The Demolition of Synagogues in the Gaza Strip
a. The Facts
On 12 September 2005 Israel withdrew the last of its military forces from the Gaza Strip, in a unilateral move that was intended to bring to an end its responsibilities as occupying power in the territory. The preceding weeks were characterized by vigorous activity to remove all signs of Israeli control and presence. Most important was the removal of all Israeli settlers from the area. Immovable structures in the Israeli settlements were, for the most part, reduced to rubble. A single issue remained on the agenda of the Israeli government until the last minute: the fate of some thirty synagogues built in the Gaza Strip settlements during the period of Israeli occupation. The choice was, as far as Israel was concerned, between demolishing the structures, an act which is controversial under Jewish law, and surrendering them to what was expected to be acts of desecration by Palestinians.
The initial intention of the Israeli Government was reflected in a Cabinet decision of 6 June 2005 and a subsequent decision of the Ministerial Committee for Withdrawal, namely that once the contents of the synagogues as well as any other characteristic features were removed, the structures of the synagogues would be demolished, to prevent the possibility of their desecration by the Palestinians. This plan was upheld by the Israeli High Court of Justice in a majority decision.[1] The Court noted that judging by recent experience, even if an agreement were reached with the Palestinian Authority concerning protection of the sites, it would not have been reliable. The dissenting judge opined that an attempt should have been made to negotiate the matter with the Palestinians. Israel later requested Palestinian assistance in protecting the synagogues, but this request was rejected.[2] The Israeli Government ultimately reversed its decision and decided not to demolish the synagogues.[3]
The Palestinians expressed dismay at the Israeli decision, saying it put them in an impossible position because they would be criticized for destroying houses of worship, but at the same time they needed the space for their development plans. They also said that the synagogues were symbols of the occupation.[4]
Immediately following the completion of the withdrawal, Palestinians stormed the abandoned settlements, and the synagogues became targets for violence. They were set to fire and were damaged by light weapons and heavy machinery.[5]
The withdrawal from the Gaza Strip was not the first time that Israel handed territory over to Palestinian control that included places holy to Jews. The Gaza-Jericho Agreement of 1994[6] and the Interim Agreement of 1995[7] both provided for freedom of access to and practice in more than twenty sites. They included arrangements on military and civilian control, in some cases exercised jointly by Israel and the Palestinians. The success of implementation varied, and in some cases the modalities of protection have been modified following violent incidents.[8] At variance from its antecedents, the Gaza Strip withdrawal was unilateral. There was no agreement between Israel and the Palestinian Authority on the transfer of control.
The purpose of this Insight is to consider the rights and obligations of Israel and the Palestinian Authority with regard to the synagogues in the Gaza Strip, in light of four sets of international legal standards: the law of occupation, the law concerning protection of cultural property during armed conflict, the law concerning protection of cultural heritage, and standards related to religious tolerance and respect.
b. The Law of Occupation
1. The applicability of the law of occupation
The applicable law governing the Gaza Strip until the Israeli withdrawal was that of international armed conflict and occupation. The decision to leave the synagogues in place should therefore be examined in light of Israel's rights and obligations as an occupying power. Whether the withdrawal brought the law of occupation to an end is debatable. Under Article 42 of the 1907 Hague Regulations, territory is considered occupied when it is "actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." Article 6 of the fourth Geneva Convention provides that the occupying power shall be bound by key provisions in the Convention for the duration of the occupation, to the extent that it "exercises the functions of government in such territory." Israel's intention was that by withdrawing from the area it would exempt itself from any responsibility as an occupying power. Within the Gaza Strip it has relinquished its actual authority, and such authority can no longer be exercised unless new military action is taken. However, Israel retains control of the Gaza Strip's airspace and territorial waters, as well as over entry to and exit from the territory. In addition, certain infrastructure of the Gaza Strip, such as the water and electric services, is still provided through Israeli facilities. Finally, there is no doubt that the Palestinian economy in Gaza is still tightly bound with that of Israel. All these factors put into question the claim that the Israeli occupation of Gaza has ended.
The framework for analysis may be similar to that which applied when Israel first withdrew from Jericho and most of the Gaza Strip in 1994 and from other population centers in the West Bank in 1995. It was widely accepted then that to the extent that powers were handed over, Israel ceased to be responsible for the Palestinian population, while the Palestinian Authority assumed responsibility. This did not detract from the overall applicability of the law of occupation.[9] The same analysis may be appropriate in the current situation, at least with regard to preservation and protection of the synagogues. Accordingly, the following analysis will consider the responsibility of Israel and the Palestinians on the assumption that the occupation has ended in this narrow aspect.
2. The status of the synagogues as structures established by an occupying power
The overwhelmingly supported opinion, confirmed in an advisory opinion by the International Court of Justice[10] and rejected only by Israel, is that the Israeli civilian settlement in the Gaza Strip was a violation of the prohibition in Article 49 of the fourth Geneva Convention of 1949 on the transfer of civilian population of the occupying power into the occupied territory. It would follow that the construction of the synagogues for the use of this population was also unlawful. An alternative argument, sometimes put forward by Israel, is that the establishment of the settlements constituted a military necessity and was permissible under Article 43 of the Hague Regulations.[11] Whether this would justify the establishment of synagogues is questionable as a matter of law as well as fact. As a matter of law, there is a question whether military necessity would extend to the provision of religious services to the civilian community.[12] As a matter of fact, the genuine necessity for the synagogue is questionable. For example, in Kfar Darom, established in 1970,[13] the contentious synagogue was constructed only six months prior to the withdrawal. In any case, once the occupation comes to an end, the military necessity terminates, and with it any justification for the maintenance of the synagogues.
The occupying power and the authorities in the territory may, of course, reach an agreement on the future of such structures, and such an agreement would supersede any general rules. However, there was a clear refusal by the Palestinians to undertake the commitments that Israel requested. It appears reasonable that while the occupying power may leave standing any structures it had erected, it has no right to make demands to the authorities in the territory with regard to these structures, insofar as the structures are regarded simply as installations of the occupying power erected for its own purposes. It was indeed on the basis of this appreciation that the Israeli Government was reluctant to leave the synagogues in place.
c. The Synagogues as Cultural Property Protected During Armed Conflict
The principal protection of religious and cultural property in times of armed conflict is provided in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, in the 1907 Hague Regulations[14] and in Additional Protocol I to the Geneva Conventions.[15] These instruments require that States respect cultural property by refraining from exposing it to destruction or damage in the event of armed conflict, and by refraining from any act of hostility against such property.[16] Under the 1954 Convention and the Hague Regulations, these obligations are subject to imperative military necessity.[17] Originally concern focused on protecting civilian objects, including places of worship.[8] It later expanded to the protection of property from incidental damage, and most recently, from removal from an occupied territory.
The existing protection regime for cultural property does not seem to have envisaged the situation at hand. First, the Convention does not protect all cultural and religious property, but only that which is "of great importance to the cultural heritage of every people."[9] Reference should be made in the first place to the value or veneration ascribed to the object by the people whose heritage it is. [20] Thus the places referred to are those which have a quality of sanctity independently of their cultural value and express the conscience of the people.[21] This may mean that the significance of the synagogues should be gauged not only according to the sentiments of the Israeli settlers, but to those of the Jewish people as a whole. The situation may differ from one synagogue to the other. The Gaza Strip synagogues were built less than 30 years ago and were attended by only a handful of people throughout their existence. Their significance to the Jewish people beyond the settlers themselves is therefore questionable. The fact that the Israeli Government contemplated the demolition might cast doubt on any argument on its part as to the universal importance of the synagogues. Furthermore, the underlying, if not explicit, assumption, of the Convention (and other instruments) is that the protection "in the event of armed conflict" is from damage related to the armed nature of the conflict. In the case of the synagogues, their demolition by either Israel or the Palestinians, while related to the political conflict, was or would have been unrelated to an armed conflict.
Another issue that has to be resolved for the instruments to apply is the extent of their applicability to non-State entities such as the Palestinian Authority. In this context it would probably be necessary to show that they reflect customary law.
To conclude, it appears that under the specific provisions related to the protection of cultural property during armed conflict, neither Israel nor the Palestinians had any obligation to maintain the synagogues intact.
d. General Protection of Cultural Heritage
Outside the scope of armed conflict, cultural and religious property is protected under a number of binding instruments, such as the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage.[22] However, as under the 1954 Hague Convention, protection under 1972 Convention is limited to cultural property that is "of outstanding universal value" from the point of view of history, art, science, aesthetics, ethnology or anthropology.[23] Other normative action aimed at the protection of such property includes the 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage. This Declaration appears particularly relevant to the issue at hand, and it is not restricted by its terminology to cultural property of only the greatest significance. The declaration was adopted in the wake of the destruction by the Taliban of the Bamiyan Buddha sculptures in Afghanistan.[24] Some of the characteristics of that incident also apply to demolition of the synagogues by the Palestinians. One is the fact that the destruction in both cases was not directly related to an armed conflict, although an armed conflict was in the background. In addition, in both cases the actors destroyed property within territory under their control and not enemy property. However, the similarity probably ends there. The Taliban destroyed the Bamiyan Buddhas as part of a widespread campaign to obliterate non-Islamic symbols. The Palestinians did not express such aspirations with regard to the Gaza Strip synagogues. In any event, to the extent that the Declaration is applicable by its own terms, it is not binding law because it is not a treaty.
e. Standards for the Elimination of Religious Intolerance
A final benchmark for examining the demolition of the synagogues, by either Israel (had it been carried out) or the Palestinians, is supplied by the general standards of religious tolerance required under international law. Most of these standards appear in instruments that are not formally binding under international law, but they nevertheless have normative content and are widely accepted. The dissenting judge of the Israeli High Court of Justice quoted UN General Assembly Resolution 55/254 of 11 June 2001, in which the General Assembly "condemns all acts or threats of violence, destruction, damage or endangerment, directed against religious sites as such, that continue to occur in the world." This Resolution, adopted in response to the destruction of the Bamiyan Buddhas, extends beyond its immediate circumstances, and reflects general standards concerning religious tolerance. These standards have been elaborated in the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, in the 1993 World Conference on Human Rights,[25] in the Durban Declaration and Programme of Action[26] and in UN action. Resolution 2003/54 of the Commission on Human Rights on the Elimination of all forms of religious intolerance,[27] for example, calls on all States "to exert the utmost efforts, in accordance with their national legislation and in conformity with international human rights standards, to ensure that religious places, sites and shrines are fully respected and protected and to take additional measures in cases where they are vulnerable to desecration or destruction."[28]
Since these standards do not concern internal religious controversies, they do not cover the internal Israeli (and Jewish) debate as to the appropriate steps for the protection of the synagogues from desecration. The Palestinian action, however, may be tested against these standards. Although the calls in all these documents are directed at States, there is no reason to limit the standards to States alone. Substantively, the issue is not one limited to States. Indeed, these standards may be particularly pertinent in the case of non-State political entities whose inclusion in international life stems from the need to respect and protect religious, ethnic and cultural diversity. Furthermore, religious tolerance is a component of the human rights approach to governance, which is increasingly applied to non-State entities. Because the standards are only exhortative and not binding, the literal drafting of the existing instruments is no impediment to expanding their reach to non-State entities. Accordingly, the standards of conduct reflecting tolerance of religious diversity, including the need to protect religious sites from desecration or destruction, may in principle apply to the Palestinian Authority.
f. Conclusion
Two conflicting sets of standards appear to be at issue: On the one hand, under the law of occupation, the Palestinians were not precluded from obliterating the remnants of occupation. The perceived unlawfulness of the settlements and the synagogues is particularly pertinent in this context. On the other hand, the synagogues may have acquired a measure of "immunity" as structures of religious significance.
About the author
Yaël Ronen is a faculty member at Ono Academic College, Israel, where she teaches international law. She is a PhD candidate at the University of Cambridge, England. Her doctoral dissertation concerns legal aspects of transition from unlawful regimes in international law.
Footnotes
[1] HCJ 7710/05 Rabbi Yishai Bar Chen and Noah Neil Folberg v. Prime Minister Sharon et al, decision of 22 August 2005. A request for review was refused in HCJ 8115/05 Rabbi Yishai Bar Chen and Noah Neil Folberg v. Prime Minister Sharon et al, decision of 8 September 2005.
[2] Yuval Yoez "High Court of Justice: To consider Transferring the Synagogues to Protection by the Palestinian Authority" Ha-aretz 7 September 2005 page A3; Statement of Prime Minister Sharon, 7 September 2005, http://www.pm.gov.il/PMOEng/Communication/Spokesman/2005/09/spokemesB070905.htm.
[3] Statement of Prime Minister Sharon, 7 September 2005, http://www.pm.gov.il/PMOEng/Communication/Spokesman/2005/09/spokemesB070905.htm (15 September 2005).
[4] Aluf Benn and Amos Harel "Palestinians torch synagogues in former Gaza settlements," Ha-aretz 12 September 2005 http://www.haaretz.com/hasen/spages/623113.html.
[5] Photos in Ha-aretz 16 September 2005 page B4.
[6] Agreement on the Gaza Strip and the Jericho Area, signed 4 May 1994, 33 International Legal Materials (ILM) 622 (1994) .
[7] Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed 28 September 1995, 36 ILM 557 (1997).
[8] Shmuel Berkowitz, Wars over the Holy Sites 223 (in Hebrew, Jerusalem Institute for Israel Studies 2000).
[9] See Peter Malanczuk, "Some Basic Aspects of the Agreements Between Israel and the PLO from the Perspective of International Law," 7 European Journal of International Law (EJIL) 485 (1996), and in contrast Eyal Benvenisti, "The Israeli-Palestinian Declaration of Principles: A Framework for Future Settlement," 4 EJIL 542 (1993).
[10] Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004) para 120, 43 ILM 1009 (2004).
[11] HCJ 302, 306/72 Abu Hilu et al v. Government of Israel et al PD 27(2) 169, 181; HCJ 258/79 Amirah v. Minister of Defense PD 34(1) 90.
[12] There is no dispute that synagogues were not only religious but social and cultural institutions of the community. However, the debate over their demolition focused on their religious significance and this note is therefore limited to this aspect.
[13] On the site of a Kibbutz established in 1946, which fell into Egyptian hands during Israel's war of independence in 1948.
[14] Article 27.
[15] Article 53.
[16] 1954 Convention Article 4(1).
[17] 1954 Convention Article 4(2). Israel is not party to Additional Protocol I.
[18] See Additional Protocol I Article 52.
[19] 1954 Convention Article 1(a).
[20]International Committee of the Red Cross, Yves Sandoz, Christophe Swinarski, Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 646 (Martinus Nijhoff 1987).
[21] Id. at 647.
[22] Signed in Paris 16 November 1972, entered into force 17 December 1975, 1037 UN Treaty Series 151, 11 ILM 1358 (1972).
[23] Article 1.
[24] Francesco Francioni and Federico Lenzerini, "The Destruction of the Buddhas of Bamiyan and International Law" 14 EJIL 619 (2003).
[25] Adopted 25 June 1993, UN Doc. A/CONF.157/23, Part II, paragraph 22 (12 July 1993).
[26]Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance Durban, 31 August - 8 September 2001, UN Doc. A/CONF./189.12.
[27] 24 April 2003, UN Doc. E/CN.4/2003/L.11/Add.5.
[28] Paragraph 4(3).