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International Law and the Classification of Conflicts edited by Wilmshurst, Elizabeth (2nd August 2012)

Part II, 9 Gaza

Iain Scobbie

From: International Law and the Classification of Conflicts

Edited By: Elizabeth Wilmshurst

Armed conflict — Occupation — Belligerence

(p. 280) Gaza

1.  Introduction

Although Israel became the belligerent occupant of Gaza in 1967 following the Six-Day War, the period under analysis in this chapter starts with the outbreak of the second intifada in September 2000 and ends in May 2011. Classifying the Gaza conflict is complex. Was there a conflict—or conflicts—throughout the whole of this period? Was it international or non-international, and if the former, how is it possible to have an international conflict when one party is not a State? While it is clear that one of the parties to the conflict was Israel, what entity, or entities, comprised the other? Was the conflict with the Palestinian people as a whole, or only those in Gaza, or with the various armed groups operating within Gaza (such as Islamic Jihad), or with the Harakat al-Muqāwama al-Islāmiyya (the Islamic Resistance Movement, that is, Hamas), or only with Hamas’ military wing, the Izzidin al-Qassam Brigade? Or was it with some combination of these actors? Does Israel still occupy Gaza or was the occupation terminated by Israel’s disengagement, by Hamas’ accession to power in Gaza, or by subsequent events such as Egypt’s re-opening of the Rafah crossing in late May 2011 which allows the passage of people in and out of Gaza?

2.  Description of the situation

2.1.  Background

Some simplification of the complexity of the situation is inevitable, but the principal facts relevant to the classification of the hostilities which have occurred during this period are as follows.

Negotiations in July 2000 at Camp David between Israel and the Palestine Liberation Organization ended in deadlock. As a result, the second intifada(p. 281) started on 28 September 2000. Since then, the Israel Defense Forces (IDF) have undertaken numerous military operations in Gaza.1 In April 2004, the Israel Cabinet announced its original Disengagement Plan, which had the stated objective of ending the occupation. In September 2005, Israel effected its disengagement by evacuating Israeli settlers from Gaza, withdrawing its troops from the territory and formally terminating its military rule. It did, however, retain a substantial degree of control over matters such as Gaza airspace, land borders, offshore areas and utility supplies. Before Israel’s disengagement from Gaza in 2005, Gaza was subject to belligerent occupation by Israel: this was expressly affirmed by Israel’s Supreme Court, sitting as the High Court of Justice, in Ajuri v IDF Commander.2

In the January 2006 election to the Palestinian Legislative Council, the legislature of the Palestinian National Authority, Hamas obtained an overall majority. The election was assessed internationally to be ‘well administered under the difficult circumstances of ongoing conflict and occupation’.3 On 25 June 2006, Hamas armed forces captured Israel Defense Forces Corporal Gilad Shalit. This resulted in Israel launching Operation Summer Rains on 28 June 2006 in an attempt to suppress rocket fire from Gaza and secure the release of Corporal Shalit.4

In March 2007, a Hamas-led national unity government was formed for the Palestinian National Authority by Hamas and Fatah, the nationalist political party founded in the late 1950s, which is the largest group in the Palestine Liberation Organization and which dominated Palestinian politics from the Six-Day War until the 2006 election. This arrangement quickly broke down and in June 2007, following its success in an armed struggle with Fatah in Gaza,5 Hamas assumed overall control of Gaza. As a consequence, Palestinian Authority President Abbas, himself a member of Fatah, dismissed the Hamas-led government. Since then, the West Bank has been under Fatah control, and Gaza under Hamas.6 Hamas Prime Minister Haniya has denied that this has led to a separate Gaza State being created, asserting, ‘The Gaza Strip is an indivisible part of the homeland and its residents are (p. 282) an integral part of the Palestinian people’.7 This view was echoed by President Abbas during Security Council debates on Operation Cast Lead.8

Rocket fire from Gaza into southern Israel increased in the months following Hamas’ assumption of control in Gaza. For its part, after the Hamas takeover, Israel, which controls the Israel-Gaza crossings, declared Gaza to be hostile territory9 and imposed a terrestrial blockade on the territory. It kept the crossings largely closed and severely restricted the range of goods that could be transported through them. Sporadic Israeli incursions into Gaza in pursuit of terrorist targets, and other forms of clashes between Israeli forces and Palestinians in and around the territory, continued.

In June 2008, Egypt brokered a six-month ceasefire between Hamas and Israel. This led to a reduction in rocket fire from Gaza, but not a complete halt. The progressive breakdown of the ceasefire, and Hamas’ ultimate decision not to extend the truce, paved the way for the launching of Operation Cast Lead by Israel in December 2008 to January 2009. Israel and Hamas each claimed that the other was responsible for the collapse of the ceasefire. Israel blamed Hamas for failing to halt rocket fire, and Hamas blamed Israel for failing to implement apparent commitments in the ceasefire agreement to provide greater access through Gaza’s border crossings.10 According to the Israel Security Agency (Shin Bet), there were 1276 rocket launchings from Gaza in 2007 and 1785 in 2008 (before the start of Operation Cast Lead). This rocket fire killed two Israelis in 2007 and four in 2008. According to the UN Office for the Coordination of Humanitarian Affairs in the Occupied Palestinian Territory, 301 Palestinians were killed in Gaza in 2007 and 389 in the first ten months of 2008 as a direct result of the conflict with Israel.11

In June 2010, following international pressure, particularly after the interception of the Mavi Marmara flotilla by Israel on 31 May 2010,12 Israel relaxed its restrictions on the movement of goods into Gaza.13 The Mavi Marmara flotilla (p. 283) was an attempt organized by non-governmental organizations to deliver humanitarian aid in breach of the maritime blockade imposed on Gaza at the start of Operation Cast Lead.

In April 2011, it was reported that a reconciliation agreement had been signed in Cairo between Fatah and Hamas which might lead to a new national unity government that would control both the West Bank and Gaza.14 While the April 2011 conciliation agreement could have a profound impact on how the situation in Gaza should be classified, its degree of implementation and implications are far from clear at the time of writing. Accordingly, it must be largely disregarded in this analysis.

During the period under consideration, a number of official reports have examined various incidents or episodes of the hostilities which have given rise to particular international concern. For example, the Goldstone Report15 was issued as a result of Operation Cast Lead. The interception of the Mavi Marmara flotilla has been examined in five official reports: one commissioned by the UN Human Rights Council (the Hudson-Phillips Report), one by the Israeli government (the Turkel Commission Report), two by the Turkish government (the interim and final reports of the Turkish National Commission of Inquiry) and one by the UN Secretary-General (the Palmer Report).16 Although both Operation Cast Lead and the Mavi Marmara interception raise significant legal issues in themselves, they were only episodes in the broader context of hostilities involving Gaza and Israel. This analysis does not focus on these incidents or the reports on them. Having said that, one aspect of Operation Cast Lead does take on a particular importance, namely Israel’s declaration of its blockade of Gaza’s coast. The views expressed by States in UN fora during debates on Cast Lead are also of some interest.

2.2.  Restrictions relating to Gaza

The Revised Disengagement Plan provides that ‘Israel will guard and monitor the external land perimeter of the Gaza Strip, will continue to maintain exclusive authority in Gaza air space, and will continue to exercise security activity in the (p. 284) sea off the coast of the Gaza Strip’.17 Israel’s border controls include the maintenance of restricted land areas within Gaza: a 300 metre ‘no-go’ area in which access is totally prohibited at risk of death, and high-risk areas which extend 1000–1500 metres from the border where firing on people, as well as land-levelling and property destruction by the IDF are ‘common and wide-spread’.18

Israel physically controls all crossing points into Gaza, with the exception of the Rafah crossing between Egypt and Gaza. After disengagement, in November 2005, Israel and the Palestinian Authority concluded an agreement to regulate passage through the Rafah crossing, which was made subject to an annexed statement of principles, and placed under the supervision of the European Union Border Assistance Mission (EU BAM), with remote monitoring by Israeli security personnel.19 Following the capture of Corporal Shalit in June 2006, Israel dictated the opening and closing of the Rafah crossing by virtue of its control of the tripartite liaison office, which had to be operational for the crossing to open. In mid-2007, it was reported that the crossing had been closed approximately 80 per cent of the time that the parties had agreed it should be open.20

After Hamas assumed control of Gaza, Israel announced that it would freeze the operation of the agreement on the Rafah crossing, as the Palestinian Authority personnel that had operated the crossing were unable to reach it. Israel further objected that it was unable to monitor the persons passing through. The crossing last opened with EU BAM monitoring on 9 June 2007. Although Egypt could open the crossing on its side, it generally refrained from doing so, and in 2010 the Rafah crossing was ‘closed for public use for a total of 324 days, except for some cases with prior coordination’.21 In May 2011, as a result of the Fatah-Hamas reconciliation agreement and the fall of President Mubarak, Egypt eased restrictions which had been placed on the passage of Gaza residents through the Rafah crossing, (p. 285) but not those placed on the passage of goods. The position at the time of writing is not, however, entirely clear.

2.3.  The aims of Hamas

Although Hamas has the long-term aim of establishing an Islamic State on the entire territory of Mandate Palestine, that is Israel, the West Bank and Gaza, it also recognizes the interim objective of establishing a Palestinian State in the West Bank and Gaza. Its actions have tended to strike a balance between the pursuit of these two aims, although its long-term aim remains central to Hamas’ ideology.22 The latter was identified and emphasized in its 1988 Charter, article 11 of which affirms the integrity and nature of the territory of Mandate Palestine: ‘the land of Palestine is an Islamic land entrusted to the Muslim generations until Judgement Day. No one may renounce all or even part of it … This is its status in Islamic law.’23 This aim is reflected in an antipathy to peaceful solutions aimed at solving the Palestine conflict, because no part of Palestine may be given up: ‘There is no solution to the Palestinian problem except through struggle.’24 Moreover, ‘the ongoing conflict between the Arabs and the Muslims and the Zionists in Palestine is a fateful civilizational struggle incapable of being brought to an end without eliminating its cause, namely, the Zionist settlement of Palestine’: this can only be done through ‘a comprehensive holy struggle in which armed struggle is a basic instrument’.25 Nevertheless, in an interview with the New York Times in May 2009, the Hamas Politburo Chief Khalid Mishal stated:

The most important thing is what Hamas is doing and the policies it is adopting today … Hamas has accepted the national reconciliation document. It has accepted a Palestinian state on the 1967 borders including East Jerusalem, dismantling settlements, and the right of return based on a long-term truce. Hamas has represented a clear political program through a unity government. This is Hamas’s program regardless of the historic documents. Therefore, it is not logical for the international community to get stuck on sentences written 20 years ago.26

(p. 286) Commentators underline that Hamas leaders and spokesmen have rarely referred to the Charter since its inception, and their ‘language has become virtually indistinguishable from that of any freedom fighter in Latin America, South Africa, or East Asia’.27 Since the mid-1990s Hamas has increasingly focused on the interim aim of ending Israeli occupation.28

Hamas’ military wing, the Izzidin al-Qassam Brigade,29 was formed in 1992 and military action increasingly became a method to pursue its political aims. In May 2010, however, it was reported that Mishal, the Hamas leader, had stated that Hamas would end its conflict with Israel if Israel withdrew to its 1967 borders.30 In May 2011, Mahmoud Zahar, the Hamas foreign minister, stated that Hamas would be willing to accept a Palestinian State within the 1967 borders although it would not recognize Israel as this would be contrary to its aim to liberate all of Palestine.31 In the Jordanian newspaper al-Sabeel in July 2010, Mishal explained that there was ‘a difference between saying there is an enemy called Israel on the one hand and acknowledging its legitimacy on the other; the former is not really recognition. In short, we refuse to recognize the legitimacy of Israel because we refuse to recognize the legitimacy of occupation and theft of land’.32

Hamas’ stated aims may be thought to contain a degree of ambiguity as although there is some acceptance of a two-State solution based on the 1967 borders, it has not renounced its claim to all of the territory of Mandate Palestine. This is consonant with its disjunction of interim and long-term aims, and rooted in its ideological position that ‘the land of Palestine is an Islamic land entrusted to the Muslim generations until Judgement Day’.

3.  The views of States and others on the classification of the conflict

Although Gaza was not a State, or part of a State, during the period under consideration,33 the consequence of its occupation by Israel as a result of the Six Day War is that, in September 2000, the conflict was an international armed (p. 287) conflict, subject to the provisions of the Fourth Geneva Convention.34 The question must be addressed whether this classification changed either by virtue of Israel’s disengagement from Gaza in September 2005, or by Hamas’ accession of power over Gaza in June 2007.

3.1.  Before disengagement (2000–2005)

3.1.1  Israel’s views

In its First Statement to the Sharm el-Sheikh Fact-finding Committee (the Mitchell Commission), the Government of Israel stated that since the start of the second intifada:

Israel is engaged in an armed conflict short of war. This is not a civilian disturbance or a demonstration or a riot. It is characterised by live-fire attacks on a significant scale, both quantitatively and geographically—around 2,700 such attacks over the entire area of the West Bank and the Gaza Strip. The attacks are carried out by a well-armed and organised militia, under the command of the Palestinian political establishment, operating from areas outside Israeli control.35

The notion of an ‘armed conflict short of war’ was devised by the IDF Military Advocate General’s Corps to categorize the violence experienced during the second intifada. It was presumably intended not to correspond to either an international or a non-international armed conflict, and thus is a purported novel classification which introduces ambiguity regarding the applicable law. In 2003, Menachem Finkelstein, then IDF Military Advocate General, explained that this notion was adopted because: ‘the scale and intensity of the events justifies the classification as an armed conflict. On the other hand, war is classically defined as being a conflict between the military organizations of two or more states, a condition not met in our scenario.’36

As ‘war’ is a term which has been consciously dropped from the lexicon of international law, to be replaced by the factual test of whether an armed conflict exists, it is odd to see this discredited term function as the basis for the attempted introduction of a new legal category which, moreover, has not been consistently employed by the Israeli government.37 It also ignores the test set out in the Tadić jurisdiction decision in 1995 that ‘an armed conflict exists whenever there is a resort (p. 288) to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.38

One may also question if this attempt to reconceptualize the nature of the conflict was necessary. The Palestinian territories, including Gaza, were undoubtedly under Israeli occupation at this time, as the Israeli High Court had expressly affirmed.39 Israel would consequently have been justified in treating the situation as an international armed conflict. The intifada did not give rise to the issue of whether the conflict should be reclassified, but rather called for the formulation of appropriate rules of engagement by the IDF. Further, the party opposing Israel in this ‘armed conflict short of war’ was claimed to be ‘neither the Palestinian people nor the Palestinian Authority … [but] only those organizations and individuals involved in terror activities’.40 This has been a constant Israeli refrain. Thus during the prosecution of Operation Cast Lead, it claimed: ‘The targets of this operation are the terrorists and their infrastructure alone. We are not at war with the Palestinian people, but with Hamas and other terrorist groups in Gaza … The people of Gaza do not deserve to suffer because of the killers and murderers of the terrorist organizations.’41

Although this identifies diverse groups as forming the adverse party to Israel in the Gaza conflict, the inclusion of groups other than Hamas is, perhaps, of a secondary nature. Indeed, Israel places emphasis on the conflict with Hamas, and appears to ascribe to Hamas responsibility for all attacks which emanate from Gaza, either directly or indirectly through a failure to prevent attacks by others. For example, when the Israeli Security Cabinet declared that Hamas was ‘hostile territory’ in September 2007, it stated: ‘The responsibility for this determination lies squarely with Hamas, which controls the Gaza Strip and supports and encourages the ongoing terrorist activity emanating from that area.’42

This gives reason to focus the question of classification on the Israel-Hamas conflict to the exclusion of other groups hostile to Israel.

In any event, although the Israeli government has appeared to vacillate regarding the precise classification of the conflict since the start of the second intifada in September 2000—whether it has been international, non-international, or some new variant of conflict which is perhaps akin to a ‘war on terror’—it was nonetheless clear that it had been engaged in an armed conflict in its own and in the occupied Palestinian territories.

(p. 289) At times, this rather ambiguous position has been endorsed by Israel’s Supreme Court, sitting as the High Court of Justice: for instance in January 2008 in Jaber al Bassouini Ahmed et al v Prime Minister and Minister of Defense, the Court referred only to an ‘armed conflict’ without clarifying whether it was an international or a non-international armed conflict.43 Gisha, one of the non-governmental organizations (NGOs) which presented the petition in the al Bassouini case, observed that this was a ‘dramatic departure’ from the Court’s earlier jurisprudence which had applied the law of occupation to Gaza and the West Bank. In ruling on the issue presented, whether the reduction of the fuel and electricity supply to Gaza planned by the military would cause a humanitarian crisis, Gisha reported that the Court curtailed argument on the question of the applicable law, and pressed the petitioners to address the factual question only.44

On the other hand, in a subsequent case arising from events alleged to have occurred during Operation Cast Lead, the Court ruled:

The normative framework that applies to the armed conflict between the State of Israel and Hamas is complex. It centers around international legal rules regarding armed conflicts of an international nature (international armed conflict). Although classification of the armed conflict between the State of Israel and Hamas as an international conflict gives rise to a number of difficulties, we have treated this conflict as an international armed conflict in a series of judgments.

Further the Court accepted that, during Operation Cast Lead, the law of belligerent occupation might also apply to Gaza as ‘the application of the laws of occupation under international humanitarian law is conditional upon the potential to exercise governmental authority in a territory following the entry of military forces, and not necessarily upon practical exercise of such authority by them’. It did not, however, reach a definitive ruling on this point, as the Israeli government had agreed that ‘the humanitarian laws relevant to the petition apply’.45 These included provisions of the Fourth Geneva Convention.

3.1.2  Hamas’ views

No statement which clearly formulates Hamas’ position on how the conflict should be classified under international law has been found. It sees itself as a national liberation movement ‘that struggles for the liberation of the Palestinian occupied territories and for the recognition of Palestinian legitimate rights’.46 In a 1996 (p. 290) memorandum presented to a conference at Sharm al-Sheikh, Hamas claimed that ‘international law and conventions give to every individual and group, especially those falling under military occupation by a foreign power, the right to self-defence with every available means’.47

3.2.  Israel’s disengagement from Gaza (2005 onwards)

3.2.1  Israel’s views

The jurisprudence of Israel’s High Court, for example in the Ajuri case, as well as the arrangements made for Israel’s disengagement make it clear that, before the implementation of the Revised Disengagement Plan in August 2005, Israel considered that Gaza was territory occupied by Israel. Indeed, in cases brought by Israeli settlers in Gaza immediately before disengagement which sought review of the government’s plan, the Israeli government argued and the High Court affirmed that it was occupied territory.48

When Prime Minister Sharon announced the initial 16 April 2004 Disengagement Plan, article 2 provided that the completion of withdrawal entailed that there would be ‘no permanent Israeli civilian or military presence’ in the evacuated areas, and therefore there would ‘be no basis for the claim that the Gaza Strip is occupied territory’.49 This express reference to Gaza as ‘occupied territory’ was deleted in the 6 June 2004 Revised Disengagement Plan which was approved by the Cabinet. Its primary implication was set out in Principle Six (Political and Security Implications), which provided that the ‘completion of the plan will serve to dispel the claims regarding Israel’s responsibility for the Palestinians within the Gaza Strip’.50

Israel has claimed that its evacuation of Gaza had the consequence that as there was no longer any permanent presence of Israeli security forces within Gaza:51 ‘From this point on, the full responsibility for events occurring in the Gaza Strip and for thwarting terror attacks against Israeli targets will be in the hands of the Palestinian Authority and its apparatuses.’52

Consequently, the IDF Chief of Southern Command, Major-General Dan Harel, promulgated a decree proclaiming the end of military rule in Gaza and annulling the 6 June 1967 proclamation which had originally instituted military rule.53

(p. 291) The view that Israel had relinquished control over and responsibility for Gaza and its population was endorsed by Israel’s High Court in January 2008 in the al Bassiouni case, in which the petitioners challenged Israel’s restrictions on the supply of electricity and gas to Gaza. In this decision, the Court relied on the government of Israel’s assertion that it was no longer in effective control of Gaza, and thus no longer occupied the territory. The Court ruled:

since September 2005 Israel no longer has effective control over what happens in the Gaza Strip. Military rule that applied in the past in this territory came to an end by a decision of the government, and Israeli soldiers are no longer stationed in the territory on a permanent basis, nor are they in charge of what happens there. In these circumstances, the State of Israel does not have a general duty to ensure the welfare of the residents of the Gaza Strip or to maintain public order in the Gaza Strip according to the laws of belligerent occupation in international law. Neither does Israel have any effective capability, in its present position, of enforcing order and managing civilian life in the Gaza Strip. In the prevailing circumstances, the main obligations of the State of Israel relating to the residents of the Gaza Strip derive from the state of armed conflict that exists between it and the Hamas organization that controls the Gaza Strip; these obligations also derive from the degree of control exercised by the State of Israel over the border crossings between it and the Gaza Strip, as well as from the relationship that was created between Israel and the territory of the Gaza Strip after the years of Israeli military rule in the territory, as a result of which the Gaza Strip is currently almost completely dependent upon the supply of electricity from Israel.54

This view was endorsed in the Turkel Commission Report on the interception of the Mavi Marmara flotilla.55

Nevertheless, although Israel’s High Court affirmed that disengagement had terminated the occupation of Gaza, this appears to have had no impact on its view that the continuing conflict should be classified as an international armed conflict. Post-disengagement, in the Targeted Killing case, Israel’s Supreme Court made its definitive ruling on the nature of the conflict between Israel and hostile Palestinian elements. In the leading opinion, President Emeritus Barak emphasized, in his summary of the respondents’ arguments, that:

10.  … Respondents’ [ie, the Government of Israel et al] stance is that the question whether the laws of belligerent occupation apply to all of the territory in the area is not relevant to the issue at hand, as the question whether the targeted killings policy is legal will be decided according to the laws of war, which apply both to occupied territory and to territory which is not occupied, as long as armed conflict is taking place on it.

11.  Respondents' position is that … there is no longer any doubt that an armed conflict can exist between a state and groups and organizations which are not states … Regarding (p. 292) the classification of the conflict, respondents originally argued that it is an international armed conflict, to which the usual laws of war apply. In their summary response (of January 26 2004), respondents claim that the question of the classification of the conflict between Israel and the Palestinians is a complicated question, with characteristics that point in different directions. In any case, there is no need to decide that question in order to decide the petition. That is because according to all of the classifications, the laws of armed conflict will apply to the acts of the State. These laws allow striking at persons who are party to the armed conflict and take an active part in it, whether it is an international or non-international armed conflict, and even if it belongs to a new category of armed conflict which has been developing over the last decade in international law—a category of armed conflicts between states and terrorist organizations …56

The premise of President Emeritus Barak’s opinion was that ‘between Israel and the various terrorist organizations active in Judea, Samaria, and the Gaza Strip … a continuous situation of armed conflict has existed since the first intifada’.57 He ruled that although the normative system regulating this armed conflict was complex, the situation amounted to an international armed conflict: ‘the fact that the terrorist organizations and their members do not act in the name of a state does not turn the struggle against them into a purely internal state conflict’.58 President Emeritus Barak thus emphatically rejected the respondents’ revised plea that it was difficult to classify the nature of the conflict ruling, ‘for years the starting point of the Supreme Court—and also of the State’s counsel before the Supreme Court—is that the armed conflict is of an international character. In this judgment we continue to rule on the basis of that view’.59

This ruling was expressly reaffirmed by Chief Justice Beinisch in the case brought by Physicians for Human Rights during Operation Cast Lead.60

Before the Turkel Committee, the Israeli Military Advocate-General gave evidence on the difficulty of classifying the conflict between Israel and Hamas, and testified that ‘after Operation Cast Lead, Israel adopted the position that it is bound by the laws of war that apply to both international armed conflict and non-international armed conflict’.61 The Report concluded that ‘there is a consensus that the conflict between the State of Israel and the Hamas is an international armed conflict, although the reasons that have led various parties to this conclusion vary’.62

3.2.2  Hamas’ views

It is difficult to discern Hamas’ view on whether disengagement terminated the occupation, or had any implications for the classification of the conflict from the standpoint of international law. On the one hand, Mishal has stated that ‘resistance … has succeeded in driving the occupiers out of southern Lebanon and Gaza’,63 but virtually in the same breath talked about ‘our legitimate right to resist (p. 293) occupation and aggression’.64 In 2009, however, he stated ‘Israel is practicing the occupation. Israel is controlling every aspect of Palestinian life. Israel is imposing the siege’.65 Nevertheless, as these statements were all made during newspaper interviews, one should perhaps not place much reliance upon them.

3.2.3  Views of other States

During Operation Cast Lead, it appears that a majority of States considered Gaza still to be occupied, despite Israel’s disengagement and Hamas’ seizure of power in Gaza in June 2007. In the relevant Security Council debates, a number of States expressed this opinion, and a statement to that effect was made on behalf of the 118 member States of the Non-Aligned Movement.66 This represents the view of the majority of States (including the United Kingdom),67 and is shared by the UN Secretary-General,68 the Human Rights Council,69 and the Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People.70 This was also the view of the International Fact-Finding Mission established following the operation.71 It is perhaps significant that this position was not disputed during these Security Council meetings, or during the parallel debates in the General Assembly.72 Further, before both bodies a majority of States called upon Israel to apply the Fourth Geneva Convention in its dealings with Gaza:73(p. 294) again, no State contested this claim. Both the Goldstone Report and Hudson-Phillips Report also affirmed that, as occupant of Gaza, Israel was bound by the provisions of the Fourth Geneva Convention.74

3.3.  Hamas’ accession to power in Gaza (2007)

Assuming, for the moment, that the occupation of Gaza was not terminated by Israeli disengagement, did the disintegration of the Fatah-Hamas unity government in 2007 and Hamas’ assumption of power within Gaza make a change in this respect?

In a meeting between the US Ambassador to Israel and the Israeli Military Intelligence Director Yadlin on 13 June 2007, as the conflict between Hamas and Fatah was nearing its close:

The [US] Ambassador commented that if Fatah decided it has lost Gaza, there would be calls for Abbas to set up a separate regime in the West Bank. While not necessarily reflecting a consensus GOI [Government of Israel] view, Yadlin commented that such a development would please Israel since it would enable the IDF to treat Gaza as a hostile country rather than having to deal with Hamas as a non-State actor.75

In due course the Israeli Security Cabinet did exactly that, with its designation of Gaza as ‘hostile territory’ on 19 September 2007, although it described this as ‘a factual (rather than legal) description of the region controlled by Hamas’.76 Further, on 8 December 2008, shortly before the launch of Operation Cast Lead on 27 December, Yadlin met with Representative Wexler, who was part of a US congressional delegation. Yadlin stated that the Palestinians had established two entities, one in the West Bank which was supported by Israel, and the other constituting a terrorist entity in Gaza.77 This division between Gaza and the other occupied Palestinian territories was maintained by Israel before the Security Council during debates on Operation Cast Lead, when its representative, Shalev, stated that ‘[a]s long as Hamas rules Gaza, rejecting the Quartet principles and seeking Israel’s destruction, Gaza can never be part of a Palestinian State’.78

(p. 295) To some extent, the two entity view has been reflected by others. For example, the 2009 House of Commons Foreign Affairs Committee report, Global security: Israel and the occupied Palestinian territories, concluded that ‘the Israeli-Palestinian conflict must now be understood as essentially a three-way situation, comprising Israel, the West Bank and the Palestinian Authority, and Gaza and Hamas’.79 On the other hand, this view was disputed during Security Council debates on Operation Cast Lead; for example, the representative of Qatar stated that Palestinian national differences should not be used ‘as an excuse to divide the Palestinian people and Palestinian land’.80 This view of the unity of the Palestine territories was reflected in Security Council resolution 1860 (2009) which called for a cessation of the hostilities. The second preambular paragraph of this resolution stressed ‘that the Gaza Strip constitutes an integral part of the territory occupied by Israel in 1967 and will be a part of the Palestinian State’.81

4.  Author’s analysis of the classification of the conflict (September 2000–March 2011)

At least until its disengagement from Gaza in September 2005, Israel was clearly the belligerent occupant of Gaza, and the law of international armed conflict therefore applied. While Gaza is not of course a State, the fact of belligerent occupation leads to this result. The legal implications of Israel’s disengagement are, however, contested. Israel claims that because it no longer maintains a permanent military presence in Gaza, it is no longer the belligerent occupant of Gaza and has, as expressly intended by the Disengagement Plan, no remaining responsibilities for its population. This is disputed by other international actors. Even after the accession to power of Hamas, Israel’s claim that it no longer occupies Gaza has not been accepted by UN bodies, most States, nor the majority of academic commentators, because of its exclusive control of its border with Gaza and crossing points, including the effective control it exerted over the Rafah crossing until at least May 2011, its control of Gaza’s maritime zones and airspace, which constitute what Aronson terms the ‘security envelope’ around Gaza,82 as well as its ability to intervene forcibly at will in Gaza.83

(p. 296) This controversy must be addressed. If, as Israel contends, disengagement terminated occupation, then presumably the conflict should be classified as a non-international armed conflict because, during the period under consideration, Gaza (and a fortiori Hamas) was not a State. If, on the other hand, disengagement failed legally to terminate the occupation, then the conflict between Israel and Gaza should continue to be classified as an international armed conflict, subject to the provisions of the Fourth Geneva Convention, rather than adopting the studied ambiguity of ‘armed conflict short of war’ preferred by the IDF.

4.1.  Withdrawal of troops leading to termination of occupation?

There are possible objections to classification of the situation as one of occupation. It has been argued84 that, by virtue of the physical withdrawal of its ground troops, Israel relinquished effective control of Gaza and thus terminated the occupation. Article 42 of the Hague Regulations provides that ‘[t]erritory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised’.

The issue, however, is not the creation of an occupation, which as a practical matter would appear to require the use of ground forces to create and maintain control, but whether an existing occupation was terminated by disengagement. This might well involve different considerations, as the conditions required to end an occupation are not as clearly delineated in the governing instruments as those which determine whether and when an occupation has been established. As von Glahn comments, ‘most books on international law make little mention of the intricate and numerous problems arising at the end of … military occupation’.85

Traditionally, the test for the termination of an occupation was seen as a simple question of fact. ‘Occupation comes to an end when an occupant withdraws from a territory, or is driven out of it’:86

(p. 297) the moment the invader voluntarily evacuates [occupied] territory, or is driven away by a levée en masse, or by troops of the other belligerent, or of his ally, the former condition of things ipso facto revives. The territory and individuals affected are at once, so far as International Law is concerned, considered again to be under the sway of their legitimate sovereign.87

The assumption embedded in this test is that occupation terminates when authority passes back into the hands of the displaced sovereign. This must be a genuine transfer and not simply a pretence which masks a retention of authority by the occupant. To employ Roberts’ phrase, ‘it is the reality not the label that counts’,88 since ‘the withdrawal of occupying forces is not the sole criterion of the ending of an occupation; and the occupant has not necessarily withdrawn at the end of all occupations’.89

As Oppenheim observes, the requirement in article 42 that occupation extends only to the territory where the adversary’s authority ‘has been established and can be exercised’ is ‘not at all precise’, but that when an occupant is able to assert authority over territory ‘it matters not with what means, and in what ways, his authority is exercised’.90 The test is one of effective control, and von Glahn considers that an occupation might be maintained through the control of the adversary’s airspace: ‘Since international law does not contain a rule prescribing the military arm through which an effective belligerent occupation is to be exercised, it might be theoretically possible to maintain necessary control through the occupant’s air force alone’.91

Once an occupation is established, is there any reason why effective control could not be maintained through aerial warfare? Indeed, the importance of air power was stressed by Major General Amos Yadlin in 2004 after he became head of Israeli military intelligence. An Israeli air force officer, he stated: ‘Our vision of air control zeroes in on the notion of control. We’re looking at how you control a city or a territory from the air when it’s no longer legitimate to hold or occupy that territory on the ground.’92

To regard Israel’s withdrawal of ground troops from Gaza as determinative is to ignore the implications which might flow from Israel’s continued control of Gaza’s airspace which in itself could give reason to argue that this disengagement was insufficient to terminate the occupation.

4.2.  Inability to carry out obligations of occupier?

It has been argued, and affirmed by Israel’s High Court in the Al Bassiouni case,93 that, by the act of disengagement, Israel divested itself of the responsibility to (p. 298) ensure ‘public order and civil life’ in Gaza—the primordial obligation of an occupant under article 43 of the Hague Regulations94—and thus unilaterally terminated the occupation. But although an occupant has the legal duty to establish an administration in territory it occupies, today this ‘is the rare exception rather than the rule’.95 Thus, in the Armed Activities case, Judge Kooijmans noted in his separate opinion: ‘Occupants feel more and more inclined to make use of arrangements where authority is said to be exercised by transitional governments or rebel movements or where the occupant simply refrains from establishing an administrative system.’96 Just because an occupant fails to fulfil its duties as occupant does not deprive it of that status, as Israel’s High Court has itself recognized:

application of Chapter 3 of the Hague Regulations and application of the parallel provisions of the Fourth [Geneva] Convention are not conditional upon the set-up of a special organizational system taking the form of military government. The obligations and powers of a military force which stem from its effective seizure of territory exist and come into being due to the very fact of military seizure of the territory, ie, even if the military force only effects control via its ordinary combat units.97

4.3.  Israel’s continuing control

Before disengagement, as a consequence of the 1995 Israel-PLO Interim Agreement on the West Bank and Gaza Strip, Israel devolved responsibility for the maintenance of ‘public order and civil life’ to a transitional government, namely, the Palestinian Authority. The authors of the Fourth Geneva Convention had envisaged that a transfer of competence to local authorities could occur during a prolonged occupation, without terminating that occupation.98 The Interim Agreement envisaged the creation of the Palestinian Interim Self-Government Authority (styled ‘the Council’ in the Agreement), but provided that pending its establishment, its powers were to be exercised by the Palestinian Authority.99 Article I(1) (p. 299) provided that powers and responsibilities which were not transferred by the Agreement to the Palestinian Authority would continue to be exercised by Israel, while the latter expressly retained ‘the responsibility for protecting the Egyptian and Jordanian borders, and for defense against external threats from the sea and from the air’.100

Given Israel’s continuing control over its border with Gaza, as well as over Gaza’s airspace and maritime zones, it is submitted that disengagement did not radically alter the overall structure of control created by the Interim Agreement, which itself had not terminated the occupation. The re-opening of the Rafah crossing has not affected the preponderance of Israel’s control over Gaza to any significant extent, as it allows only the passage of restricted classes of people, and not the passage of goods. If the fundamental elements of control which are associated with occupation were not terminated by disengagement, this entails a failure to achieve the aim which was ostensibly intended. Although Hamas replaced the Palestinian Authority as the effective government in Gaza in June 2007, this should be seen as only a functional substitution which did not alter the realities of continued Israeli overall control.

Further, in the List case, the US Military Tribunal at Nuremberg, when considering the effect of resistance to occupation, ruled:

While it is true that the partisans were able to control sections of these countries [Greece, Yugoslavia and Norway] at various times, it is established that the Germans could at any time they desired assume physical control of any part of the country. The control of the resistance forces was temporary only and did not deprive the German Armed Forces of its status of an occupant.101

The view that effective occupation could lie in the capacity to assert control was also affirmed by the ICTY in Prosecutor v Naletilić and Martinović where it ruled that one of the guidelines to determine whether an occupation was established was whether ‘the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt’.102 Israeli land forces have re-entered Gaza on numerous occasions since disengagement, and it has therefore, in the terms of the List formula, demonstrated that, albeit with effort, it ‘could at any time [it] desired assume physical control of any part of the country’.103

(p. 300) Moreover, unless occupation continued, it would be counter-intuitive that States should demand that Israel itself provide humanitarian aid in Gaza, especially at the height of an active conflict, and a loosening of the terrestrial ‘blockade’ it had imposed.104 Although some argue that an occupant owes post-occupation humanitarian obligations where territory has become dependent upon it as the result of occupation,105 in the circumstances, Dinstein’s view appears to be better. He commented, ‘the notion that a Belligerent Party in wartime is in duty bound to supply electricity and fuel to its enemy is plainly absurd. The sole reason for the existence of an obligation to ensure such supplies for the benefit of the civilian population—even at a minimal level—is that the occupation is not over’.106

The issue of whether Gaza was still occupied following the disengagement remains controversial but it is submitted that Israel did not relinquish control of Gaza in August 2005, but simply withdrew, or redeployed, the most visible aspect of its control—the stationing of troops within Gaza. Israel remains in occupation.

The key to this conundrum might lie in Israel’s position, expressed since the formulation of its ‘armed conflict short of war’ doctrine, and made before the Security Council,107 that the conflict in Gaza obtains between Israel and the armed organizations ranged against it, and not with the Palestinian population as a whole. The existence of parallel conflicts cannot be ruled out conceptually:108 for example, in an international armed conflict between States, one could simultaneously be engaged in a conflict with local forces which are not aligned to the opposing State party and thus be engaged in both an international and a non-international armed conflict.

In the case of Gaza, it may be argued that, on the one hand, the occupation, and thus an international armed conflict, persists as the over-arching legal structure between Israel and Gaza, and in particular in relation to the obligations Israel owes to the Gazan population qua occupier. On the other hand, a separate and distinct (p. 301) conflict exists between Israel and Hamas as an armed group, despite the fact that the latter is the effective government of Gaza.109 If such a bifurcation of this conflict is possible, and it is legally coherent to argue that one relationship exists with a population and another with its government as Israel claims, then Hamas’ ascent to power would appear to be irrelevant to the classification of the conflict between Israel and Gaza per se.

4.4  A separate conflict with Hamas?

Since the outbreak of the second intifada in September 2005, the international consensus (shared by Israel’s High Court) is that hostilities between Israel and Hamas should be classified as an international armed conflict. While statements made in international fora indicate that this classification flows from the continuing occupation, Israel rejects this rationale. Indeed, as the Turkel Commission noted, although this classification is generally accepted, diverse reasons are given in its support.110 As Hamas is a non-state actor,111 the presumptive classification of the conflict should be as a non-international armed conflict. ‘Even if one assumes that at no time since 1967 did any parts of the West Bank and Gaza cease being territory to which the international law of belligerent occupation applied, this does not necessarily mean that any armed conflict which arises between armed groups in these areas and Israel itself is of an international nature.’112

An important consideration in classifying the conflict is Israel’s declaration of a blockade directed against Hamas on 3 January 2009113 during the course of Operation Cast Lead, a blockade which has continued in force. This, it is (p. 302) submitted, is conclusive in determining the status of the conflict. In rejecting a petition which sought to obtain a declaration that Israel lacked jurisdiction to intercept the Mavi Marmara flotilla on 31 May 2010, President Beinisch of the Israeli High Court stated:

In light of Hamas’ control of the Gaza Strip, Israel has taken various steps meant to prevent direct access to the Gaza Strip, including the imposition of a naval blockade on the Strip, which, according to the State's declaration, is meant to block the infiltration of weapons and ammunition into Hamas ranks which have carried out shooting and terrorist attacks in Israeli territory for years with the goal of harming civilians.114

Imposing the blockade constituted a recognition of the belligerency of Hamas which, if nothing else, serves to internationalize the conflict.

The declaration of a blockade is a belligerent act which, traditionally, can only be imposed during an international armed conflict:115 ‘Blockade is a belligerent right, and can only be exercised against a state with which the blockading power is at war. A power may prohibit foreign trade with its own ports; but such prohibition does not carry with it the same rights of interference with foreign vessels as are conferred by a regularly constituted blockade.’116

Until Common Article 3 of the Geneva Conventions was adopted in 1949, international law was on the whole not concerned with the conduct of civil conflict unless the belligerent State, or neutral States which thought that their interests were directly affected by the conflict, recognized the belligerency of the insurgent forces.117 This effectively ‘internationalized’ the conflict, by making its conduct subject to the laws of war.

(p. 303) During the nineteenth century, blockades and the right to stop and search neutral vessels on the high seas were acknowledged to be lawful methods of warfare during civil wars if, and only if, the belligerency of the insurgent non-state forces had been recognized, whether expressly or implicitly. States adhered to this view that the legal validity of a blockade was dependent on their recognition of the belligerency of the insurgent forces during the most significant internal conflict of the early twentieth century, the Spanish Civil War (1936–1939). Recognition of belligerency was not accorded by third States during this conflict, with the result that:

When one says that belligerent rights are not admitted or conceded, that applies to both sides. There is no more right in a government that is fighting a civil war to interfere as a belligerent with ships on the high seas because they are a government, than there is such a right on the part of the insurgents. Both sides are exactly in the same position.118

Recognition of belligerency by third States thus conferred, inter alia, the right of blockade on the parties to a civil war. Conversely, the imposition of a blockade by the belligerent State upon ports and coastline in the hands of the insurgents amounted to an implicit recognition by it that the insurgents were belligerents,119 and thus entitled to exercise belligerent rights: ‘there is no escape from the conclusion that, by claiming to exercise belligerent rights as against the insurgents, the lawful government not only acquires those rights as against outside States but also automatically confers belligerent rights upon the insurgents in relation to itself and others.’120

Further, even if a blockade imposed by a belligerent State fails to meet the legal requirements of a valid blockade, and is thus a legal nullity, the recognition of belligerency arising from its declaration subsists.121

The Turkel Commission was of the opinion that, in contemporary international law, recognition of belligerency ‘has become less important and today is almost irrelevant’.122 It is true that the UK Manual of the Law of Armed Conflict observes that ‘[t]he doctrine has declined to the point where recognition of belligerency is almost unknown today’,123 and some commentators claim that the doctrine has fallen into desuetude.124 Technically, the claim of desuetude is wrong, as that (p. 304) doctrine applies only to treaties and, moreover, it does not lie in simple non-use. Obsolescence per se is not a recognized ground for treaty termination. Desuetude requires evidence of the parties’ intention and consent to abandon the treaty.125 A similar consideration applies to the extinction of a doctrine rooted in customary international law. States must be seen to adopt a position which contradicts their previous practice in order to extinguish the rule through the emergence of contrary custom. Practice affirming the continued existence of the doctrine of recognition of belligerency may be found at least from the late 1950s and early 1960s, and no evidence of contrary practice has been found.126 The doctrine might be in decline but it is not yet dead.

While Gaza, as an integral part of the occupied Palestinian territories, is not a State, a clear analogy may be drawn with the declaration of a blockade during a civil war. If the government of a State proclaims a blockade in relation to territory occupied by insurgent forces, this amounts to a recognition of the belligerent status of those forces, and thus the conflict is classified as an international armed conflict.127 Indeed, this was the conclusion to which the Turkel Commission itself leaned—‘there is a consensus that the conflict between the State of Israel and Hamas is an international armed conflict’128—although it also opined that even if it were a non-international armed conflict the armed conflict rules regarding blockade would still apply given the ‘decline’ of the doctrine of recognition of belligerency and the convergence of rules applicable in both types of conflict.129 As Sanger notes, this latter claim is unsupported by legal argument,130 and for the reasons (p. 305) given above, it is inaccurate: the declaration of a blockade against a non-state actor entails that the conflict should be classified as international.

While some might think this controversial, it is submitted that the accumulation of considerations indicates that the conflict between Israel and Gaza (or between Israel and Hamas) from 2000 onwards should be classified as an international armed conflict.

5.  Rules on application of force

Despite the lengthy period under consideration, the rules or practices on the application of force employed by both Israel and Hamas appear to have remained relatively stable throughout. While the initial Israeli description of the situation arising from the second intifada as an ‘armed conflict short of war’ is ambiguous, and does not designate either an international or a non-international armed conflict, it could be argued that the convergence of the law of armed conflict applicable in both reduces the practical impact of this distinction. Indeed, an official Israeli report on Operation Cast Lead states:

[t]he Gaza Strip is neither a State nor a territory occupied or controlled by Israel. In these sui generis circumstances Israel as a matter of policy applies to its military operations in Gaza the rules of armed conflict governing both international and non-international armed conflicts. At the end of the day, classification of the armed conflict between Hamas and Israel as international or non-international in the current context is largely of theoretical concern, as many similar norms and principles govern both types of conflicts.131

The report further claimed that the rules of engagement issued for the operation emphasized four guiding principles—military necessity, distinction, proportionality and humanity—the formulation of which are clearly based on the law applicable during an international armed conflict contained in Additional Protocol I.132 In the conflict with Hamas, it is claimed that Israeli forces must adhere to the provisions of the Fourth Geneva Convention, the Hague Regulations and those provisions of Additional Protocol I that reflect customary international law.133 For instance, in discussing legitimate targets, the report makes close reference to article 52 of Additional Protocol I on the grounds that it expresses custom.134 In contrast, the rules of engagement formulated for the interception of the Mavi Marmara flotilla assumed that those on board were ‘civilians not taking a direct part in hostilities. The planned use of force was based on the same principles as those applicable in a law enforcement context, with the ROE primarily permitting the use of force in self-defense’.135

(p. 306) One aspect of Israel’s armed activities in the occupied Palestinian territory, including Gaza, has been its policy of the targeted killing of members of non-State armed groups hostile to Israel.136 The legality of these operations was examined by Israel’s Supreme Court in the Targeted Killing case where President Emeritus Barak concluded that this depended on the circumstances of each individual operation. He ruled:

The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians ‘for such time as they take a direct part in hostilities’ (§51(3) of The First Protocol). Harming such civilians, even if the result is death, is permitted, on the condition that there is no other less harmful means, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportionate. That proportionality is determined according to a values based test, intended to balance between the military advantage and the civilian damage. As we have seen, we cannot determine that a preventative strike is always legal, just as we cannot determine that it is always illegal. All depends upon the question whether the standards of customary international law regarding international armed conflict allow that preventative strike or not.137

Academic commentaries on this judgment, while not uncritical, are mainly sympathetic,138 but nonetheless policies of targeted killing have proved to remain controversial. For example, in 2010, Philip Alston, the former UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, cautioned that the ‘failure of States to comply with their human rights law and IHL obligations to provide transparency and accountability for targeted killings is a matter of deep concern. To date, no State has disclosed the full legal basis for targeted killings … Nor has any State disclosed the procedural and other safeguards in place to ensure that killings are lawful and justified, and the accountability mechanisms that ensure wrongful killings are investigated, prosecuted and punished. The refusal by States who conduct targeted killings to provide transparency about their policies violates the international legal framework that limits the unlawful use of lethal force against individuals’.139

(p. 307) As for Hamas, features which appear to be embedded in its conduct of the conflict include its use of indiscriminate weapons systems, and its willingness to take reprisals against civilians. Hamas claims that its fighters ‘adhere scrupulously to Islamic rules and standards that confirm all the contents of the Universal Declaration on Human Rights and the Fourth Geneva Convention’.140 These instruments do not cover the means and methods of warfare, and the rockets fired from Gaza into southern Israel, which are often homemade, are inherently indiscriminate.141 Hamas has justified attacks on Israeli civilians as retaliation for Israeli attacks on Palestinian civilians—for example, in 1994, it justified a series of suicide bombings as retaliation for the massacre in the al-Ibrahimi mosque in Hebron perpetrated by a settler, Baruch Goldstein.142 Hamas has also used the asymmetry of the forces available to it and Israel to justify its attacks on civilians. These may be in pursuit of Hamas’ policy ‘to transform Israel from a land that attracts world Jews to a land that repels them by making its residents insecure’143 in order to realize its long-term aim of creating an Islamic State in all of Mandate Palestine.

Hamas, nevertheless, has at times denied allegations that it has carried out indiscriminate attacks, reiterating that only military objects may be targeted and that Palestinian armed groups are committed to that principle. However, it has also claimed that these armed groups are not part of an organized army with technologically advanced weaponry and thus accidental deaths can, and will occur.144 Hamas has also rejected any findings that it committed war crimes during fighting between itself and Israel in 2009.145

The conduct of both sides during Operation Cast Lead was excoriated by the Goldstone Report which concluded, inter alia, that ‘the instructions given to the Israeli forces moving into Gaza provided for a low threshold for the use of lethal weapons against the civilian population’;146 that Israeli forces engaged in indiscriminate and deliberate attacks against civilians;147 and that official Israeli statements made in relation to Operation Cast Lead ‘leave little doubt that disproportionate destruction and violence against civilians were part of a deliberate policy’.148 In relation to Hamas and other Palestinian armed groups, Goldstone concluded that:

(p. 308) Given the apparent inability of the Palestinian armed groups to aim rockets and mortars at specific target and, the fact that the attacks have caused very little damage to Israeli military assets, it is plausible that one of the primary purposes of these continued attacks is to spread terror—prohibited under international humanitarian law—among the civilian population of southern Israel.149

6.  Rules on capture and detention

During most of the period under consideration, detention of Gazan residents by Israel has, under Israeli law, been governed by the Internment of Unlawful Combatants Law which was first enacted in 2002 and amended in 2008. The Israeli government did not employ the extended powers of internment granted by the 2008 amendments during Operation Cast Lead.150 This act was promulgated in response to the Bargaining Chips case, delivered by the Israel Supreme Court, sitting as an expanded panel of nine justices, on 12 April 2000.151 The petitioners in this case had been brought to Israel by its security forces in 1986–1987 and prosecuted for being members of organizations hostile to Israel. After they completed their sentences (in 1991 and 1992), they were held in administrative detention pursuant to orders issued by the Israeli Minister of Defence under section 2 of the 1979 Emergency Powers Act (Detentions). In the leading opinion, Chief Justice Barak stated:

There is no dispute between the parties that the Petitioners themselves pose no threat to the national security. They served their sentence and would normally be deported from Israel. There is no dispute that the ground for continuing detention of the Petitioners is the advancement of repatriating captive and missing [Israeli] servicemen … [T]he Petitioners are being held in administrative detention as bargaining chips in the difficult negotiations that Israel has been conducting in order to repatriate..[the] POWs and MIAs.152

Chief Justice Barak, speaking for the majority of the Court, rejected the legality of this detention, ruling: ‘The State detains, using the executive branch, a person who has committed no offense and who presents no danger; his only sin being a bargaining chip. The violation of human liberty and dignity is so profound so as to be intolerable in a country which supports liberty and dignity, even if premised on considerations of national security.’153

(p. 309) He found that the detention of individuals as hostages, ‘a term encompassing the holding of persons as bargaining chips’, was prohibited under international law, citing as authority article 1 of the 1979 International Convention against the Taking of Hostages and article 34 of the Fourth Geneva Convention.154

Before the promulgation of the 2002 Act, detention was governed by the 1988 Administrative Detentions (Temporary Provision) (Territory of Gaza Strip) Order. This Order was cancelled upon Israel’s disengagement from Gaza in September 2005.155 As Gaza was clearly under Israeli occupation until then, the Administrative Detentions Order can be seen as an exercise of the occupant’s power to intern which is expressly recognized in articles 41–43, 68 and 78 of the Fourth Geneva Convention, the modalities of which are regulated by Section IV of the Convention.

In relation to two detainees from Gaza, who had been detained in January 2002 and January 2003, the constitutionality of the Internment of Unlawful Combatants Law was challenged in proceedings which culminated in the A and B v Israel (Appeal Decision) judgment, delivered by the Israeli Supreme Court on 11 June 2008.156 The Court ruled that the law was constitutional and consistent with the requirements of the law of armed conflict. The appellants were detained under the Act on the basis that they ‘were major activists in the Hezbollah organization who would very likely return to terror activities if they were released … and their release was likely to harm state security’.157 In her opinion, President Beinisch noted that section 1 of the Act expressly stated that its purpose was to regulate the internment of unlawful combatants in a way that was consistent with Israel’s obligations under international humanitarian law. She commented: ‘The premise in this context is that an international armed conflict prevails between the State of Israel and the terrorist organizations that operate outside Israel (see HCJ 769/02 Public Committee against Torture in Israel v Government of Israel (the Targeted Killings case) … at paragraphs 18, 21; see also A. Cassese, International Law (second edition, 2005), at page 420).’

She continued that in interpreting the Act in a manner consistent with international humanitarian law, it should be borne in mind that international legal (p. 310) norms have not been adapted to ‘changing realities and the phenomenon of terrorism that is changing the form and characteristics of armed conflicts and those who participate in them’. Accordingly, the Supreme Court would ‘interpret the existing laws in a manner that is consistent with new realities and the principles of international humanitarian law’.158

On the premise that international humanitarian law is not ‘as a rule’ intended to regulate the relationship between the State and its citizens, President Beinisch deduced that the Knesset intended the Internment of Unlawful Combatants Law ‘to apply only to foreign parties who belong to a terror organisation that operates against the security of the state’. Its definition of ‘unlawful combatant’ thus included:

residents of a foreign country that maintains a state of hostilities against the State of Israel, who belong to a terrorist organisation that operates against the security of the state and who satisfy the other conditions of the statutory definition of ‘unlawful combatant’. This definition may also include inhabitants of the Gaza Strip which is no longer held under belligerent occupation.159

In subsequently justifying the consistency of the appellants’ detention under the Internment of Unlawful Combatants law with international humanitarian law, President Beinisch relied on the provisions of the Fourth Geneva Convention and, in particular, the power of a party to a conflict to adopt ‘control and security’ measures under article 27. These included the powers of detention under articles 41–43. She ruled:

the detention provisions set out in the Fourth Geneva Convention were intended to apply and realise the basic rule provided in the last part of article 27 of the convention … [T]his article provides that the parties to a dispute may adopt security measures against protected civilians in so far as this is required as a result of the war. The principle underlying all the detention provisions provided in the Fourth Geneva Convention is that it is possible to detai[n] ‘civilians’ for security reasons in accordance with the extent of the threat they represent. According to the aforesaid convention, there is a power of detention for security reasons, whether we are concerned with the inhabitants of an occupied territory or we are concerned with foreigners who were found in the territory of one of the states involved in the dispute. In the appellants’ case, although the Israeli military rule in the Gaza Strip has ended, the hostilities between the Hezbollah organisation and the State of Israel have not ended, and therefore the detention of the appellants in the territory of the State of Israel for security reasons is not inconsistent with the detention provisions in the Fourth Geneva Convention.160

This ruling is obviously predicated on the view that the ‘unlawful combatants’ covered by the Act were civilians;161 indeed, President Beinisch proceeded expressly to deny that the appellants were entitled to prisoner of war status,162 although under the terms of the Act, like prisoners of war, they could be detained until the (p. 311) time that hostilities against Israel by their parent organization came to an end.163 However, as the declaration of the blockade amounted to Israel’s recognition of Hamas as a belligerent and thus, formally, as a party to an international armed conflict, should this not entail that, in principle, its fighting members ought to be assimilated to members of regular armed forces who possess combatant status, combatant immunity and entitlement to prisoner of war status on capture rather than detention as ‘unlawful combatants’?164

During Operation Cast Lead Hamas did not capture any IDF personnel, and so the questions of identifying the relevant standards of treatment and whether these were observed by Hamas did not arise. On the other hand, it seems more apt to consider Corporal Shalit, captured by Hamas on 25 June 2006, as a hostage being held as a ‘bargaining’ chip for the release of Palestinians detained by Israel (which accords with the circumstances of his eventual release) rather than as a prisoner of war, although the Goldstone Report classified him as a prisoner of war.165

B’Tselem, an Israeli NGO, claims that Israel detained five Gazan residents between 2005 and 2008, and thirty-four residents of Gaza during or subsequent to Operation Cast Lead, stating that most had been released by 30 September 2009.166 This stands in stark contrast to the findings of the Goldstone Report which alleges that hundreds of Gazans were detained by the IDF during Cast Lead,167 with approximately a hundred being taken to Israeli prisons.168 On the evidence before it, the Goldstone Mission found that there was ‘a pattern of (p. 312) behaviour on the part of the Israeli soldiers’169 which amounted to the imposition of a collective penalty in violation of article 50 of the Hague Regulations and article 33 of the Fourth Geneva Convention. Further, some aspects of the treatment meted out to detainees constituted outrages on human dignity and ‘required a considerable degree of planning and control … sufficiently severe to constitute inhuman treatment within the meaning of the Fourth Geneva Convention and thus a grave breach of the said Convention that would constitute a war crime’.170 Similar allegations of the ill-treatment of detainees, including torture, have been made by the Israeli NGOs PCATI and Adalah.171

7.  Other significant problems of international humanitarian and human rights law

Apart from the criticisms made of both Israel and Hamas regarding the means and methods of warfare they have employed, the Gaza conflict exhibits additional significant aspects of non-compliance with the law of armed conflict and human rights law.

Although Israel claims that its obligations under international human rights instruments do not apply outside its own territory, this was rejected by the International Court of Justice in the Wall Advisory Opinion.172 Further, the position espoused by the Israeli government is belied by the jurisprudence of Israel’s High Court which has repeatedly ruled that the human rights of the population of the occupied territories cannot be disregarded by the occupying forces.173 Conversely, as Hamas does not control any Israeli territory, it can owe human rights obligations only to the local population. While there is room for criticism of its human rights record within Gaza,174 at best this can be seen as only ancillary to the conflict with Israel, apart from its treatment of Gilad Shalit. Since it appears that he was being held as a hostage, as opposed to a prisoner of war, the views expressed by President Barak in the Bargaining Chips case are equally applicable to him.

(p. 313) The humanitarian situation in Gaza raises issues of both human rights law and international humanitarian law. In July 2011, it was reported that 38 per cent of Gazans live in poverty; 54 per cent are food insecure, and over 75 per cent are aid dependent; and 31 per cent of the workforce is unemployed.175 Many of these humanitarian problems in Gaza stem from the restrictions Israel has placed on the movement of people and goods in and out of the territory. This policy was initially implemented by the Israeli Security Cabinet decision to designate Gaza as a ‘hostile territory’ which expressly stated that it provided:

a basis for sanctions on the Hamas regime. Israel cannot be expected to provide for those that attack its citizens, for example by providing fuel to vehicles being used to transport Kassam missiles, or supplying power to Hamas military installations. When has a state under constant attack supplied a hostile population with the provisions necessary to carry out these attacks?

At the heart of this decision is the principle that although Israel remains committed to averting any humanitarian crises, it does not feel required to provide any supplies which go beyond that. It would be hypocritical to expect Israel to provide anything beyond the basic human needs of a population when a large number of its members, including the authorities, are engaged in systematic hostile activities.176

The terrestrial restrictions and maritime blockade of Gaza raise two principal issues: the question of the duty to provide humanitarian relief, and the related matter of the legality of the maritime blockade.

On the assumption that the occupation of Gaza continues, Israel as occupant has the duty under article 55 of the Fourth Geneva Convention to ensure food and medical supplies for the population to the fullest extent of the means available to it and, ‘it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate’. Further, under article 59, if ‘the whole or part of the population of an occupied territory is inadequately supplied’, Israel is under a duty to agree to and facilitate relief schemes by all the means at its disposal, permit the free passage of relief consignments and guarantee their protection. The restrictions on terrestrial passage were imposed in September 2007, and although eased in June 2010,177 still remain. In the Al Bassiouni case, the Israeli government argued that, as it no longer occupied Gaza, ‘the State of Israel does not have a general duty to ensure the welfare of the residents of the Gaza Strip’.178 But even if Israel is no longer the occupant, arguably it breached its duties under customary international law which requires parties to a (p. 314) conflict to ‘allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need’.179 Further, some, including the ICRC, argue that the effect of the restrictions is the imposition of a collective punishment on the population of Gaza which, in itself, breaches the law of armed conflict.180

Given the restrictions on access to Gaza, it has also been argued that the maritime blockade imposed on Gaza is unlawful on the ground that it causes damage to the civilian population which is, or may expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.181 While this allegation was rejected by the Turkel Commission, the Hudson-Philips Report concluded it was well-founded.182

8.  Conclusions

This chapter has concentrated on the structural issues of classification of the conflict in Gaza rather than specific operations and incidents. The attempt to classify this conflict was complicated both by the unique nature of Gaza183 and by Israel’s manipulation, and probably conscious manipulation, of legal categories. ‘Disengagement’ arguably did not terminate occupation as it retained existing structures of control, but was portrayed as such simply because of the absence of boots on the ground. Given the high-tech means of surveillance and attack employed by Israel, this was an attempt to deny responsibility for the territory while reaping the benefits of effective, albeit remote, control. Similarly, invention of the ‘armed conflict short of war’ category was unnecessary and confusing. A further problem arose from the divergent views expressed at times by the Israeli government and the High Court. As for Hamas, its views on the nature of the conflict are all but impossible to discern as it appears not to speak the language of international law.

Weighing the factors that the conflict in Gaza presents, on balance it appears that Israel continues to occupy the territory, with the consequence that the conflict (p. 315) should be classified as an international armed conflict. If a distinct conflict exists between Israel and Hamas, then although presumptively this should be seen as a non-international armed conflict as Hamas is a non-state actor, Israel’s imposition of the maritime blockade may be seen as a recognition of belligerency which internationalized the conflict.

On the whole, however, it might be doubted whether classification has a practical impact on how this continuing conflict should be conducted, given the convergence of customary law rules regulating international and non-international conflict. This is apparent in Israeli statements regarding the prosecution of Operation Cast Lead; it is easy to agree with the Israeli view that ‘classification of the armed conflict between Hamas and Israel as international or non-international in the current context is largely of theoretical concern, as many similar norms and principles govern both types of conflicts’.184 The principal issue where a difference is apparent is in relation to the treatment of detainees. If Israel is engaged in an international armed conflict with Hamas, should not captured Hamas fighters in principle be accorded prisoner of war status rather than be detained as ‘unlawful combatants’? As the Palmer Committee observed, ‘under the law of armed conflict a State can hardly rely on some of its provisions but not pay heed to others’.185

Much more serious, however, are the consequences of Israel’s denial that it continues to occupy Gaza in relation to the implementation of the occupant’s duties to provide, and facilitate the provision of, humanitarian relief. The unspecified minimum humanitarian standards invented by Israel to assuage the problems caused by its integration of the Gazan economy and infrastructure into its own and the resultant dependency, adverted to in the al Bassouini case, appear to fall below the humanitarian obligations incumbent on an occupant. But even if Israel is no longer the occupant, it still has the obligation, under customary international law, to ‘allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need’.186


28 September 2000

Start of the Second Intifada.

6 February 2001

Likud leader Ariel Sharon elected Prime Minister in Israel replacing the Labor Party’s Ehud Barak and promising ‘peace and security’.

February 2003

Israel initiates a series of incursions in Gaza and Nablus.

4 June 2003

Aqaba Summit: Ariel Sharon and Palestinian Prime Minister, Mahmoud Abbas, agree to stop violence and end occupation according to the Road Map. Hamas and Islamic Jihad vow to continue violence.

(p. 316) 21 August 2003

Israel assassinates Hamas leader Ismail Abu Shanab in Gaza. Others killed in widespread operations in the West Bank.

19 November 2003

UN Security Council adopts resolution 1515 in support of the Roadmap for Peace.

25–26 October 2004

Knesset approves the Cabinet’s Revised Disengagement Plan for the withdrawal of Israel settlers and ground forces from Gaza.

8 February 2005

Ariel Sharon, Mahmoud Abbas, President Mubarak of Egypt and King Abdullah of Jordan meet in Sharm El Sheikh. Abbas and Sharon announce an end to the violence. Israel will withdraw from Palestinian cities. The Second Intifada is deemed to be over.

August 2005

Israeli evacuation of Gaza settlements and four West Bank settlements begins on 15 August and is completed on 24 August.

25 June 2006

Hamas armed forces capture IDF Corporal Gilad Shalit.

27 June 2006

Israel begins operation Summer Rains and deploys ground forces in Gaza.

June 2006

Israeli targeted killings in Gaza and West Bank continue, while Hamas fires about 90 Qassam rockets into Sderot and other Western Negev communities.

26 November 2006

Israelis and Palestinians announce a truce to apply to Gaza. Israel holds to the truce, but rocket fire from Gaza continues.

15 June 2007

Hamas and Fatah forces clash in Gaza, with the result that Fatah is driven out of Gaza, and Hamas assumes control of the territory.

19 June 2008

Israel-Hamas truce in Gaza.

27 December 2008

Israel launches Operation Cast Lead. Hamas broadens rocket strikes to include Israeli towns and cities.

31 May 2010

Comoros-flagged but Turkish-owned ship MV Mavi Mamara, part of a flotilla of humanitarian aid, is boarded by Israeli commandos after attempting to run the Gaza blockade.

June–July 2010

Israel announces that it is easing the Gaza blockade.

April 2011

Reports of a reconciliation agreement between Fatah and Hamas.

May 2011

Egypt eases restrictions at the Rafah crossing.

18 October 2011

Gilad Shalit released as the result of an agreement between Israel and Hamas which includes the release of 1027 Palestinians held in Israeli prisons.


I am grateful to my colleagues Sarah Hibbin and Alon Margalit, and to Professor David Kretzmer, for their comments on earlier drafts of this chapter. Responsibility for the content of this chapter, however, lies solely with me.

1  See e.g. ‘Israeli military operations against Gaza, 2000–2008’ (2009) 38(3) Journal of Palestine Studies 122.

2  See Ajuri v IDF Commander, HCJ 7015/02 (3 September 2002), opinion of President Barak, para 22.

3  National Democratic Institute for International Affairs/Carter Center, ‘Final report on the Palestinian Legislative Council Elections 25 January 2006’ (2006) 23, available at: www.accessdemocracy.org/files/2068_ps_elect_012506.pdf.

4  On 18 October 2011 Gilad Shalit was released following an agreement between Israel and Hamas which included the release by Israel of 1027 Palestinian prisoners.

5  For an overview of the dynamics of this dispute, see N.J. Brown, ‘The Hamas-Fatah conflict: shallow but wide’ (2010) 34(2) Fletcher Forum of Word Affairs 35.

6  See e.g. House of Commons Foreign Affairs Committee, ‘Global Security: Israel and the occupied Palestinian territories, Fifth report of session 2008–2009’ (2009) 14, para 8 (House of Commons, Global Security): ‘From June 2007, therefore, the two Occupied Palestinian Territories were under the effective control of two separate political authorities, with fundamentally different stances towards Israel and the peace process.’

7  ‘Hamas takes full control of Gaza’ BBC News (15 June 2007).

8  S/PV.6061, Security Council meeting (6 January 2009) 5, remarks by Abbas (Palestine) (SC 6061st meeting).

9  See Israeli Ministry of Foreign Affairs, ‘Behind the headlines: Israel designates Gaza a “hostile territory”’ (24 September 2007), available at: <www.mfa.gov.il/MFA/About+the+Ministry/Behind+the+Headlines/Gaza+designated+a+%E2%80%9CHostile+Territory%E2%80%9D+24-Sep-2007.htm> (MFA, Gaza Designated as Hostile Territory).

10  See e.g. SC 6061st meeting, remarks by Shalev (Israel) 6–7, and Al-Faisal (Saudi Arabia) 23; House of Commons, Global Security, 15, para 10.

11  House of Commons, Global Security, 14–15, para 9.

12  On this incident, see R. Buchan, ‘The international law of naval blockade and Israel’s interception of the Mavi Marmara’ (2011) 58 Netherlands International Law Review 209; D. Guilfoyle, ‘The Mavi Marmara incident and blockade in armed conflict’ (2010) 81 British Yearbook of International Law 171 (Guilfoyle, The Mavi Marmara incident); J. Kraska, ‘Rule selection in the case of Israel’s naval blockade of Gaza: law of naval warfare or law of the sea?’ (2011) 13 Yearbook of International Humanitarian Law 367 (Kraska, Israel’s Naval Blockade); and A. Sanger, ‘The contemporary law of blockade and the Gaza freedom flotilla’ (2011) 13 Yearbook of International Humanitarian Law 397 (Sanger, Contemporary Law of Blockade).

13  Israeli Security Cabinet, ‘Decision on easing the blockade against the Gaza Strip’ (20 June 2010), reproduced in (2010) 40 Journal of Palestine Studies 196.

14  See ‘Hamas and Fatah agree to form a caretaker government’ The Guardian (27 April 2011). An unofficial translation of the agreement is available at: <http://middleeast.about.com/od/palestinepalestinians/qt/Fatah-Hamas-Reconciliation-Agreement.htm>.

15  Human Rights Council, ‘Human rights in Palestine and other occupied Arab territories: report of the United Nations Fact Finding Mission on the Gaza conflict’ A/HRC/12/48 (15 September 2009) (The Goldstone report).

16  Human Rights Council, ‘Report of the international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance’ A/HRC/15/21 (27 September 2010) (The Hudson-Phillips Report); ‘The Public Commission to examine the maritime incident of 31 May 2010’ (January 2010) (The Turkel Commission Report); Turkish National Commission of Inquiry, ‘Interim report on the Israeli attack on the humanitarian aid convoy to Gaza’ (September 2010) and ‘Report on the Israeli attack on the humanitarian aid convoy to Gaza’ (February 2011); and ‘Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident’ (September 2011) (The Palmer Report).

17  Prime Minister’s Office, ‘Cabinet resolution regarding the Disengagement Plan’ (6 June 2004), section 3(1) (Revised Disengagement Plan).

18  The Office for the Co-ordination of Humanitarian Affairs calculates that these areas amount to 17 per cent of the total land mass of Gaza, and 35 per cent of its arable land, see OCHA, ‘Between the fence and a hard place: the humanitarian impact of Israeli-imposed restrictions on access to land and sea in the Gaza Strip’ (August 2010) 8–10, available at: <www.ochaopt.org/documents/ocha_opt_special_ focus_2010_08_19_english.pdf>; see also, Palestinian Centre for Human Rights, ‘Fact sheet: the buffer zone in the Gaza Strip’ (October 2010), available at: <www.pchrgaza.org/facts/factsheet-bufferzone- aug.pdf>.

19  The legal instruments dealing with the Rafah crossing, including the 15 November 2005 Israel-PA Agreement on Movement and Access and annexed Agreed Principles for Rafah Crossing, and 23 November 2005 Agreed Arrangement on the European Union Border Assistance Mission at the Rafah Crossing Point on the Gaza-Egyptian Border (concluded at the invitation of Israel and the Palestinian Authority) may be found at: www.eubam-rafah.eu/node/2303. See also, B’Tselem, ‘Gaza Strip, Rafah Crossing’, available at: <www.btselem.org/gaza_strip/rafah_crossing>.

20  See Euro-Mediterranean Human Rights Network, ‘Third Annual Review on Human Rights in EU-Israel Relations 2005–2006’ (June 2007) 9 and 32; Gisha, ‘Rafah crossing: who holds the keys’ (March 2009) 119–21 (Gisha, Rafah Crossing); World Bank, ‘Potential alternatives for Palestinian trade: developing the Rafah trade corridor’ (21 March 2007) 4.

21  UN General Assembly, ‘Report of the Commissioner-General of the United Nations Relief and Works Agency for Palestine refugees in the Near East, 1 January–31 December 2010’ A/66/13 (2011) 7, para 32; for an analysis of Egyptian policy regarding the crossing, see Gisha, Rafah Crossing, 125–32.

22  See K. Hroub, Hamas: political thought and practice (2000) 60–1 and 69–86 (Hroub, Hamas), and also his Hamas: a beginner’s guide (2006) 37–41 (Hroub, A Beginner’s Guide); B. Milton-Edwards and S. Farrell, Hamas: the Islamic Resistance Movement (2010) 14–17 (Milton-Edwards and Farrell, Resistance Movement); A. Tamimi, Hamas: a history from within (2007) 147–69 (Tamimi, A History from Within).

23  ‘Hamas Charter’ (18 August 1988), translated in Hroub, Hamas, 273 (Hamas Charter); see also, ‘Hamas, Introductory memorandum, Third: The political identity of Hamas’ in Hroub, Hamas, 295.

24  Hamas Charter; for Hamas’ attitude to the Peace Process, see J. Gunning, Hamas in politics: democracy, religion, violence (2007) 195–240; Milton-Edwards and Farrell, Resistance Movement, 68–84; and M. Rabbani, ‘A Hamas perspective on the movement’s evolving role: and interview with Khalid Mishal, part II’ (2008) 37 Journal of Palestine Studies 61–2 (Rabbani, A Hamas Perspective).

25  ‘Hamas, Introductory memorandum, Fourth: The view of Hamas on the nature of the struggle and the way to conduct it’ translated in Hroub, Hamas, 295–6.

26  ‘Hamas Politburo Chief Khalid Mishal: remarks on Hamas Charter, President Obama, comparisons with Hizballah, and other matters, New York Times, 5 May 2009, excerpts’ (2009) 38 Journal of Palestine Studies 215–16 (Mishal New York Times Interview); see also, J. Solomon and J. Barnes-Dacey, ‘Hamas Chief Outlines Terms for Talks on Arab-Israeli Peace’ The Wall Street Journal (31 July 2009).

27  Tamimi, A History from Within, 147–56; also Hroub, A Beginner’s Guide, 33–5; and Hamas Political Bureau, ‘This is what we struggle for’ in Tamimi, A History from Within, 268: ‘Hamas is a national liberation movement whose military effort is directed solely and exclusively at the foreign occupiers’.

28  Hroub, Hamas, 44; S. Roy, ‘Religious nationalism and the Palestinian-Israeli conflict: examining Hamas and the possibility of reform’ (2004) 5 Chicago Journal of International Law 253.

29  For an overview of the Qassam Brigade and its activities, see Milton-Edwards and Farrell, Resistance Movement, 110–33.

30  ‘Hamas renews offer to end fight if Israel withdraws’ Reuters (30 May 2010); see also, Mishal New York Times Interview, 216; and Rabbani, A Hamas Perspective, 80. Hroub argues that the creation of a Palestinian State in the West Bank and Gaza has been accepted as an ‘interim solution’ by Hamas since its creation, see Hroub, Hamas, 73–84.

31  ‘Hamas accepts 1967 borders, but will never recognize Israel, top official says’ Haaretz (11 May 2011); ‘Hamas leader: State on 1967 borders, but no Israel recognition’ JTA News (11 May 2011).

32  ‘Hamas Leader Khalid Mishal: remarks on Hamas’s policies, al-Sabeel, Amman, July 2010’ (2010) 40 Journal of Palestine Studies 187 (Mishal al-Sabeel Interview).

33  Any implications of the Palestinian attempt to seek membership of, or recognition as a State from, the UN during the 2011 session of the General Assembly, are irrelevant to the instant analysis.

34  The reasoning of the International Court of Justice in the Wall Advisory Opinion regarding the de jure application of the Fourth Geneva Convention to the West Bank is applicable, mutatis mutandis, to Gaza, as both Israel and Egypt were parties to the Fourth Geneva Convention at the time when Gaza was occupied; see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, 136, 173–7, paras 90–101 (Wall Advisory Opinion).

35  Sharm el-Sheikh Fact-finding Committee, ‘First Statement of the Government of Israel’ (28 December 2000) para 282.

36  M. Finkelstein, ‘Legal perspective in the fight against terror—the Israeli experience’ (2003) 1 IDF Law Review 343–4: note omitted (Finkelstein, Israeli Experience).

37  See the arguments presented by the Israeli government on the nature of the conflict in Public Committee against Torture in Israel et al v Government of Israel et al, High Court of Justice, Israel, HCJ 796/02 (13 December 2006) (Targeted Killing case)—discussed below.

38  Prosecutor v Tadić, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber) 2 October 1995, para 70 (Tadić Jurisdiction).

39  See e.g. Ajuri v IDF Commander, HCJ 7015/02 (3 September 2002), opinion of President Barak, para 22.

40  Finkelstein, Israeli Experience, 344.

41  S/PV.6060, Security Council meeting (31 December 2008), remarks by Shalev (Israel) 6 (SC 6060th meeting); see also, identical letters dated 27 December 2008 from the Permanent Representative of Israel (Shalev) to the Secretary-General and President of the Security Council, S/2008/816 (27 December 2008); and identical letters dated 6 January 2009 from the Permanent Representative of Israel (Shalev) to the Secretary-General and President of the Security Council, S/2009/6 (6 January 2009).

42  MFA, Gaza Designated as Hostile Territory.

43  Jaber al Bassouini Ahmed et al v Prime Minister and Minister of Defense, HCJ 9132/07 (30 January 2008), opinion of President Beinisch, para 12 (Al Bassouini case).

44  Gisha, ‘Briefing: Israeli High Court decision authorizing fuel and electricity cuts to Gaza (HCJ 9132/07, issued 30 January 2008)’ (31 January 2008).

45  Physicians for Human Rights and others v Prime Minister and others, and joined case, HCJ 201/09, 248/09 (19 January 2009), opinion of Chief Justice Beinisch, para 14, translated in Oxford Reports on International Law in Domestic Courts (ILDC) 1213 (IL 2009) (Physicians for Human Rights case).

46  Hamas Political Bureau, ‘This is what we struggle for’ in Tamimi, A History from Within, 265; see also, Hamas Political Bureau, ‘The Islamic Resistance Movement (Hamas)’ in Tamimi, A History from Within, 279–80.

47  Hamas, ‘An important memorandum from the Islamic Resistance Movement (Hamas) to the Kings, Presidents, and Ministers meeting at Sharm al-Sheikh’ (13 March 1996), translated in Hroub, Hamas, 307.

48  See Matar and others v The Commander of the Israeli Defence Force in Gaza, ILDC 73 (IL 2005) para 7; and also Nango and others v Israel and others, HCJ 05/7918, ILDC 156 (IL 2005) para H1.

49  Prime Minister’s Office, ‘Disengagement Plan’ (16 April 2004).

50  Revised Disengagement Plan.

51  Ibid, section 2(A), art. 3.1.

52  IDF, Declaration regarding end of military rule in Gaza Strip (12 September 2005), available at: <www.mfa.gov.il/MFA/Government/Communiques/2005/Exit+of+IDF+Forces+from+the+Gaza+Strip+completed+12-Sep-2005.htm> (IDF, Declaration of 12 September 2005).

53  Ibid.

54  Al Bassiouni case, para 12; affirmed Anbar et al v GOC Southern Command et al and Adalah et al v Minister of Defence et al, HCJ 5268/08 and HCJ 5399/08 (9 December 2009) para 6. For commentary, see Y. Dinstein, The international law of belligerent occupation (2009) 278–9 (Dinstein, Belligerent Occupation); and Y. Shany, ‘The law applicable to non-occupied Gaza’, paper delivered at the Complementing IHL: exploring the need for additional norms to govern contemporary conflict situations conference (Jerusalem, 1–3 June 2008).

55  The Turkel Commission Report, 50–3, paras 45–7.

56  Targeted Killing case, paras 10–11.

57  Ibid, para 16.

58  Ibid, para 21.

59  Ibid, para 21.

60  Physicians for Human Rights case, para 14.

61  The Turkel Commission Report, 46–7, para 40.

62  Ibid, 47, para 41; see also, 49–50, para 44.

63  Mishal al-Sabeel Interview, 189.

64  Ibid, 188–90.

65  Mishal New York Times Interview, 216; see also, Rabbani, A Hamas Perspective, 68: ‘our conviction that the Palestinian situation is not normal because we are not a state but under occupation’, and ibid, 80: ‘our real political objective is not a cease-fire but rather ending the occupation’ (quoting Mishal).

66  SC 6060th meeting, remarks by representatives of Palestine (4, 5), Libya (7, 8), South Africa (9), Costa Rica (16), Egypt (18, 19); SC 6061st meeting, remarks by representatives of Palestine (5), Libya (12, 13), League of Arab States (24–6), Egypt (28), Jordan (29–30), Lebanon (31), Morocco (32), Qatar (33); S/PV.6061(Resumption 1), Security Council meeting (7 January 2009), remarks by representatives of Malaysia (3), Cuba, on behalf of member States of the Non-Aligned Movement (4), Pakistan (9–10), Iran (12), Nicaragua (14), Ecuador (16), Bolivia (17) (SC 6061st meeting, Resumption 1); and S/PV.6063, Security Council meeting (8 January 2009), remarks by representative of Palestine (10).

67  See Foreign and Commonwealth Office, ‘Annual Report on Human Rights 2008’ Cm 7557 (March 2009) 149: ‘Although there is no permanent physical Israeli presence in Gaza, given the significant control Israel has over Gaza’s borders, airspace and territorial waters, Israel retains obligations as an occupying power under the Fourth Geneva Convention.’

68  SC 6060th meeting, remarks by UN Secretary-General (4).

69  HRC res. S-9/1, A/HRC/RES/S-9-1 (12 January 2009).

70  SC 6061st meeting, Resumption 1, remarks by Badji (Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People) 11.

71  The Goldstone Report, 85, paras 276–7. This assessment was expressly re-affirmed in The Hudson-Phillips Report, 15, paras 62–4.

72  See General Assembly Plenary, Tenth Emergency Special Session, 32nd and 33rd meetings, GA/10807 (15 January 2009) (Dept of Public Information summary), and General Assembly Plenary, Tenth Emergency Special Session, 34th and 35th meetings, GA/10809/Rev.1* (16 January 2009) (Dept of Public Information summary).

73  SC 6060th meeting, remarks by representatives of Burkina Faso (15), Costa Rica (16), Egypt (18), League of Arab States (19); SC 6061st meeting, remarks by representatives of Vietnam (15), Mexico (20), Jordan (28); and SC 6061st meeting, Resumption 1, remarks by representatives of Cuba, on behalf of the member States of the Non-Aligned Movement (4), Pakistan (10), and Nicaragua (13). In the General Assembly, Tenth Emergency Special Session, 32nd and 33rd meetings, GA/10807 (15 January 2009), the application of the Fourth Convention was demanded by Brockmann (GA President), Cuba, on behalf of the Non-Aligned Movement, and Algeria, and in the 34th and 35th meetings (GA/10809/Rev.1*) by Venezuela, Kuwait, Burkina Faso and Afghanistan.

74  The Goldstone Report, 85, para 276; The Hudson-Phillips Report, 15, paras 62–3.

75  ‘Military Intelligence Director Yadlin comments on Gaza, Syria and Lebanon’ cable from the US Embassy in Tel Aviv, 07TELAVIV1733 (13 June 2007) para 6, available at: <http://wikileaks.ch/cable/2007/06/07TELAVIV1733.html>.

76  MFA, Gaza Designated as Hostile Territory. For commentary, see C. James, ‘Mere words: the “enemy entity” designation of the Gaza Strip’ (2009) 32 Hastings International and Comparative Law Review 643.

77  ‘CODEL Wexler’s meeting with Military Intelligence Chief Yadlin’ cable from the US Embassy in Tel Aviv, 08TELAVIV2745 (8 December 2008), available at: <http://files.vpro.nl/wikileaks/date/2008-12_0.html>.

78  SC 6061st meeting, remarks by Israel (8).

79  House of Commons, Global Security, 58, para 127.

80  SC 6061st meeting, 34; see also, ibid, remarks by Palestine (5) and Egypt (28).

81  The unity of the territories was also recognized by the Human Rights Council which, in the final stages of Operation Cast Lead, adopted resolution S-9/1 on 12 January 2009. This referred to the ‘ongoing Israeli military operation in the Occupied Palestinian Territory, particularly in the occupied Gaza Strip’, and to Israel as the occupying power.

82  G. Aronson, ‘Issues arising from the implementation of Israel’s disengagement from the Gaza Strip’ (2005) 34 Journal of Palestine Studies 51–3.

83  For a range of views, see e.g. E. Benvenisti, ‘The law on the unilateral termination of occupation’ in T. Giegerich and U. Heinz U (eds), A wiser century? Judicial dispute settlement, disarmament and the laws of war 100 years after the Second Hague Peace Conference (2009); A. Bockel, ‘Le retrait israelien de Gaza et ses consequences sur le droit international’ (2005) 51 Annuaire francais de droit international 16; S. Darcy and J. Reynolds, ‘“Otherwise occupied”: the status of the Gaza Strip from the perspective of international humanitarian law’ (2010) 15 Journal of Conflict and Security Law 211 (2010); Dinstein, Belligerent Occupation, 276–80; H.-P. Gasser, ‘Notes on the law of belligerent occupation’ (2006) 45 Military Law and Law of War Review 233–4; M. Mari, ‘The Israeli disengagement from the Gaza Strip: an end of the occupation?’ (2005) 8 Yearbook of International Humanitarian Law 356; E. Samson, ‘Is Gaza occupied? Redefining the legal status of Gaza’ (2010) 83 Mideast Security and Policy Studies; I. Scobbie, ‘An intimate disengagement: Israel’s withdrawal from Gaza, the law of occupation and of self-determination’ (2004) 11 Yearbook of Islamic and Middle Eastern Law 3, reprinted in V. Kattan (ed.), The Palestine question in international law (2008) 637; and Y. Shany, ‘Binary law meets complex reality: the occupation of Gaza debate’ (2008) 41 Israel Law Review 68.

84  See e.g. Y. Shany, ‘Faraway, so close: the legal status of Gaza after Israel’s disengagement’ (2006) 8 Yearbook of International Humanitarian Law 369.

85  G. von Glahn, The occupation of enemy territory: a commentary on the law and practice of belligerent occupation (1957) 257 (Von Glahn, The occupation of enemy territory); see also, A. Roberts, ‘The end of occupation: Iraq 2005’ (2005) 54 International and Comparative Law Quarterly 27 (Roberts, Iraq 2005).

86  L. Oppenheim, International law: a treatise, Vol. II (7th edn, 1952) 436 (Oppenheim, International Law); see also, W. Heintschel von Heinegg, ‘Factors in war to peace transitions’ (2003) 27 Harvard Journal of Law and Public Policy 845: ‘The end of an occupation is a question of fact. It will be brought about by any loss of authority over the territory in question.’

87  Oppenheim, International Law, 618.

88  Roberts, Iraq 2005, 47.

89  Ibid, 28.

90  Oppenheim, International Law, 435.

91  Von Glahn, The Occupation of Enemy Territory, 28–9.

92  Quoted in D. Li, ‘The Gaza Strip as laboratory: notes in the wake of disengagement’ (2006) 35 Journal of Palestine Studies 48.

93  Al Bassiouni case, para 12.

94  Following Schwenk, it is submitted that ‘public order and civil life’ is a more accurate translation of the key phrase ‘l’ordre et la vie publics’ in the authoritative French text of art. 43 than the more commonly used phrase ‘public order and safety’. See E. Schwenk, ‘Legislative power of the military occupant under Article 43, Hague Regulations’ (1944) 54 Yale Law Journal 393 fn 1 and 398. This mistranslation has also been noted by Israel’s High Court, see Christian Society for the Holy Places v Minister of Defence and others, 52 International Law Reports 512, opinion of Deputy President Sussman at 513–14.

95  See E. Benvenisti, The International Law of Occupation (1993) 4–5: also UK Ministry of Defence, The Manual of the Law of Armed Conflict (2005) 276, para 11(3)(1) (UK Manual); Prosecutor v Tadić, IT-94-1-T, Judgment (Trial Chamber), 7 May 1997, 204–5, para 584; and Prosecutor v Blaškić, IT-95-14-T, Judgment (Trial Chamber), 3 March 2000, 51, para 149.

96  Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) ICJ Rep 2005, 168, separate opinion of Judge Kooijmans, 306 at 317, para 41.

97  Tzemel v Minister of Defence, HCJ 102/82, (1982) 37(3) PD 365 at 373, quoted with approval in Physicians for Human Rights case, para 14.

98  See J. Pictet (ed.), Commentary to Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War (1958) 62–3 (commentary to art. 6), and 272–6 (commentary to art. 47).

99  1995 Interim Agreement, art. I(2) provides:

Pending the inauguration of the Council, the powers and responsibilities transferred to the Council shall be exercised by the Palestinian Authority established in accordance with the Gaza-Jericho Agreement, which shall also have all the rights, liabilities and obligations to be assumed by the Council in this regard. Accordingly, the term ‘Council’ throughout this Agreement shall, pending the inauguration of the Council, be construed as meaning the Palestinian Authority.

100  1995 Interim Agreement, art. XII(1); see further Annex I, Protocol Concerning Redeployment and Security Arrangements, art. XIII (Security of the Airspace) para 4, which provides in part ‘[a]ll aviation activity or use of the airspace by any aerial vehicle in the West Bank and the Gaza Strip shall require prior approval of Israel …’ and art. XIV (Security along the Coastline of the Sea of Gaza).

101  Trial of Wilhelm List and others (the Hostages trial) (1949) VIII Law Reports of Trials of War Criminals 55–6, quotation at 56.

102  Prosecutor v Naletilić and Martinović, IT-98-34-T, Judgment (Trial Chamber), 31 March 2003.

103  For a survey of Israel’s operations within Gaza from disengagement to Operation Cast Lead, see ‘Israeli military operations against Gaza, 2000–2008’ (2009) 38 Journal of Palestine Studies 133–8.

104  See e.g. Letter from the Permanent Representative of France to the President of the Security Council on behalf of the EU, S/2008/841 (31 December 2008); Letter from the Permanent Representative of Qatar to the Secretary-General, S/2009/12 (7 January 2009); Letters from the Permanent Representative of Cuba to the Secretary-General on behalf of the Non-Aligned Movement, A/63/673-S/2009/13 (7 January 2009), S/2009/15 (8 January 2009), and S/2009/33 (14 January 2009); SC 6060th meeting, remarks by Libya (8), France (9–10), Indonesia (11), United Kingdom (12), Italy (13), China (15), Burkina Faso (16), and Belgium (17); SC 6061st meeting, remarks by Austria (14), Vietnam (15), Japan (19), Mexico (20), China (21), Russia (22) and League of Arab States (26); and SC 6061st meeting, Resumption 1, remarks by Malaysia (3), Cuba, on behalf of the Non-Aligned Movement (4), Czech Republic, on behalf of the EU and other States (7), Indonesia (9), Nicaragua (14), Australia (16) and Ecuador (16).

105  See e.g. S. Bashi and T. Feldman, Scale of Control: Israel’s Continued Responsibility in the Gaza Strip (2011) 47–57; and B. Rubin, ‘Disengagement From The Gaza Strip And Post-Occupation Duties’ (2010) 42 Israel Law Review 528.

106  Dinstein, Belligerent occupation, 279.

107  E.g. Shalev (representative of Israel) SC 6060th meeting: ‘We are not at war with the Palestinian people, but with Hamas and other terrorist groups in Gaza.’

108  This is at the very least implicit in the ICTY ruling in Tadić Jurisdiction, para 73, that there could exist ‘situations that the parties themselves considered at different times and places as either internal or international armed conflicts, or as a mixed internal-international conflict’. See also, chs 6 and 10 of this volume.

109  Compare Guilfoyle, The Mavi Marmara Incident, 187.

110  The Turkel Commission Report, 47, para 41. The final report of the Turkish National Commission of Inquiry rejected the view that the conflict should be classified as an international armed conflict, on the ground that Israel had not recognized it as such (see 60–3), while the Palmer Committee Report concluded that ‘the conflict should be treated as an international one for the purposes of the law of blockade’ (41, para 73; see also, 83–5, paras 20–4). It is difficult to estimate the weight that should be placed on the Palmer Report as it was ‘dependent upon the investigations conducted by Israel and Turkey’ (9, para 11); it expressly stated that ‘the legal issues at large in this matter have not been authoritatively determined by the two States involved and neither can they be by the’ Palmer Committee itself (10, para 14); and opined that ‘[t]oo much legal analysis threatens to produce political paralysis’ (10, para 15).

111  As Israel is not a party to Additional Protocol I, Hamas’ self-designation as a national liberation movement, and thus the effect of art. 1(4) which internationalizes conflicts in which ‘peoples are fighting against … alien occupation … in exercise of their right of self-determination’ is irrelevant to this analysis.

113  The declaration of the blockade, No. 1/2009 Blockade of Gaza Strip, provides:

All mariners are advised that as of 03 January 2009, 1700 UTC, Gaza maritime area is closed to all maritime traffic and is under blockade imposed by Israeli Navy until further notice.

Maritime Gaza area is enclosed by the following coordinates: 31 35.71 N, 34 29.46 E; 31 46.80 N, 34 10.01 E; 31 19.39 N, 34 13.11 E; 31 33.73 N, 33 56.68 E.

A diagram of the area subject to blockade is reproduced in C. Migdalovitz, ‘Israel’s Blockade of Gaza, the Mavi Marmara Incident, and Its Aftermath’ (Congressional Research Service, 2010) 16, and as Annex D to Part One of The Turkel Commission Report.

114  A. Glickman, ‘High Court rejects flotilla suits: Soldiers defended their lives’ YNet News (6 March 2010).

115  See e.g. W. Heintschel von Heinegg, ‘Blockade’ in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (2008) para 25; Kraska, Israel’s Naval Blockade, 386–91; M. Krauss, ‘Internal conflicts and foreign States: in search of the state of law’ (1978) 5 Yale Studies in World Public Order 186–7 (fn 47) (Krauss, Internal Conflicts); J.B. Moore, A digest of international law (1906), Vol. 7, 780–3, 785–6 and 808 (Moore, A Digest); S.C. Neff, The rights and duties of neutrals: a general history (2000) 22; R.R. Oglesby, Internal war and the search for normative order (1971) 40 and 42–3 (Oglesby, Internal War); V.A. O’Rourke, ‘Recognition of belligerency and the Spanish war’ (1937) 31 AJIL 402 (O’Rourke, Recognition of belligerency); Sanger, Contemporary Law of Blockade, 421; M.M. Whiteman, Digest of international law (1968), Vol. 10, 868–72 (Whiteman, Digest); and G.G. Wilson, ‘Insurgency and international maritime law’ (1906) 1 AJIL 56.

116  17 January 1876 letter from the Earl of Derby to Lord Odo Russell, reproduced in Moore, A Digest, Vol. 1, 808.

117  On recognition of belligerency, see Moore, A Digest, Vol. 1, 164–205; G. Hackworth, Digest of International Law (1940) Vol. 1, 318–27 (Hackworth, Digest); Whiteman, Digest, Vol. 2, 486–523; Spanish Civil War Pension Entitlement case, Federal Republic of Germany, Federal Social Court (14 December 1978), 80 International Law Reports 666; Tatem v Gamboa, England, Kings Bench (30 May 1938), 9 International Law Reports 81; J. Crawford, The creation of States in international law (2nd edn, 2006) 380–2 and 418–21; A. Cullen, ‘Key developments affecting the scope of internal armed conflict in international humanitarian law’ (2005) 183 Military Law Review 74–8; Krauss, Internal Conflicts, 185–94; R. Higgins, ‘International law and civil conflict’ in E. Luard (ed.), The international regulation of civil wars (1972) 170–1; H. Lauterpacht Recognition in international law (1947) Part III (Lauterpacht, Recognition); Y.M. Lootsteen, ‘The concept of belligerency in international law’ (2000) 166 Military Law Review 109; L. Moir, The law of internal armed conflict (2002) 4–18 (Moir, Internal Armed Conflict); A.D. McNair, ‘The law relating to the civil war in Spain’ (1937) 53 Law Quarterly Review 474–84; Oglesby, Internal War, ch. 3; Oppenheim, International Law 249–53; O’Rourke Recognition of belligerency; and H.A. Wilson, International law and the use of force by national liberation movements (1988) 22–9.

118  Sir John Simon, in relation to the British government’s refusal to recognize the Spanish government’s attempt to establish a blockade in August 1936, quoted in Whiteman, Digest, Vol. 2, 511.

119  See e.g. Moore, A Digest, Vol. 1, 166, 182 and 190; Hackworth, Digest, Vol. 1, 320; and Whiteman, Digest, Vol. 2, 502–3.

120  Moore, A Digest, Vol. 1, 201.

121  Lauterpacht, Recognition, 197–8.

122  The Turkel Commission Report, 46, para 39.

123  UK Manual, 384, para 15.1.2.

124  See e.g. L. Doswald-Beck, ‘The legal validity of military intervention by invitation of the government’ (1985) 56 British Yearbook of International Law 189; Guilfoyle, The Mavi Marmara incident, 191–2; Oglesby, Internal War, ch. 7; A. Paulus and M. Vashakmadze, ‘Asymmetrical war and the notion of armed conflict—a tentative conceptualization’ (2009) 873 International Review of the Red Cross 99; Moir, Internal Armed Conflict, 18–21; and Sanger, Contemporary Law of Blockade, 421–5. See also, A. Cullen, The concept of non-international armed conflict in international humanitarian law (2010) 22–3.

125  On desuetude, see e.g. G. Le Floch, ‘La désuétude en droit international public’ (2007) 111 Revue Général de Droit International Public 609; M.J. Glennon, ‘How international rules die’ (2004) 93 Georgetown Law Journal 939; R. Kolb, ‘La désuétude en droit international public’ (2007) 111 Revue Général de Droit International Public 577; and A. Vamvoukos, Termination of treaties in international law: the doctrines of rebus sic stantibus and desuetude (1985) Part II.

126  See e.g. 1957 Protocol to the Convention on Duties and Rights of States in the Event of Civil Strife, art. 2; ‘Memorandum by the Attorney-General on legal implications of the Korean conflict’ National Archives, CAB/129/42, Records of the Cabinet Office (50) CP 207 (14 September 1950); E. Lauterpacht, ‘The contemporary practice of the United Kingdom in the field of international law—survey and comment’ (1956) 5 International and Comparative Law Quarterly 405 (31 January 1956 UK statement that it did not recognize a state of belligerency between Chinese nationalists and communists); ‘Memorandum by the Director of the Office of Far Eastern Affairs’ (1945) VII Foreign Relations of the United States 262 (7 March 1945); ‘Department of State memorandum: legal aspects of the Indonesian government’s right to block certain ports held by insurgents’ (1 March 1958) XVII/XVIII FRUS (1958–1960); and ‘Memorandum from the President’s Special Assistant (Schlesinger) to President Kennedy’ (17 April 1961) XXII FRUS 260 (1961–1963). Lauterpacht reaffirmed the vitality of the doctrine in the 7th edition of Oppenheim’s International law, Vol. II; see Oppenheim, International Law, 209–12, paras 59–59a, 370–1, para 126.

127  See the Harvard Draft Convention on the Rights and Duties of Neutral States in Naval and Aerial War (1939) 33 AJIL Supplement 209; Lauterpacht, Recognition, 194, see 193–9 generally; and Tatem v Gamboa, England, Kings Bench (30 May 1938), 9 International Law Reports 81.

128  The Turkel Commission Report, 47, para 41.

129  Ibid, 48–9, para 42.

130  Sanger, Contemporary Law of Blockade, 434.

131  Government of Israel, ‘The operation in Gaza: factual and legal aspects’ (July 2009) 11, para 30.

132  Ibid, 82, para 222; see generally, 82–5, paras 222–9.

133  Ibid, 11, para 31.

134  Ibid, 38–40, paras 101–7.

135  The Turkel Commission Report, 264, para 235.

136  For a concise overview of Israel’s targeted killing policy, see N. Melzer, Targeted Killing in International Law (2008) 27–36 (Melzer, Targeted Killing).

137  Targeted Killing case, para 60.

138  See e.g. the articles in the symposium on the case in 5 Journal of International Criminal Justice (2007), namely, A. Cassese, ‘On Some Merits of the Israeli Judgment on Targeted Killings’ 339; O. Ben-Naftali, ‘A Judgment in the Shadow of International Criminal Law’ 322; A. Cohen and Y. Shany, ‘A Development of Modest Proportions: the application of the principle of proportionality in the Targeted killings case’ 310; W.J. Fenrick, ‘The Targeted Killings Judgment and the Scope of Direct Participation in Hostilities’ 332; and R.S. Schondorf, ‘The Targeted Killings Judgment: A Preliminary Assessment’ 301.

139  P. Alston, ‘Report of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Study on Targeted Killings’ A/HRC/14/24/Add.6 (28 May 2010) 26, para 87. For a range of views on the legality of targeted killings, see e.g. G. Blum and P. Heymann, ‘Law and policy of targeted killing’ (2010) 1 Harvard National Security Journal 145; Kretzmer, Targeted Killing; Melzer, Targeted Killing, and his ‘Targeted Killings in an Operational Law Perspective’ in T.D. Gill and D. Fleck (eds), The Handbook of the International Law of Military Operations (2010) 277; and T. Ruys, ‘License to Kill? State-Sponsored Assassination under International Law’ (2005) 44 Military Law and Law of War Review 13.

140  Hamas, ‘An important memorandum from the Islamic Resistance Movement (Hamas) to the Kings, Presidents, and Ministers meeting at Sharm al-Sheikh’ (13 March 1996), translated in Hroub, Hamas, 310.

141  For details, see ‘Palestinian weapons deployed against Israel during Operation Cast Lead’ (2009) 38 Journal of Palestine Studies 193–7.

142  See Hroub, Hamas, 242–51; and Tamimi, A History from Within, 159–61.

143  Hroub, Hamas, 247.

144  B’Tselem, ‘Hamas report to U.N. shamefully evades responsibility’ (24 February 2010), available at: <www.btselem.org/English/Israeli_Civilians/20100224_Hamas_Report.asp>.

145  ‘Hamas gives U.N. response to Gaza war crimes report’ Reuters (3 February 2010).

146  The Goldstone Report, 16, para 44.

147  Ibid, chs X and XI.

148  Ibid, 335, para 1211; see generally 324–35, paras 1174–212.

149  The Goldstone Report, 473, para 1722.

150  B’Tselem/Hamoked, ‘Without trial: administrative detention of Palestinians by Israel and the Internment of Unlawful Combatants Law’ (2009) 53 (B’Tselem, Without trial). Dinstein employs a slightly different translation of the title of this legislation, namely the Detention of Unlawful Combatants Law; see Y. Dinstein, The conduct of hostilities under the law of international armed conflict (2004) 31.

151  Anonymous (Lebanese citizens) v Minister of Defence, Final Decision, FCrA 7048/97 (12 April 2000), ILDC 12 (IL 2000) (Bargaining Chips case).

152  Bargaining chips case, opinion of Chief Justice Barak, ILDC 12 (IL 2000) 4, para 2.

153  Ibid, 10, para 19.

154  Ibid, 11, para 20.

155  For a brief (and critical) account of the parallel administrative detention order operative in the West Bank, see B’Tselem, Without trial, 14–22.

156  A and B v Israel, Appeal Decision (11 June 2008) CrimA 6659/06, 1757/07, 8228/07, 3261/08, ILDC 1069 (IL 2008) (A and B v Israel). The leading opinion was delivered by President Beinisch, in which the other two Justices concurred. For a brief background summary of this case, see B’Tselem, Without trial, 56, which also presents sample case studies at 59–63. It is perhaps worth noting in passing that the appellants in this case had been detained under the 1988 Administrative Detentions (Temporary Provision) (Territory of Gaza Strip) Order until its revocation on 12 September 2005, and then the Internment of Unlawful Combatants Law was substituted as the basis of their detention, with the court competent to undertake judicial review of the detention orders being the Tel Aviv-Jaffa District Court (see ILDC 1069 (IL 2008), opinion of President Beinisch, 6–7, paras 1–2). This indicates that, at some point, the detainees were transferred from Gaza to Israel, which was presumably in breach of art. 49(1) of the Fourth Geneva Convention. The question of unlawful transfer was apparently not raised in the case.

157  A and B v Israel, 7, para 3.

158  A and B v Israel, 10–11, para 9.

159  Ibid, 11–12, para 11.

160  See ibid, 13–15, paras 15–17: quotation at 14–15, para 17.

161  Ibid 12, para 12.

162  Ibid, 21–2, para 33.

163  Ibid, 22, para 34, 29–31, para 46, and 33–4, para 52.

164  This is an open question. Does Israel’s recognition of Hamas as a party to an international armed conflict entail that members of Hamas’ armed wing, the Izzidin al-Qassam Brigade, constitute ‘members of the armed forces of a party to the conflict’ to employ the terms of art. 4(A)(1) of the Third Geneva Convention? In other words, should they be seen as regular forces, as opposed to members of an irregular force otherwise falling under art. 4(A)(2), were Hamas to be a party to the Third Geneva Convention? While Dinstein argues that ‘regular forces are not absolved from meeting the cumulative conditions binding irregular forces’ (Dinstein, Conduct of Hostilities, 36), this is disputed by other commentators; see e.g. A. Rogers, ‘Combatant status’ in E. Wilmshurst and S. Breau, Perspectives on the ICRC Study on customary international humanitarian law (2007) 114–15. Further, rule 4 of the ICRC Study provides that ‘[t]he armed forces of a party to the conflict consist of all organised armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates’. The commentary notes that ‘the four conditions contained in the Hague Regulations and the Third Geneva Convention have been reduced to two conditions’ (J.M. Henckaerts and L. Doswald-Beck, Customary international humanitarian law, Vol. I: Rules (2005) 14–16 (ICRC Customary Law Study)), with the requirement of visibility being relevant to entitlement to prisoner of war status. This is governed by rule 106, which requires combatants to distinguish themselves from the civilian population when they are engaged in an attack or in a military operation preparatory to an attack (see Ibid, 384–6). This does not entail that combatants wear uniforms in all hostile action, although armies generally do so as a matter of practice. In fact, international humanitarian law does not define what constitutes a uniform. The obligation is one of distinction, not uniform, and as Parks observes, on the occasions that partisans wore uniforms during WWII, ‘“Uniform” varied, often being more like modern “gang” colors than a traditional military uniform’. See W.H. Parks, ‘Special forces’ wear of non-standard uniform’ (2003) 4 Chicago Journal of International Law 539, see passim, and also T. Pfanner, ‘Military uniforms and the law of war’ (2004) 86 International Review of the Red Cross 93.

165  The Goldstone Report, 373, para 1337.

166  B’Tselem, Without trial, 54.

167  Detentions are dealt with in ch. XV of the Goldstone Report, 300–24, paras 1103–73.

168  Ibid, 301, para 1105.

169  Ibid, 314, para 1162.

170  Ibid, 323, paras 1169–70.

171  See Public Committee against Torture in Israel/Adalah, ‘Exposed: the treatment of Palestinian detainees during Operation Cast Lead’ (June 2010), available at: <www.stoptorture.org.il/files/Exposed4-Treatment%20of%20Detainees%20Cast%20Lead_June%202010.pdf>.

172  See Wall Advisory Opinion, 177–81, paras 102–13. As Judge Buergenthal concurred in this conclusion (see his declaration, ibid, 240, para 2), this was a unanimous ruling by the Court.

173  See e.g. the opinions of President Barak in the Targeted Killing case (2005) para 18; in Ajuri case, paras 14–16; and in Mara’abe et al v Prime Minister of Israel et al, HCJ 7957/04 (15 September 2005) paras 24–8: in this last case, although President Barak declined to rule expressly on the formal applicability of the International Covenant on Civil and Political Rights in the occupied territories, he stated, ‘[w]hen this question arose in the past in the Supreme Court, it was left open, and the Court was willing, without deciding the matter, to rely upon the international conventions … We shall adopt a similar approach’.

174  See e.g. The Goldstone Report, 373–81, paras 1339–66.

175  Office for the Co-ordination of Humanitarian Affairs, ‘Humanitarian situation in the Gaza Strip July 2011’ (1 July 2011), available at: <http://unispal.un.org/UNISPAL.NSF/0/D6BCF7AEEEBFBBBE852578C600622956>.

176  MFA, Gaza designated as Hostile Territory.

177  Israeli Security Cabinet, ‘Decision on easing the blockade against the Gaza Strip’ (20 June 2010), reproduced in (2010) 40 Journal of Palestine Studies 196: for an assessment of the situation after this measure was adopted, see Office for the Co-ordination of Humanitarian Affairs, ‘Easing the blockade: assessing the humanitarian impact on the population of the Gaza Strip’ (March 2011), available at: <www.ochaopt.org/documents/ocha_opt_special_easing_the_blockade_2011_03_english.pdf>.

178  Al Bassiouni case, para 12.

179  See ICRC Customary Law Study, rule 55, 193–200; see also, Guilfoyle, The Mavi Marmara incident, 197–202; The Palmer Committee Report, 42–4, paras 77–80, and app. I, ‘The applicable international legal principles’ 87–9, paras 33–6; and Sanger, Contemporary Law of Blockade, 414–20 and 435–8.

180  ICRC, ‘Gaza closure: not another year!’ News release 10/103 (14 June 2010). The Hudson-Phillips Report also concluded that the blockade amounted to collective punishment, see 12, para 54, as did the Final Report of the Turkish National Commission of Inquiry, see 78–81. Guilfoyle, The Mavi Marmara incident, 203–4 takes a more nuanced approach. See also, the Palmer Committee Report, app. I, 89–90, paras 37–39.

181  See L. Doswald-Beck (ed.), San Remo manual on international law applicable to armed conflicts at sea (1995) 179, rule 102.

182  See the Turkel Commission Report, 64–102, paras 61–97; and the Hudson-Phillips Report, 12, para 53: its assessment of the humanitarian situation in Gaza is at 9–11, paras 37–44. The Palmer Committee Report found that the blockade was lawful, see 44, para 89, while academic commentary favours the view that it was unlawful, see e.g. Guilfoyle, The Mavi Marmara incident, 203–4 and Sanger, Contemporary Law of Blockade, 443–4.

183  As the Palmer Report stated: ‘The specific circumstances of Gaza are unique and are not replicated anywhere in the world.’ (41, para 73).

184  Government of Israel, ‘The operation in Gaza: factual and legal aspects’ (July 2009) 11, para 30.

185  The Palmer Committee Report, 41, para 73.

186  ICRC Customary Law Study, rule 55.