obligations on Israel and Other States

7. Conclusions

Appendices