The July 2017 issue of the Israel Law Review celebrated the fiftieth anniversary of its publication, and for that occasion selected five articles (one for each decade) which, in the Editors’ view, ‘had a lasting impact on scholarly debate and beyond’. For the first decade the Editors chose my article ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’, which appeared in the July 1968 issue, and asked Professor Eyal Benvenisti to comment on my piece, which he did under the title ‘An Article that Changed the Course of History?’ Not unexpectedly, Benvenisti has made a frontal attack on the central thesis of my article, which he reproduced in virtually identical language in the April 2017 issue of the American Journal of International Law.

This article explores how the Inter-American Court of Human Rights (the Court) has dealt with allegations of violations of the right to life during an armed conflict and, in particular, how it has dealt with allegations of violation of the obligation to investigate such allegations. The article notes that international humanitarian law (IHL) was initially used by the Court to strengthen the general obligations of states to protect the rights guaranteed by the American Convention on Human Rights (ACHR). Later IHL began informing the interpretation of specific rights. This change has been more significant in relation to the interpretation of the right to life under the ACHR than in the examination of state compliance with the right of access to justice, which encompasses the duty to investigate allegations of violations of the right to life during an armed conflict. The analysis of the Court's jurisprudence demonstrates that the different ways in which the Court has addressed the relationship between IHL and international human rights law (IHRL) have been informed by its primary effort to ensure that the interpretation of the ACHR provides the widest protection possible to individual rights.

The legal status of the Gaza Strip following the 2005 Israeli ‘Disengagement’, as well as the applicability of the laws of belligerent occupation with regard to this territory, have sparked, and continue to generate, a lively academic debate, involving states, organisations and legal scholars. Nevertheless, this debate has seldom included an examination of the de facto policy exercised by Israel vis-à-vis Gaza residents themselves.

This article seeks to fill the gap by providing a thorough examination of Israel's legal position towards the residents of Gaza, and a critical analysis of its policy and practice with regard to their movement as well as the movement of goods. This review, based on dozens of policy papers, regulations and procedures, as well as numerous judgments handed down by Israeli courts, reveals that Israel maintains a deliberately deficient and ambiguous legal position with regard to the status of Gaza residents. Under this position, the residents are merely ‘foreign residents’ who have no particular rights in relation to Israel. I argue that this position establishes a major legal vacuum in the protection afforded to Gaza residents and is therefore incompatible with both the reality of Israel's continuous control over Gaza as well as the objects and norms of international humanitarian law.

This article advocates limiting the permissive impact of military necessity on the right to life. It has been argued that military necessity justifies deviations from international human rights law (IHRL) because this body of law is inadequate to deal with the necessities arising out of armed conflict. The article argues that while this rationale is convincing, it should not mean that conduct that is lawful under humanitarian law is necessarily also lawful under human rights law. The degree of force that may be used under international humanitarian law (IHL) is often superfluous. In some instances such violence is tempered by the jus ad bellum, but this body of law does not apply in internal non-international armed conflict (NIAC). The article concludes by exploring the potential for IHRL to play a role in tempering superfluous violence in NIAC that is similar to that which jus ad bellum plays in international conflict.

Human Rights Watch (HRW), Amnesty International (Amnesty), and other like-minded organisations have become major actors in the world of international humanitarian law (IHL). Every year they issue hundreds of publications purporting to document violations and to promote IHL enforcement. These publications are ubiquitously cited in the media, and used as source material for governmental and United Nations inquiries, quasi-judicial bodies, the International Criminal Court, academic studies, and other frameworks. Yet, despite the increase in the number, role and influence of non-governmental organisations (NGOs) working on IHL enforcement, conflicts and civilian deaths show no signs of abating. Among the factors that reduce NGO impact in these areas is the demonstrated weakness of these organisations in the realm of fact-finding, and the tension between these activities and emphasis on political advocacy. This article will thus analyse both objective and subjective aspects of NGO fact-finding during armed conflict, including mandates and methodology, selectivity, the application of legal standards, military expertise and sourcing. These issues will be examined through case studies of Amnesty and HRW publications on the conflicts in Yemen, Ukraine and the 2014 Gaza War. The article will conclude with recommendations for NGOs and the actors with which they interact.

This article provides a fresh interpretation of John Rawls's discussion of civil disobedience in A Theory of Justice (Harvard University Press 1971). It focuses on an original feature in Rawls's analysis: civil disobedience as a form of speech deployed by a well-defined minority in an effort to correct an injustice perpetrated by a majority. For Rawls, civil disobedience as a speech function departs from the principle of protected free speech. Only certain expressions of civil disobedience are capable of producing genuine legal reform. Rawls gains new importance as part of a larger effort to understand and evaluate the outbreak of recent movements of mass dissent and protest from the Arab Spring to Ukraine to Hong Kong to the United States. A reconsideration of Rawls may be used to assess the likely success of these various expressions of dissent and protest.

Rawls's discussion of civil disobedience circumvents arguments in the legal literature that attempt to justify certain types of illegal activity with reference to moral conscience or natural law. Nevertheless, the focus on civil disobedience as speech encounters forms of coercive, resistant public opinion in the public sphere. Detailed, exemplary narratives by Martin Luther King and Norman Mailer on acts of civil disobedience illuminate forms of coercion that must be considered in extending and re-evaluating Rawls's original contributions.

In 2016 Daragh Murray published his book Human Rights Obligations of Non-State Armed Groups (Hart 2016). By way of distinction from many other contributions on this widely discussed topic, Murray tries to provide the reader with a complete overview of the legal framework that enables armed groups to acquire international legal status, and preferably outside the framework of armed conflict. He walks the reader through the path of international legal personality, leading towards the acknowledgement of armed groups as addressees of the law. Murray's attempt is courageous, interesting and innovative, but it has its shortcomings. These include his reliance on international criminal law as a source for defining armed groups, and his insistence on stepping outside international humanitarian law. Nonetheless, his contribution is essential for those who wish to include even more armed groups on the international plane.