Discovery of Mass Graves in Gaza 

As the hostilities between Israel and armed groups in Gaza persist and the levels of violence in the West Bank, including East Jerusalem, remain high, the Diakonia IHL Centre provides regular updates regarding legal aspects of the evolving situation. This update covers the reported discovery of mass graves at Nasser and Al-Shifa hospitals in Gaza.  

A full list of legal updates is available here.

Last week, reports emerged that 392 bodies – including women, children, elderly, and injured persons – had been found in mass graves on the grounds of Nasser Hospital in Khan Younis, Gaza’s second-largest city in the south of the Strip. According to accounts, some of the bodies were buried as deep as three metres in the earth, and many are still awaiting identification. Similar discoveries had been reported in the surroundings of Al-Shifa Hospital in Gaza City, which used to be the largest medical facility in Gaza prior to the start of the hostilities in October 2023.  

A member of the Civil Defence in Gaza told CNN that some of the bodies at Nasser Hospital had their limbs bound together, claiming that ‘there were signs of field executions’ while adding that it is unclear ‘if they were buried alive or executed’. A spokesperson for the Civil Defence is also quoted in the New York Times, reporting that some persons had been shot in the head or were buried handcuffed or wearing prisoners’ uniforms. It has also been suggested that persons bore ‘signs of torture’ and ‘may have been buried alive’. The Israeli military called ‘[t]he claim that [it] buried Palestinian bodies … baseless and unfounded’, but acknowledged that its forces had exhumed existing burial sites in the proximity of Nasser Hospital in the search for missing hostages – who are being held in violation of the prohibition of hostage-taking – and returned the bodies afterwards. It alleged that ‘[t]he examination was carried out respectfully while maintaining the dignity of the deceased’.  

Earlier this year, as part of a wider pattern of attacks on hospitals and other violations of the rules on the protection of healthcare in Gaza, the Israeli military had subjected Nasser Hospital to a weeks-long siege. This reportedly prompted staff to ‘[dig] graves on the hospital grounds due to the large numbers of anticipated fatalities and the need to manage burials’, and according to Gaza health officials, 150 persons were buried in the courtyard of Nasser Hospital by the end of January. Israeli forces then raided the hospital in February due to alleged Hamas activity; according to reports, in the days leading up to the entry of Israeli ground forces, persons present on the hospital grounds were shot, and several patients died during the raid ‘due to the depletion of oxygen’. Reports have also emerged of Israeli forces having arrested and ill-treated medical staff, and verified open-source materials indicate that the Israeli military bulldozed makeshift graves while in control of the hospital. 

The United Nations (UN) High Commissioner for Human Rights, Volker Türk, was cited as saying that he was ‘horrified’ by the destruction wrought on the hospitals and discovery of the burial sites and called for ‘independent, effective and transparent investigations into the deaths’, as did the Civil Defence and the South African government, the latter having instituted proceedings against Israel in December 2023 over alleged violations of the UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) in the Gaza Strip. The European Union (EU) demanded ‘an independent investigation of all the suspicions and all the circumstances because indeed it creates the impression that there might have been violations of international human rights committed’; a spokesperson for the United States (US) State Department called the accounts ‘incredibly troubling’, and US officials announced that they had sought explanations from the Israeli government as to what transpired. Stéphane Dujarric, the spokesperson for UN Secretary-General António Guterres, stressed the imperative ‘that all forensic evidence be well preserved’. The International Commission on Missing Persons (ICMP), which was set up in the aftermath of the wars in the former Yugoslavia, echoed such calls and offered ‘to support all efforts to protect and investigate mass graves and reliably identify human remains’.  

The IHL Centre is gravely concerned about the reported discovery of mass graves at Nasser and Al-Shifa hospitals and fully supports the calls for an independent, impartial, external, effective, and credible investigation into the circumstances of the deaths and burials of the bodies. While the veracity of specific accounts is still subject to verification, the discoveries raise a number of concerns that serious violations of international law may have been committed:  

The obligations outlined in the preceding paragraphs pertain equally to Israel as well as to Hamas and other armed groups from Gaza in respect of the hostages.  

Israel also has a separate set of obligations stemming from the law of occupation by virtue of the effective control that it exerts across much of the Gaza Strip. In this regard, the wider prevailing circumstances must be taken into account. Gaza is a densely populated, tiny strip of land subjected to months of relentless aerial and ground attacks that have killed over 34,000 persons. Already during the first weeks of the hostilities, the dead were reportedly kept in ice cream trucks and buried ‘in orchards and football fields’ under bombardment as cemeteries were filling up, leaving no safe place for proper burials. Thousands of persons are missing, many of whom may be dead underneath the rubble but often cannot be recovered due to a lack of rescue personnel and equipment. Bodies interred in mass graves and shallow earth or trapped beneath debris constitute an affront to human dignity and cultural or religious customs. As the occupying power, Israel has a basic obligation to maintain or restore, as far as possible, public order and civil life in Gaza. The notion of civil life is generally interpreted broadly, though it is an obligation of conduct, rather than result, and the means available to an occupying power in a situation of hostilities may be circumscribed. Nonetheless, at a minimum, Israel should undertake best efforts to ensure that in the areas under its control, normal burials can take place.  

It is worth noting that the discovery of mass graves is often considered to be ‘an indication that war crimes have been committed’ – because the deaths may have been the result of extrajudicial killings, though their existence may also point to other violations of international law stemming from adverse conditions of life imposed on a civilian population, for example starvation or a breakdown of medical care and sanitation, as well as attacks during the conduct of hostilities that may have been indiscriminate, disproportionate, or in disregard of the duty to take precautions. Such concerns only further reinforce the – already engaged – obligations of third States to ensure respect for IHL, and to prevent crimes against humanity and genocide. Envisaged as a duty of due diligence, third States must ascertain that military or other support they provide to the belligerents is not used in the commission of international crimes, and exert their positions of influence with a view to preventing and bringing such conduct to an end.  

Given the challenges associated with recording the unfolding events on the ground, third States should also encourage Israel to protect those engaged in documentation, and to grant access to international journalists, humanitarian staff, and investigators, including the Office of the United Nations High Commissioner for Human Rights (OHCHR); the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel; the ICMP; the Working Group on Enforced or Involuntary Disappearances; and the Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, Francesca Albanese. States should also cooperate with the ongoing investigation of the International Criminal Court (ICC) into the situation in Palestine, including by means of arresting and handing over suspects once arrest warrants have been issued. Proper documentation, preservation of evidence, and forensic analysis are imperative for establishing a credible record of events and, in the long run, ensuring that the perpetrators of international crimes are held accountable.

Cover photo: Al-Shifa Hospital in Gaza, 1 April 2024. Courtesy of the WHO. All rights reserved.