This definition is significantly narrower than Lemkin’s, and narrower still than the first draft by the UN Secretariat, but it was still too much for the General Assembly, which opted to exclude the charge of vandalism altogether. The United States, in particular, was against the provision’s inclusion, arguing that the preservation of culture properly falls under human rights rather than international criminal law. That the US had been engaged in a decades-long cultural genocide of the Native Americans certainly figured into its decision.

Other states, like Sweden and New Zealand, joined in the rejection of the article and more directly attributed their rejection to their colonial motivations and worries about liability for their own cultural genocides.

While the Genocide Convention does not account for cultural genocide, the Rome Statute does criminalize the destruction of cultural heritage—though it classifies it as a war crime, not as an act of genocide. It defines these crimes as “Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives” and/or “Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” As is clear from the text, cultural heritage is not protected in every case; there are large loopholes allowing “military necessity” as a mitigating factor.

While the ICC obtained a conviction for the second of these crimes against Ahmad Al Faqi Al Mahdi—a Tuareg-Malian militant who was held responsible for the destruction of nine Sufi shrines and one mosque in Timbuktu—neither Yoav Gallant nor Benjamin Netanyahu, for whom the court has requested arrest warrants, have been charged with this crime.

There remains, however, a somewhat backdoor means by which both men could be convicted for their destruction of cultural heritage—via the crime of persecution, which is classified as a crime against humanity in the Rome Statute (and which has been previously utilized to obtain convictions for cultural heritage destruction by the International Criminal Tribunal for the former Yugoslavia). The crime of persecution is defined as

the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity…on political, racial, national, ethnic, cultural, religious, gender…or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.

This crime covers a wide range of activities, including cultural heritage destruction, but it is not clear yet whether the prosecutor intends to utilize the statute in this way. It is important to note that Netanyahu and Gallant are being charged with persecution as a crime against humanity, which does not require the existence of an armed conflict to come into effect. Because crimes against humanity can be committed during “peacetime,” Gallant and Netanyahu can be held responsible for cultural heritage destruction from the beginning of the court’s jurisdiction over the “situation” in Palestine (to use the court’s sterile parlance) in June 2014 (and indeed, Israel has, since the Nakba, and certainly since 2014, been engaged in the looting and destruction of Palestinian cultural heritage in both “peacetime”—which is, for the Palestinians, no peace at all—and during war).

The first element of the crime— the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”—is the crucial bit. It means that, in order for cultural heritage destruction to qualify as persecution, there must exist a fundamental right to cultural heritage in international law, and the deprivation of the right must be intentional and severe.

There is significant textual support for cultural heritage as a human rights issue in international instruments and declarations.

The Universal Declaration of Human Rights states: “Everyone, as a member of society…is entitled to realization…of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.… Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” The International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights make similar declarations.

While none of these instruments directly reference cultural heritage, the rights they enumerate—the right to enjoy cultural development or to participate in cultural life—depend upon the existence of cultural heritage. Thus, implicit in these treaties is a right to have access to one’s cultural heritage and a corresponding obligation on states to protect such heritage.

There is an important theoretical basis for the right as well. Without a shared cultural heritage, a people is at risk of losing its common bonds and thereby ceasing to exist as a people. This social-reproductive function of cultural heritage places a special political salience on its destruction. Objects, historical or otherwise, are allowed to decay or are destroyed. This is simply the nature of time and of objects.

But the essential political questions for a people are who decides what is allowed to decay or disappear, and how is that decision made. The violence, then, is less a violation of the object than it is of the social order as such. When a monument is destroyed, a grave overturned, an ancient piece of scripture burned, not only is an artifact irrevocably lost, but its cultural heritage also takes on a new signification. No longer does it only signify itself, the people, and their history; it now also signifies the present moment of danger, the present moment of fragility—it signifies its own status as potentially destroyed and, in so doing, it signifies the people’s fragility and insecurity as well.

Seen in this light, there is an additional fundamental right implicated by cultural heritage destruction not covered in the foregoing treaties: the right to self-determination. The right to self-determination, in broad strokes, is the right of a people to “freely determine their political status and freely pursue their economic, social and cultural development.” This right is, in a sense, the ur-right, the right from which other collective rights spring, and thus its implication in cultural heritage destruction lends a degree of urgency and import to that destruction that may be missing from other human rights violations.

This has particular salience to the present genocide of the Palestinians. As Rabea Eghbariah writes in his landmark article “Toward Nakba as a Legal Concept,” “the foundational violence of the 1948 Nakba has not only dispossessed and displaced Palestinians but also fractured Palestinian society and put in place a new regime that is committed to denying Palestinian self-determination in favor of the settler society.” That is, though the Nakba as an ongoing structure overlaps with the crimes of genocide and apartheid, it differs from the two in its end goal: displacement and subsequent replacement, as opposed to extermination without replacement and segregation without extermination, respectively.

Eghbariah continues, “For Palestinians, however, displacement has never entailed a full process of assimilation and emancipation elsewhere, and the Palestinian struggle for their homeland persists.… Displacement has become an indefinite condition of misplacement, one that continues to deny the group their right to self-determination.”

The physical extermination of the Palestinian people is one means of committing the Nakba, but it is also insufficient for Israel’s goal of replacement unless it is also total. So long as there exists a Palestinian national consciousness, there will exist a living testimony to the falsity of Zionist historiography. Zionists, then, must also engage in a cultural genocide–not only the dispersal of the Palestinian people but also the destruction of their material and cultural ties to the land and one another. Not only ethnic cleansing but ethnic erasure: the destruction both of Palestinian people and of Palestinians as a people, a collectivity capable of claiming self-determination. Unlike other genocides, which target a group specifically because they are a people, the Zionist settler-colonial project and genocide are in service of the denial that the Palestinians were ever a people at all.

Seen in this light, the destruction of Palestinian cultural heritage emerges as one of the primary means by which Israel seeks to fulfill genocidal intent. As Mezna Qato recently wrote,

To tell a history of Palestine now often requires seeking access through Israeli state gatekeepers.… Historians of Palestine often note how much harder it is to write a history of Palestine after the Nakba than a history of Palestine before it. A people scattered, isolated, under siege, bombarded, repeatedly massacred and dispossessed, has meant that generations of Palestinians must rely on shards and scraps, a thousand archival retrieval projects everywhere.

Neither Gallant nor Netanyahu can be charged with vandalism (or cultural genocide), despite the overwhelmingly clear match between the charge and their actions, because, thanks in large part to their Western backers, no such charge exists. The prosecutor’s potential usage of the crime of persecution for the destruction of cultural heritage would, however, give expression, however diluted, to the severity of this destruction and its place within the decades-long genocide of the Palestinian people.