On March 27, 2025, a three-judge panel of the Israeli Supreme Court, sitting as a top administrative court – a High Court of Justice (HCJ or the Court) – rejected a petition challenging the legality of Israel’s policy relating to the facilitation and provision of humanitarian aid in the Gaza Strip during the current war (i.e., post October 7, 2023 armed hostilities between Israel and Hamas). The Court decided that whereas Israel is obligated under international law and Israeli law to allow and facilitate humanitarian aid, such obligations are relative in nature, and the petitioners failed to establish that those obligations were generally violated during the Gaza war. It also rejected the claim of the petitioners that Israel incurs positive obligations to ensure that aid is provided and distributed, holding that areas populated by Palestinian civilians were not subject to Israeli “effective control” under the law of belligerent occupation. However, the Court did identify several problems with how the humanitarian aid policy was implemented. Furthermore, the Court explicitly refrained from reviewing the legality of the government’s decisions from March 2025 to suspend the flow of humanitarian aid into Gaza and to terminate the limited supply of electricity from Israel to Gaza.
The decision is the first legal judgment that comprehensively reviews Israel’s humanitarian aid policy in the current Gaza war. It is of particular interest given the fact that aspects of the policy also underlie the International Court of Justice (ICJ) case brought by South Africa against Israel, the International Criminal Court cases against Prime Minister Netanyahu and former Minister of Defense Yoav Gallant and the new ICJ advisory proceedings relating to UNRWA. The HCJ refers explicitly to the first proceedings (albeit only in passing), and implicitly to the second proceedings. It ignores altogether the third proceedings. It does engage, however, more extensively with the ICJ’s 2024 advisory opinion on the Legal Consequences arising from Policies and Practices in the Occupied Palestinian Territory. Despite the deferential attitude of the HCJ toward the government’s humanitarian aid policy – especially toward the security considerations that shape it – the Court does underscore certain essential aspects of the legal obligations that constrain the policy. This holding may be particularly relevant now that the government has adopted an aggressive – and very likely unlawful – new policy to suspend humanitarian aid altogether.
The Proceedings
The petition was filed on March 18, 2024 by five Israeli human rights NGOs – Gisha – Legal Center for Freedom of Movement; Hamoked – Center for the Defence of the Individual; Physicians for Human Rights – Israel; the Association for Civil Rights in Israel and Adalah; and The Legal Center for Arab Minority Rights in Israel. The petitioners requested the Court to order the government to explain why it does not allow free, speedy and unimpeded supply of humanitarian aid to the Gaza Strip (and, in particular, to the Northern part of the Gaza Strip) and why it does not meet its obligations as an occupying power to provide essential humanitarian aid (again, especially to residents of the Northern part of the Gaza Strip).
After three preliminary oral hearings, on June 10, 2024, the Court issued an Order Nisi – a temporary ruling requiring the government to justify the challenged policy. Following the written reply from the state (submitted on June 28, 2024), the Court held two additional oral hearings in 2024. It also received (and rejected) two requests by the petitioners for injunctions, related to sharp drops in aid levels in October 2024 and March 2025. During the proceedings, the petitioners submitted to the Court several expert opinions including by Dr. Marco Longobardo from the University of Westminster (on the legal status of the Gaza Strip and Israel’s obligations), and by a number of Israeli legal experts – including one of the authors of this essay – on the application of the law of belligerent occupation to the Gaza Strip.
In the literature on judicial case management, proceedings in which the court focuses less on the substantive issues of public law, and more on pressuring the litigants to adapt their conduct in light of developing circumstances, are sometimes referred to as the Babysitter Model or Nanny Court proceedings. The HCJ’s handling of the proceedings in this case seems to follow the same modality. The conduct of the proceedings suggests an attempt by the Court to facilitate the exchange of information between the parties, and to provide ample opportunities for the government to review its policy in light of dynamic developments on the ground and concerns raised during the proceedings. The process included a relatively large number of oral hearings (some of which were broadcasted live on the Court’s website), several written submissions and expert opinions, as well as the appearance in Court by Major General Ghassan Alian, the current Coordinator of Government Activities in the Territories (COGAT) – the Israel Defense Forces (IDF) branch responsible for facilitating humanitarian aid – and ex parte hearings in which classified intelligence materials on issues such as actual IDF troop locations inside the Gaza Strip and Hamas capabilities were disclosed to the judges.
The Legal Framework
The leading opinion of the judgment was authored by the Court’s President, Justice Yitzhak Amit, who is usually associated with the liberal, more interventionist, camp on the Court. The two other members of the panel, Justices Noam Sohlberg and David Mintz, are associated with the conservative camp. They concurred with Amit’s judgment and added much shorter concurring opinions (briefly surveyed below). We first discuss Amit’s treatment of the relevant legal framework, and then his implementation of the legal framework to the facts of the case.
Amit referred (in para. 15) to past cases in which the Court identified the law of armed conflict (LOAC; the Court uses in the judgment the terms LOAC and international humanitarian law (IHL) interchangeably) governing an international armed conflict as applicable to the Israeli-Palestinian conflict (see e.g., the Yesh Din case, dealing with use of force in the context of the 2018 Gaza border events, analyzed here). He noted (in para. 16) the relevance of Article 23 of the Fourth Geneva Convention and Article 70 of the First Additional Protocol (API) (Israel accepts the customary international law status of the former provision and regards the core of the latter provision also as customary in nature; note that Israel is not a member to API.) As for the relevance of international human rights law (IHRL), Amit took the position (in para. 18) that given IHL’s lex specialis nature, IHRL will apply only if there are gaps in IHL. In the present case, he considered it appropriate to follow the approach taken by the Court in previous cases (including in the 2008 Bassiouni case – the supply of fuel and electricity case), which analyzed conflict-related international law obligations relating to humanitarian aid only under IHL.
The most significant segment of the legal framework part of the judgment appertains to the question whether Israel’s obligations to civilians in Gaza stem not only from general LOAC, but also from the law of belligerent occupation (paras. 19-44). This analysis is critical for differentiating between the negative obligations of Israel – that is, to allow and facilitate the provision of humanitarian aid into the Gaza Strip (which the government did not deny it is legally required to meet) and positive obligations to provide and distribute aid (which the petitioners alleged, and the government contested that the IDF is required to undertake). Since the petitioners primarily relied on the law of belligerent occupation to support their claim that the government had positive obligations, the Court had to address, as a preliminary matter, whether the Gaza Strip, in whole or part, is considered occupied under the Law of Armed Conflict (LOAC).
Amit’s analysis of this question focuses on Article 42 of the 1907 Hague Regulations – which the HCJ has considered in the past as the authoritative legal source for applicability of the law of belligerent occupation (see e.g., the 1983 Tsemel case regarding the application of the law of belligerent occupation to the Israeli presence in Southern Lebanon). Amit cited Israeli case law and academic scholarship supporting the proposition that Article 42 introduces a three-part test to determine whether an area is considered occupied under LOAC: physical presence, capacity to exercise governmental authority, and lack of governance capacity by the previous sovereign.
As to the physical presence component, Amit took the view that it appears to be that Israel’s “boots on the ground” presence inside the Gaza Strip satisfies this requirement. He did, however, question the petitioners’ claim that Israel could send troops within a reasonable time to any place within the Gaza Strip (a claim which relies on the ICTY’s Naletilić case, at para. 217), noting the intensive fighting and losses associated with IDF raids to various parts of the Strip during the war.
Regarding the second component – capacity to exercise government authority – Amit opined that it represents a question of fact. Its application to the case at hand depends on whether the IDF was in a position to fulfill the obligations introduced by the law of belligerent occupation, including restoring and ensuring public order and safety, pursuant to Article 43 of the Hague Regulations, and administering public property pursuant to Article 55. Amit provided several reasons for his holding that the requirement was not met in the current circumstances: (1) The conduct of the war primarily involved short-term raids by the IDF into specific areas inside the Gaza Strip, aimed at attaining particular military objectives there. Such raids were characterized by intense fighting and were followed by swift withdrawals from the affected areas. Areas in which the IDF had more permanent control – such as the Philadelphi and Netzarim corridors (in the southern and middle parts of the Gaza Strip) – were also continuously subject to intensive fighting and, in any event, did not contain civilians in need of humanitarian aid; (2) Control over the passageways to and from the Gaza Strip did not suggest effective control under the law of belligerent occupation over life inside the Gaza Strip (Amit considered such a situation as analogous to siege and not to belligerent occupation); (3) Amit rejected the petitioners’ factual claim that Israel controls movements inside the Gaza Strip and held that IDF requests from international aid agencies to coordinate their movements (which, he noted, were sometimes ignored) did not amount to control over their movements; (4) Amit also rejected the petitioners’ claim that evacuation of civilians from certain areas inside the Gaza Strip demonstrated control over these areas, asserting that such evacuations were recommendatory in nature and were not actually enforced.
In respect of the third component, Amit held that the petitioners did not show that Hamas lost the capacity to continue to exercise a degree of independent governmental authority (distinguishing the case at hand from para. 217 of the Naletilić case, which addressed situations where “the enemy’s forces have surrendered, been defeated or withdrawn”). He noted that the evidence presented to the Court suggested that Hamas continues to exercise significant governmental authority and that it has not yet been defeated as a political organization. Here, too, Amit rejected the petitioners’ claim that the fact that the IDF coordinates with local authorities’ certain aspects of civilian life (such as fixing water infrastructure) implies Israeli control over these aspects.
One interesting part of the Amit’s judgment deals with the tension between Amit’s conclusion that the civilian population in Gaza is not under Israeli belligerent occupation and the ICJ position in the 2024 advisory opinion on Policies and Practices in the Occupied Palestinian Territory, according to which “Israel’s withdrawal from the Gaza Strip has not entirely released it of its obligations under the law of occupation. Israel’s obligations have remained commensurate with the degree of its effective control over the Gaza Strip” (ICJ AO, para. 94). While the ICJ’s opinion dealt with the situation in Gaza prior to the war, Amit accepted that it would a fortiori be relevant to Israel’s control of the Gaza strip after the beginning of its ground invasion in the current war.
Amit noted that some of the judges on the ICJ played down the relevance or significance of the holding regarding applicability of the law of belligerent occupation to the Gaza Strip (referring explicitly to the individual opinions of judges Cleveland and Iwasawa). He also noted that, although the ICJ’s position should receive adequate weight (citing the language of the HCJ’s 2005 Mara’abe judgment, which referred to the ICJ advisory opinion on the Wall), advisory opinions are non-binding and do not generate res judicata. In this regard, he recalled that Israel did not participate in the advisory proceedings and that the HCJ had before it a much more detailed factual picture than the ICJ, including classified information. According to Amit, such a difference in access to the facts also explains the differences between the position of the Court and that of the foreign and Israeli international law experts. Still, Amit alleged that in practical terms, and in view of the Court’s conclusions as to the scope of Israel’s legal obligations, the gaps between the positions of the ICJ and HCJ regarding the standards of protection available to the civilian population in the Gaza Strip are not as large as they might seem.
The final segment of the legal framework part of Amit’s judgment deals with Israel’s obligations under Israeli administrative law (he saw no reason to discuss Israeli constitutional law, given the uncertainties attendant to its extra-territorial application and the considerable substantive overlap between Israeli administrative and constitutional law). He reaffirmed in this regard (in paras. 47-48) the continued relevance of the 2008 Bassiouni judgment which upheld the government’s duty – emanating mostly from Israeli administrative law – to continue its declared policy of facilitating the provision of fuel and electricity that would meet the essential humanitarian needs of the population of the Gaza Strip, which has long depended on receiving these supplies from Israel. This legal conclusion, Amit explained, leads, in effect, to a similar outcome to the one reached by the ICJ regarding the continued application of some obligations following Israel’s 2005 disengagement from the Gaza Strip. Amit noted, in passing, the government’s claim that the passage of time renders the Bassiouni judgment obsolete and held that, given the harsh realities in the Gaza Strip, he sees no reason to deviate from the 2008 judgment. Still, he noted other cases – including a short 2009 HCJ judgment in another case brought by Gisha – which established the right of the state to adopt restrictive measures aimed at disrupting the utilization of supplies by the Gaza-based terror organizations fighting Israel and at protecting the safety of Israelis actually engaged in the transfer of the supplies. These security considerations apply, he held, not only to the duty to facilitate the supply of fuel and electricity discussed in Bassiouni, but also to the duty to facilitate the supply of humanitarian aid.
The upshot of this part of the judgment is that Israel owes only negative obligations to allow and facilitate the provision of humanitarian aid to the civilian population of the Gaza Strip under both international humanitarian law and Israeli law. Such obligations are not absolute, however, and may be restricted on the basis of security and safety considerations.
Fact-Finding Duties
During the proceedings, the petitioners claimed that the government is required to gather information not only regarding the quantities of humanitarian aid that enter the Gaza Strip, but also regarding the actual needs of the local Palestinian population. The government claimed that there is no need to decide on whether such a legal obligation exists, since in the context of the war, Israel imposes no quantitative restrictions on the amount of aid entering the Gaza Strip (this was the stated policy before it was changed in March 2025). Amit accepted that the IDF’s policy does not contain, as a rule, quantitative restrictions on aid, but noted it included other measures with a restrictive effect – e.g., limits on working hours of crossing stations, convoy search operations, and bans on certain dual-use items. In his view, deciding on specific measures and developing a nuanced policy in this regard necessitates the construction of a “factual picture” concerning the humanitarian needs of the civilian population. Still, the actual feasibility of carrying out this procedural obligation (which Amit seems to have based on Israeli administrative law) depends on security considerations and access to information about an area that is actually under enemy hands in times of war.
Amit noted in this regard that the IDF notified the Court in December 2024 that its estimates regarding the number of Palestinian civilians remaining in Northern Gaza were wrong. On the basis of these estimates, and based on logistical and operational considerations, the IDF closed the ground crossings leading into Northern Gaza for two weeks in October 2024. Amit noted, however, that the IDF maintained that the measures that were actually implemented did take into account the possibility of error in estimating civilian needs. Amit wrote that such an error is regrettable, and that one can assume the IDF is working to ensure such errors are avoided in the future. Still, he opined that the error illustrates the challenges of humanitarian fact-finding in an area outside the IDF’s effective control, during active hostilities.
IDF’s Compliance with its Legal Obligations
The remaining part of President Amit’s opinion (paras. 58-97) dealt with the actual conduct of the IDF in facilitating humanitarian aid. Amit noted that the parties to the case presented the Court with starkly divergent factual accounts of obstacles put by the IDF in the path of humanitarian agencies operating in the Gaza Strip. While he recalled the strong evidentiary presumption applied by the HCJ in favor of professional expert opinions afforded by state security agencies (which is added to a general rebuttable presumption against the illegality of governmental action), he also recalled the government’s stated position that the war is directed at terror organizations and not against the civilian population residing in the Gaza Strip. As a result, military-security considerations need to be balanced against the duty of the government to conduct itself reasonably and proportionately.
Amit stated that the situation inside the Gaza Strip is difficult, and that the civilian population is paying a very heavy price for the war that the terror organizations initiated on October 7, 2023. He noted, however, that the suffering of civilians does not establish, in and of itself, a breach of legal obligations by Israel. This is especially so since Israel does not control many aspects relating to the provision of humanitarian aid, and in light of information provided to the Court by the IDF that Hamas is diverting and stealing aid and has been attacking humanitarian crossing points and aid supply routes.
Amit then proceeded to describe a long list of measures undertaken by Israel in connection with its obligation to facilitate the provision of humanitarian aid. Amit pointed to the improvements in the physical infrastructure and operation hours in the Kerem Shalom crossing (on the Southern tip of the Israel-Gaza-Egypt borders), often resulting in the entry of aid from there in quantities that exceeded the distribution capacity of international aid agencies operating inside the Gaza Strip. Amit noted that it was not shown that the IDF could have concretely done more to increase that distribution capacity under the conditions of war that prevailed in the area. Amit also described the facilitation of aid deliveries originating from Jordan (the “Jordanian route”); opening three new Northern crossings (“crossing 96,” “Erez East,” and “Erez West”); and a new central Gaza crossing (“Kissufim”). Amit mentioned the coordination of aerial aid drops and increased reliance on the Israeli Ashdod seaport for aid deliveries. In addition, he mentioned the expansion of roads used by aid convoys inside Israel and inside the Gaza Strip, the ongoing coordination of activities, on a daily basis, with international aid organizations operating inside the Gaza Strip and the establishment of a related coordination center, and logistical assistance afforded to international aid organization (e.g., in procurement of trucks and relocation of warehouses). Amit stressed the encouragement by COGAT of the operation of private sector Gaza-based merchants who import goods for profit (this operation was discontinued in October 2024 after information was received that it was actually enhancing Hamas capabilities). Amit also noted that Israel facilitated the entry into the Gaza Strip of humanitarian staff and truck drivers and that COGAT approved most of the requests for allowing the entry of dual use objects into the Gaza Strip. The conclusion reached by Amit was that, in light of all these efforts, and in view of the government’s policy not to impose quantitative restrictions on humanitarian aid, gaps in access of Palestinian civilians to humanitarian aid were not caused, as a rule, because of restrictions on their introduction into the Gaza Strip.
Amit addressed again, in this part of the judgment, the events of October-November 2024, during which there had been a sharp decline in the quantities of aid entering the Gaza Strip – especially into the Northern part. He found that this appears not to have been the result of a deliberate policy decision, but rather due to the coincidence of Jewish holidays (which led to a reduction of work hours in the crossings), security alerts regarding possible attacks against the crossing points, and a wide-scale military operation in Northern Gaza. Still, he urged the IDF to improve its planning, including for facilitation of humanitarian aid during period of active fighting. At the same time, he refrained from reviewing claims by the petitioners regarding slow police reaction to road blocking by right-wing activists inside Israel, aimed at disrupting aid convoys, and regarding the effects of the new UNRWA laws on the aid situation inside the Gaza Strip, opining in both cases that these issues exceed the scope of the present proceedings.
With regard to concerns about limits imposed by the IDF on the movement of international aid agencies inside the Gaza Strip, Amit noted the information provided by the government, according to which the vast majority of coordination requests were approved, that those that were denied were explained by security risks or the possibility of diversion of aid by Hamas. In any event, it was claimed that such approvals were only recommendatory in nature and only relevant to some parts of the Gaza Strip. As a result, aid agencies often moved inside the Gaza Strip without requesting coordination, or despite the IDF’s refusal of their requests. He also noted that the IDF is investigating “regrettable incidents” in which its forces harmed in their operations humanitarian aid convoys.
With regard to information pertaining to food shortages inside the Gaza Strip, Amit noted that the parties to the litigation were in disagreement regarding the accuracy of the findings of the Famine Review Committee of the International Food Security Phase Classification concerning the onset of famine inside the Gaza Strip, but that, in any event, the food situation has dramatically improved in January-February 2025 following six weeks of ceasefire. He noted, in this regard, specific measures that the government claimed to have taken to improve the food and water situation inside the Gaza Strip, including facilitation of the operation of local bakeries, facilitation of aid convoys including food, water and cooking gas, cooperation with local Palestinian authorities to fix the water infrastructure that was damaged during the war and to open new water lines, and the provision of electricity from Israel to a water desalination plant (this line of power supply was discontinued, however, in March 2025). He also noted the government’s claims regarding IDF-UN collaborative efforts to support the Gaza Strip sanitation system and to undertake an anti-Polio vaccination campaign, and claims by COGAT that convoys with medical equipment were prioritized in access, that there are no restrictions on entry of drugs into the Gaza Strip, and that COGAT facilitated the opening of several field hospitals (after permanent hospitals became non-operational during the war; Amit noted in this regard specific IDF allegations of abuse of hospital facilities by Hamas). COGAT also claimed during the proceedings that it purchased tents for use inside the Gaza Strip and allowed in communication equipment (including some dual use equipment) so as to permit the local authorities to repair cellular and Internet infrastructures.
With regard to petroleum, Amit noted that the government maintained that it is not legally obligated to facilitate its provision, especially given its dual-use nature. Still, Israel has adopted a policy of allowing its introduction into the Gaza Strip due to the heavy reliance on petroleum-run power generators by several important humanitarian services, especially after the damage caused to Israeli electricity infrastructure supplying the Gaza Strip on October 7, 2023 (Hamas destroyed 9 out of 10 power lines in its attack on Israel). The IDF policy in this regard is, however, to limit the supply of petroleum for humanitarian needs, on the basis of specific demands made to COGAT by UN agencies on the ground on an ongoing basis.
Amit concluded this long survey of measures by noting that they indicate an effort to strike a balance between Israel’s humanitarian obligations and military-security considerations, including fears of diversion of aid to the hands of Hamas, and that it shows attentiveness to concerns raised by different aid agencies with a view to improve the conduct of the IDF in this regard. He noted, in particular, that Israel responded to several of the issues raised by the petitioners during the proceedings (e.g., re the number of crossings, their hours of operations, and operation of private merchants) with suitable policy changes, and he did not find grounds for intervening in the government’s discretion not to accommodate other specific demands made by the petitioners for security and safety reasons. Amit also noted that the Court cannot intervene in operational IDF decisions relating to the conduct of the hostilities, which the petitioners identified as exacerbating the humanitarian situation, including harm caused to civilian infrastructure during military operations and evacuation of civilians from one area to another.
Amit concluded his opinion by holding that the petitioners failed to show that the government violated its legal obligations regarding allowing and facilitating humanitarian aid. Still, he also noted that although the current war was imposed on Israel by the October 7 attack, Israel could not ignore the humanitarian suffering of the Palestinian civilian population in the Gaza Strip on whom the war was also imposed. He cited in this connection the testimony of Major General Alian who stated to the Court that the residents of Gaza “are not our enemy.” Israel should, he explained, therefore continue to meet its humanitarian obligation by continuously monitoring the humanitarian situation and needs inside the Gaza Strip, including through dialogue with aid agencies. He also held that the petitioners may re-seize the Court with respect to the new measures adopted by the government in March 2025, halting the flow of humanitarian aid into the Gaza Strip and disconnecting electricity from Israel to the water desalination facility (a petition relating to the latter measure had already been filed by families of Israeli hostages held inside the Gaza Strip).
The Two Concurring Opinions
The two other judges on the panel wrote short concurring opinions. Judge Sohlberg, the Deputy President of the Court, agreed with Amit’s decision to reject the petition, but expressed doubts about its justiciability to begin with. He was also of the view that the dramatic changes in the factual situation after the submission of the original petitions independently justified dismissing the petition. In addition, Sohlberg mentioned his view that the factual picture that the petitioners painted in their filings was far from the reality, and that the information before the Court showed that Israel went above and beyond its international obligations with respect to facilitation of humanitarian aid, in ways that appear to be unparalleled in the experience of other militaries.
Judge Mintz (who replaced on the panel judge Uzi Vogelman, the former HCJ Acting President, who retired during the pendency of the petition), agreed with both Amit and Sohlberg. He also added a few comments on Jewish law aspects of the questions discussed (which serve in such proceedings mostly as comparative law). He noted that the Bible offers three modalities for a religiously mandated war – to inherit the promised land, to destroy the people of Amalek, and to fend off aggressors. The war in Gaza belongs to the third such category, which requires Jews to afford to the civilian population certain protections, including allowing them to escape from a town under siege and refraining from harming them (possibly subject to force protection considerations). Mintz claimed that these norms largely overlap with the applicable norms of international law and Israeli law.
Concluding Remarks
The judgment of the HCJ in the Gisha case is the first comprehensive judicial decision reviewing Israel’s humanitarian aid policy. Unlike the interim decisions issued by the ICJ and ICC on the conflict, the HCJ essentially adopts the Israeli narrative that its humanitarian aid policies were broadly consistent with its international law obligations (as well as with Israeli law). The decision of the Court may be reflective of the “home court advantage” enjoyed by the Israeli government before Israeli judges: In proceedings before the HCJ, the Court generally shows deference to governmental experts especially in military-security affairs and presumes the legality of government action unless shown the contrary. In addition, some of these proceedings took place in ex-parte settings in which the Court was exposed to classified information on the conditions on the ground. Such ex-parte proceedings, it should be noted, occur only with the consent of the petitioners. However, had the petitioners opposed the ex-parte hearings, the Court would be legally required to accept the government’s factual premise. The differences between Israeli and international courts’ approach to the conflict may also be the result of the different sources of information dominating their respective proceedings: International proceedings tend to be dominated by information generated by UN bodies (which seem to attract a degree of deference by international courts) and NGOs; fact-finding in national proceedings, by contrast, is dominated by information provided by state authorities (which attracts a degree of deference in those forums).
The key move undertaken by President Amit in the case involved holding that the law of belligerent occupation does not apply to most parts of the Gaza Strip (except in specific areas where Israel maintains a continuing military presence, such as the Philadelphi corridor, in which the law of belligerent occupation may apply). The result of this move was the finding that Israel is under a negative obligation to allow and facilitate the transfer of aid, but was not required to meet the stricter standard of affirmative responsibility imposed by the law of belligerent occupation. While this is a decision that is not so far-removed from the approach taken by the ICJ in the 2005 Congo v. Uganda judgment, it appears to us to represent an overly restrictive interpretation of the three-part test attached to article 42 of the Hague Regulations. An alternative, more dynamic approach to the three-part test, would investigate whether, in specific points in time, Hamas still maintains active presence in specific parts of the Gaza Strip which amounts to capacity for exercising governmental control. The consequence of the restrictive approach undertaken by the Court may generate power vacuums – areas in which civilian populations do not enjoy any adequate international protection, notwithstanding the potential capacity of the IDF to exercise a meaningful degree of control over them (note in this regard that article 43 of the Hague Regulations does contain an “as far as possible” proviso).
This unsatisfying legal outcome is exacerbated by the limited engagement of the Court with IHRL as a potential gap filler in areas not meeting the effective control standards, but where Israeli acts and omissions have direct and reasonably foreseeable effects (Cf. Human Rights Committee, General Comment No. 36, at para. 63), and by the modest application of the principle of proportionality under Israeli administrative law, which could have resulted in a more robust cost-benefit review of various measures undertaken by the IDF than the one the Court actually engaged in.
Still, we do acknowledge that a broader normative framework would not have necessarily resulted in a different legal outcome in practice. This is because the positive obligations which stem from the law of belligerent occupation and IHRL (and perhaps also Israeli administrative law) are relative in nature and would also be subject to security limitations of the kind invoked by the Israeli government (to which the Court largely deferred). Indeed, the opinion is arguably written to avoid this line of criticism by its findings of facts that could potentially satisfy purported positive obligations as well.
On the more favorable side, we note that the Court did establish a fact-finding obligation for the IDF, requiring it to continuously monitor humanitarian conditions in the Gaza Strip and to engage with aid agencies for that purpose. Given the Court’s narrow approach to the legal framework, it seemed to base this procedural obligation mostly on Israeli administrative law. We also note the Court’s upholding of the Bassiouni judgment – notwithstanding others’ doubts about its continued relevance. That is highly significant given that it recognizes the government’s duty, as discussed above, to continue the policy of allowing and facilitating the provision of fuel and electricity to meet the essential humanitarian needs of the Gaza Strip’s civilian population. The international law basis for requiring Israel to ensure fuel and electricity supplies to non-occupied areas (as opposed to facilitation of humanitarian aid during armed conflict) remains however somewhat unclear (the Bassiouni ruling appears to be based mostly on Israeli administrative law).
It is also tempting to read the judgment in Gisha in light of other international proceedings relating to the war in Gaza. The HCJ has replicated here the Mara’abe approach toward the ICJ advisory opinion (then with respect to the Wall case; now – with respect to the Policies and Practices in the OPT case), holding that it does not reject, in principle, the Court’s approach with respect to international law relating to the Gaza Strip, but rather contests its application of law to facts. The HCJ appears to have taken a more aggressive approach, however, with regard to the ICC. Although it does not mention the ICC proceedings against Netanyahu and Gallant, it is interesting to note that Amit includes in his opinion the following language that appears to go directly against the claims which appear to have been endorsed by the Prosecutor in his request for arrest warrants (in para. 94): “[I]n view of the totality of measures taken by the respondents to improve the humanitarian situation in the Gaza Strip throughout the period of time reviewed in the petition, as detailed above, I do not believe that the petitioners were able to substantiate – not even in close proximity – violations of prohibitions against starvation of population as a method of warfare and against collective punishment” (informal translation). It is curious that, by contrast, the HCJ did not engage directly with the ICJ proceedings in the Genocide case – on the basis of the formal argument that the petitioners did not invoke the Convention (Amit, in para. 37). This is particularly regrettable, since a number of the Court’s orders in the case did pertain to Israel’s obligations in the field of humanitarian aid (see e.g., here and here) and they represent, under mainstream views of international law, an independent source of legal obligations for Israel (notwithstanding the different concerns and criticisms that Israel may have regarding their contents). It is also regrettable that the Court largely avoided addressing the role of UNRWA in the humanitarian aid policy, given that this matter will soon be discussed by the ICJ in another set of advisory proceedings.
Finally, we wonder what to make of the timing of the judgment, shortly after the government of Israel decided to radically change its policy and halt the flow of aid into the Gaza Strip. It is difficult to reconcile the new policy with the language of the judgment, and it is possible that the Court was keen on avoiding a finding of a violation of international law and Israeli law at this point in time (which is sensitive in the relations between the different branches of government in Israel, as well as with respect to pending international proceedings, which raise their own sensitivities), by deciding to exclude the review of the new policy from the scope of the proceedings. Alternatively, the Court might have hoped that the mere issuance of the judgment could result, in and of itself, in a re-evaluation of the new policy by the government without there being a need for extending the litigation further. Time will tell whether this will indeed be the case, or whether the Gisha judgment will be one of the last decisions issued in an era in which Israel was making some effort to comply with international law.