Paradigm Perplexities: Does International Humanitarian Law or International Human Rights Law Govern the Gaza Border Protests of 2018-2019, & What are the Consequences? A Response to the Supreme Court’s Opinion in Yesh Din v. IDF Chief of Staff (HCJ 3003/18)

Authors

Anthony CarlFollow

Publication Date

2020

Graduation Year

2020

Abstract

In March 2018, thousands of Gazan citizens mobilized for a mass protest movement at the border with the State of Israel that endured for more than a year and a half, ending in late 2019. By February 2019, the IDF’s response to these protestors resulted in 189 deaths and 23,313 injuries to Gazan Palestinian protestors. Upon hearing challenges to the IDF’s rules of engagement brought by a number of human rights groups, the Israeli Supreme Court ruled in HCJ 3003/18 Yesh Din v. IDF Chief of Staff that the IDF’s response was proper under the law enforcement paradigm of international humanitarian law (also known as “IHL” or the law of armed conflict). This note argues that the Court’s holding was in error due to the fact that the law enforcement paradigm lies under the auspices of international human rights law (“IHRL”), not IHL, and that the consequences of this error are widespread and dangerous. In coming to this conclusion, this Note first gives a brief exposition of the Court’s opinion in the Yesh Din case and then delves into many of the underlying legal complexities of the Israeli-Gazan relationship. Second, this Note presents the general position that the State of Israel has taken in regard to the purported lack of IHRL obligations toward the Palestinian population in Gaza and addresses this position’s shortcomings. The piece then considers the accepted law and persuasive scholarship regarding the IHL conduct of hostilities paradigm and the IHRL law enforcement paradigm. Finally, this Note analyzes the problems of implementing the law enforcement paradigm through IHL by utilizing the facts of the clashes at the Gaza-Israel border gathered by the U.N. Human Rights Council’s Investigatory Committee report.

Volume

3

Publisher

Cardozo International Comparative, Policy, & Ethics Law Review

Disciplines

Human Rights Law | International Humanitarian Law | International Law

Recommended Citation

Anthony Carl, Paradigm Perplexities: Does International Humanitarian Law or International Human Rights Law Govern the Gaza Border Protests of 2018-2019, & What are the Consequences? A Response to the Supreme Court’s Opinion in Yesh Din v. IDF Chief of Staff (HCJ 3003/18), 3 (2020).
https://larc.cardozo.yu.edu/students-alums-articles/5