A good popular review of IHL and belligerency with some analogies to CSA was done by K. Heller over at opiniojuris, 2010, 2011, and he has some good links from there.
I'm close to becoming a fan of the belligerent party idea. - me too, sort of. :) There are several issues here in my view. First, it seems that it would make Israel legal position stronger to declare Gaza a belligerent at the onset of hostilities, such as Lead Cast or Pillar of Cloud. But the real issue is the status in the interim, related to when does the status of belligerency end. I estimate that it may take 1.2-2 wars with Gaza over 15 years for peace to hold. It is implausible to maintain status of belligerency for so long. Likewise say with Hezbollah usual fear-mongering presumes that hostilities theoretically may resume at any moment, but we can't claim state of belligerency vis-a-vis them at present. It was 4 years between the two ops with Gaza, and in the interim presumably Israel would have to repatriate at least some of the POWs. Would we want to claim a formal return to hostilities each time a Qassam from IJihad lands? (It may well be that we're approaching a point at which Hamas-Gaza tolerance of war damage is sufficiently low, and hence it may even become acceptable to repatriate POWs as a price of transforming the conflict, but I'm not yet ready to argue for that.)
Civil War ended with capitulation of the insurgents, conquest of the belligerents and reunification of the former compatriots. None of this is likely to happen upon the resolution of the next miniwar with Hamastan, assuming the return to the current status-quo. That's why CSA may be a good analogy for jus in bello, belligerency and blockade but not sufficient for ending the hostilities. Unlike Gaza conflict, American Civil War was a one-off affair.
The route I'm advocating in this series - merely asserting/proclaiming/establishing that Gaza has a different legal regime, different government and different status in both conflicts - with PA and Israel, - sufficient for it to be considered a separate entity is designed in part to preserve Israeli strategic ambiguity as to whether this is IAC or NAIC, and to hold in between hostilities as well.
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timeasmymeasure
Re: terrorist Hamas
Date: 2012-12-04 04:21 am (UTC)I'm close to becoming a fan of the belligerent party idea. - me too, sort of. :)
There are several issues here in my view. First, it seems that it would make Israel legal position stronger to declare Gaza a belligerent at the onset of hostilities, such as Lead Cast or Pillar of Cloud. But the real issue is the status in the interim, related to when does the status of belligerency end. I estimate that it may take 1.2-2 wars with Gaza over 15 years for peace to hold. It is implausible to maintain status of belligerency for so long. Likewise say with Hezbollah usual fear-mongering presumes that hostilities theoretically may resume at any moment, but we can't claim state of belligerency vis-a-vis them at present. It was 4 years between the two ops with Gaza, and in the interim presumably Israel would have to repatriate at least some of the POWs. Would we want to claim a formal return to hostilities each time a Qassam from IJihad lands? (It may well be that we're approaching a point at which Hamas-Gaza tolerance of war damage is sufficiently low, and hence it may even become acceptable to repatriate POWs as a price of transforming the conflict, but I'm not yet ready to argue for that.)
Civil War ended with capitulation of the insurgents, conquest of the belligerents and reunification of the former compatriots. None of this is likely to happen upon the resolution of the next miniwar with Hamastan, assuming the return to the current status-quo. That's why CSA may be a good analogy for jus in bello, belligerency and blockade but not sufficient for ending the hostilities. Unlike Gaza conflict, American Civil War was a one-off affair.
The route I'm advocating in this series - merely asserting/proclaiming/establishing that Gaza has a different legal regime, different government and different status in both conflicts - with PA and Israel, - sufficient for it to be considered a separate entity is designed in part to preserve Israeli strategic ambiguity as to whether this is IAC or NAIC, and to hold in between hostilities as well.