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Memo gives legal backing to prevent Gazans from returning north during war

Three jurists analyzed the situation and wrote that no such duty exists under international law.

Palestinians flee Khan Yunis for Rafah in the southern Gaza Strip, Dec. 25, 2023. Photo by Atia Mohammed/Flash90.
Palestinians flee Khan Yunis for Rafah in the southern Gaza Strip, Dec. 25, 2023. Photo by Atia Mohammed/Flash90.

A memo submitted Wednesday to Israel’s political leadership asserts 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 Bitton from Sapir College near Sderot, Prof. Eugene Kontorovich from George Mason University in Virginia, and Prof. Avi Bell from the law schools of Bar-Ilan University in Ramat Gan and the University of San Diego.

The three scholars analyzed the state of war from a legal perspective and wrote, among other things, that a 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, 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 say. 

The three jurists emphasized that returning the population to the north is not relevant as long as the fighting continues. They detailed the state of war in the northern Gaza Strip and noted that one indication that there are 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.”

They 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.”

Voluntary migration

Israel’s Finance Minister Bezalel Smotrich on Wednesday reiterated his support for the voluntary resettlement of Gazans, a day after being condemned by the U.S. for taking this stance.

“More than 70% of the Israeli public today supports a humanitarian solution of encouraging the voluntary immigration of Gaza Arabs and their absorption in other countries, understanding that a small country like ours cannot afford a reality where four minutes away from our communities there is a hotbed of hatred and terrorism where two million people who wake up every morning with aspiration for the destruction of the State of Israel and with a desire to slaughter and rape and murder Jews wherever they are,” Smotrich, who is also a minister in the Defense Ministry with responsibility for civilian issues in Judea and Samaria, tweeted.

“Israeli society will not agree to the continuation of this reality in Gaza; we must rethink and share ideas with our friends in the international community that will bring peace, security and prosperity to all the peoples of the region and allow the residents of the south to return to their homes in safety and peace,” the head of the Religious Zionism Party continued.

Matthew Miller, the U.S. State Department spokesman, rejected calls on Tuesday from Smotrich and National Security Minister Itamar Ben-Gvir for Palestinians to be permanently resettled outside of Gaza and for Israel to re-establish Jewish communities within the Strip.

“This rhetoric is inflammatory and irresponsible,” Miller stated. “We have been told repeatedly and consistently by the government of Israel, including by the prime minister, that such statements do not reflect the policy of the Israeli government. They should stop immediately.”

The war against Hamas is an “opportunity to concentrate on encouraging the migration of the residents of Gaza,” said Ben-Gvir on Tuesday, adding that Israel “cannot withdraw from any territory we are in the Gaza Strip. Not only do I not rule out Jewish settlement there, I believe it is also an important thing.”

Originally published by Israel Hayom.

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