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THE DESIGNATION OF WEST BANK MOSQUES AS ISRAELI NATIONAL HERITAGE SITES: USING THE 1954 HAGUE CONVENTION TO PROTECT AGAINST IN SITU APPROPRIATION OF CULTURAL SITES KIMBERLY
L.
ALDERMANt
ABSTRACT This Article considers whether the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict' ("1954 Hague Convention") should extend to protect against in situ appropriation of culturally significant sites. This Article examines the text and spirit of the 1954 Hague Convention and inquires whether the 1954 Hague Convention imposes an obligation on its Signing Parties to protect not just the physical integrity of culturally significant sites but also the relationship of local peoples with those sites. This Article uses the recent dispute over the Ibrahimi and Bilal Bin Rabah Mosques (also called the Cave of Machpelah and Rachel's Tomb, respectively) on the Palestinian West Bank as a lens through which to make this inquiry. TABLE OF CONTENTS I. ISRAEL'S DESIGNATION OF WEST BANK MOSQUES AS NATIONAL HERITAGE SITES...... II. THE INTERNATIONAL RESPONSE TO ISRAEL'S DESIGNATION ....................... III. APPLICATION OF THE 1954 HAGUE CONVENTION ..................................... IV. CONCLUSION .....................................
800 802 804 809
t Clinical Assistant Professor at the University of Wisconsin Law School. B.A., University of Maryland at College Park, M.A., ARCA International Art Crime Program, J.D., Howard University School of Law. This Article was prepared for and presented at the Creighton University School of Law Annual Law Review Symposium: Ethics in War, Terrorism, and Military Law (Mar. 25, 2011). 1. Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240.
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I. ISRAEL'S DESIGNATION OF WEST BANK MOSQUES AS NATIONAL HERITAGE SITES Riots broke out on the West Bank after Israel announced on February 21, 2010, that it would name two mosques in the occupied Palestinian territory 2 as Israeli national heritage sites.3 Israel's last minute decision to designate these shrines, including the Ibrahimi Mosque in Hebron (also called the Cave of Machpelah or the Cave of the Patriarchs 4 ) and Bilal Bin Rabah Mosque in Bethlehem (also called Rachel's Tomb5 ), was met with harsh criticism from a number of Palestinian and international organizations.6 Judaism and Islam agree that the Biblical and Qur'anic patriarchs Abraham, Isaac, and Jacob, as well as matriarchs Sarah, Rebekah, and Leah, are entombed in the cave complex beneath the Ibrahimi Mosque.7 Since the seventh century, the site has been used as a mosque, in large part exclusively. 8 Israel seized the site during the 1967 Arab-Israeli War,9 and it lay on disputed ground-occupied by Israeli military forces but home to Palestinians.10 2. The author uses the term "occupied Palestinian territory" because it is the term the United Nations uses. U.N. Educ., Scientific and Cultural Org., Decisions Adopted by the Executive Board, 185th Sess., Oct. 5-21, 2010, at 16-17 (Nov. 19, 2010) [hereinafter UNESCO Decision], availableat http://unesdoc.unesco.org/images/0018/001899/189 993e.pdf. 3. Gil Ronen, More Hevron Riots Follow Cave of Machpelah Decision, AxuTrz SHEVA ISRAEL NAT'L NEWS, Feb. 23, 2010, http://www.israelnationalnews.com/News/ News.aspx/136163 [hereinafter Hevron Riots]; PCHR Condemns Israel's Decision to Include the Ibrahimi Mosque and Bilal Ben Rabah Mosque on the List of IsraeliArchaeological Sites, PALESTINIAN CENTRE FOR HUMAN RIGHTS (Feb.22, 2010), http://www.pchr
gaza.org/portal/en/index.php?option=comcontent&view=article&id=6183:pchr-condemns-israels-decision-to-include-the-ibrahimi-mosque-and-bilal-ben-rabah-mosqueon-the-list-of-israeli-archaeological-sites-&catid=36:pchrpressreleases&Itemid=194. 4. Tensions Escalate over West Bank Holy Sites, VOICE OF AMERICA NEWS, Mar. 10, 2010, http://www.voanews.com/english/news/Tensions-Escalate-Over-West-BankHoly-Sites--87250932.html [hereinafter Tensions Escalate]. 5. UNESCO Decision, supra note 2. 6. This is described in more detail in Part II of this Article. See Tensions Escalate, supra note 4; Anna Willard, UNESCO Worried About Israel Heritage Plan in West Bank, REUTERS, Feb. 26, 2010, http://in.reuters.com/article/2010/02/26/idlNIndia-4651 0020100226 [hereinafter UNESCO Worried]. 7. UNESCO Worried, supra note 6. It is believed that the fourth Matriarch, Rachel, is buried in the Bilal Bin Rabah Mosque in Bethlehem (also called Rachel's Tomb), now on the Israeli side of the West Bank barrier. West Bank Strike over Israeli Tomb Heritage Claim, BBC NEWS, Feb. 23, 2010, http://news.bbc.co.uk/2/hi/8530335. stm. 8. The exceptions are from the 12th to 14th centuries and since the Six Day War 1967. CHARLES HERBERMANN, ET AL., THE CATHOLIC ENCYCLOPEDIA: AN INTERNATIONAL WORK OF REFERENCE ON THE CONSTITUTION, DOCTRINE, DISCIPLINE, AND HISTORY in
OF THE CATHOLIC CHURCH 184-86 (1913).
9. Tensions Escalate, supra note 4. 10. Donald Macintyre, The Big Question: What Are Israeli Settlements, and Why Are They Coming Under Pressure?,THE INDEPENDENT, May 29, 2009, http://www.inde-
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Darkening the cloud of the designation, Israel's announcement was made on the eve of the sixteenth anniversary of a massacre at the Ibrahimi Mosque." On February 25, 1994, an Israeli-American settler1 2 infiltrated the mosque and opened fire on worshipping Muslims with an automatic rifle, leaving twenty-nine dead and 125 injured.' 3 More died in the riots that followed.' 4 Israel's designation of the Ibrahimi Mosque as an Israeli national heritage site so close to the anniversary of the massacre aggravated the Palestinian response.15 Many Palestinians viewed Israel's designation of the West Bank mosques as Israeli national heritage sites as an attempt to "hijack" Muslim holy sites located within occupied territory, going beyond mere military occupation and making a permanent claim to an area of great religious significance to Muslims.1 6 The President of the Palestinian Authority and Palestine Liberation Organization ("PLO") leader, Mahmoud Abbas, immediately cautioned that the decision would exacerbate tensions and lead to renewed conflict.' 7 As Abbas pendent.co.uk/news/world/middle-east/the-big-question-what-are-israeli-settlementsand-why-are-they-coming-under-pressure-1692515.html. 11. 1994: Jewish Settler Kills 30 at Holy Site, BBC NEWS, http://news.bbc.co.uk/on thisday/hildates/stories/february/25/newsid_4167000/4167929.stm (last visited Feb. 5, 2010) [hereinafter On This Day]. 12. An Israeli settler lives in one of the Israeli civilian communities in the Occupied Palestinian Territories, the largest of which is home to 30,000 people. The international community considers these communities tantamount to occupation and therefore a violation of international law. Macintyre, supra note 10. 13. Fawn Vrazo, Dawn of PeaceHas Yet to Lift Hebron'sHopes Neither Side Was in a Mood to Celebrate, THE PHILADELPHIA INQUIRER, Jan. 16, 1997, S.F. Ed., at A01. 14. On This Day, supra note 11. 15. Although Baruch Goldstein, the Ibrahimi Mosque gunman, is considered by many Israelis to have been insane, there has been a show of support for his actions since his death. This made the massacre a sensitive topic even before Israel's heritage plan designation. See Joel Greenberg, Israel Destroys Shrine to Mosque Gunman, N.Y. TIMES, Dec. 30, 1999, http://www.nytimes.com/1999/12/30/world/israel-destroys-shrineto-mosque-gunman.html (describing the Israeli Army's bulldozing of the shrine built around Goldstein's grave which had become a pilgrimage site, consisting of a stone plaza, benches, lights, a collection box, a prayer bookcase, and faucets). 16. Omar Karmi, Anger over Israeli Plan to Hijack Muslim Holy Sites, THE NAT'L, Feb. 25, 2010, http://www.thenational.ae/news/worldwide/middle-east/anger-over-israeli-plan-to-hijack-muslim-holy-sites; compare Gil Ronen, PM Adds Rachel's Tomb, Cave of Machpelah to Heritage Sites, ARUTz SHEVA ISRAEL NAT'L NEWS, Feb. 21, 2010,
http://www.israelnationalnews.com/News/News.aspx/136104 (describing the political motivation behind adding the sites as pressure from nationalists), with Netanyahu Adds Rachel's Tomb, Tomb of Patriarchsto Heritage Sites, JEWISH TRIBUNE, Feb. 24,
2010, http://www.jewishtribune.ca/TribuneV2/index.php/201002242691/Netanyahuadds-Rachel-s-Tomb-Tomb-of-Patriarchs-to-heritage-sites.html (stating that the Israeli Prime Minister has described the designation as part of "the largest and most comprehensive plan ever for strengthening the heritage infrastructures," promising to "renovate archaeological sites . . . .").
17. Karmi, supra note 16.
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predicted, riots18 announcement. 1 9
followed
Israel's
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21,
2010,
II. THE INTERNATIONAL RESPONSE TO ISRAEL'S DESIGNATION The international backlash to Israel's designation was immediate. The United Nations Educational, Scientific and Cultural Organization ("UNESCO") issued a statement on February 26, 2010, stating it was concerned about Israel's plan. 20 The European Union's ("EU's") foreign policy director stated Israel's announcement was "detrimental to attempts to relaunch peace negotiations [with Palestine]."21 United States Secretary of State Hillary Clinton addressed a United States Congressional Committee and criticized the designation. 2 2 Israel responded that the Cave of Machpelah (Ibrahimi Mosque) is one of the most sacred sites for Jewish people and the designation "refers more to a line-budget to maintain the places." 23 On October 12, 2010, UNESCO's Executive Board addressed the conflict in session and issued a formal forty-four to one (twelve abstentions) decision, reaffirming that the two sites [the Ibrahimi and Bilal Bin Rabah Mosques] are an integral part of the occupied Palestinian Territories and 18. The Palestinian Centre for Human Rights reported that a series of peaceful demonstrations, rather than riots, occurred in the weeks ensuing the designation and that Israeli Defense Forces used tear gas, sound bombs, and rubber-coated metal bullets in response to the demonstrations. Weekly Report on Israeli Human Rights Violations in the Occupied PalestinianTerritory (04 - 10 March 2010), PALESTINIAN CENTRE FOR
HUMAN RIGHTs (Mar.11, 2010), http://www.pchrgaza.org/portallen/index.php?option= comcontent&view=article&id=6282:weekly-report-on-israeli-human-rights-violationsin-the-occupied-palestinian-territory-04-10-march-2010&catid=84weekly-2009&Item id=183. 19. Karmi, supra note 16; Hevron Riots, supra note 3; US Slams Israel's'Provocative' Holy Sites Plan, AGENCE FRANCE-PRESSE, Feb. 25, 2010, http://www.khaleejtimes.
com/DisplayArticle09.asp?xfile=data/middleeast/2010/February/middleeastFebruary 586.xml§ion=middleeast; Ali Sawafta, IsraeliHeritagePlanDraws PalestinianProtests, REUTERS, Feb. 22, 2010, http://www.reuters.com/article/2010/02/22/us-palestinians-israel-sites-idUSTRE61L3YT20100222. 20. Anna Willard, UNESCO Worried About Israel Heritage Plan in West Bank, REUTERS, Feb. 26, 2010, http://in.reuters.com/article/2010/02/26/idlNIndia-4651002010 0226. 21. Statement by the Spokesperson of HR Catherine Ashton, on Heritage Sites in Hebron and Bethlehem, DELEGATION OF THE EUROPEAN UNION TO ISRAEL (May 1, 2010),
http://ec.europa.euldelegations/israel/press-corner/all-news/news/ en.htm. 22.
2
010/20100301_01
US Slams Israel's 'Provocative'Holy Sites Plan, AGENCE FRANCE-PRESSE, Feb.
25, 2010, http://www.khaleejtimes.com/DisplayArticleO9.asp?xfile=datalmiddleeastl 2010/February/middleeastFebruary586.xml§ion=middleeast. 23. Tensions Escalate over West Bank Holy Sites, VOICE OF AMERICA NEWS, Mar. 10, 2010, http://www.voanews.comlenglish/news/Tensions-Escalate-Over-West-BankHoly-Sites-87250932.html.
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that any unilateral action by the Israeli authorities is to be considered a violation of international law, the UNESCO Conventions and the United Nations and Security Council resolutions. 24 The Board also advised Israel regarding a dispute over access to the Mughrabi Ascent site, stating, "No measures should be taken which will affect the authenticity and integrity of the site, in accordance with .
.
. the Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict". 2 5 Israel is a signatory to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 2 6 ("1954 Hague Convention"). 27 Palestine is not a United Nations member state, 28 and it does not have general international recognition as an independent country, 29 so it is not a signatory to the 1954 Hague Convention.3 0 Nonetheless, the United Nations has determined that in24. The 185th Session of UNESCO's Executive Board Today Adopted Five Decisions Concerning UNESCO's Work in the Occupied Palestinianand Arab Territories, U.N.
Information System on the Question of Palestine (Oct. 21, 2010), http://unispal.un.org/ UNISPAL.NSF/0/2257D83AC3BO6433852577C4006352F9 [hereinafter Five Decisions]. 25. Id. Israel's Prime Minister viewed UNESCO's decision as an "attempt to detach the people of Israel from its heritage," calling it "absurd." Israel Slams 'Absurd' UNESCO Decision on Jerusalem,West Bank Holy Sites, HAARETZ, Oct. 29, 2010, http:// www.haaretz.com/news/diplomacy-defense/israel-slams-absurd-unesco-decision-on-jerusalem-west-bank-holy-sites-1.321868. 26. Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240. 27. See Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulationsfor the Execution of the Convention, The Hague, 14 May 1954, U.N. EDUc., SCIENTIFIC, AND CULTURAL ORG., http://portal.unesco.org/la/convention.asp? KO=13637&language=E&order=alpha (last visited June 22, 2011) [hereinafter Signing
Parties] (listing Signing Parties to the 1954 Convention, showing Israel as having ratified the Convention in 1957). 28. Member States of the United Nations, UNITED NATIONS, http://www.un.org/en/ members/index.shtml (last visited Feb. 5, 2010). Palestine is instead a "non-member entity" with observer status. Non-member States and Entities, UNITED NATIONS, http://
www.un.org/en/members/nonmembers.shtml (last visited Feb. 5, 2010). 29. This may be changing. Since the Palestinian National Council's 1988 proclamation of statehood, approximately 100 countries have recognized Palestine's statehood. See Republic of Ireland's Palestine Upgrade Strains Israeli Relations, BELFAST
TELEGRAPH, Jan. 26, 2011, http://www.belfasttelegraph.co.uk/news/local-national/republic-of-ireland/republic-of-irelands-palestine-upgrade-strains-israeli-relations15064227.html (commenting on several European countries' upgrading Palestine to full diplomatic status, including Ireland, Spain, and France); Edmund Sanders, Leader Confounds Both Sides with Plansfor Palestinian State, L.A. TIMES, Jan. 21, 2011, http:// 2 articles.latimes.com/2011/jan/21/world/la-fg-palestinian-fayyad-201101 1 (discussing recent recognition by several South American nations, including Brazil, Argentina,
Chile, Ecuador, and Bolivia); InternationalRecognition of the State of Palestine, PALESTINIAN NAT'L AUTHORITY, http://web.archive.org/web/20060404211437/http://www.pna. gov.ps/Government/gov/recognition
of theStateofPalestine.asp (last visited Feb. 5,
2010) (listing 94 nations who recognized an independent Palestine after the 1988
proclamation). 30. Signing Parties, supra note 27.
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ternational conventions to which Israel is a signatory apply to its occupation of Palestine. 3 1 This includes the 1954 Hague Convention. 32 III. APPLICATION OF THE 1954 HAGUE CONVENTION Following Israel's addition of the West Bank mosques to the list of the country's national heritage sites, the Palestinian Centre for Human Rights ("PCHR") issued a statement that the designation violated the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 33 ("1954 Hague Convention"). 34 Despite clear international consternation over Israel's "provocation,"3 5 PCHR was alone in citing specifically to the 1954 Hague Convention. 36 31. See G.A. Res. ES-10/7, U.N. Doc. A/RES/ES-10/7 (Nov. 1, 2000), available at http://daccess-dds-ny.un.org/doc/UNDOC/GENINOO/710/92/PDFIN0071092.pdfOpenElement; Five Decisions,supra note 24 (reaffirming the applicability of the Fourth Geneva Convention in the Occupied Palestinian Territory). 32. U.N. Educ., Scientific, and Cultural Org. Res. 23C/27, Implementation of 22C/ Resolution 23, Concerning Educational and Cultural Institutions in the Occupied Arab Territories, Records of the General Conference, 23d Sess., Oct. 8-Nov. 9, 1985, at 107 (Dec. 21, 1976), Nov. 8, 1985), http://domino.un.org/unispal.nsf/db942872b9eae4548525 60f6OO5a76fb/44b9ef91a8Od491e8525721a00737d33?OpenDocument; Yael Ronen, The Demolition of Synagogues in the Gaza Strip, AMERICAN SOCIETY OF INT'L LAw, (Oct. 17, 2005), http://www.asil.org/insights05l0l7.cfm (considering the 1954 Hague Convention
in reference to the destruction of West Bank synagogues); Letter from Deputy Director of the Israel Antiquities Authority to the President of the World Archaeological Congress (Jan. 25, 2004), available at http://www.archpark.org.il/Upload/news/images/ yuval.pdf (discussing Israel's attempt to observe the 1954 Hague Convention on the West Bank). 33. Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240. 34. PCHR Condemns Israel's Decision to Include the Ibrahimi Mosque and Bilal Ben Rabah Mosque on the List of IsraeliArchaeological Sites, PALESTINIAN CENTRE FOR
HuMAN RIGHTS (Feb.22, 2010), http://www.pchrgaza.org/portal/en/index.php?option= com content&view=article&id=6183:pchr-condemns-israels-decision-to-include-theibrahimi-mosque-and-bilal-ben-rabah-mosque-on-the-list-of-israeli-archaeological-sites&catid=36:pchrpressreleases&Itemid=194. 35. U.N. Educ., Scientific and Cultural Org., Decisions Adopted by the Executive Board, 185th Sess., Oct. 5-21, 2010, at 16-17 (Nov. 19, 2010) [hereinafter UNESCO Decision], available at http://unesdoc.unesco.org/images/0018/001899/189993e.pdf ("Earlier this week the Israeli Prime Minister announced plans to further consolidate control
over Palestinian archaeology and heritage areas in the occupied Palestinian territory, including Hebron's 1,000-year-old Haram Al-Ibrahimi . . . and the historic Bilal Bin Rabah Mosque . . . by provocatively declaring them part of Israel's national heritage sites."); US Slams Israel's 'Provocative'Holy Sites Plan, AGENCE FRANCE-PRESSE, Feb.
25,
2010, http://www.khaleejtimes.com/DisplayArticle09.asp?xfile=data/middleeast/
2010/February/middleeastFebruary586.xml§ion=middleeast. 36. UNESCO indicated that international law was implicated but pointed only to the UNESCO Conventions generally and the United Nations and Security Council resolutions. See UNESCO Decision, supra note 35.
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PCHR pointed to Articles 1, 2, and 9 of the 1954 Hague Convention, which respectively define cultural property, call for the safeguarding of such property, and require restraint of hostility toward cultural property.3 7 Article 1, Definition of Cultural Property, defines cultural property, which includes, "[miovable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest . . . ."31 The Ibrahimi and Bilal Bin Rabah Mosques are immovable religious monuments and archaeological sites of great cultural importance and qualify as cultural property under the 1954 Hague Convention. This application is consistent with Israel's stated 39 reasons for wanting to name the monuments national heritage sites. Article 2, Protection of Cultural Property provides, "For the purposes of the present Convention, the protection of cultural property shall comprise the safeguarding of and respect for such property." Furthermore, Article 9 requires parties "ensure the immunity of cultural property . . . by refraining ... from any act of hostility directed against such property."4 0 This Article parallels Article 4, Respect for Cultural Property, which describes what constitutes "respect" in the context of the 1954 Hague Convention. 4 1 Respect includes "refraining from any act of hostility" against cultural property located in the parties' own territory or outside it. 42 Article 4 further requires parties to "prohibit, prevent and, if necessary, put a stop to any form of theft, 43 pillage or misappropriation of . .. cultural property."
The 1954 Hague Convention is in large part focused on promoting physical preservation of culturally significant sites. 44 The Preamble "recogniz[es] that cultural property has suffered grave damage ... [and] is in increasing danger of destruction."4 5 It further explains, 37. Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter 1954 Hague Convention]. 38. Id. art. 1. 39. Netanyahu Adds Rachel's Tomb, Tomb of Patriarchsto Heritage Sites, JEWISH
TRIBUNE, Feb. 24, 2010, http://www.jewishtribune.ca/TribuneV2/index.php/2010022426 [herein91/Netanyahu-adds-Rachel-s-Tomb-Tomb-of-Patriarchs-to-heritage-sites.htm after Netanyahu].
40. 1954 Hague Convention, supra note 37, art. 9. It is worth noting that PCHR cited to the Second Protocol to the 1954 Hague Convention, which prohibits the transfer of cultural property in occupied territory, but Israel is not a Signing Party to this Protocol. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Mar. 26, 1999, 2253 U.N.T.S. 212. 41. 42. 43. 44.
1954 Hague Convention, supra note 37, art.4. Id. Id. 1954 Hague Convention, supra note 37.
45. Id., preamble.
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"[DIamage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world." 4 6 While the Preamble appears to acknowledge an inherent value to cultural sites, the 1954 Hague Convention's focus on physical preservation is consistent with the property model of the Western legal system, where preservation of economic value is paramount, even if justified by cultural significance. The designation of the historic West Bank mosques as Israeli national heritage sites does not work against physical preservation; in fact, Israel has allotted a significant amount of money toward renovation of the sites. 47 The sites are among 100 sites toward which Israel intends to invest $107 million for renovations. 4 8 Israel further states the heritage plan will increase access because two hiking paths will connect all the sites-"one historical and the other centered on the Israeli experience."4 9 Accordingly, both the Ibrahimi and Bilal Bin Rabah Mosques will become part of a physical circuit of cultural sites significant to the Jews. While the 1954 Hague Convention clearly protects against physical damage or destruction to cultural sites, read broadly, it can also protect against in situ appropriation of sites. "Hijacking"5 0 a religious site in occupied territory constitutes disrespect for the site when it disrupts or threatens the relationship between the site and the local people who identify with the site. Like the Palestinians, Israelis have stated a strong belief in their own cultural ties to the sites. 5 ' Israelis cite the Book of Genesis, which says Abraham purchased the Cave of Machpelah (Ibrahimi Mosque) for 400 shekels in order to bury his wife, Sarah, there. 52 Abraham is a shared feature of Islam and Judaism, so this does not necessarily justify one group's cultural interest in the site over the other's interest.
46. 47.
Id. West Bank Strike over Israeli Tomb HeritageClaim, BBC NEws, Feb. 23, 2010,
http://news.bbc.co.uk/2/hi/8530335.stm; Natanyahu, supra note 39. 48.
Anna Willard, UNESCO Worried About Israel Heritage Plan in West Bank,
REUTERS, Feb. 26, 2010, http://in.reuters.com/article/2010/02/26/idlNIndia-4651002010 0226. 49. Netanyahu, supra note 39. 50. Omar Karmi, Anger over Israeli Plan to Hijack Muslim Holy Sites, THE NATIONAL, Feb. 25, 2010, http://www.thenational.ae/news/worldwide/middle-eastianger-
over-israeli-plan-to-hijack-muslim-holy-sites. 51.
Netanyahu, supra note 39.
52. Genesis 23:2-16.
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Even so, the Muslims have been using the sites as mosques for over half a millennium.5 3 While the sites are significant in the religious doctrine of both Judaism and Islam, as to the Ibrahimi Mosque, only the Palestinians have "recent" history on their side. Their emotional ties to the site arise out of centuries of constant and near-exclusive use of the site as a place of worship. 54 Ghassan Khatib, head of the Palestinian government's media office, has explained, "The issue is not whether these sites are Islamic or Jewish ... . The point is that these are historic sites in occupied territory and Israel has no business controlling them."5 5 Under this rationale, it does not matter which group has a more justifiable cultural interest in the sites; instead, the criticism is that Israel is using a cultural interest to justify and effectuate what others perceive as occupation or potential annexation. The Israeli government maintains that it is because of its respect for these cultural sites that they should be included in the national heritage plan.5 6 Supporters of the plan have said it "strengthens the connection with land of our forefathers."5 7 The Israeli left is skeptical; however, New Movement-Meretz leader Haim Oron has declared, "This is another attempt to blur the lines between the State of Israel and the occupied territories."5 8 Hanan Ashrawi, member of the Palestine Liberation Organization's executive committee, alleged that Israel was attempting "to recreate a fraudulent reality ... where Palestinian history, culture, and identity are distorted and/or obliterated by the force of occupation." 59 53. CHARLES HERBERMANN, ET AL., THE CATHOLIC ENCYCLOPEDIA: AN INTERNATIONAL WORK OF REFERENCE ON THE CONSTITUTION, DOCTRINE, DISCIPLINE, AND HISTORY
OF THE CATHOLIC CHURCH 184-86 (1913).
54. As to Rachel's Tomb, the site is in the middle of a Muslim cemetery and has been used as a Mosque, but has been largely maintained by the Jews. In 1949, the United Nations considered the question of who owned the site and declared "status quo," a legal option under Ottomon law akin to shared ownership. The Holy Places, UNITED NATIONS CONCILIATION COMMISSION FOR PALESTINE, U.N. Doc. A/AC.25/ Com.Jer/W.14 (April 8, 1949) http://unispal.un.org/UNISPAL.NSF/0/FD455E412ACE30 AD0525668E006EF702. 55. Karmi, supra note 50. 56. Chaim Levinson, Netanyahu: West Bank Sites Added to National Heritage List, HAARETZ, Feb. 21, 2010, http://www.haaretz.com/news/netanyahu-west-bank-sitesadded-to-national-heritage-list-1.266037 (quoting the Prime Minister's speech at the conference on the heritage sites, in which he explained, "[Tihe country's strength does not depend entirely on its military strength, weapons, economic power or ingenuity, but on the knowledge and national sentiments which parents pass down to their children, and as a state, on the education system."). 57. 58.
Id. Jonathan Lis & Fadi Eyadat, PM Grants HeritageStatus to West Bank Relig-
ious Sites, HAARETZ, Feb. 22, 2010, http://www.haaretz.com/print-edition/news/pmgrants-heritage-status-to-west-bank-religious-sites-1.266045. 59. Karmi, supra note 50.
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Israel has denied assertions that Palestinian access to the sites would be limited as part of the heritage designations,6 0 but the concerns appear justifiable. In 2005, Israel decided to extend its separation barrier to include the Bilal Bin Rabah Mosque (Rachel's Tomb) in the Israeli side of the West Bank, effectively annexing the site. 6 Further, PCHR has reported a recent pattern of restricted access to the Ibrahimi Mosque. 62 PCHR alleges that on April 1, 2010, thousands of Israeli settlers held a "large celebration inside the Ibrahimi Mosque" for the heritage site designation. 6 3 They further allege that the Israeli Defense Forces prevented the Muslim call to prayer in the Mosque on fifty-eight occasions in March 2010, and denied Palestinians access to the Mosque on three days. 6 4 Whether the figures or details about any individual incident are precise as stated, the allegations indicate a disturbing pattern of conduct that forms the basis for Palestinian concerns about access to the mosques. By laying a national claim to the sites, particularly the Ibrahimi Mosque, Israel is diminishing the Palestinians' cultural interest in the property. If the 1954 Hague Convention is read broadly, consistent with the policy behind it, the designations constitute a failure to safeguard the cultural relationship of the occupied people with a culturally and religiously significant site. Unnecessarily interfering with an occupied people's relationship with a cultural site, when that site is otherwise under no specific or articulable danger of damage or destruction, undermines the 1954 Hague Convention and should constitute a violation of it.
60. Id. (The Israeli Prime Minister's office issued a statement responding to the concerns, stating that "[t]he State of Israel is committed to freedom of religion for worshippers of all faiths at the holy places and thus it acts in practice."). 61. The plans included bringing traditionally Arab east Jerusalem onto the Israeli side of the separation barrier, even though this was slated to be the capital for a future Palestinian state. Final Route of Jerusalem BarrierApproved, USA TODAY, Mar. 14, 2005, http://www.usatoday.com/news/world/2005-03-14-mideast x.htm. Critics, including the European Union, believed Israel was "actively pursuing the illegal annexation." Rory McCarthy, Israel Annexing East Jerusalem, Says EU, THE GUARDIAN, Mar. 7, 2009, http://www.guardian.co.uk/world/2009/mar/07/israel-palestine-eu-report-jerusalem. Given this history, it appears reasonable that Palestinians would be concerned about continued access to and possible annexation of the West Bank mosques. 62. Weekly Report on Israeli Human Rights Violations in the Occupied Palestinian Territory (01-07 April 2010), PALESTINIAN CENTRE FOR HUMAN RIGHTS (April 8, 2010),
http://www.pchrgaza.org/portallen/index.php?option=com-content&view=article&id=63 60:weekly-report-on-israeli-human-rights-violations-in-the-occupied-palestinian-territory-01-07-april-2010&catid=84:weekly-2009&Itemid=183. 63. Id. 64. Id.
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IV. CONCLUSION While the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 6 5 ("1954 Hague Convention") focuses in large part on preventing physical damage or destruction to cultural sites, the cultural sites derive much of their value from the emotional ties that people in local communities have with those sites. This cultural value is distinct from both economic and archaeological values. Safeguarding a cultural site includes preserving the physical integrity as well as the cultural value of the site. Cultural value depends upon allowing local people to maintain their relationships with cultural sites, even during occupation. The spirit of the 1954 Hague Convention is consistent with recognition of cultural value-the intrinsic value of a cultural site that is borne of the relationship that local people have with such sites. The 1954 Hague Convention should be read broadly, conferring on its Signing Parties an obligation to safeguard and respect not only the physical integrity of cultural sites, but also cultural integrity. Interfering with a local people's relationship with a cultural site decreases the cultural value of that site, interferes with the people's right to selfdetermination, and is unjustifiable under the 1954 Hague Convention.
65. Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240.
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