Israel Detention of Unlawful Combatants Case Study solution

Israel Detention of Unlawful Combatants Case Study

Order ID	53563633773
Type	Essay
Writer Level	Masters
Style	APA
Sources/References	4
Perfect Number of Pages to Order	5-10 Pages

Description/Paper Instructions

Table of Contents

 

Qualifications of the conflict and of the persons under discussion
1. (Part A, para. 9) Do you agree with the Court that there is an international armed conflict between the State of Israel and “terrorist organizations”? How are international armed conflicts defined? What is the law applicable to the situation? According to the Court? According to you? (GC I-IV, Art. 2)
2. (Part A, para. 11) Do you agree with the Court that the occupation of Gaza ended in September 2005 when Israeli troops withdrew? Could Israel still be regarded as an occupying power even though its troops are no longer present on the territory? Which duties does Israel still recognize itself as having towards the inhabitants of the Gaza Strip? What legal basis do they arise from? (GC IV, Art. 6(1); P I, 3(b))
3. (Part A, paras 11 and 12) Does the definition of unlawful combatant as given in Section 3 of the Unlawful Combatants Law have any basis under IHL (para. 12)? Is the interpretation of the concept of unlawful combatants given here by the Court the same as the one it gave in the Targeted Killings case? Why does the Court say that the two definitions are necessarily different? Do you agree? [See Israel, The Targeted Killings Case, para. 31]
4. (Part A, para. 14) Do you agree with the Court that there is no intermediate status between the categories of combatants and civilians? What is the status of the Palestinians detained by Israel? According to the Court? According to you? Are they protected persons? Why? What protection are they afforded? (GC IV, Art. 4)
B. Legal basis for detention
5.
a. (Part A) What was the legal basis, under IHL, for the appellants’ detention before September 2005? According to the Court? (GC IV, Arts 27, 78)
b. (Part A) What was the legal basis, under IHL, for the appellants’ detention after September 2005? According to the Court? Do Arts 41 and 42 apply here even though the appellants were first arrested outside Israel’s own territory? (GC IV, Arts 27, 41-42)
c. (Part A, para. 17) Do you agree with the appellants that their detention is unlawful under IHL because none of the provisions contained in GC IV apply? What was the status of the Gaza Strip during the Disengagement Plan? What are the consequences of your answer for the legality of the appellants’ detention?
d. (Part A, para. 17) According to the Court, in GC IV “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”. Does this mean that protected persons may be arrested in the territory of a party to a conflict by the enemy forces, without it being occupied by the latter? Would this be in accordance with GC IV’s definition of occupation? Is there a basis in IHL for the detention of civilians arrested neither in an occupied territory nor in the Detaining Power’s own territory?
6. (Part A) Was Israel allowed to transfer the detainees to its own territory at the end of occupation? May civilian internees arrested in occupied territories be transferred to the Detaining Power’s own territory? Does Art. 49 of GC IV prohibiting “[i]ndividual (…) forcible transfers, as well as deportations of protected persons”, apply to civilian internees? In a situation where internees are transferred to the territory of the Detaining Power, which set of rules should apply to them after their transfer?
7.
a. (Part A, para. 52) Should the detainees have been released at the end of occupation, in September 2005? Do you agree with the Court that the obligation to release them at the end of occupation is not an obligation under IHL? (GC IV, Arts 49 and 132-134)
b. (Part A, paras 46 and 52) How should the requirement of release “as soon as possible after the close of hostilities” be interpreted (GC IV, Art. 133)? What does the close of hostilities mean in a situation such as the present one, where sporadic fighting carries on for years?
8.
a. (Part A, paras 20-23) How does the Court interpret the “individual threat” requirement? Does IHL require an individual assessment of the threat posed by a person before deciding upon that person’s detention? (GC IV, Arts 27(4), 41-43 and 78) According to the Court, when may a person be detained as an “unlawful combatant”? What elements are required to authorize detention? Does the Court say whether the same elements are required for the continuation of detention? Should they be required?
b. (Part A, paras 15 and 24) Is the presumption of constituting a security threat provided for in Section 7 of the Unlawful Combatants Law in accordance with IHL? May a person be interned for the mere fact that he or she belongs to a hostile armed group, independently of that person’s individual conduct? Is this in compliance with the requirement for an individual assessment? (GC IV, Arts 42 and 78)
c. (Part A, para. 23) When can a person be considered to belong to a hostile, illegal organization? How can such a connection be proved?
9. (Part A, para. 40) Are the provisions of the said Law relating to the judicial review of detention in accordance with IHL? What are the requirements set by IHL with regard to the judicial review of detention? Must the review be judicial or may it also be administrative? What is the utility of a judicial review if the detainees concerned have no access to the evidence against them? Must they have access to such evidence under GC IV? (GC IV, Arts 43 and 78)
C. Participation in hostilities
[See also Israel, The Targeted Killings Case]
10. (Part A, para. 13) Do you agree with the Court that IHL “does not grant ‘unlawful combatants’ the same degree of protection to which innocent civilians are entitled”? Does this assertion have a legal basis in IHL? What restrictions may apply to them? Does it make a difference whether they are themselves in an occupied territory or in the territory of the party in whose hands they are? What restrictions, if any, may be applied to the detainees in the present case? May the same restrictions be applied to them before and after September 2005? Were they deprived of any protection under GC IV? (GC IV, Art. 5)
11.
a. (Part A, para. 21) When does someone become an “unlawful combatant”? What does the requirement of having made a significant contribution to the hostilities mean? Are the nature and degree of the contribution similar to the definition of participation in hostilities given by the HCJ in the Targeted Killings case? [See Israel, The Targeted Killings Case, para. 33]
b. (Part B) Could weapon smuggling be considered to constitute a direct participation in hostilities? A security threat justifying internment under GC IV? According to the Court? According to you? If the appellant had been a member of an organization conducting hostilities against Israel, could he have been considered an “unlawful combatant” for the purpose of the Unlawful Combatants Law? Even if he were only smuggling weapons?
c. (Part B, para. 13) Why should the appellant be detained under the Administrative Detention Law rather than under the Unlawful Combatants Law? What is the difference between the two forms of detention? As far as the legal basis in IHL is concerned? Under Israeli law? Does the requirement that less harmful measures must be used when available have any basis under IHL?

 

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