No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 19 July 2021
This article examines the 2019 decision by the Supreme Court of Israel (the Court) in the Namnam case, upholding a ban on family visits to Gaza prisoners incarcerated in Israel and affiliated with Hamas.1 This ban was adopted as part of Israel's attempt to pressure Hamas into an exchange of Palestinian detainees and prisoners against missing Israeli civilians and the bodies of Israeli soldiers, apparently being held by Hamas in Gaza. The Court examined the measure primarily in light of Israeli administrative law, and held that it had no grounds to intervene. It held that an analysis under international law would have yielded the same result.
This article examines the decision of the Court in light of the applicable international law. It considers the Court's decision in terms of the permissible restrictions on the right to family life and draws on the Court's reasoning for an in-depth analysis of various unarticulated aspects of the prohibition on collective punishment. The article concludes that an international human rights law analysis might have led to a different outcome, and that had the Court applied the prohibition on collective punishment properly, it would have had to declare the measure unlawful. The article then places the decision in the broader context of the Court's engagement with international law in disputes relating to Palestinians residing in the West Bank and Gaza.
An early version of this article was presented at the “Indirect Victims of Conflict: IHL Protections of the Rights and Interests of Relatives” conference held by the Minerva Center for Human Rights at the Hebrew University in Jerusalem on 9–11 November 2021. The author is grateful to the anonymous reviewers for their insightful and helpful comments. The usual caveats apply.
Supreme Court of Israel, Namnam v. Government of Israel, Case No. HCJ 6314/17, 4 June 2019.
2 Jack Khoury and Gili Cohen, “Israeli Who Jumped Border into Gaza Suffers from Mental Issues, Family Says”, Haaretz, 13 July 2018, available at: https://tinyurl.com/57evfe5v (all internet references were accessed in June 2021).
3 Hamas has generally refrained from confirming the situation with regard to the dead and missing. In April 2020, Hamas leader Ismail Haniye stated: “We have four prisoners and we are ready for indirect talks.” Daniel Siyoti, “Hamas Leader ‘Optimistic’ about Striking Prisoner Exchange Deal with Israel”, Israel Hayom, 19 April 2020, available at: www.israelhayom.com/2020/04/19/hamas-leader-optimistic-about-striking-prisoner-exchange-deal-with-israel/. Hamas has not provided details as to the identity of the individuals in its hands.
4 Government Decision B/171 on “Uniform Policy in Treating Bodies of Terrorists”, 1 January 2017, reported in Supreme Court of Israel, IDF Commander v. ‘Alayan, Case No. FHHCJ 10190/17, Opinion of Chief Justice Hayut, 9 September 2019, para. 1.
5 Government Decision B/172, reported in Supreme Court of Israel, Namnam, above note 1, para. 2.
6 The term “security offences” refers to offences under the Antiterrorism Law, offences under the Penal Code relating to treason, espionage, sedition and illegal association, offences under the 1945 Defence (Emergency) Regulations, and offences under the Penal Code committed on nationalist motives. Prison Service Commission Order 04.05.00, 1 May 2001.
7 Supreme Court of Israel, Salah v. Prison Service, Case No. FHHCJ 204/13, 14 April 2015.
8 Supreme Court of Israel, Namnam v. Government of Israel, Case No. HCJ 6314/17, Petition for Order Nisi (on file with author, undated).
9 Supreme Court of Israel, Namnam, above note 1, para. 6. The notion of “inherent limitations” is discussed below. One may ask whether the listing of all three limitations together is justified. The limitations on personal liberty and freedom of movement are not only inherent to imprisonment but are the very essence of it. Limitation on the scope of interaction with the outside world is not an intentional part of imprisonment, and therefore the analogy from the obviously inherent character of the former limitations to it is misleading.
10 Supreme Court of Israel, Younes v. Prison Service, Case No. ReqAp 6956/09, 7 October 2010, Concurring Opinion of Justice Procaccia, para. 7. Justice Procaccia herself expressed reservation as to the compatibility of the arrangement under Israeli law with constitutional law (para. 8). The Court in Namnam disregarded the lead opinion by Justice Danciger, which considered visits an element in exercising the right to family life: Supreme Court of Israel, Younes, Opinion of Justice Danciger, para. 43.
11 Supreme Court of Israel, Namnam, above note 1, para. 7.
12 Ibid., paras 11, 12.
13 Ibid., para. 12.
14 Ibid., para. 12.
15 Ibid., para. 15. The detailed argumentation on this issue is considered below.
16 This does not mean that the Court should have applied IHRL, but that its decision should have been in accordance with IHRL.
17 Starting with Supreme Court of Israel, Al-Bassiouni Ahmed v. Prime Minister and Minister of Defence, Case No. HCJ 9132/07, 30 January 2008, para. 12.
18 For a brief summary of the spectrum of views and related literature, see David Kretzmer and Yaël Ronen, The Occupation of Justice, 2nd ed., Oxford University Press, Oxford, 2021, pp. 164–168.
19 Supreme Court of Israel, Public Committee against Torture in Israel v. Government of Israel, Case No. HCJ 769/02, 14 December 2006 (Targeted Killings), para. 18. In subsequent cases the Court noted that the law of armed conflict applied without specifying which class of armed conflict. Supreme Court of Israel, Al-Bassiouni Ahmed v. Prime Minister and Minister of Defence, Case No. HCJ 9132/07, 30 January 2008, para. 12; Supreme Court of Israel, Yesh Din v. IDF Chief of Staff, Case No. HCJ 3003/18, 24 May 2018, Opinion of Justice Melcer, para. 51, and Concurring Opinion of Chief Justice Hayut, para. 2.
20 It is possible that the Court's position in the Targeted Killings case, above note 19, that the conflict was international was limited to issues relating to the conduct of hostilities (which was the issue before the Court). However, it is difficult to maintain that the conflict should be classified as international for the purpose of allowing targeted killings under the law of hostilities (which would be impermissible in a non-conflict situation) but should not be classified as international for the purpose of protecting individuals in the hands of the State party to the conflict. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 75, expands the protection from collective punishment, which this article addresses, from “protected persons” to all persons in the power of a party to a conflict. However, AP I is applicable only in international armed conflicts, and moreover, Israel is not party to it (although it is bound by its customary provisions). Supreme Court of Israel, Targeted Killing, above note 19, para. 19; State of Israel, The 2014 Gaza Conflict, 7 July–26 August: Factual and Legal Aspects, May 2015 (2014 Gaza Conflict Report), para. 234, available at: https://mfa.gov.il/ProtectiveEdge/Documents/2014GazaConflictFullReport.pdf.
21 2014 Gaza Conflict Report, above note 20, para. 233.
22 Ibid. It notes specifically the rules on distinction, precautions and proportionality in hostilities, with which this article is not concerned.
23 The petitioners also invoked their relatives’ right to family life but did not substantiate it. The Court did not address the matter. In 2008, a 2007 ban on family visits to Gaza prisoners held in Israel was challenged by family members residing in Gaza. The Court rejected the petition on the grounds that it would not intervene in the authorities’ policy regarding entry from Gaza into Israel. In that case the Court did not directly address the rights of the prisoners. Supreme Court of Israel, ‘Anbar v. Commander of the Southern Command, Case No. HCJ 5268/08, 9 December 2009. In 2012 the ban was lifted.
24 Previously considered by the Court in Sajdiya v. Minister of Defence, Case No. HCJ 253/88, 8 November 1988; and Yesh Din v. IDF Commander in the West Bank, Case No. HCJ 2690/09, 28 March 2010. Note, however, that the denial of visits would have been technically possible even if the prisoners were incarcerated in occupied territory, as the Court implies in Namnam, above note 1, para. 15.
25 For other cases raising this matter, see Supreme Court of Israel, State of Israel v. Quntar, Case No. ADA 1076/95, 13 November 1996; Supreme Court of Israel, Salah, above note 7.
26 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Art. 116. This provision applies to internees both in the Detaining Power's territory and in occupied territory.
27 Hague Convention (IV) respecting the Laws and Customs of War on Land and Its Annex: Regulations concerning the Laws and Customs of War on Land, 205 CTS 277, 18 October 1907 (entered into force 26 January 1910) (Hague Regulations), Art. 46: “Family … rights … must be respected.” GC IV, Art. 27: “Protected persons are entitled, in all circumstances, to respect for their … family rights.”
28 Standard Minimum Rules for the Treatment of Prisoners, adopted in ECOSOC Res. 663C(XXIV), 31 July 1957, and ECOSOC Res. 2076(LXII), 13 May 1977, Rule 37. Also see Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by UNGA Res. 43/173, 9 December 1988, Principle 19: “A detained or imprisoned person shall have the right to be visited by … members of his family … subject to reasonable conditions and restrictions as specified by law or lawful regulations.”
29 Human Rights Committee, Miguel Angel Estrella v. Uruguay, Communication No. 74/1980, UN Doc. CCPR/C/OP/2 93, 1990, para. 9.2. For the African Charter on Human and People's Rights, Art. 18, see African Commission on Human and Peoples’ Rights, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Communication Nos 143/95, 150/96, 15 November 1999, para. 29.
30 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, 4 November 1950 (entered into force 3 September 1953) (ECHR), Art. 8, considered in, e.g., ECtHR, Messina v. Italy (No 2), Appl. No. 25498/94, Judgment, 28 September 2000, para. 61; ECtHR, Klamecki v. Poland (No 2), Appl. No. 31583/96, Judgment, 3 April 2003, para. 144; ECtHR, Chaldayev v. Russia, Appl. No. 33172/16, 28 May 2019, para. 59.
31 ECtHR, Golder v. United Kingdom, Judgment, 21 February 1975, para. 44; ECtHR, Messina, above note 30, para. 61.
32 ECtHR, Golder, above note 31, para. 38.
33 Ibid., para. 38.
34 ECtHR, Klamecki, above note 30, para. 144.
35 ECtHR, Messina, above note 30, para. 61; ECtHR, Klamecki, above note 30, para. 144. Also see ECtHR, Vintman v. Ukraine, Appl. No. 28403/05, Judgment, 23 January 2015, para. 78; ECtHR, Khoroshenko v. Russia, Appl. No. 41418/04 [GC], Judgment, 30 June 2015, para. 134.
36 Human Rights Committee, General Comment No. 21, “Humane Treatment of Persons Deprived of Their Liberty (Article 10)”, 1992, para. 3.
37 Arai, Yutaka, “The System of Restrictions”, in Dijk, Pieter Van et al. (eds), Theory and Practice of the European Convention on Human Rights, 4th ed., Intersentia, Cambridge, 2006, p. 346Google Scholar.
38 International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966 (entered into force 23 March 1976), Art. 17; Human Rights Committee, General Comment No. 16, “Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies”, UN Doc. HRI/GEN/1/Rev.1, 1994, p. 21, para. 4; Human Rights Committee, General Comment No. 35, “Article 9 (Liberty and Security of Person)”, UN Doc. CCPR/C/GC/35, part VII, para. 3. Article 8 of the ECHR contains an exhaustive list of specific grounds that may allow restrictions on the right; since Israel is not party to the ECHR, these will not be discussed in detail. American Convention on Human Rights, 1144 UNTS 123, 22 November 1969 (entered into force 18 July 1978), Art. 11(2); Convention on the Rights of the Child, 1577 UNTS 3, 20 November 1989 (entered into force 2 September 1990), Art. 16.
39 For a critique of this view as inconsistent with existing Israeli constitutional law, see Yaël Ronen, Session 10, 15th Annual Conference on International Humanitarian Law, “Indirect Victims of Conflict: IHL Protections of the Rights and Interests of Relatives”, 9–11 November 2020, available at: https://en.minervacenter.huji.ac.il/2020-previous-events/.
40 Prison Service Ordinance (New Version), 1971, Art. 47(b).
41 Prison Service Commission Order 03.02.00, 15 March 2002, on the rules regarding “security prisoners”, stipulates (section 17) that “in accordance with Article 116 of GC IV, in general, prisoners will be allowed to receive visits by immediate family only, in accordance with the rules stipulated in this section”. As noted earlier, Article 116 does not concern prisoners. Israel maintains that as a matter of policy it acts in accordance with this provision: see 2014 Gaza Conflict Report, above note 20, para. 371.
42 Supreme Court of Israel, Namnam, above note 1, para. 8.
43 Human Rights Committee, General Comment No. 16, “Article 17 (Right to Privacy)”, 1988, para. 8.
44 Universal Declaration of Human Rights, UNGA Res. 217A(III), UN Doc. A/810, 10 December 1948, Art. 30; ECHR, Art. 17.
45 The 2011 Shalit exchange took place five years after his capture. The bodies of three soldiers killed in 2000 in a capture operation on the Lebanon border were repatriated four years later. In 1996, Israel carried out an exchange deal for the return of the bodies of two soldiers captured in 1986 (and declared dead in 1991).
46 A related doctrine, adopted by the ECtHR, is that of absolute protection for the “core”, “essence” or “substance” of rights. Contact with the family is at the core of the right to family life, but the denial of visits does not destroy that core, so long as written communication continues. Given the specificities of the permissible restrictions on the right to family life under the ECHR, this matter will not be discussed in detail here. For a critique of the “essence of rights” doctrine, see Van Drooghenbroeck, Sébastien and Rizcallah, Cecilia, “The ECHR and the Essence of Fundamental Rights: Searching for Sugar in Hot Milk?”, German Law Journal, Vol. 20, No. 6, 2019CrossRefGoogle Scholar.
47 International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, ICJ Reports 1996, para. 25. For a view that restrictions would only be permitted due to practical difficulties or a concrete security risk created by or during the visits, see Margalit, Alon, “Accounting for Those in the Hands of the Belligerent: Security Detainees, the Missing and the Dead in the Israeli–Hamas Conflict”, Journal of Conflict and Security Law, Vol. 25, No. 3, 2020, p. 586CrossRefGoogle Scholar.
48 Supreme Court of Israel, Namnam, above note 1, para. 11.
49 Ibid., para. 8.
50 Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 4: Geneva Convention relative to the Protection of Civilian Persons in Time of War, International Committee of the Red Cross, 1958 (Commentary on GC IV), p. 206.
51 Supreme Court of Israel, A v. Minister of Defence, Case No. FHCr 7048/ 97, 12 April 2000 (Bargaining Chips).
52 Those who maintain that Gaza is occupied would point to GC IV Article 76, which provides that protected persons convicted of offences shall serve their sentences in the occupied territory.
53 See, for example, the view of the district court reported in Supreme Court of Israel, A v. Minister of Defence, Case No. ADA 10/94, 13 November 1997, para. 3. This issue is even less clear with regard to the repatriation of the bodies of soldiers.
54 Ibid., para. 10; Supreme Court of Israel, ‘Alayan, above note 4, Opinion of Chief Justice Hayut, para. 21.
55 Supreme Court of Israel, Bargaining Chips, above note 51, Dissenting Opinion of Justice Cheshin, para. 3, and Dissenting Opinion of Justice Kedmi, para. 1.
56 Ibid., Dissenting Opinion of Justice Cheshin, para. 10, and Dissenting Opinion of Justice Tirkel, para. 3.
57 See, for example, Justice Elron, stating: “In the same manner that protection of the state's residents and soldiers is a supreme security interest – so the state must act for their return after falling into the hands of the enemy.” Supreme Court of Israel, Namnam, above note 1, Concurring Opinion of Justice Elron, para. 2.
58 Kant's Formula of Humanity states: “So act that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means.” Cited in Samuel Kerstein, “Treating Persons as Means”, in Edward N. Zalta (ed.), Stanford Encyclopedia of Philosophy, Summer 2019, available at: https://plato.stanford.edu/archives/sum2019/entries/persons-means/.
59 Supreme Court of Israel, Namnam, above note 1, para. 10.
60 In the Bargaining Chips case, above note 51, the majority opinion noted that even if the legislation had contained explicit authorization for detaining a person for purposes external to him, the order in question would not have passed the proportionality test due to its severity in the circumstances.
61 See the main text at above note 12.
62 Supreme Court of Israel, Namnam, above note 1, paras 11–12.
63 On the inadequacy of IHRL to address collective punishment as a specific form of instrumentalization, see Cornelia Klocker, Collective Punishment and Human Rights Law: Addressing Gaps in International Law, Routledge, London and New York, 2020; Liron A. Libman, Will you Sweep Away the Righteous with the Wicked? Security Measures and Collective Punishment, Israel Democracy Institute Policy Paper 125, April 2019, pp. 23–24.
64 ICCPR, Art. 7.
65 Human Rights Committee, General Comment No 20, “Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment, 1992, para. 4.
66 A specific norm that is grounded in the rejection of instrumentalization but that does not apply in the present case is the prohibition on the taking of hostages, defined as “seiz[ing] or detain[ing] and threaten[ing] to kill, to injure or to continue to detain another person … in order to compel a third party … to do or abstain from doing any act”. International Convention Against the Taking of Hostages, 1316 UNTS 205, 17 December 1979 (entered into force 3 June 1983), Art. 1(1). Hostage-taking is prohibited at all times, including specifically in situations of armed conflict. GC IV, Art. 3: “To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to [persons taking no active part in the hostilities, including those placed hors de combat]: … (b) taking of hostages”; GC IV, Art. 34: “The taking of hostages is prohibited.” The definition of hostage-taking by reference exclusively to security of the person rather than to other characteristics and aspects of humanity reinforces the view that instrumentalization is not unlawful in itself.
67 Further support for the view that instrumentalization of individuals is not absolutely prohibited is the fact that GC IV Articles 33(1) and 33(3) only refer to protected persons, suggesting that similar measures towards non-protected persons may be lawful. The difference between GC IV Article 33(3) and AP I Article 20 highlights this further.
68 Also see Hague Regulations, Art. 50.
69 See Supreme Court of Israel, Shukri v. Minister of Defence, Case No. HCJ 798/89, 10 January 1990, para. 6 (on deterrence); Supreme Court of Israel, Dajlas v. IDF Commander in Judea and Samaria, Case No. HCJ 698/85, 24 March 1986, para. 3; and most recently Supreme Court of Israel, Kabha v. Military Commander of the West Bank, Case No. HCJ 480/21, 3 February 2021 (on collective character); as well as the cases discussed in D. Kretzmer and Y. Ronen, above note 18, pp. 384–391.
70 See, for example, Darcy, Shane, “Punitive House Demolitions, the Prohibition of Collective Punishment, and the Supreme Court of Israel”, Penn State International Law Review, Vol. 21, No. 3, 2003Google Scholar; Kremnitzer, Mordechai and Saba-Habesch, Lina, “House Demolitions”, Laws, Vol. 4, No. 2, 2015CrossRefGoogle Scholar; D. Kretzmer and Y. Ronen, above note 18, pp. 384–391.
71 Arguably, a measure intended to induce action by a third party may be comparable to a measure intended to deter action by a third party. They may differ in that evaluating the effectiveness of a measure ought to be easier in the former case, as whether action took place is clearer than whether action that would have taken place did not. However, despite the occasional engagement of the Supreme Court with it in the context of punitive house demolitions, the effectiveness of collective punishment is immaterial to its illegality.
72 Supreme Court of Israel, Namnam, above note 1, para. 15, perhaps echoing the Shukri case, where the Court said that “[t]he authority is administrative, and its exercise is designed to deter and thereby to maintain public order”. Supreme Court of Israel, Shukri, above note 69, para. 6.
73 Commentary on GC IV, above note 50, p. 225. On the AP I replacement of “penalties” with “punishment”, see Darcy, Shane, Collective Responsibility and Accountability under International Law, Brill, Leiden, 2007, p. 67CrossRefGoogle Scholar.
74 For IHRL, see Human Rights Committee, General Comment 32, “Article 14: Right to Equality Before Courts and Tribunals and to a Fair Trial”, UN Doc. CCPR/C/GC/32, 23 August 2007, section III, para. 2. With regard to GC IV Article 33, see Commentary on GC IV, above note 50, p. 225; D. Kretzmer and Y. Ronen, above note 18, p. 391.
75 Supreme Court of Israel, Namnam, above note 1, para. 15. It is interesting that the Court took a position on the matter rather than refusing to intervene in a political-security matter. See D. Kretzmer and Y. Ronen, above note 18, p. 491. For a different approach in similar circumstances, see Supreme Court of Israel, ‘Anbar, above note 23, para. 4.
76 Supreme Court of Israel, Namnam, above note 1, paras 6, 15.
77 Rabbat, Paul and Mehring, Sigrid, “Collective Punishment”, in Max Planck Encyclopedia of International Law, Oxford University Press, Oxford, 2015Google Scholar, para. 1.
78 Hugo Adam Bedau and Erin Kelly, “Punishment”, in Edward N. Zalta (ed.), Stanford Encyclopedia of Philosophy, Winter 2019, available at: https://plato.stanford.edu/archives/win2019/entries/punishment/. The prohibition on collective punishment assumes that the punishment is imposed in reaction to the violation of some norm. For more on this, see below.
79 L. A. Libman, above note 63, pp. 46–61.
80 Supreme Court of Israel, Namnam, above note 1, para. 6.
81 Ibid., para. 15.
82 Alison McIntyre, “Doctrine of Double Effect”, in Edward N. Zalta (ed.), Stanford Encyclopedia of Philosophy, Spring 2019, available at: https://plato.stanford.edu/archives/spr2019/entries/double-effect/.
83 Supreme Court of Israel, Namnam, above note 1, para. 15. The Court was responding to an argument by Harpaz and Cohen regarding the double effect doctrine. Harpaz and Cohen refer to the Court's reasoning in upholding punitive house demolitions as non-collective on the grounds that the act itself is good or at least not wrong, and that the harm caused to non-perpetrators is incidental rather than intended. As Harpaz and Cohen note, this reasoning does not bear scrutiny, because punitive house demolitions are “wrong” in themselves, being an infringement on the right to property that is not justified by military operations; and because the harm caused to non-perpetrators is intended rather than incidental. Harpaz, Guy and Cohen, Amichai, “On Dynamic Interpretations and Stagnant Rulings: Reassessing the Israeli Supreme Court's Jurisprudence on House Demolitions” Bar-Ilan Law Studies, Vol. 31, No. 3, 2018, p. 1012Google Scholar.
84 Ibid., p. 1012.
85 D. Kretzmer and Y. Ronen, above note 18, pp. 314–318, 496–504.
86 Ibid., 416–417.
87 The denial of visits concerns prisoners convicted of security offences, but it is not imposed as a reaction to those offences.
88 Commentary on GC IV, above note 50, pp. 225–226.
89 In this vein, Garner notes an instance in the South African War in which measures were taken against communities for damages committed upon railway and telegraph lines by “small parties of raiders”. He points out that it is not clear whether the offenders were lawful belligerents or non-combatants; in the former case, he notes, “their acts were not violations of the laws of war and therefore they were not legally punishable”, even if actual violations could be punishable collectively. Garner, James W., “Community Fines and Collective Responsibility”, American Journal of International Law, Vol. 11, No. 3, 1917, p. 514CrossRefGoogle Scholar. See also p. 532: “If the act was committed by a person belonging to the Belgian military forces, it was a lawful belligerent act for which the community was not liable to punishment.” Also see S. Darcy, above note 73, pp. 26–27, noting that under Hague Regulations Article 50, collective measures were permitted in a limited manner, provided they responded to conduct that was at least in violation of an occupying army's law, if not of the laws of war.
90 Issues of controversy were the interpretation of requirements such as mens rea and proportionality. J. W. Garner, above note 89, pp. 529–531.
91 Supreme Court of Israel, Namnam, above note 1, para. 10.
92 Supreme Court of Israel, ‘Alayan, above note 4. For a similar view, see A. Margalit, above note 47, pp. 589–591.
93 A. Margalit, above note 47, p. 587.
94 Ibid., 582–587. In 2016, Hamas published doctored photos of two of the missing civilians dressed in military uniform, and referred to them as ‘”prisoners of war”. Fateh Voice, “Al-Qassam Publishes Photos of Four Captured Israeli Soldiers in the Gaza Strip”, YouTube, 1 April 2016, available at: www.youtube.com/watch?v=7K5dVM3I-DQ.
95 Hilly Moodrick-Even Khen, “Reaffirming the Distinction between Combatants and Civilians: The Cases of the Israeli Army's ‘Hannibal Directive’ and the United States’ Drone Airstrikes against ISIS”, Arizona Journal of International and Comparative Law, Vol. 33, No. 3, 2016, pp. 786–788.
96 D. Kretzmer and Y. Ronen, above note 18, pp. 500–501; Meir Shamgar, Meir Shamgar: An Autobiography, Miskal – Yedioth Ahronoth and Chemed Books, Tel Aviv, 2015, p. 156.
97 Supreme Court of Israel, ‘Alayan, above note 4, Opinion of Chief Justice Hayut, paras 30–34.
98 Supreme Court of Israel, Chiam v. Prime Minister, Case No. HCJ 5693/18, 26 August 2018.
99 Supreme Court of Israel, Namnam, above note 1, para. 12.
100 D. Kretzmer and Y. Ronen, above note 18, pp. 492–494.
101 Ibid.; Brandes, Tamar Hostovsky, “The Diminishing Status of International Law in the Decisions of the Israel Supreme Court Concerning the Occupied Territories”, International Journal of Constitutional Law, Vol. 18, No. 3, 2020Google Scholar; Shinar, Adam, “Israel's External Constitution: Friends, Enemies, and the Constitutional/Administrative Law Distinction”, Virginia Journal of International Law, Vol. 57, No. 3, 2018Google Scholar.