Memo gives Israel legal backing to prevent Gazans from returning home during war

The three analyzed the state of war from a legal perspective and wrote, among other things, that no such duty exists under international law because there are ongoing hostilities and that allowing residents to return northwards would thwart a key military objective in war – finding and returning captives.

By Ariel Kahana, ISRAEL HAYOM  4 January 2024

Gazans move to the south during Operation Swords of Iron/Dana Ben-Shimon

A memo submitted Wednesday to Israel’s political leadership claims that Israel has no legal obligation to allow displaced Gaza residents to return to their homes in the northern Gaza Strip for the coming months. The opinion was written in recent days in light of claims made within the security establishment that under international law, Israel had to allow residents to return to their homes.

The memo is signed by Dr. Raphael (Rafi) Bitton from Sapir College, Prof. Eugene Kontorovich from George Mason University, and Prof. Avi Bell from the law schools of Bar Ilan University and the University of San Diego.

The three analyzed the state of war from a legal perspective and wrote, among other things, that the determination that there is an obligation to allow residents to return northwards would thwart a key military objective in war – finding and returning captives. They further explained that according to reports, the Israeli captives were transferred to the southern Gaza Strip under the cover of humanitarian corridors created by Israel, while being forced to disguise themselves as locals. Requiring the military to allow reverse movement (northward) is akin to requiring the military to lose its grip having its focus on the captives, they suggest.

The three jurists emphasized that returning the population to the north bears no relevance so long as the fighting continues. They detailed the state of war in the northern Gaza Strip and noted that one indication that there were still ongoing hostilities that prevent such a return is the fact that Israelis from border communities have not been allowed back home either.

However, they stressed that “even if fighting in the northern Gaza Strip stops, preventing enemy force movement is a lawful method of warfare.” The three jurists concluded the memo by adding that “the IDF has no legal obligation to enable the return of the population to the northern Gaza Strip, and such a duty is unlikely to emerge in the coming months. The IDF has a vital military need justifying non-return of the population as long as fighting continues and as long as the goal of freeing the captives remains.”