Legal Blog Excerpts

Legal Blog Excerpts from Times of Israel Nov 21, 2023 by Ted Lapkin – former IDF officer and ministerial advisor to Australia’s conservative Abbott government:

The baseline treaty governing how armed conflicts are to be fought is the 1907 Hague Regulations Concerning the Laws and Customs of War on Land. Article 42 of the Regulations states: “Territory 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.”

Israel withdrew from Gaza in 2005, uprooting all its military bases and evicting 8,600 Jewish civilians from 17 farming and residential communities. Thus, per the terms of the Hague Regulations, Gaza cannot be “occupied”.

Article 19 of the 4th Geneva Convention states: “The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.”

Section 5.14.2 of the US Department of Defense Law of War Manual explains: “The evacuation of civilians from areas likely to be attacked is advisable when there is immediate danger and where it would be likely to involve less hardship and danger to civilians than leaving them in place.” Yet, Israel is going above and beyond to lessen those hardships by facilitating the delivery of medicines, food, water and shelter to a designated safe zone near Gaza’s border with Egypt.

The procès-verbal (drafting notes) of the 4th Geneva Convention also give lie to the claim that Israel is violating the Article 33 prohibition against collective punishment. Those notes make it clear that the intent of the Convention’s drafters was to prohibit crimes of collective reprisal such as the WWII massacres committed by the SS at Lidice and Oradour-sur-Glane. Article 33 has nothing to do with legitimate military operations against valid targets of war.