Accounting for Those in the Hands of the Belligerent: Security Detainees, the Missing and the Dead in the Israeli–Hamas Conflict

2020 ◽  
Author(s):  
Alon Margalit
Keyword(s):  
Supreme Court ◽  
Armed Conflict ◽  
Gaza Strip ◽  
Armed Groups ◽  
Next Of Kin ◽  
Legal Obligations ◽  
Israeli Government ◽  
Law Of Armed Conflict ◽  
The Gaza Strip ◽  
Israeli Supreme Court

Abstract Five Israeli nationals, two soldiers and three civilians, have gone missing since the 2014 Israeli–Hamas violent escalation, and they are currently held incommunicado by Palestinian armed groups in the Gaza Strip. In response, the Israeli Government revoked some entitlements from Hamas security detainees held in Israel. It also withholds bodies of Palestinian militants, killed while carrying out attacks against Israelis, refusing to hand them over to the families. The bodies are to be buried in Israel until Israeli nationals, or their remains, are repatriated by Hamas. In several instances where the authorities returned the remains to the next of kin, they imposed various restrictions on the funeral arrangements. The Israeli Supreme Court recently examined the Government’s practices, with some judges finding them unlawful. These developments call for the analysis of the matter under the law of armed conflict (LOAC), taking into account that other States involved in armed conflict encounter similar challenges. This article accordingly discusses some of the legal obligations arising when persons, or their remains, are believed to be in the hands of the belligerent party. It also considers the legality of certain measures taken to promote their repatriation.

TERRITORY, BOUNDARIES AND THE LAW OF ARMED CONFLICT

2009 ◽  
Vol 12 ◽  
pp. 157-192 ◽  
Author(s):  
Louise Arimatsu
Keyword(s):  
Armed Conflict ◽  
Gaza Strip ◽  
Legal Regime ◽  
Legal Questions ◽  
Law Of Armed Conflict ◽  
State Actor ◽  
The Law ◽  
The Gaza Strip ◽  
Israeli Supreme Court

AbstractIsrael's military operation in the Gaza Strip from 27 December 2008 until 18 January 2009 raised a host of legal questions on status and the conduct of hostilities, many of which have been subjected to intense scrutiny. But perhaps the two most troubling questions that remain unresolved concern the appropriate legal regime that governed the conflict and the geographical reach of the law. Was this an international armed conflict? If so, who were the ‘contracting parties’ and what was the territorial scope of the conflict? Alternatively, was the armed conflict one between a state, Israel, and a non-state actor, Hamas, and thus subject to the rules that apply in non-international armed conflict? This latter position jars with our intuition not least because the codified law assumes non-international armed conflict takes placewithinthe territory of a contracting state. The disquiet is apparent in the Israeli Supreme Court judgment of 2009,Physicians for Human Rights v. Prime Minister, in which the Court had to determine the legal regime governing the armed conflict between Israel and ‘the Hamas organization’. Describing the normative ‘arrangements’ as ‘complex’, it noted that ‘the classification of the armed conflict between the state of Israel and the Hamas organization as an international conflict raises several difficulties’.

No Longer Turning a Blind Eye to International Atrocities: Reframing Foreign Officials’ Functional Immunity as a Breach of States' International Legal Obligations to Effectively Prohibit Derogations from Peremptory Norms

2021 ◽  
Vol 49 (2) ◽  
pp. 80-101
Author(s):  
Ariel Rawls
Keyword(s):  
Gaza Strip ◽  
District Court ◽  
Entire Family ◽  
Legal Obligations ◽  
Israeli Government ◽  
Civil Suit ◽  
Functional Immunity ◽  
Civil Proceeding ◽  
The Gaza Strip ◽  
Peremptory Norms

On January 29, 2020, an Israeli air strike proved fatal, taking the lives of an entire family, a twelve-year-old child the youngest among them. The airstrike was carried out as part of Israel's military operation, Operation Protective Edge, in the Gaza Strip, and despite the deaths of numerous civilians, the State of Israel alleged that the strike was committed in pursuance of official duties. Ismail Zeyada, whose mother, brothers, sister-in-law, and nephew all perished in the airstrike, initiated a civil suit in the Netherlands against the two former Israeli military officials involved. In a devastating blow to the victims and their families, the District Court of the Hague dismissed the civil proceeding brought against the former Israeli officers. The Court cited the doctrine of functional immunity as the basis for this decision. The functional immunity, or immunity ratione materiae, of these officials bars the prosecution of them in any state besides Israel, absent a waiver by the Israeli government. As such, the victims of the airstrike, an act that might amount to a war crime, is not one for which victims are being offered redress. Although domestic prosecution of the case before Israeli courts is theoretically possible and is not precluded by the District Court of the Hague's dismissal, domestic prosecution is neither likely to occur nor likely to result in fair redress for the victims of this atrocity. This is not the justice these victims deserve. And it is not the justice that international law assures them.

The Sovereign Right to Kill: A Critical Appraisal of Israel’s Shoot-to-Kill Policy in Gaza

2019 ◽  
Vol 19 (5) ◽  
pp. 783-818
Author(s):  
Noura Erakat
Keyword(s):  
Armed Conflict ◽  
Critical Appraisal ◽  
Gaza Strip ◽  
Security Threat ◽  
Self Defense ◽  
Lethal Force ◽  
Ontological Approach ◽  
The Gaza Strip ◽  
Israeli Supreme Court ◽  
Legal Technology

In the Gaza Strip, Israel’s military used lethal force against civilian protestors engaged in the ‘Great Return March’ of 2018. In its late May 2018 ruling, the Israeli Supreme Court held this use of force as legitimate self-defense. This article challenges Israel’s security response to these protests in an attempt to both unsettle a warfare discourse and to urge for a distinct ontological approach. The article argues that an ongoing settler-colonial project has racialised the Palestinian body as a security threat, and historicises Israel’s shoot-to-kill policy as merely one contemporary mode of dispossessing the native body. This includes a novel framework of armed conflict that has diminished the category of the civilian and expanded the scope of legitimate targets permitting the killing of greater numbers of Palestinians in the language of law; the article calls this legal technology the ‘shrinking civilian’.

scholarly journals Mara’abe v. Prime Minister of Israel

2006 ◽  
Vol 100 (4) ◽  
pp. 895-901
Author(s):  
Daniel Bodansky ◽  
Geoffrey R. Watson
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
High Court ◽  
Court Of Justice ◽  
International Court ◽  
Israeli Government ◽  
Israeli Supreme Court

Mara'Abe v. Prime Minister of Israel. Case No. HCJ 7957/04. At <http://elyonl.court.gov.il/eng/home/index.html> (English translation).Supreme Court of Israel, sitting as the High Court of Justice, September 15, 2005.In Mara ‘abe v. Prime Minister of Israel, the Israeli Supreme Court held that the routing of a portion of Israel's “security fence” in the northern West Bank violated international humanitarian law. The Supreme Court, sitting as the High Court of Justice, ordered the Israeli government to consider alternative paths for the barrier. The Mara'abe decision expanded on the Court's earlier ruling in Beit Sourik Village Council v. Israel, in which the Court ordered the rerouting of another segment of the obstacle. Mara ’abe also revealed some of the Israeli Court's views on Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory— the 2004 advisory opinion of the International Court of Justice (ICJ) holding that construction of the barrier anywhere in occupied territory violates international law.

The role of the urban agriculture on food security during armed conflicts in the Gaza Strip

2021 ◽  
Vol 19 (5) ◽  
pp. 493-503
Author(s):  
Hadi Khalil, MA ◽  
Husam Al Najar, PhD
Keyword(s):  
Food Security ◽  
Urban Agriculture ◽  
Armed Conflict ◽  
Gaza Strip ◽  
Armed Conflicts ◽  
Poverty Level ◽  
Quantitative And Qualitative Research ◽  
Quantitative Design ◽  
The Gaza Strip

This study aims to assess the potential of urban agriculture to secure daily needs during the armed conflicts, in addition to assess the contribution of urban agriculture in alleviating poverty level and unemployment rate for its practitioners. A combination of both quantitative and qualitative research methods was employed in this study. In the quantitative design, 129 randomly selected urban farmers from the area of the survey completed the self-administered close-ended questionnaires, whereas the statistical analysis presents the socio-demographic, economic, and other aspects of the households. The qualitative data collection included interviews with six governmental and nongovernmental officials.The results show that 89.2 percent of the urban agriculture practitioners are feeling food security. However, a small percentage of the households who practice urban agriculture are still experiencing difficulties with food security. In the meantime, the armed conflict forced most of the urban farmers to evacuate their homes or lands; thus, only 34.9 percent of urban farmers managed to gain food during the 2014 armed conflict.In a nutshell, urban agriculture significantly and positively contributes to alleviating household food insecurity in the study area. However, its role was very limited during the 2014 armed conflict.

The Applicability of the Laws of War to Judea and Samaria (the West Bank) and to the Gaza Strip

1990 ◽  
Vol 24 (3-4) ◽  
pp. 485-506 ◽  
Author(s):  
Nissim Bar-Yaacov
Keyword(s):  
Supreme Court ◽  
Gaza Strip ◽  
Geneva Convention ◽  
Laws Of War ◽  
The West ◽  
Full Agreement ◽  
The Supreme Court ◽  
The Hague ◽  
The Government ◽  
The Gaza Strip

In her instructive article, Professor Lapidoth discussed, inter alia, the applicability of the laws of war to the territories administered by the Israel Defence Forces since the Six Day War of 1967. Being in full agreement with Professor Lapidoth that from the legal standpoint the situation is in need of improvement, I wish to deal more extensively with two questions: (1) What is the position of the Government of Israel regarding the applicability to Judea and Samaria and to the Gaza Strip of the Hague Regulations of 1907 respecting the Laws and Customs of War on Land, and of the Fourth Geneva Convention of 1949 relative to the Protection of Civilian Persons in Time of War? (2) What is the position of the Supreme Court with regard to the applicability of the Regulations and the Convention to these territories.

scholarly journals Lessons for the law of armed conflict from commitments of armed groups: identification of legitimate targets and prisoners of war

2011 ◽  
Vol 93 (882) ◽  
pp. 463-482 ◽  
Author(s):  
Sandesh Sivakumaran
Keyword(s):  
Armed Conflict ◽  
Ad Hoc ◽  
Prisoners Of War ◽  
International Standards ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
Armed Groups ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Rules Set

AbstractArmed groups frequently issue ad hoc commitments that contain a law of armed conflict component. These commitments detail the obligation of the relevant armed group to abide by international humanitarian law, the Geneva Conventions, or particular rules set out in the commitment. They commit the group to abide by international standards, sometimes exceed international standards, or in certain respects violate international standards. Although these commitments are often overlooked, they offer certain lessons for the law of armed conflict. This article considers the commitments of armed groups with respect to two specific areas of the law that are either of contested interpretation or seemingly inapplicable to non-international armed conflicts, namely the identification of legitimate targets and the prisoners of war regime.

Disengagement from the Gaza Strip and Post-Occupation Duties

2009 ◽  
Vol 42 (3) ◽  
pp. 528-563 ◽  
Author(s):  
Benjamin Rubin
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Prime Minister ◽  
Gaza Strip ◽  
Self Determination ◽  
Humanitarian Law ◽  
Human Rights Organizations ◽  
The Supreme Court ◽  
The Gaza Strip ◽  
Israeli Occupation

Israel's disengagement from the Gaza Strip has created a situation in which this territory is dependent on the supply of various necessities by Israel, in particular the supply of electricity, In 2008 Israel decided to withhold 5% of the supply of electricity to the Gaza Strip, prompting several Gaza residents as well as human rights organizations to petition the Supreme Court of Israel against this decision. In Jaber Al-Bassiouni Ahmed v. The Prime Minister the Court assumed that the Israeli occupation of the Gaza Strip had ended with the disengagement and treated this issue on the basis of general humanitarian law. The basic questions of whether the occupation had ended, and whether certain duties remained with Israel, even assuming that Gaza is no longer occupied, have not been explored. This Article addresses these two questions.It is the conclusion of this Article that regardless of the terms imposed by Israel after disengagement and other reservations that have been raised in this regard, occupation ended following the complete withdrawal of any Israeli presence in the Gaza Strip. Israel's disengagement raised difficulties that are not only unique to the Gaza Strip; these difficulties emerge in most cases when occupation is replaced by a process of self-determination rather than the return of the former sovereign. The contention presented herein is that Israel continues to have certain post-occupation duties even after the occupation of Gaza. These duties correspond to the occupant's duties to care for order and civil life in the territory during the occupation. These obligations will end once the new regime in the area is able to perform the duties that fell upon the shoulders of the occupant during the occupation, or until the non-performance of the new regime is attributable to its own failures and not to the ending of the occupation. In light of these contentions, Israel is still under certain obligations regarding the Gaza Strip, among them the regular supply of electricity to that area.

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