Debate Map: Israel-Gaza Wars 2008-2014
Last Updated: 13 November 2014
The following index maps scholarly commentary on the international law aspects of the armed conflict(s) between Israel and Gaza since Israel withdrew from the territory. Sources in the map include commentary published in English language law blogs and newspapers, and free content from OUP's online services other free repositories.
The editors of this map are grateful to those who have sent us comments and suggestions. Further comments from readers pointing out important issues and perspectives that have not been included can be sent to john.louth@oup.com.
I. Classification of the Conflict
II. Does Israel Still Occupy Gaza?
III. The Conduct of Hostilities
IV. The Blockade
I. Classification of the Conflict
A) Overviews
(i) 29 December 2008 Dapo Akande at EJIL: Talk! (explains that the classification of the conflict must be determined in order to understand what laws apply)
(ii) 2 August 2012 Iain Scobbie on Gaza from International Law and the Classification of Conflicts edited by Elizabeth Wilmshurst (concludes that Israel is still occupying Gaza and therefore this is an international armed conflict see also Yuval Shany’s article linked to in the section on Occupation, below)
(iii) Stuart Casey-Maslen in The War Report 2012 Chapter on Gaza (an overview of military operation in November 2012 stating that Israel and Gaza were engaged in a non-international armed conflict)
(iv) 22 August 2014 Dapo Akande at EJIL Talk! (considers whether the law of self-defence applies to the conflict and relevance of the question of Palestinian statehood)
B) The Significance of Whether Gaza is Still Occupied
(i) 2 June 2010 Kevin Heller at Opinio Juris (on whether there can be a blockade in a non-international armed conflict, and considering the precedent of the US Civil War; the post also has 187 comments!)
(ii) 3 March 2011 James Kraska in the Yearbook of International Humanitarian Law (on how the classification of the conflict determines the legality of Israel's blockade)
(iii) 2 September 2011 Marko Milanovic at EJIL: Talk! (explains how the Palmer Report, by finding the blockade of Gaza lawful and recognizing a state of belligerency, designates the conflict as an international armed conflict)
II. Does Israel Still Occupy Gaza?
(i) 9 August 2006 Yuval Shany in the Yearbook of International Humanitarian Law Volume 8 (written in the aftermath of Israel’s withdrawal of troops in September 2005, this 20 page article looks at the law on when occupation ceases; it concludes that Israel no longer occupies Gaza)
(ii) 27 January 2008 HCJ 9132/07Jaber Al-Bassiouni Ahmed and others (the Israeli court held that since Disengagement, Israel no longer exercises effective control over the Gaza Strip, and, accordingly, the law of occupation no longer applies to Israel's actions vis a vis Gaza)
(iii) 2009 Avinoam Sharon in Global Law Forum no. 3 (concludes that the "laws of occupation" do not apply to the Gaza Strip)
(iv) 1 March 2009 Marko Milanovic at EJIL: Talk! (examines most common arguments for and against claiming Israel still occupies Gaza, concluding that the strongest argument in favour of this position is that it has the “potential” to control Gaza at any time)
(v) 2010 Elizabeth Samson in American University International Law Review no. 915 (the 53 page article explores the definition of “occupied territory” under international law and contends that the term “occupied territory” no longer applies to Gaza after Israel’s disengagement)
(vi) Winter 2011 Solon Solomon in Cardozo Journal of International and Comparative Law Vol. 19 No.1 (Lexis Nexus subscription required) (argues that the current status of the Gaza Strip is a sui generis one, where positive law, applied in globo, cannot provide an adequate approach)
(vii) 23 February 2012 Eyal Benvenisti’s chapter on Israel’s Occupation of the West Bank and Gaza from The International Law of Occupation 2nd Edition
(viii) 23-27 April 2012 Symposium at Opinio Juris on the functional approach to the law of occupation (series of posts and responses looking at developing the law on occupation so as to account for the situation in Gaza)
(ix) 6 November 2014, International Criminal Court’s Office of the Prosecutor’s Report on Situation on Registered Vessels of Comoros, Greece, and Cambodia (report on whether to refer the “flotilla incident” to the ICC, considers that Israel was occupying Gaza at the time of the incident, see p5 para 16 and page 15 paras 25-29)
III. The Conduct of Hostilities
(i) 3 August 2014 Human Rights Watch posted a Q&A (covering all aspects of the law governing hostilities between Israel’s Defence Force and Gaza, this considers legal principles but not facts)
A) Operation Cast Lead 27 December 2008 to 18 January 2009
(i) 19 January 2009 HCJ 201/09 Physicians for Human Rights and others v. Prime Minister of Israel and others (the Israeli court held that the IDF upheld its obligations international humanitarian law during the operation)
(ii) July 2009 The Operation in Gaza-Factual and Legal Aspects (159 page document published by the Government of the State of Israel examining the applicable law and conduct of hostilities during Operation Cast Lead)
(iii) 25 September 2009 The Goldstone Report (452 page document examining the applicable law and conduct of hostilities during Operation Cast Lead)
(iv) January 2010 Gaza Operation Investigations: An Update (document published by the Government of the State of Israel describing Israel’s process for investigating alleged violations of the law of armed conflict during Operation Cast Lead )
(v) July 2010 Gaza Operation Investigations: Second Update (document published by the Government of the State of Israel overviewing the progress of investigations carried out by Israel into allegations of misconduct and violations of the Law of Armed Conflict during Operation Cast Lead)
(vi) 28 August 2010 Laurie Blank in the Yearbook of International Humanitarian Law Volume 12 (56 page critique of the Goldstone Report’s analysis and interpretation of the applicable law)
(vii) 17 April 2011 Kevin Heller at Opinio Juris (reporting on how the IDF changed its practices in the wake of the Goldstone Report)
B) Operation Protective Shield
(i) 11 July 2014 Laurie Blank at the Hill (criticizing what she sees as the misrepresentation of the laws of armed conflict in the media throughout the operation)
(ii) 24 July 2014 Alen Baker in the JCPA no. 602 (analyses key legal aspects of Operation Protective Edge)
(iii) 24 July 2014 UN HRC resolution (establishing a commission of enquiry into violations of international humanitarian law and human rights law during the military operations that started on 13 June 2014)
(iv) 28 July 2014 Catherine Harwood at Spreading the Jam (examines the mandate for the commission of enquiry announced by the UNHRC)
(v) 30 July 2014 Arne Willy Dahl in Aftenposten (covering important aspects of the law governing hostilities between Israel’s Defence Force and Hamas)
(vi) 12 August 2014 Daphné Richemond-Barak at The Times of Israel (arguing that Hamas' attack tunnels constitute a war crime)
C) Proportionality
(i) 3 January 2009 Marko Milanovic at EJIL: Talk! (explaining the differing requirements of proportionality applied by international humanitarian law and human rights law)
(ii) 29 July 2014 Laurie Blank at The Hill (explains that proportionality in humanitarian law is not simply a question of weighing up the number of casualties or the amount of available military power on each side)
(iii) Eyal Benvenisti at Global Trust (setting out the requirements for a means-ends approach to proportionality and how it would apply to the July 2014 war between Israel and Gaza)
D) Water and Electricity
(i) 27 January 2008 HCJ 9132/07 Jaber Al-Bassiouni Ahmed and others (the Israeli court held that the amounts of industrial diesel fuel and electricity Israel supply's to Gaza are sufficient in order to meet the humanitarian needs of the Gaza Strip at the time)
(ii) July 2014 Avi Bell’s Report to the Israeli Knesset on the legality of shutting off water and electricity supplies to Gaza
(iii) 20 July 2014 a counter-memo to Avi Bell’s from 12 Israeli Scholars
(iv) 26 July 2014 Kevin Heller at Opinio Juris (on Avi Bell’s report, linking also to other scholars’ further submissions to the Knesset)
(v) 1 August 2014 Eugene Kontorovich at Volokh Conspiracy (arguing that if power stations themselves are legitimate targets it makes no sense to impose an obligation to provide electricity)
E) Identification and Treatment of Civilians
(i) 29 December 2008 Dapo Akande at EJIL: Talk! (looking at Operation Cast Lead when the targeting of Hama policemen was controversial)
(ii) 9 January 2009 Dapo Akande at EJIL: Talk! (looking at how to deal with the possibility that Hamas officers could be “part-time” fighters for the armed wing of Hamas)
(iii) 17 July 2014 The Lawfare Project (a comprehensive list of violations of the laws of armed conflict by Hamas throughout operation 'Protective Edge')
(iv) IDF MAG Corps (IDF’s Military Advocate General Corps explaining the legal reasoning and process behind the IDF's approval of Aerial Strikes)
(v) 30 July 2014 Janina Dill at Opinio Juris (whether warning civilians about an impending attack either lowers the level of care subsequently required of the attack or actually constitutes a breach of humanitarian law in itself)
(vi) 1 August 2014 Tali Kolesov Har-Oz and Ori Pomson at Opinio Juris (looking at the international criminal law aspects of using human shields)
(vii) 8 August 2014 Ryan Goodman at Just Security (providing a comprehensive list of resources that set out the Israeli Government’s position on who is a combatant)
IV. The Blockade
A) Overviews
(i) 2 June 2010 Dapo Akande at EJIL: Talk! (overview of legal issues relating to blockades, with links to other contemporary blog articles and links to Israeli governmental resources explaining their approach)
(ii) 18 July 2010 Ruth Lapidoth in Jerusalem Issue Briefs Vol.10 No. 4 (analysis of the legal basis of the Israeli naval blockade of Gaza)
(iii) 12 May 2011 Douglas Guilfoyle in the British Year Book of International Law (53 page article on the blockade of Gaza examining the lawful requirements of blockade from the perspective of proportionality and other belligerent rights, and the law on the use of force during maritime interdiction operations)
B) Mavi Marmara “Flotilla Report” 2010
(i) 27 September 2010 UN HRC “Flotilla Report” (concluding that the interception of the Mavi Marmara was “clearly unlawful” and finding the use of force excessive)
(ii) 12 October 2010 Yuval Shany at EJIL: Talk! (critiquing the “Flotilla Report” for failing adequately to ground its findings in an analysis of the effects of occupation/non-occupation and how that would affect the applicable law, and in its analysis of proportionality for failing to consider the military necessity side of the equation)
(iii) 8 December 2010 Barry A. Feinstein at Jurist (critiquing the United Nations Human Rights Council's report for concluding that the Israeli navy's actions did not comply with international law)
C) Turkel Commission 2011
(i) 23 January 2011 Turkel Commission Report Part I (fact-finding investigation into Mavi Marmara incident and concluding that the interception of the ship and the use of force were conducted lawfully; Part II of the report deals with the Israeli Government’s policies and methods of investigating its use of force)
(ii) 28 January 2011 Amichai Cohen and Yuval Shany at EJIL: Talk! (critiquing the Turkel Commission’s report for downplaying the significance of the “economic warfare” aspects of the blockade and how these can amount to collective punishment)
D) Palmer Report 2011
(i) July 2011 The Palmer Report (appointed by the UN Secretary General, found that the blockade was legal as the armed conflict was international)
(ii) 6 September 2011 Douglas Guilfoyle at EJIL: Talk! (critique of the Palmer Report’s classification of the conflict, whether blockade is available in non-international armed conflicts, and whether the force used was excessive)
(iii) 13 September 2011 UN HRC Report (by Special Rapporteur Richard Falk, considering all issues relating to Palestine, but including a section on the blockade finding it contravenes human rights law and amounts to collective punishment)
(iv) 20 September 2011 Tamara Feldman at EJIL: Talk! (arguing that the focus on the maritime blockade removes it from the broader context of the closure of land access to Gaza resulting in a flawed analysis of Israel’s obligations to facilitate normal life in the Gaza Strip)
Disclaimer: Please note that inclusion in or exclusion from this index does not indicate approval or disapproval of views or reflect a judgement on the quality of argument.
Any comments on the content or organization of this map are welcome. Either send an email to john.louth@oup.com or use the Contact Us service at the top of the screen.
