1. Introduction
The encounter between international heritage law and the law of occupation offers under-explored potential in the pursuit of the right to self-determination in situations of prolonged occupation: through the case study of Palestine we analyse this aspiration and its legal foundations. Attacks against cultural heritage in the Palestinian territory occupied since 1967 reveal a pattern of Israeli measures for the takeover, excavation, and development of archaeological and heritage sites as a pretext to displace Palestinians and take their land.Footnote 1 In 2025, the United Nations (UN) Commission of Inquiry on Occupied Palestine reported:
many incidents in which Israeli officials have: seized or allowed settlers to seize cultural heritage sites; excavated, developed and expanded such sites for tourism purposes, including those containing artefacts representing various cultures and periods in history, while excluding non-Jewish history; and blocked or severely restricted Palestinians from accessing such sites. In some cases, archaeological excavations that were described as “rescue excavations” led to the subsequent opening of tourist sites by Israeli authorities.Footnote 2
Israeli authorities have used ‘cultural heritage as leverage for its territorial claims in the occupied West Bank’ thus enabling Israel’s settlement expansion. Israeli actions ‘highlight and perpetuate the narrative of an exclusively historical Jewish attachment and affinity to the land, while erasing any other narrative or prior relationships’.Footnote 3 These UN statements reflect scholarly findings: Nadia Abu El-Haj has articulated the relationship between Israel’s archaeological practice, state-building and colonization of the entirety of historic Palestine.Footnote 4 And with specific reference to the West Bank, Omar Abed Rabo has illustrated how contemporary Israeli uses of (Biblical) archaeology, cultural, and naturalFootnote 5 heritage support colonialist narratives that serve Israeli expansionism, religious–nationalist settlements, and annexation of Palestinian land.Footnote 6 These acts are often only part of a catalogue of breaches of international law – in fact, the United Nations has clearly indicated that acts against cultural heritage can be early signs and components of international crimes such as genocide,Footnote 7 war crimes, and crimes against humanity.Footnote 8 Attacks on the environment, food security, and personal liberties also tend to co-exist with attacks on cultural heritage. Yet, our preoccupation with a group’s biological existence tends to eclipse the concern with a group’s cultural survival, with significant negative effects.Footnote 9
In the Palestinian context, it appears that the Israeli state has pursued territorial expansion through cultural heritage claims within the ongoing settler-colonial project imposed by the Israeli state on the Palestinian people.Footnote 10 This project results from British colonialism and the ensuing UN partition plan,Footnote 11 which led to mass displacement of Palestinians, dispossession of their land and denial of their right to self-determination in 1948.Footnote 12 Since 1967 until the present day, the remaining Palestinian land (the ‘Occupied Palestinian Territory’ – OPT), comprising the West Bank, East Jerusalem and the Gaza Strip, is subject to a belligerent occupation. In Gaza specifically, the UN Independent International Commission of Inquiry has found that Israel has committed genocide against Palestinians,Footnote 13 in relation to which there is also a case before the International Court of Justice (ICJ),Footnote 14 and many statements from UN experts classifying these acts as grave international crimes.Footnote 15 A structure of settler colonialism has framed such events over time:Footnote 16 narratives around historic claims to land are often used to justify and normalize annexationist occupations that violate international law.
The case study of Palestine reveals an important, though under-appreciated, aspect of how the law of occupation could operate as a tool of resistance in conjunction with other areas of international law for the protection of cultural heritage during belligerent occupation.Footnote 17 In all societies cultural heritage is important as a linchpin for identity, each manifestation or element of heritage being a marker of identity through which we negotiate and demarcate the existence and possible uses of identities tied to a territory or a people. As such, the intersections between cultural heritage law and other international legal frameworks governing factual situations of violence and domination of one group against another, such as occupation, apartheid, and genocide, reveal useful strategies for affected communities. In contexts of prolonged occupation, the occupier may claim to have a stronger, more enduring connection to the occupied territory it seeks to conquer, invoking cultural heritage, particularly archaeological sites and artefacts, to establish that historical connection.Footnote 18 Intangible cultural heritage (ICH), understood as living cultural practices, also speaks to ongoing connections to a territory and its history.Footnote 19 Therefore, the ability to control heritage, its existence, and its records, enables the control of the identity tied to a territory, and a people’s sense of belonging to and within it. Cultural heritage narratives, in other words, reveal the effect of occupation on the (un)making of ‘a people’. They do so as opposed to more traditional accounts of the law of occupation that focus on impacts on ‘people’ (and the possible distortion of these rules), both in how prolonged occupation stretches the logic of these rules, and how occupation law used with cultural heritage law can become a tool of resistance.
This article argues that we ought to pay greater attention to the proper implementation of cultural heritage law alongside the law of occupation as a mechanism for resistance and resilience in occupied territories. Engaging more explicitly with cultural heritage law gives us a window into why occupation matters, and to whom, and how international law enables or constrains those stakes. The premise of our argument is that the aims of cultural heritage law and the law of occupation converge in offering core legal protections to occupied populations denied the fundamental right to self-determination. As such, the analysis helps reimagine heritage law beyond a law that simply ‘displays’ heritage and condemns harms against it,Footnote 20 towards a law that creates mechanisms for establishing and maintaining legal authority connecting different components of public international law (specifically, the law of occupation and the law of peace and security).
We analyse the potential emerging from the meeting of the law of occupation and cultural heritage through the case study of Palestine, focusing specifically on Area C of the West Bank. Two main reasons support this choice: first, the indefinite length and annexationist character of that occupation, and second, the competing political claims about whom (between the occupied population and occupying power) can make more credible claims to their historical connection to the land. In this context, the occupying power’s attempts to illegally impose its sovereignty permanently over occupied territory, and deny its inhabitants their human rights – including the right to self-determination – are facilitated by the instrumentalization of heritage. Our inquiry shows an ambiguity in the role of heritage in the context of occupation: at present, international law’s lack of engagement with heritage as resistance has allowed heritage to become a tool in favour of occupiers’ (spurious) claims to territory; however, taken more seriously, heritage can in fact become a tool of resistance to support the right to self-determination of populations living under occupation. The ICJ declaration of the illegality of Israel’s continued presence in the OPTFootnote 21 further enhances the potential of cultural heritage rules to become tools of resistance, because it rejects the possibility of occupation turning into a permanent state, a goal for which cultural heritage could be (and in fact is) strategically deployed.
In positing that the combination of cultural heritage protection and the law of occupation can be used as a tool to resist prolonged occupation, the article proceeds as follows: Section 2 outlines the law of occupation’s intersection with cultural heritage; Section 3 explains the specific context of the OPT and Israel’s attempts to control heritage and minimize Palestinian ties to the land; Section 4 then considers cultural heritage law as a mechanism for assertion of control, and its relationship to social resilience and resistance beyond occupation, and Section 5 concludes.
2. The international law of occupation and cultural heritage
The law of occupation operates within public international law (PIL) and regulates the conduct of an occupying power (OP) in occupied territory (OT), in the context of international armed conflicts creating the temporary factual circumstances of occupation. It derives primarily from international humanitarian law (IHL) custom and treaties, specifically, the 1907 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (1907 Hague Regulations – HR), the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention – GCIV), and the 1977 Additional Protocol I (API), which includes the protection of cultural objects (Article 53). International human rights law (IHRL) treaty and customary provisions applicable to both peacetime and times of war complement IHL norms. As reaffirmed by the ICJ, ‘occupation is conceived of as a temporary state of affairs’ wherein ‘the exercise by the occupying Power of authority over foreign territory is tolerated for the benefit of the local population’.Footnote 22 Any attempts by the OP to annex OT are unlawful under Article 2(4) of the UN Charter,Footnote 23 because there is not ‘an atom of sovereignty’ vested in the authority of the occupying power.Footnote 24 Moreover, the right to self-determination (Article 1(2) of the 1945 UN Charter) protects the integrity of OT during occupation and after its termination,Footnote 25 because occupation does not transfer sovereignty.
The ICJ has reaffirmed that the law of occupation applies to the Palestinian territory occupied in 1967, concurrently with international human rights law.Footnote 26 Moreover, ‘the prohibition of the acquisition of territory by threat or use of force and the right of peoples to self-determination, which are enshrined in the Charter of the United Nations and also form part of customary international law’ are applicable to the situation in Palestine.Footnote 27 This clarification by the ICJ offers certainty about the validity of the international legal framework in the OPT without having to address the question of Palestinian statehood. Consequently, the ICJ has continued to adopt a pragmatic approach in ensuring that the contestations to Palestinian statehood do not allow for legal black holes of impunity for international law violations.Footnote 28
In general, the law of occupation applies for as long as a territory is occupied (Article 42 HR) and for a year after the close of military operations (Article 6 GCIV). Given the temporary nature of occupation, the OP must respect the laws of the occupied territory (Article 43 HR and Article 64 GCIV), minimize the impact of occupation in the OT and has obligations for the welfare of the people in OT.Footnote 29 Prolonged or protracted occupations with no clear end in sight are not explicitly regulated in IHL, but do arise in factual contexts such as the OPT.Footnote 30 Annexation and ‘conduct by the occupying Power that displays an intent to exercise permanent control over the occupied territory [that] may indicate an act of annexation’ is prohibited.Footnote 31 Moreover, the right to self-determination, well-established in international law as a matter of custom, has a bearing on the law of occupation, protecting the territorial integrity of OT against occupying powers.Footnote 32 The right to self-determination also reaffirms the integrity of the occupied population as ‘a people’, thus highlighting the collective aspect of the rights of Palestinians living under Israeli occupation.Footnote 33 Cultural heritage protection offers an added layer to safeguard these norms, as the following subsection reveals.
2.1 Cultural heritage protections in occupation
A further layer of protection is provided by specific provisions and instruments of international law that address cultural property and heritage. The key treaties are the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict,Footnote 34 which includes provisions (Articles 4 and 5) on the protection of cultural heritage during armed conflict, particularly in the context of occupation. These provisions impose obligations on the OP to respect cultural heritage, give precedence to and support the authorities of the OT, prohibit any construction that would damage cultural heritage, and prevent harm to cultural heritage, including archaeological sites. The 1972 World Heritage ConventionFootnote 35 also includes key provisions on the protection of heritage (particularly Articles 4–6) for assessing international legal responsibility of an OP.Footnote 36 Additional treaties include the 1999 Second Protocol to the 1954 Hague Convention,Footnote 37 whose provisions on occupation (Article 9) shed light on the meaning of comparable provisions in the 1954 Hague Convention; the 2003 Intangible Cultural Heritage Convention,Footnote 38 which, as we discuss below, informs the concept of intangible heritage, and the role of culture for populations in occupied territories; and the Rome Statute of the International Criminal Court (ICC),Footnote 39 which establishes attacks on cultural heritage as international crimes (the ICC’s Elements of Crimes clarify this also applies to occupation).Footnote 40 Most of these cultural heritage treaties do not offer direct enforcement pathways, but they help generate resistance momentum and possibilities.
Applicable international law requires the OP to respect cultural heritage and ensure that it is not illegally excavated, misappropriated, or destroyed. The 1954 Hague Convention explicitly includes archaeological sites in its definition of cultural heritage (Article 1(a)), an addition proposed by Israel during the drafting stage.Footnote 41 Therefore, all obligations under the 1954 Convention explicitly extend to archaeological sites, as well as applying to situations of occupation.Footnote 42
Article 4(1) of the 1954 Hague Convention in particular demands that OPs
undertake to respect cultural property … by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage … and by refraining from any act of hostility directed against such property.
Acts of hostility here must include acts occurring during occupation, as well as exposure of heritage to damage or destruction. Because the entire treaty applies to acts of occupation,Footnote 43 it is only logical that one be able to characterize acts in the context of occupation (which we discuss in further detail below) as being possible acts of hostility or exposure to destruction of damage. Additionally, OPs are under an obligation ‘to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property’ (Article 4(3)), and to ‘refrain from any act directed by way of reprisals against cultural property’ (Article 4(4)). An OP cannot excuse itself from these obligations by alleging that the occupied state’s authorities may have failed to take preventative measures to safeguard their own heritage (Article 4(5)).
Article 5 of the 1954 Hague Convention reflects well-established customary international law, and the requirement that the OP must ‘leave existing administrative authority intact and free to operate’.Footnote 44 In this light, the task of preserving cultural property under belligerent occupation continues to fall to the competent national authorities.Footnote 45 This presumes that the OP acts as a temporary ‘custodian’ of the territory, and that the displacement of the occupied state’s authority is likewise only temporary. ‘Belligerent occupation is, in effect, a holding pattern, pending the restoration of the sovereign’s governing authority’.Footnote 46 Any actions that preclude this temporary impact are in violation of customary international law concerning occupation, and of the 1954 Hague Convention in particular.
An OP is under an obligation to, first and foremost, ‘support the competent national authorities of the occupied country in safeguarding and preserving its cultural property’ (Article 5(1) 1954 Hague Convention). Notably, it was not the UNESCO Secretariat but the negotiating parties themselves who added this language to ensure that OPs could not disfigure the national character of heritage.Footnote 47 This cooperation with the authorities of the occupied state extends to the preservation of cultural heritage, including archaeological sites, that may be damaged by military operations (Article 5(2)). This obligation includes prohibiting and preventing all archaeological excavations as a matter of customary international law as well, as discussed in more detail below.
2.1.1. Archaeological excavations
The 1999 Second Protocol to the 1954 Hague Convention provides additional clarity on the legality of excavations by stating that an OP must prohibit and prevent all archaeological excavations in an occupied territory (Article 9(1)(b)). Importantly, and closely in line with Article 5 of the 1954 Hague Convention, the Second Protocol also makes it clear that ‘[a]ny archaeological excavation of, alteration to, or change of use of, cultural property in occupied territory shall, unless circumstances do not permit, be carried out in close co-operation with the competent national authorities of the occupied territory’ (Article 9(2)). As a matter of customary law, O’Keefe and others suggest that where ‘an occupying power is not party to the Second Protocol, best practice suggests that it should nonetheless do what article 9(1)(b) directs’.Footnote 48 In other words, the Second Protocol only matters for present purposes to enlighten the meaning of the 1954 Hague Convention. It is useful to remember, however, that, in the event of conflict, the 1954 Hague Convention’s text requiring close cooperation with national authorities prevails.Footnote 49
There is an unresolved question as to whether the 1954 Hague Convention’s provisions on an OP’s obligations extend to excavations. The 1954 Hague Convention’s definition of cultural heritage refers to ‘sites’, but it is unclear whether these are sites that have been already explored or not. Recalling the Israeli delegate’s own words in proposing the inclusion of archaeological sites in the definition, it would be ‘absurd to protect museums and leave the sources … of history itself exposed to the ravages of war’.Footnote 50 Therefore, as archaeological sites are recognized as sources of history, it would be inconsistent to exclude archaeological excavations from this protection.
These rules also prohibit the excavation of archaeological sites unless led or authorized by the occupied state’s authorities. This prohibition has deep roots in international law, stretching back to the League of Nations’ efforts to protect archaeological sites, which UNESCO inherited and transformed into the 1956 Recommendation on International Principles applicable to Archaeological Excavations.Footnote 51
2.1.2 Intangible cultural heritage
Legal obligations under the Hague Convention and other instruments applicable to occupation also extend to the intangible relationships that communities in an occupied state have with their heritage, which constitute the core foundations of their identity; attacks on physical heritage can damage the intangible aspects of that identity, resulting in complex forms of harm.Footnote 52 The safeguarding of intangible cultural heritage is an obligation under customary international law,Footnote 53 and thus informs the interpretation of the 1954 Hague Convention.Footnote 54 Any activities by an OP that impair the links that communities in the occupied state have to their own heritage in OT is therefore a violation of international law, particularly the 1954 Hague Convention.
Once intangible cultural heritage is included as part of the scope of international legal obligations under the 1954 Hague Convention, we suggest that self-determination also becomes more prominent. Intangible Cultural Heritage (ICH) centres on the identity of communities, groups, and sometimes individuals, whereas the 1954 Hague Convention’s rules on tangible heritage focus on the nation-state.Footnote 55 Because intangible heritage does not assume that peoples and peoples’ identities map onto the nation-state’s identity, there is a pathway for contestation that highlights the close connection between (intangible) cultural heritage and self-determination, connections that long predate the 2003 Intangible Cultural Heritage Convention (such as countries like Norway using a mapping of ICH in the nineteenth century to bolster its independence movement against Sweden), and thus subsist in the very concept of ICH.Footnote 56 The listing processes under the 2003 Intangible Cultural Heritage Convention, notably, have been deployed by peoplesFootnote 57 as limited mechanisms for self-determination, pathways to seek autonomy and resources in areas of policy, as well as promoting the recognition of the autonomy of certain groups’ cultural identities vis-à-vis the nation-state.Footnote 58
2.2 Cultural heritage and identity
International human rights law reinforces the connection between cultural heritage law and the identity of people and peoples. A key obligation arises under the International Covenant on Economic, Social and Cultural Rights (Article 15(1)(a)), the right to participate in cultural life. Given the primacy accorded to the authority of the occupied state over cultural heritage under the 1954 Hague Convention, it is for that state, not the OP, to determine what if any aspects of this right may be derogated in emergency situations.Footnote 59 An OP can only invoke its own security concerns to justify restricting the occupied state’s inhabitants from enjoyment of their cultural heritage as a form of derogation in limited circumstances,Footnote 60 and contexts of occupation ought to be treated as particularly suspicious if one considers that the specific law gives primacy to the authority of the occupied state. Although states can use emergency powers to derogate from their obligation to protect cultural rights, they cannot do so in the context of occupation, nor can any such derogation have an effect outside the territory of the occupied state.Footnote 61
The connection between culture and self-determination is more readily apparent in the context of Indigenous peoples’ rights.Footnote 62 The ‘close relationship between the cultural rights of Indigenous peoples and their right to self-determination’ has been recognized by the UN Expert Mechanism on the Rights of Indigenous Peoples.Footnote 63 In academic literature, it emerges that ‘many indigenous peoples have highlighted that their cultural heritage is essential for their survival as a people, indeed physical survival is connected to their cultural survival as distinct people’ – and a way to resist cultural annihilation and even genocide.Footnote 64 While there is no distinct provision on ‘cultural genocide’ in the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), Article 8 reaffirms Indigenous peoples’ right to not: ‘be subjected to forced assimilation or destruction of their culture’.Footnote 65 UNDRIP contains specific provisions for the protection of Indigenous heritage, including tangible heritage, traditions and customs (Article 11), spiritual and religious traditions and customs of Indigenous cultures (Article 12), intangible heritage (Article 13), the right to uphold the dignity and diversity of their cultures and languages in relation to education and public information (Articles 14 and 15), and the right to access and ultimately control cultural heritage and associated intellectual property (Article 31).Footnote 66 This approach is somewhat fragmented, leading to calls for a right to ‘cultural integrity’ broadly linked to Article 8(2) of UNDRIP, which prohibits any action ‘which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities’, and emerging in regional human rights bodies.Footnote 67 The ‘reference to integrity as distinct peoples places the emphasis on the need to ensure the survival of indigenous peoples, not only physically but also as cultural entities’.Footnote 68 These reflections are particularly useful in understanding how Palestinian cultural heritage in the OPT is crucial for the reaffirmation of their distinct sovereign peoplehood in the land and, relatedly, their right to self-determination despite the ongoing Israeli occupation and its attempts to impose settler-colonial narratives on cultural heritage sites.Footnote 69
As the OP in the OPT, Israel carries the range of legal obligations in relation to cultural heritage discussed above for actions of Israeli state authorities and non-state actors. As long as heritage sites remain outside the occupied state’s control, any activity undertaken there constitutes a violation of the OP’s obligations.Footnote 70 These obligations apply to cultural heritage sites classified as both public and private property. As stated in the 2004 ICJ Advisory Opinion Wall, customary rules prohibit the destruction of both public and private property in OT.Footnote 71
2.3 Occupation, identity, and state-building
Taken together, the legal frameworks governing occupation and heritage reaffirm the temporary nature of occupation and the primacy of the occupied state’s sovereignty over heritage matters. The latter principle in particular renders the law of occupation an important toolkit for resistance by the occupied people, becoming even more powerful if combined with cultural heritage law. Cultural heritage law acknowledges the interplay of identity and the political stakes surrounding identity. The law of occupation’s general tenet of maintaining the status quo ante and prohibiting any significant changes thereto closely reflects heritage law’s recognition of occupied states’ uses of heritage for their own state-building purposes. These rules can become a tool in the hands of communities in OT to preserve and promote their cultural identity as a people; as such, international cultural heritage instruments can help illuminate pathways for thinking of heritage not just in terms of archaeology but also as identity. This enables the concept of living and ongoing culture, which further charges the possibilities for resistance by communities enduring occupation, both enshrining and stimulating the use of heritage as a mechanism for social resilience in the face of occupation. This pathway also builds on a growing international consensus on the importance of community inclusion in heritage governance.Footnote 72
The legal background thus far illustrates how the law frames heritage and its importance in the context of occupation, including the tools available to leverage resistance by communities in OT, particularly through multiple types of cultural heritage. The next section considers the Palestinian case in more detail, and the uses of heritage in situations of prolonged occupation.Footnote 73
3. Occupied Palestine and cultural heritage
Israel has used narratives about cultural heritage to generate its entitlements to the land between the Jordan river and the Mediterranean Sea since its establishment. However, most international law analysis focuses more narrowly on the Palestinian land occupied since 1967 (OPT), which comprises only the West Bank including East Jerusalem and the Gaza Strip. For reasons of expediency, therefore, our analysis builds on the fact that the fundamental legal questions pertaining to the territories occupied since 1967 are largely settled by the principal judicial organ of the United Nations, the ICJ, in a 2024 Advisory Opinion.Footnote 74 This article will consider in particular the so-called ‘Area C’ of the West Bank,Footnote 75 which faces de facto annexation through Israeli settlement expansion and related measures which are themselves illegal under international law.Footnote 76 More broadly, the ICJ confirmed that Israel’s continued presence in the OPT is illegal ab initio, and that it constitutes the setting for a range of other violations of international law, including the Palestinian right to self-determination in the territory occupied in 1967.Footnote 77 The Court also indicated that Israel maintains effective control over the OPT through military might and a range of policies and practices ‘designed to remain in place indefinitely’, amounting to annexation of large parts of the OPT in violation of international law.Footnote 78 Moreover, it is well-established that the OP must ensure human rights in occupied territory.Footnote 79 Therefore, while the law of armed conflict and in particular the law of occupation remain central to the international legal framework governing the OPT, general international law and other relevant specialized regimes, including cultural heritage law, also apply.
All of historic Palestine is rich in cultural heritage:Footnote 80 in the West Bank alone there are more than 7,000 known archaeological sitesFootnote 81 recorded by the Palestinian National Database of Archaeological and Historical Sites,Footnote 82 with over 2,600 sites contained in Area C.Footnote 83 These include religious sites of significance to Muslims, Christians, or Jews (sometimes all three), such as the Al-Ibrahimi Mosque/Tomb of the Patriarchs in Hebron, the Church of the Nativity in Bethlehem and the Qumran Caves, but also antiquities from various historical periods, including the Roman and Crusader era (e.g., Herodion, controlled by Israeli authorities).Footnote 84 Other sites have secular cultural value and are a testament to centuries of thriving community life in Historic Palestine (e.g., the Throne Villages),Footnote 85 or its unique landscapes, such as the ‘Land of Olives and Vines’ in Battir.Footnote 86
Five sites are presently inscribed on the UNESCO World Heritage List for the State of Palestine, four in the West Bank and one in the Gaza Strip.Footnote 87 Listing sites as Palestinian could, in itself, be understood as an act of resistance and self-determination – even if such moves are a mere description of fact based on the applicable international legal framework described earlier, and not (per se) a bold political statement. Nonetheless, there have been significant political ramifications from these inscriptions, such as United States withdrawal from UNESCO (with significant budgetary impacts throughout the entire organization).Footnote 88 It is also worth noting that the Old City of Jerusalem and its Walls was inscribed in 1981 (endangered site in 1982) upon Jordanian proposal, but not assigned to any specific state. In that context, a 2016 UNESCO resolution adoptedFootnote 89 the consolidated position in international law that Israel is the OP in the Old City;Footnote 90 while a mere application of the international legal position of the UN, this text was voted against by USA, UK, Germany, the Netherlands, Estonia, and Lithuania, causing ongoing political controversy in some quarters.
A further 12 sites across Areas A, B and C of the OPT are on the UNESCO ‘Tentative List’ of World Heritage Sites.Footnote 91 The Israeli occupation and the actions of violent settlers place a number of these sites, and others, at risk.Footnote 92 Numerous archaeological sites in Area B as well as C have been taken over by Israelis over time.Footnote 93 Moreover, Palestinian libraries and archives have also been targeted by Israeli forces and settlers, which intensified after the 1967 capture of Jerusalem.Footnote 94 The destruction, takeover, re-classification and wilful neglect of such sites has played an important part in how Israeli narratives have sought to rewrite and minimize Palestinian histories in the land, in an attempt to deny the Palestinian right to self-determination.Footnote 95 To preserve crucial audio-visual documentation from the Nakba onwards, the history of Palestinian refugees contained in UNRWA archives is now inscribed in UNESCO’s Memory of the World Programme to safeguard significant documentary heritage.Footnote 96 There are also multiple initiatives to preserve libraries and archives in the Old City of Jerusalem, with UNESCO involvement/support over the decades. These include the Khalidi Library, ‘which contains a large number of ancient manuscripts of great historical and cultural value’ and the precious manuscripts of Al-Aqsa mosque library.Footnote 97
The policies and practices associated with the occupation are thus endangering Palestinian archaeology and cultural sites, and denying Palestinians their associated living heritage practices (ICH): the failure to uphold the relevant provisions of international law outlined in the previous section is a key driver of the risks posed to heritage in the OPT.
3.1 The Israeli state’s grip over heritage in Palestine
In the context of occupation, archaeology, cultural property, and heritage in the OPT is de facto controlled by Israel through various antiquities laws inheriting much of the spirit of the 1920 Antiquities Order of the British Mandate years,Footnote 98 a document to be understood in its historical and colonial context.Footnote 99 Since 1967, Israel’s status as the occupier under IHL has given military officials and related bodies extended temporary powers of both oversight and physical control over archaeological sites and cultural heritage.Footnote 100 In particular, Military Order No. 119 of 1967 gave responsibility for antiquities to Israeli officials and the Staff Officer for Archaeology in the Civil Administration (SOA), a civilian expert ‘who operates within an army framework’.Footnote 101 The operative framework was later consolidated in Military Order No. 1166 of 1986 which amended Jordan’s temporary Antiquities Law No.51 (1966) and vested authority in the SOA.Footnote 102 This national provision, however, does not negate the fact that under international law the OP is only a temporary custodian of such sites for the benefit of the Palestinian people, to whom this heritage belongs, not for the interests or enrichment of Israel.Footnote 103 Nonetheless, archaeological research by Israeli academics and government-sponsored activities outside the military apparatus began since the early days of the occupation.Footnote 104 In fact, across the OPT including East Jerusalem (which Israel considers to be annexed through its Basic Law: Jerusalem, Capital of Israel of 30 July 1980, despite being in flagrant violation of international lawFootnote 105 ), cultural heritage activities continue to be carried out by both occupation-specific entities (primarily military) operating exclusively in the OPT, Israeli universities and state agencies that initiate digs and surveys beyond the military apparatus, and civilian national bodies operating extraterritorially.
This picture is informed by the Oslo Accords (1993–1995), which sought to establish a framework for the future relationship between Israel and the Palestine Liberation Organization (PLO) and a (not implemented) timeframe for Palestinian self-determination in the OPT. The 1995 Israeli–Palestinian Interim Agreement on the West Bank and the Gaza Strip (‘Oslo II’) created a division between areas A, B and C of the West Bank.Footnote 106 ‘Area C’ constitutes over 60 per cent of the OPT, in which Israel was assigned full security and administrative control to the exclusion of the Palestinian Authority (PA) until the transfer of power was complete. Given that Areas A and B largely consist of built-up land in the 1990s, many existing and potential archaeological and heritage sites located outside urban areas fall within Area C under Israeli control. Oslo II recognized some of the roles and responsibilities of both Israel and the PA in relation to archaeological and heritage matters, but the implementation of those arrangements largely subordinated Palestinian rights to Israeli interests, raising questions on the alignment of those provisions to international law.Footnote 107
Despite the differentiation between Areas A, B and C of the West Bank in Oslo II, the law of occupation and other areas of international law continue to apply to all Palestinian archaeological sites and places of cultural significance in the OPT. For as long as an area is within OT as defined by international law,Footnote 108 the OP is bound by its obligations. Israel’s status under IHL as a mere non-sovereign administrator of the land until the legitimate sovereign government returns to power is the benchmark for assessing whether its policies, practices, and approach to cultural heritage in the OPT violate international law.
3.1.1 Israeli military and civilian oversight on Palestinian cultural heritage
Israel exercises oversight of cultural heritage in the OPT through a range of measures and institutions of both military and civilian character; this calls into question whether it genuinely intends to administer those sites, qua (temporary) OP, for the ultimate benefit of the occupied population, or whether it seeks to claim them as its own in violation of international law. Within the administrative structure of the occupation, the Unit for the Coordination of Government Activities in the Territories (COGAT), reporting to Israel’s Minister of Defence, is responsible for implementing the State of Israel’s civilian policy in the West Bank.Footnote 109 The Israeli Civil Administration (ICA) operates as a unit within COGAT and is subject to a ‘dual hierarchy’, making it directly accountable to the Minister of Defence through COGAT, and deriving its powers from the Military Commander of the occupied territory.Footnote 110 Within this apparatus, the Archaeology Unit of the Israeli Civil Administration is headed by the Staff Officer for Archaeology (SOA), who oversees archaeological affairsFootnote 111 and serves as a ‘representative of the Israel Antiquities Authority’ in the West Bank.Footnote 112 Staff are primarily civilians paid by various ministries.Footnote 113 An Advisory Council, comprising the Deputy Head of the Civil Administration, the SOA, heads of other departments, a representative from the Israel Antiquities Authority (IAA), and four university professors, oversees archaeological activities in the OPT.Footnote 114
The Archaeology Unit operates under the Jordanian Antiquities Law (1966), the Israeli Order Concerning the Antiquities Law (1986), and the Antiquities Regulations (1990).Footnote 115 The 1986 Military Order is used to declare sites as ‘Israeli archaeological sites’ (601 new sites were designated in 2020).Footnote 116 The key responsibilities of the SOA and Archaeology Unit include: reviewing and assessing the impact of building projects on archaeological sites and granting of construction permissions; excavation and survey licensing; execution of excavations via permits to the Archaeology Staff Unit itself, enabling it to control most archaeological projects in the West Bank; control over publication of findings.Footnote 117 As summarized by Yesh Din, the SOA’s authority in governing archaeology in Area C includes:
the power to decide where and what to excavate, how the excavation is managed, what information is published about it, what happens to the site once the excavation is complete, how the site is presented to the public, what is highlighted and what is played down, which audiences the site targets and how to design visitor experiences.Footnote 118
The SOA is also responsible for granting permission to ‘export any antiquities from the region (i.e., the West Bank)’,Footnote 119 which contravenes international law.Footnote 120
In addition to the Archaeology Unit and the SOA, a range of other state entities outside the administrative infrastructure of the occupation participate in the Israeli control of cultural heritage in the OPT. The Israel Nature and Parks Authority (INPA) manages parks and reserves including Israeli-designated nature reserves in the OPT, encompassing archaeological sites.Footnote 121 The SOA has the authority to transfer management of such sites to INPA for developing them as tourist attractions for Israeli and international visitors (for instance, Wadi Qumran – Qumran national park).Footnote 122 The Ministry of Tourism also develops infrastructure reinforcing exclusively Israeli historical narratives about heritage sites to the exclusion of Palestinians.Footnote 123 However, as two NGOs note,
Converting antiquity sites into tourist and recreational attractions is not a necessary salvage and preservation operation and constitutes a violation of International Humanitarian Law, which prohibits changes of a permanent nature, especially those not intended for the benefit of the protected population.Footnote 124
Israeli state control over cultural heritage in the OPT is expanding in two main ways: through extraterritorial reach of its civilian institutions into OT, as well as extending beyond Area C. For instance, in June 2024 the Israeli Cabinet expanded the ICA’s authority to include antiquity sites in Area B, which
effectively nullifies governance distinctions in the field of antiquities as defined by the Oslo Accords. In practice, the decision grants the ICA … permission to expand its activities, to restrict development and even carry out demolitions in areas designated as antiquities sites or suspected of containing antiquities in Area B.Footnote 125
This move reveals the Israeli government’s misuse of archaeological governance as a ‘mechanism for seizing land in Area B under the pretext of heritage preservation’.Footnote 126 In summer 2023 the Cabinet had already allocated budget for archaeological work in Areas A and B and C,Footnote 127 treating all heritage sites in the OPT as within Israeli jurisdiction.
In parallel, the Israeli government is expanding the reach of its civilian institutions over heritage matters in the OPT, as revealed in plans to expand its control over archaeological sites across the West Bank through the establishment of a Ministry of Heritage to oversee the Israel Antiquities Authority (IAA) and the proposal to transfer the SOA from the ICA to the Ministry of Heritage.Footnote 128 In January 2023, the Israeli government authorized the transfer of the IAA from the Ministry of Culture to the Ministry of Heritage, with the aim of consolidating heritage governance across both sides of the Green Line under a single body – with no differentiation between occupied Palestinian territory since 1967 and Israel’s 1948 lines.Footnote 129 The Ministry of Heritage has since expanded its powers, acquiring authority over multiple programmes and administrative functions with direct influence on archaeological management in the West Bank, even against advice from the Israeli Attorney-General.Footnote 130 This ministry now allocates budget ostensibly to preserve heritage sites in the OPT. Although aligned in principle with Israel’s legal obligations under the 1954 Hague Convention, in practice these actions violate those commitments by (i) failing to cooperate with, and in effect supplanting, the Palestinian heritage authorities, and (ii) focusing exclusively on the protection and preservation of Jewish heritage, with ‘no reference whatsoever to the preservation of findings linked to other religions or nations’.Footnote 131 Underlying the Israeli takeover of heritage in Palestine is the Civil Administration’s designation of more than 2400 sites in the West Bank as ‘Israeli historical and archaeological sites’, including 63 localities in August 2025.Footnote 132 Such moves – including the proposal to establish a heritage authority to annex archaeological activity in the West Bank to Israel – invoke heritage preservation as a pretext to take over Palestinian land and transfer it to the Israeli settlements,Footnote 133 clearly violating the 1954 Hague Convention as well as the Fourth Geneva Convention.
Compounding this picture, in June 2024, the government supported a bill proposing to transfer authority over West Bank antiquity sites from the Civil Administration to the Israel Antiquities Authority (IAA).Footnote 134 The IAA rejected the proposal.Footnote 135 This plan has been widely opposed, including by the Israeli Archaeological Association stating that ‘its intention is not to advance archaeology, but to advance a political agenda, and in so doing, [it] violates the current Israeli Law of Antiquities and international law pertaining to archaeological activities in the West Bank’.Footnote 136 In February 2025 MK Amit Halevi (Likud) proposed the establishment of a new administrative body to oversee antiquities in the West Bank which would fall under the auspices of the Ministry of Heritage, rather than the Civil Administration.Footnote 137 Under the proposed bill, Israeli law would replace Jordanian law in governing antiquities in the West Bank. During the committee session, the Ministry of Justice reiterated its concerns that applying Israeli law extraterritorially could be interpreted as an act of annexation.Footnote 138 Regardless of which specific civilian entity assumes control, replacing an occupation-specific body with a civilian one carries the same implications in terms of international law: the intention to treat all heritage in the OPT as within Israeli sovereignty suggests a form of creeping annexation through heritage oversight, in breach of Israel’s legal obligations as the occupying power set out in general international law (notably Articles 1 and 2 of the UN Charter) and its specialized regimes, including the law of occupation and cultural heritage law. Furthermore, Israeli efforts to extend civilian institutional oversight over heritage in the OPT through Israeli laws are likely to breach Article 43 of the 1907 Hague Regulations, requiring the OP to respect, ‘unless absolutely prevented, the laws in force in the country’, which has acquired customary status. It emerges that, according to local Israeli commentators, ‘Israel’s claims of protecting antiquities seem insincere, given its selective enforcement when Israeli settlers are involved in destroying or looting antiquities’.Footnote 139 In fact, the state’s settlement project in the West Bank is one of the key drivers of Israel’s appropriation of heritage sites in Palestine: the ‘cover of protecting antiquities’ is used ‘to seize more land and expand the network of illegal settlements’.Footnote 140
3.2 The role of settler organisations and other non-state entities exercising oversight on Palestinian cultural heritage
The UN High Commissioner for Human Rights has described Israel’s archaeology policy as a ‘method used to take over land and expand settlements’.Footnote 141 This assessment mirrors reports from human rights NGOs, including Al Haq and the Society of St Yves.Footnote 142 Yesh Din, for instance, has summarized Israel’s use of archaeology ‘to tighten its control over land in the occupied West Bank and expand the settlement enterprise, while violating international law and the human rights of the protected Palestinian residents, and dispossessing them of their land’s culture and heritage’.Footnote 143 Academic research reflects this perspective.Footnote 144 In addition to state institutions, non-state actors, including settler groups, with varying degrees of state support, play an increasingly prominent role in relation to cultural heritage in the OPT. In fact, a 2017 NGO report revealed that 90 per cent of salvage excavation requests were undertaken for the benefit of the settlements.Footnote 145 Even though international law is clear on the illegality of settlements,Footnote 146 Israel pursues a policy of territorial aggrandizement enshrined in the Basic Law of 2018.Footnote 147
Prominent settler organizations such as the Jewish National Fund (KKL-JNF) have been involved in settlement activity since 1967, funding projects and taking over land, thereby evicting Palestinians from their homes and facilitating Jewish–Israeli control of territory and heritage sites.Footnote 148 JNF collaborations with other settler organizations, such as Elad, have enabled the takeover of archaeological sites and the promotion of settler tourism to consolidate Israeli claims to locations in East Jerusalem and the West Bank.Footnote 149 Elad’s involvement in the violent eviction of Palestinians from their homes in the Silwan neighbourhood to make way for an Israeli-managed archaeological attractionFootnote 150 paved the way for the establishment of a large Jewish–Israeli settler presence on the site (under the auspices of Elad itself).Footnote 151 This example typifies the way in which settler organizations use archaeology as a means to displace Palestinians and promote an exclusively Jewish–Israeli narrative to both internal and external audiences (including tourists),Footnote 152 furthering the wider state policy of promoting settlement activities. Across the West Bank, settler organizations involved in the establishment of settler farms and outposts,Footnote 153 typically through violence leading to the forced displacement of Palestinian communities,Footnote 154 often select sites claimed to be of Biblical significance. While these claims may have a historic basis, the narrative around Jewish-only claims deliberately excludes Palestinians and ignores the fact that these sites are located in the OPT.Footnote 155
High-profile and politically influential settler movements, such as Regavim (and its affiliates, like ‘Preserving the Eternal’ dedicated to settler-led archaeology initiatives across the West Bank), have developed a strong ethno-religious-nationalist narrative around the preservation of Jewish archaeology in the OPT to strengthen Israeli connections to the land. For instance, Regavim’s website speaks of an ‘historic battle for Israel’s heritage’, drawing on a range of misinterpreted international legal sources and lamenting that even under the US President Trump’s vision for the region, many archaeological sites will fall within Palestinian Authority jurisdiction. Regavim claims a ‘tragic pattern of purposeful neglect that will facilitate even further looting and destruction of priceless sites and artifacts’,Footnote 156 but fails to acknowledge that, in the context of occupation and Oslo II, sites in Area C remain largely out of bounds for Palestinian officials, and are often within Israeli-controlled nature reserves, military zones, or land assigned to settlements.
In addition to settler groups, private museums in Israel routinely display artifacts likely pillaged from the OPT by various actors. For instance, the Bible Land Museum in West Jerusalem has displayed ‘approximately 134, of some 40,000 artefacts that the Archaeology Department of the Civil Administration (ADCA) had confiscated through border interdictions, or from looters and unauthorized dealers in antiquities, over the past 50 years’.Footnote 157 Such displays can be interpreted as laundering confiscated artifacts, incentivizing further looting and violating international norms.Footnote 158 As discussed elsewhere, when the actions of settlers or other non-state actors can be attributed to the state under international law, then it follows that both the state and any and all non-state actors whose conduct is attributable will be held responsible for any violations.Footnote 159
4. Cultural heritage law, control, and social resilience
Current assertions of Jewish-Israeli ownership over cultural heritage in the OPT reflect a much longer history of colonial archaeology in the Holy Land.Footnote 160 From the 1700s, Western writers and travellers have focused on Biblical archaeology,Footnote 161 shaping the West’s disproportionate focus on the Jewish history before and after Britain took over Palestine in 1917. In fact, as Nur Masalha recalls, ‘The political and ideological premises of Israeli archaeology’ can be traced to the Western biblical archaeology of the nineteenth and early twentieth centuries.Footnote 162 The obsession with Biblical history shaped British colonialism in the region, and manifests in the description of the Palestinian population (mostly Muslims and eastern Christians) simply as ‘non-Jewish communities’ in the Balfour Declaration,Footnote 163 and the Mandate.Footnote 164 This unseeing of Palestinian peoplehood and cultural presence in their homeland contributed to the mass displacement and dispossession of Palestinians when the West supported the establishment of the state of Israel in much of Palestine in 1948.Footnote 165
After 1967, ‘the convergence between biblical archaeology and Zionist settler colonialism’ became even more pronounced in the OPT.Footnote 166 Moves to appropriate and destroy a group’s cultural heritage for the ‘purpose of reconstructing a narrative’ for another group has been a feature of the ethnic cleansing of people in other parts of the world.Footnote 167 Indeed, as one Palestinian scholar notes, ‘Our heritage is our identity as Palestinian people’.Footnote 168 Denying and separating Palestinians from their heritage – religious or secular – also denies a people their connection to their land and its rich, diverse, and multifaceted history, thus negating their right to self-determination.
Given cultural heritage is a mechanism for the assertion of identity, it follows that taking seriously the legal consequences of the uses of heritage has implications for a series of legal regimes. As noted earlier, cultural heritage is intimately tied to the notions of peoplehood and self-determination, and also plays a role in how a society defines itself for the purposes of its survival and social resilience. Social resilience and self-determination, in contexts of occupation, are closely tied to resistance, particularly for Palestinians.Footnote 169 Therefore, the law of cultural heritage, alongside the law of occupation, offers pathways to promote resilience, resistance, and ultimately self-determination.
4.1 Palestinian cultural heritage and indigeneity
The protection of Palestinian cultural heritage – in particular in the OPT – is crucial for the correct implementation of the laws of occupation and heritage, and anchors self-determination as reaffirmed by the ICJ.Footnote 170 Protecting cultural heritage under occupation also reaffirms Palestinian Indigeneity in their homeland. Palestinians today – encompassing the full and diverse spectrum of urban, rural, Bedouin, refugees, exiled and diaspora Palestinians – are indigenous to Palestine, understood historically as the territory between the Jordan River and the Mediterranean Sea. Indigenous Palestinian sovereignty is a useful concept to reclaim all Palestinian ‘land that was never ceded’ and, as such, ‘Palestinian indigeneity is a political identity that ipso facto opposes Zionist settler colonialism’.Footnote 171 As Ahmad Amara and Yara Hawari note, ‘indigeneity has recently re-emerged within the discourse on Palestine and is becoming a central facet of political mobilization’.Footnote 172 However, indigeneity is claimed antagonistically by both Palestinians and Israelis: Jamal Nabulsi explains the Palestinian reality of indigeneity based on their embeddedness in the homeland, and the claims of Jewish indigeneity promoted by Zionism by invoking divine rights, which requires violence to impose itself in a land inhabited by its native Indigenous population,Footnote 173 turning occupation into a structure rather than an event.Footnote 174 The Israeli settler colonial endeavour in Palestine, in fact, requires the erasure of the Indigenous Palestinian population to come to fruition.Footnote 175 Despite the narrow formalization of indigeneity as a concept in international law through the 2007 UNDRIP especially in relation to Indigenous sovereignty and national independent self-determination, Amara and Hawari suggest that for Palestine,
Indigeneity as a paradigm and an identity offers a focus and a re-centering of indigenous peoples that spans cultures, languages, and epistemologies. It places indigenous knowledge and understanding, particularly resistance to invasion and attempts at erasure, at its core. It offers a radical re-thinking of knowledge and knowledge production, in particular questioning what knowledge and historical sources are considered worthy and reliable.Footnote 176
Against this backdrop, culture and heritage underpin the reaffirmation of Palestinian Indigenous identity, resisting alternatives presented by the OP or others. International cultural heritage law, in providing for Palestinian control over their heritage, alongside facilitating the listing of Palestinian heritage sites and practices, reinforces the visibility of heritage in Palestine as Palestinian. This affirmation of Palestinian control over their heritage is a tool for resistance against the imposition of narratives and administrative, legal, and economic mechanisms that seek to supplant Palestinian identity with that of the OP.
The intertwining of cultural heritage law and Indigenous rights – and specifically sovereigntyFootnote 177 – constitutes a strong normative foundation for ensuring the protection of Palestinian cultural heritage. Regardless of its shortcomings, the 1972 World Heritage Convention can arguably be ‘an important tool for the promotion and protection of the rights of indigenous peoples with respect to their cultural heritage. World Heritage sites can help indigenous peoples protect their lands, territories and resources, and the associated cultural heritage’,Footnote 178 even if not without some limitations, as we discuss further below. Since the adoption of UNDRIP in 2007, UN agencies involved in the implementation of the 1972 World Heritage Convention are required to promote and apply its principles in their work.Footnote 179 Despite the high-level intentions, synergies and tensions between these two instruments exist, including when Indigenous peoples call for the protection of cultural heritage as it pertains to land and calls for self-determination, generally opposed by settler states (such as Canada, Australia, and New Zealand).Footnote 180 Returning all sites in the OPT to Palestinian control – including cultural heritage planning, as a vehicle for Indigenous peoples to exercise governance and self-determinationFootnote 181 – will serve the aims of Indigenous rights and uphold the law of occupation and cultural heritage law. Moreover, the intentional destruction of cultural heritage violates human rights, and harms community identity.Footnote 182 For these reasons, full Palestinian oversight of heritage sites and cultural matters strengthens the resistance to the settler colonialism of Israel as the unlawful occupier in the OPT.
4.2 Control over cultural heritage: Resilience, resistance and self-determination
As discussed earlier in this article, who controls cultural heritage in the OPT depends largely on the designation of the territory in which the site is located. In East Jerusalem and Area C of the West Bank (and increasingly elsewhere in the OPT) Israeli authorities impose their oversight over heritage to the exclusion of Palestinians, in contravention of both the law of occupation and cultural heritage law. By focusing primarily on the protection of Jewish antiquities, Israel favours culture ‘associated with material patrimony’ and heritage as a ‘static’ past focusing on ‘objects, monuments, and landscapes’.Footnote 183 In that sense, it furthers the ‘archaeologization’ of Palestine by Europeans over the last three centuries, which was inherited by the Zionist movement and Israel, valuing only the ancient past and undervaluing more recent and contemporary culture.Footnote 184 This approach to archaeology has contributed to how Israel promotes Jewish antiquities to posit that only some cultures have a historical right to the land.Footnote 185 There are sites in the OPT managed by Israel that are not specifically Jewish, for instance Roman (like Herodion); this serves the state’s ‘neoliberal multicultural’ façadeFootnote 186 that appears diverse and inclusive, but in essence denies the reality that the sites in question are in occupied Palestine and should be managed by Palestinians according to international law. For these reasons, nothing short of full Palestinian control of its diverse heritage – Jewish, Muslim, Christian, and secular – in the OPT will do, as required not only in (general) international law (Articles 1 and 2 UN CharterFootnote 187 ) but also in its relevant specialized regimes, including the law of occupation, and cultural heritage law (Article 5 of the 1954 Hague Convention and Article 9 of the 1999 Second Protocol). Moreover, any attempts to promote co-managementFootnote 188 over cultural heritage in the OPT between Israeli and Palestinian authorities would contravene international law, and reflect the power imbalance between OP and occupied population, which emerged in the provisions on archaeology in Oslo II that gave Israel primacy.Footnote 189 But even more fundamentally, the ICJ Advisory Opinion of 2024 has confirmed that Israel’s presence in the OPT is a ‘wrongful act’ resulting in an international ‘obligation to bring an end to its presence … as rapidly as possible’.Footnote 190 Consequently, no Israeli body should be involved in governing the OPT, including its heritage. In fact, as Grey and Kuokkanen explain in relation to other contexts, co-management of cultural heritage is rooted in settler colonialism and neoliberalism, curtailing the possibilities for Indigenous rights linked to land and self-determination, and culturalizing Indigenous peoples and nations by reducing their polities to cultures.Footnote 191 This tactic would create ‘a false equivalence between “Indigenous” and “minority”, erasing Indigeneity itself and, accordingly, myriad pre-existing political-legal orders and their territorial claims’.Footnote 192
Heritage is a pathway for self-determination (a theme to which we return below), and intrinsically linked to social resilience.Footnote 193 This connection underscores the role of heritage in helping shape a society, especially one experiencing occupation by a foreign power. And, if heritage can serve social resilience, then it is also inherently a pathway for resistance.Footnote 194 When heritage is chosen or created to underpin a new society, it is usually in opposition to a foreign oppressive regime or enemy in a conflict. The factors that trigger significant social change tend to become the differentiators that germinate into a new identity. This was the course of action of countries in Africa and the Middle East when they forged new identities to resist, and ultimately reinvent themselves against, their European colonial oppressors.Footnote 195 The law confirms the types of heritage to safeguard and celebrate by creating inventories that select the heritage, by funnelling funds to safeguard it, and determining the tools to do so. Because of this effect, the law also holds the key to the identity that is central to social resilience.Footnote 196 Cultural heritage law is thus a central lever which governments and peoples can pull to bolster social resilience.
The law of occupation, as a part of IHL, often conditions our thinking about heritage in the context of resilience, focusing more on ex post criminalization, rather than the preventive safeguarding of heritage. The conflict paradigm casts heritage as a victim of conflict, downplaying heritage’s role as a powerful instrument of recovery and resistance.Footnote 197 Intangible cultural heritage, as we indicated above, can break away from a view of heritage as static and disconnected from living human aspirations, thus enlivening pathways for active resistance and resilience.Footnote 198 It engages people and peoples, alongside their current aspirations and identities, into the work of heritage, rather than casting heritage as a largely separate artefact of the past.
To operationalize heritage as a mechanism for resistance, resilience, and self-determination, there are three intertwined features one must consider: the use of heritage as a (symbolic) assertion of control or authority over heritage; the use of listing mechanisms endogenous to international cultural heritage law; and the role of heritage law in promoting specific narratives. We examine each in turn.
Heritage law can be a mechanism for the assertion of control over an area or territory. There are important negative examples available globally, such as the use of heritage rules by the Chinese government to exert control over Tibetan intangible cultural heritage and even territories (the latter by using the heritage listing of a square in central Lhasa to expel Tibetan businesses and residents from the area in favour of Han businesses and occupants).Footnote 199 What allows for these undesirable uses is a false illusion of the neutrality of heritage by many heritage professionals and scholars, which assume that asserting heritage as neutral will rally more resources for its safeguarding (which it does) and prevent the manipulation of heritage by potentially oppressive political actors (which it does not). These negative examples show that heritage can be used as a mechanism to assert control. Palestine’s proclamation of its own heritage goes exactly in this direction (as do Israel’s counternarratives). Therefore, heritage is a useful mechanism for asserting control over territory and ideas. Coupled with the law of occupation norm for protecting the sovereignty of the occupied state, international heritage law and mechanisms not only can, but in fact ought to, be deployed and interpreted to foster resistance to occupation and champion the self-determination of peoples experiencing occupation.
These assertions of control usually happen through listing mechanisms, as the examples show. While international listing processes can be problematic in that they can exclude local communities in favour of idealized national identities,Footnote 200 in the context of occupation the logic can apply positively. Specifically, occupation creates a focus of resistance that is external to the state being occupied, rather than focus on internal dissent. Listing can acknowledge not only control over the heritage (as the listed sites in Palestine and intangible heritage practices mentioned above suggest), but also as a pathway to potentially even draw attention to the impacts of prolonged occupation and the systemic abuses of human rights. Notably, Poland listed Auschwitz-Birkenau, a concentration camp built by occupying Germany during the Second World War, as a World Heritage Site on Polish territory, standing as a testament to the horrors of conflict and specifically of the occupation of Poland by Nazi Germany.Footnote 201 The inscription of sites of memory is not always uncontroversial, with concerns about the undue politicization of the World Heritage System. Nonetheless, to the extent that all heritage is inherently political, drawing out the politics of sites of memory and accepting it as political (as opposed to neutral and expert-driven) at least engenders a more honest conversation about the identity role of heritage that already exists elsewhere.Footnote 202 Similarly, Palestine could choose to add to its list of sites that denote historical occupation of the land a site or practice that denounce occupation and its ongoing negative impacts.
In order to select a site or practice that denounces occupation, it is worth considering the narratives associated with heritage. While in the first instance the effort in this area has been to narrate the continuity of Palestinian presence (and therefore the rightfulness of their claim to territory) and an Israeli counternarrative along the same lines, the listing of heritage that narrates resistance to occupation could act as a circuit breaker of sorts. To identify, list, and safeguard Palestinian intangible cultural heritage via national and international processes that respond specifically to the impacts of occupation is a powerful means to further galvanize global public opinion and to celebrate and reinvigorate resistance practices.
Through assertions of control, listing, and associated narratives of heritage, international heritage law, alongside the law of occupation, becomes an important site of resistance to occupation. In addition to its potential to expose and reinforce the unlawfulness and systemic effects of occupation, heritage law can also offer mechanisms for the social resilience of the population living under occupation. Doing so ultimately bolsters claims for self-determination by occupied peoples, offering an additional avenue through which to seek to enforce the temporary character of occupation and its negative effects on populations. International heritage law, in other words, offers a useful platform to think of how using a wider range of international legal regimes and mechanisms can create and widen resistance pathways for emancipatory purposes. ICH in particular offers the gateway through which to enliven all tangible heritage and its uses to pursue resistance.
5. Concluding remarks
The law of occupation, which aims to regulate a temporary state, was not designed to deal with prolonged occupation, and resistance thereto. To break this impasse, we argue that international cultural heritage law emerges as a pathway through which to enliven resistance to prolonged occupation, in the name of self-determination, by harnessing the special relationship between the occupied people and their cultural heritage. In particular, cultural heritage law offers avenues for peoples in OT to resist occupiers’ attempts at supplanting occupied peoples’ identity and history – especially in situations of prolonged occupation with annexationist aims.
This article draws on the context of the Palestinian territory occupied in 1967 to explore the (as of now) untapped potential of the intentional and strategic deployment of cultural heritage law in resisting the administrative, legal, and economic incursions of an OP. A more sustained implementation of international cultural heritage law in situations of prolonged occupation would offer additional pathways for populations living under occupation to resist territorial aggrandisement by OPs; at the same time, this approach recognizes the collective identity of a group as culturally distinct people native to the land whose right to self-determination is paramount. Used together, the combination of the law of occupation and cultural heritage law might reveal that they are more than the sum of their parts in reaffirming core norms of the UN Charter: in particular, the right to self-determination (Article 1(2)) and the prohibition of territorial conquest through force (Article 2(4)), which ‘also form part of customary international law’, as the ICJ recalled in its 2024 Advisory Opinion.Footnote 203 In Palestine, as well as in other contexts worldwide, occupation is being used as a bridge to unlawful annexation, and cultural heritage is misappropriated and misused in the process. Resistance to these international law violations through international cultural heritage law may, therefore, be the missing piece of the mosaic to stop illegal territorial conquest and give effect to the right to self-determination.
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