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Apparently Israel has been digging up Palestinian graves and taking the corpses (at least temporarily), see:

  • Reuters (end of article)
  • Telegraph (paywall, could read only first sentence - apparently Israel is trying to identify dead hostages)
  • Euro-Med-Monitor (mentioning potential Hague Conventions and Geneva Conventions violations)
  • The New Arab (mentioning possible organ theft that sounds like a conspiracy theory)
  • EuroNews (putting possible organ theft into context of fresh bodies taken from hospitals which is more plausible)

This problem is new to me and I'm trying to understand the implications on international relations and war crimes / crimes against humanity.

  1. Is this relevant for the genocide accusations, depending on how Israel does it?
  2. What kind of precautions would Israel need to take to make it legal? For example do they need to make sure that there are records to go with each corpse to make sure that they can be matched with their previous location/grave markers/identification?
  3. What about the destruction of the graveyards other than the corpses, i.e. the grave markers, works of art, infrastructure, etc.? Looking for information on destruction of grave yards quickly leads to for example this site which calls destruction of jewish graveyards cultural genocide.
Nobody
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    On a related note, Israeli soldiers posing on Jewish cemeteries within Gaza showed these were kept in good condition. – alamar Jan 30 '24 at 21:28
  • @alamar I wanted to avoid making the question too broad, but I would also be interested to know how careful they were in general. Some sources claim bull dozers and destruction of corpses, but that doesn't seem likely. – Nobody Jan 30 '24 at 21:32
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    Bull dozer use is widespread in Gaza, they are the number one tool of clearing territory. Everything which can endanger Israel is being bulldozed, including the whole coast, as far as I know. – alamar Jan 30 '24 at 21:42
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    It might be worthy to mention that Israel is doing so as part of its search mission for kidnapped corpses of Hamas victims. All bodies which turn out not to belong to Israelis are being returned to Gaza via the Red Cross. – Jacob3 Jan 30 '24 at 22:47
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    I wonder how digging up corpses would be directly relevant for any genocide accusation? Genocide is about killing living beings or not? – NoDataDumpNoContribution Jan 31 '24 at 07:11
  • What are the objectives of such a strange and zombie-like activity? For eating? – Stančikas Jan 31 '24 at 09:54
  • @Jacob3 It is mentioned in the question, see bullet point two from the top with the Telegraph article. – Nobody Jan 31 '24 at 11:08
  • See No peace for the dead: legal questions about Israel’s destruction of cemeteries in Gaza – Roger V. Jan 31 '24 at 13:46
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    @NoDataDumpNoContribution note that the question talks about "cultural genocide" - which is NOT "genocide" as defined by the UN (that one has to include physical destruction, and some other stuff). Check out the wikipedia site for "cultural genocide", and maybe the link that Roger V. posted (haven't read it in full, so this is not an endorsement of any opinions in it). TL;DR though: it's not genocide, but it might still be a war crime or otherwise against international law. And of course it's a great talking point for israel's enemies since destruction of jewish cemetaries is called that. – Syndic Jan 31 '24 at 14:03
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    The other side of the issue is that (AFAIK, not an expert or deeply knowledgeable on the topic) many of these international laws and conventions forbid things "if they are not (militarily) necessary". So israel might be in the clear if that destruction of cemetaries and taking of corpses is to try and identify their own dead, or because the cemetaries were used to hide weapon caches, or other such things. As always with far-away conflicts, we're left with propaganda and filtered information from both sides so we can never REALLY know the exact circumstances. – Syndic Jan 31 '24 at 14:08
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    The linked Telegraph article says, "The Israel Defense Forces (IDF) has admitted to digging up Palestinian graves in a Gaza cemetery. ... The IDF said its soldiers dug up graves in the cemetery to see if dead hostages were buried there. “The hostage identification process, conducted at a secure and alternative location, ensures optimal professional conditions and respect for the deceased,” it told NBC, the American broadcaster. But photographs from the graveyard showed the extensive damage caused by the exhumations. ... " – Lag Jan 31 '24 at 15:08
  • @RogerV. That link answers my questions better than either of the two answers so far, thank you. I think a perfect answer would include some factual information about the extent of destruction and taking of corpses and sum up this legal information you linked. – Nobody Jan 31 '24 at 18:40
  • It seems almost comical that one would worry about dead people when useful civil infrastructure is being destroyed, which is a great detriment to the living. – JonathanReez Feb 01 '24 at 06:42
  • @JonathanReez first, it's two parties in conflict and both depend on outside support. Of course they'll each raise any point they possibly can if it has a chance to get them more, or their opponent less, support. That's probably the main motivation. But secondly, both sides are very religious (or have motivation to seem so to their supporters) - this often means "this world" is seen as less important than the next one. I'm not knowledgeable about whether Judaism or Islam specifically care about the condition of the corpse, but I'm not ruling it out - they do have very specific burial rules. – Syndic Feb 01 '24 at 07:44
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    Concerns about organ theft is real, feel free to add this to your question if you like https://www.euronews.com/2023/11/27/israel-stealing-organs-from-bodies-in-gaza-alleges-human-right-group – Mocas Feb 01 '24 at 10:49
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    @Mocas Thanks - none of the other sources talked about bodies being taken directly from hospitals, which is why it sounded like a conspiracy theory to me. Fresh bodies being harvested sounds quite plausible to me given the sources claim about longstanding issues with imprope organ donation consent and the sykrocketing need of organs to treat wounded soldiers. – Nobody Feb 01 '24 at 16:24
  • @NoDataDumpNoContribution I rolled back your edit because it's unclear what parts of the bodies are being returned (i.e. some bodies not others, and potentially only parts of the bodies and potentially without being able to identify which bodies are which) and I replaced "destroying" in my original phrasing with "damaging" cemeteries. – Nobody Feb 01 '24 at 16:35
  • @Nobody I improved your title because I think it was misleading and basically gave the impression that Israelis are interested in some sort of necrophilia when it becomes clear from the sources that for all purposes they intend to return the bodies and/or have done so already. Therefore I think it's not the optimal title. But hey, if others are fine with it, I wouldn't argue further. – NoDataDumpNoContribution Feb 01 '24 at 19:38
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    @alamar, including refugees sleeping in tents, i bet those were very dangerous, that's why they were burried alive by bulldozers. – osiris Feb 02 '24 at 17:56

4 Answers4

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Disturbing a cemetery is not a war crime or treaty violation, in and of itself.

There are international human rights treaties applicable to armed conflict that address the destruction of tangible cultural heritage, and the international law analysis is quite complex and nuanced in those cases.

But, generally speaking, "tangible cultural heritage" refers to renowned and extraordinary "tourist worthy" sites, and not just to anything that has any cultural meaning at all. Otherwise, almost all destruction of property would constitute a war crime, and that is not what these treaty provisions were intended to mean, nor is it what they have been interpreted as applying to.

Some exceptional cemeteries may indeed by tangible cultural heritage sites. But, the mere fact that a site is a cemetery is not itself sufficient to afford it special protection under international law.

ohwilleke
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    Doesn't IHL protect graveyards as civilian objects, assuming there's no other compelling reason to classify some specific graveyards as military objective? – JJJ Jan 31 '24 at 11:58
  • In the comments I was pointed to this blog post: https://www.ejiltalk.org/no-peace-for-the-dead-legal-questions-about-israels-destruction-of-cemeteries-in-gaza/ which paints a much more nuanced picture that does not align with your simple answer. – Nobody Jan 31 '24 at 18:49
  • @Nobody Janina Dill's analysis, at the link, regarding what international law requires in law is very, very expansive. No military force in the world is as punctilious as she asserts that military forces must be to refrain from committing war crimes. She undermines her credibility by setting such unrealistic expectations for conduct in war. – ohwilleke Jan 31 '24 at 19:39
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    @JJJ The linked Article 52 basically boils down to: Attacks shall be limited strictly to military objectives. But without much more context than it found in the OP, one can't know if there are military objectives or not in these operations. It basically says, don't automatically assume that a church or a school or a private house is a military target - you need more justification than that. But this is a quite low threshold that doesn't prohibit attacking or destroying such targets if you have any military justification to do so. – ohwilleke Jan 31 '24 at 19:52
  • Thank you for your assessment of Janina Dill's analysis. – Nobody Jan 31 '24 at 20:36
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    -1: you seem to be completely ignoring the "human remains" aspect. – the gods from engineering Jan 31 '24 at 21:18
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    @Fizz The argument that damage to human remains constitutes injuries to civilians which one of the linked sources argues as the sole international law argument about harm to be human remains being relevant (IIRC, Ms. Dill's analysis, but I may be remembering wrong), is a real stretch. If there ever were a war crimes proceeding that legal long shot theory for small potatoes harm would be ignored in favor of much stronger arguments with more clear legal support about harm to living people and about destroying a large percentage of residences. – ohwilleke Jan 31 '24 at 21:52
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    In your biased opinion. I mean, GC explicitly talks about it [human remains]. But like with many proportionality-related issues [even if they're called something else], interpretation of circumstances is key. My DV to your answer is that you think it's all about "cultural heritage", when the treaties clearly cover human remains, and Israel is even invoking (albeit not with explicit reference, since they're not part of AP I) the "investigative" exceptions from AP I. – the gods from engineering Jan 31 '24 at 21:54
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    @Fizz Certainly, in my opinion, because everything I say is what I think and not what someone else thinks. I think calling it "my professional judgment" (admittedly in a field where I am not a specialist), is probably more apt, however. In these debates everyone no matter how credentialed, has a bias and agenda. I'm not immune to that. But since this is a conflict that I don't have extremely strong feelings about, or personal connections to, or much vested in generally, I'd like to think I have some capacity to be detached and weigh arguments in a way that at least tries to be even handed. – ohwilleke Jan 31 '24 at 21:59
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    See also: https://politics.meta.stackexchange.com/questions/6733/a-good-example-of-biased-voting/6734#6734 – the gods from engineering Jan 31 '24 at 21:59
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    @Fizz "the treaties clearly cover human remains" Not terribly clear, at least in what I've seen what people arguing for it have relied upon. If it is clear somewhere, the people making that case haven't been citing to the provisions that clearly say so. – ohwilleke Jan 31 '24 at 22:02
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    Ah, ok so ICRC's interpretation is golden and upvote worthy when it favors Israel on some issue, but it's the proverbial stuff nobody heard about when it's on something that doesn't favor Israel so much. – the gods from engineering Jan 31 '24 at 22:16
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    @Fizz Your argument in your answer on the ICRC interpretation is actually stronger and better articulated than the argument as it was spelled out in a lot of the cited materials. It isn't a primary source, but you do have an argument there. Of course, I also think that a lot of people (not you, you do seem to get it) greatly misunderstand the limited usefulness of international law. – ohwilleke Jan 31 '24 at 22:18
  • @ohwilleke, Israel (and it's allies) military objectives are killing everyone and destroy everything to make way for the settlers and oil companies, so it really doesn't matter what they do. It's all included. – osiris Feb 02 '24 at 18:04
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    What is the answer to the question though? – user1271772 Feb 02 '24 at 21:58
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    I agree with @user1271772 that this doesn't seem to answer the question. The question is "are there issues with damaging a cemetery" and this answer replies with "cemeteries aren't protected cultural sites". They're also not schools or hospitals, which are both protected sites. That doesn't say what a cemetery is though, or what rules do apply to it, if any. – Bobson Feb 13 '24 at 13:07
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It's pretty debatable and doesn't come up that often in wars, but according to one interpretation:

The [ICRC] 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)

Of course, Israel claims they have an overriding reason to do so, but the ICRC (or treaties) apparently didn't consider the present circumstances, explicitly... but there's something close enough as "investigative necessity":

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.

Also, Israel is not part of AP I, but they seem to essentially invoke that idea:

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.

But one critic argues that's still not kosher, because...

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.

the gods from engineering
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Acccording to the New York Times:

The laws of armed conflict consider the intentional destruction of religious sites without military necessity a possible war crime.

This is confirmed by various sources, including the US Commission on International Religious Freedom and the Geneva Council for Rights and Liberties.

The NYT article also mentions that "the Israeli military did not respond to questions by The Times about its reason for razing the cemetery and whether it has taken any precautions to protect religious sites in Gaza". Given that the IDF is usually quick to communicate and justify its actions, this could mean that they had no good reason to do it.

Additionally, the vast majority of people in the world see the desecration of graves as something extremely creepy and wrong. So this is likely to contribute to lowering the support for Israel in the international opinion.

Erwan
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    I would question whether a cemetery always qualifies as a "place of worship" (as one of the linked sources asserts), and likewise would dispute that a cemetery always qualifies as a "cultural heritage" site. Sometimes, it could be one of those things, but it is a stretch to apply that to all of them. I'm certain that some people could find it to be creepy. But war itself is a pretty ominous thing to start with. – ohwilleke Jan 30 '24 at 23:39
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    @ohwilleke Given that the only thing you can do for the people kept in cementeries is praying for them, and that the main (if not the only) reason for cementeries to exist is religious belief, I would conclude that yes, they are places of worship as much as a church is. For instance, both cementeries and churches count as "consacrated land" in every Christianity variety I know of. As the OP mentions in their question, desecrating (jewish) cementeries constitutes a grave assault for them, but again, it's one rule for me and another one for my enemies. – Rekesoft Jan 31 '24 at 07:49
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    "consecration" is kind of a legal concept -- its about land use, nothing particularly to do with sacredness. As such, consecration is enforced by civil authorities or canon law. For religions that are not associated with civil authorities or canon law, consecrating a church or cemetery just means saying "we'll use this as a church (or cemetery)". Also, praying for the dead is by no means universal in religion or in cemeteries. – david Jan 31 '24 at 11:55
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    @Rekesoft There are plenty of non-religious cemeteries for people without religious belief. At least around here it is actually illegal to just keep someone's remains at home. – Vladimir F Героям слава Jan 31 '24 at 13:17
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    @Rekesoft People go to cemeteries without the intention of praying for the people buried there, not everyone is religious in the first place. – Joe W Jan 31 '24 at 13:34
  • @JoeW Sure, just like many tourists visit cathedrals without being christians, just for viewing the building. That doesn't change the evident fact that, without religion, there wouldn't be any cathedrals. Churches and cementeries are built for religious purposes. Notice that in places like India, where many (most?) branches of Hinduism doesn't come with the concept of a cementery to go to pay homage to the decesead, there aren't that many cementeries. People go to make offerings to the Ganges instead. – Rekesoft Jan 31 '24 at 14:18
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    @Rekesoft And many people pray in locations that are clearly not religious sites such as restaurants before a meal. Just because someone is praying at a site doesn't mean it is a religious site. If you want to make a claim that as a rule cemeteries are religious sites you need to provide some evidence beyond saying that people pray at them. – Joe W Jan 31 '24 at 14:43
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    I think this argument about whether cemeteries are religious sites is beside the point. Cemeteries are sites with religious, spiritual, cultural and historical significance. The article behind the first link supports its claim that 'targeted erasure of such sites can “amount to crimes against humanity.”' It seems to me the question is whether in general principle the IDF has a justification in that they claim to be looking for dead hostages, and whether in specific cases they have destroyed too much in doing so. – Lag Jan 31 '24 at 15:07
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    @Rekesoft While cemetaries often exist for religious reasons, and many are owned or associated with religious organizations, there are also secular cemetaries owned by cities and towns. Atheists bury their dead, too. Would you consider Arlington National Cemetary to be a religious site? – Barmar Jan 31 '24 at 15:39
  • @ohwilleke I value your opinion, but without any reference it's just an opinion. With only one google search I found multiple sources which tend to disagree with your opinion, as mentioned in the answer. – Erwan Jan 31 '24 at 16:26
  • @Erwan Admittedly, I'm not doing a really deep analysis. I'm looking at the analysis and sources relied upon at the first couple of sources you mention (which are using some very strained arguments like arguing from a generalized freedom of religion with weak analysis), and I'm also not make a very strong statement in saying that you need "cemetery plus" so to speak to qualify on either ground. But, ultimately, there will be no binding or authoritative judicial determination. International law is basically just a basis for diplomatic rhetoric anyway. There isn't an exact right or wrong answer. – ohwilleke Jan 31 '24 at 19:34
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    @Barmar Arlington provides for the expression of religious belief by those buried there through the use of emblems of belief That is not something you will find in a restaurant, a playground, or a shopping mall. Arlington also provides chapel services. Arlington may not be a sacred site to a single specific religion, but pretending it's secular is disingenuous. – barbecue Jan 31 '24 at 20:55
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    @barbecue Military bases also have chapels. Does that make them religious sites? – Barmar Jan 31 '24 at 20:58
  • @Rekesoft Cemeteries exist for a practical purpose (storing corpses in a way that they are not a health hazard to the associated settlement). Even headstones exist for a practical reason (to ensure that you don’t dig up a dead body while making a new grave). Religions inherently are tied to both purposes because religion for humans pretty much always has something to say about death, and religions were a historical driving factor in the construction of cemeteries, but that is not sufficient to categorically say that all cemeteries are inherently religious. – Austin Hemmelgarn Feb 01 '24 at 02:46
  • @Barmar Do you think the chapel of a military base (or a hospital) is not a religious site? – Rekesoft Feb 01 '24 at 08:14
  • @Rekesoft The chapel is, but not the base around it. And a cemetary may have graves of both religious and non-religious people. – Barmar Feb 01 '24 at 09:11
  • @barmar Cemeteries may not be entirely devoted to religion, but they are absolutely, without any possibility of dispute, sites invested with significant religious significance. It's silly to pretend that they're just corpse warehouses. – barbecue Feb 01 '24 at 16:50
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  1. Is this relevant for the genocide accusations, depending on how Israel does it?

Yes, it is relevant - all violations of the Geneva Convention by Israel, against Palestinians, can be used as evidence to prove the genocidal intents of Netanyahu's government. Specifically, the 1949 Fourth Geneva Convention (GCIV) has a provision that prohibits the desecration of corpses:

Rule 113 Treatment of the dead. The obligation to take all possible measures to prevent the dead from being despoiled (or pillaged)

Note that Israel is one of the few countries that objects to the GCIV as Article 49 of the Fourth Geneva Convention also includes the provision:

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

which Israel staunchly opposes:

“In 1976 the Israeli government maintained its attitude of non-recognition of the applicability of the Fourth 1949 Geneva Convention in the occupied territories. The ICRC, in contrast, has consistently stated its opinion that all conditions existed for the applicability of that Convention.”

(Ofcourse, transferring population, killing and / or chasing away the native population is also now internationally recognised as genocide and is precisely what Israel is being accused of for a long time).

  1. What kind of precautions would Israel need to take to make it legal? For example do they need to make sure that there are records to go with each corpse to make sure that they can be matched with their previous location/grave markers/identification?

Ideally, Israel should seek permission, and even work with the Palestine government for the exhumation of corpses and its examination. If that is not possible, it should work with international organisations who can monitor and ensure that Israel isn't wantonly desecrating or destroying the graves and dead bodies, that Israel treats the dead with the dignity they deserve and is putting them back in the grave again with all proper customs followed.

Israel does have a "weak" defense that it is trying to identify dead hostages - Hamas has publicly claimed that Israel has intentionally or unintentionally killed many hostages during its onslaught on Gaza. I say weak, because Israel has consistently prevented relief workers from doing there work, and any dead hostages could have been identified earlier itself if they had been allowed to do their job. And the more likely reason for these exhumations are to identify Hamas members so that Netanyahu can claim use it for propaganda, to blunt the claim that the death of hostages in the bombing were thoughtless and "unnecessary".

  1. What about the destruction of the graveyards other than the corpses, i.e. the grave markers, works of art, infrastructure, etc.?

If care and attention is not taken to preserve them, or not restore them on damage or destruction, these can indeed be considered as proof of cultural genocide against Palestinians.

References:

  1. Fourth Geneva Convention
  2. Question of the Observance of the Fourth Geneva Convention of 1949 in Occupied Palestinian Territory
  3. Hamas claims 50 Gaza hostages have been killed by Israeli bombing
  4. For Netanyahu’s Government, Israeli Hostages Are Just a Propaganda Tool
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    prevent the dead from being despoiled (or pillaged) => isn't this about people killed during the conflict, not about those long buried? – JonathanReez Feb 01 '24 at 06:44
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    Problem with invoking the Geneva Convention is that you can't apply it to only one side. Hamas routinely uses hospitals and schools for their base of operations and probably numerous other violations. While it's perhaps not the best that Israel breaks the rules when they retaliate, you can't cherry-pick GC violations to make one side look bad. – Beefster Feb 05 '24 at 17:35