BALANCING RIGHTS IN THE ERA OF WAR ON TERRORISM WITHIN THE HUMANITARIAN CHALLENGES OF THE WAR IN GAZA

by

Maxwell Boamah AMOFA

1.1.        Introduction

The United Nations, in adoption of its Resolution 2178 (2014) admitted that, “terrorism threat has become more diffuse, with an increase in various regions of the world’s adoption of terrorist acts including those motivated by intolerance or extremism, and expressing its determination to combat this threat.”[1]

However, it is the obligation of States to ensure that any law adopted to counter terrorism comply with international law, especially international human rights and humanitarian law.[2]

Nonetheless, the reality is that compliance with international regulations seems to be partly fulfilled especially when the purpose is to serve the interest of a particular State or alliance of States. This is because states have adopted measures that seek to protect their sovereignties at the expense of the rights of individuals, especially when such individuals are not their citizens or fall outside the territorial jurisdiction of these countries.[3]

Following from this reality, this article seeks to examine some counter terrorism measures that have been adopted by sovereign States, using USA and Israel as case studies. It explores how these two States have implemented these measures within their jurisdictions and juxtapose their efforts with its position beyond their territorial boundaries. This is an attempt to identify the challenges resulting from the application of these measures, as well as propose some parameters that should be taken into consideration when aspiring to create a balance between the protection of human rights and combating terrorism. The jurisdictions were purposively selected based on the United States reputation in championing human rights and democratic values globally and the recent conflict of the State of Israel with the Hamas fighters in Gaza.

1.2.        Conceptualizing Terrorism

In order to situate our exploration of the activities of the USA and Israel in the fight against terrorism within the global political landscape, we shall attempt to take a cursory look at the concept of terrorism according to certain regulatory frameworks.

According to the Israel Counter-Terrorism Law 2016 “terrorism” means an act that constitutes an offense, or a threat to carry out such an act, which meets all of the following:

1. It was carried out with a political, religious, nationalistic or ideological motive;
2. It was carried out with the intention of provoking fear or panic among the public or with the intention of compelling a government or other governmental authority, including a government or other governmental authority of a foreign country, or a public international organization, to do or to abstain from doing any act;
3. The act carried out or threatened to be carried out, involved one of the following, or posed an actual risk of one of the following:

(a)  Serious harm to a person’s body or freedom;

(b)  Serious harm to public health or safety;

(c)  Serious harm to property.[4]

The United States Code (USC)§2331 defined the term “international terrorism” as encapsulating activities that involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State.[5] The definition has largely been used by the United States based on the scale, coordination and impact of the attack on the United States soil. An example is the September 11, 2001 attack carried out by the Al-Qaeda by which the group hijacked commercial planes and crashed them into the World Trade Center twin tower building as well as the Pentagon and other facilities.

From the foregoing, the term terrorism means the “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”[6] For this reason , the 12 coordinated shooting and bombing attacks lasting four days across Mumbai in 2008 by the Lashkar-e-Taiba, a militant Islamist organisation from Pakistan qualifies as terrorist attack because it targeted civilians and sought to undermine the sovereignty of India inorder to force the government of India to act.

2.1. Obligations of Government

The concept of citizenship entails that the obligations are reciprocal between citizens and the government. Thomas Hobbes theory of social contract forms the basis of balancing individual rights and protection of sovereign State. It is paraphrased as, government has a social contract duty to protect the rights of citizens. “Thomas Hobbes believed Humans are naturally selfish. So, While human nature continuously tends towards selfishness, the optimal scenario for everyone involves cooperation for the common good. However, achieving this requires a contract where individuals relinquish some liberties in exchange for benefits, such as safety. According to Hobbes, such a contract will be broken without enforcement because of selfishness. Thus, to escape the state of nature, a contract is needed, along with enforcement. This involves electing a third party, or assembly, to rule over us and enforce the contract, ensuring compliance and the distribution of common goods.”[7]

However, there have been cases where government use emergency powers to restrict individual rights or take away some citizens’ freedom in times of crisis as experienced during pandemics, terrorist attacks or internecine conflicts or wars (50 U.S.C. §§ 1601-1651). There have been incidents where citizens have challenged the use of such powers as in the case of Jacobson v. Massachusetts (1905). While giving the verdict, Justice John Marshall Harlan stated that, States have the power, beyond criminal law enforcement, to make quarantine and isolation effective, the law does not impose an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against a threat, in this case an epidemic.”[8]

This study thus seeks to interrogate the balancing of individual rights and State protection by exploring the following questions:

How should the State carry out its obligations on the responsibility to protect citizens?

Should security measures be taken while causing grave harm to the rights of the people by upholding the principles of the constitution?

Why does an independent judiciary uphold legislations that prioritize sovereignty over individual rights, particularly when such legislations are supported by the executive arm of government?

These questions reflect the complexities that arise in times of crisis, when balancing is heavily contested between government obligations and rights of citizens. More often than not, measures are put in place to restrict some individual rights and freedom in order to protect the State. Taking a clue from the United States, despite its position in the practice of democracy and human rights, right of habeas corpus operates in a limited context.[9] For instance, Article 1, Section 9, Clause 2 of the United States constitution states that the Privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, then public Safety may require it. This means, eventhough the United States constitution guarantees the right to habeas corpus , the right may not be

granted when national security is at risk.

2.2. Case study of Hamdi et al. Versus Rumsfeld,Secretary of Defense,et al

Hamdi et al. V. Rumsfeld, Secretary of Defense, et al. was a case where the Petitioner, Hamdi, an American citizen was allegedly classified as an “enemy combatant.”[10] He was captured and imprisoned for taking up arms with the Taliban during the conflict in Afghanistan. Hamdi’s habeas corpus petition filed on his behalf by his father under 28 U. S. C. §2241 in accordance with the Fifth and Fourteenth Amendments was turned down on the basis of 18 U. S. C. §4001(a) that gave congress the right to establish the Authorization of the Use of Military Force (AUMF).[11]

However, the government argued that he was associated with the Taliban, and this was largely based on classified information contained in the Mobbs declaration.[12] The District Court found no direct evidence tying Hamdi to Taliban activities,thereby ordering the government to submit additional materials for further review. The Fourth Circuit Court however, reversed, stating that Hamdi’s capture in an active combat zone negated the need for an evidentiary hearing, concluding that the factual averments in the Mobbs Declaration if true, justified the president’s detention of Hamdi and dismissed the habeas petition since he was captured in an active combat zone. The court then heavily weighed the governments assertions and the power granted by the AUMF at the expense of Hamdi’s rights to habeas corpus.[13]

It could then be concluded that, the focus was on the power of the AUMF and the Mobbs declaration at the expense of the defined rights of a citizen of the State. A clearly established fact about supporting the Taliban was not established. However, allegations in the Mobbs declaration and believe in the government’s claims were considered as key factors over the right of Hamdi to habeas corpus.[14]

3.1. Case Study of Israel -Hamas Conflict.

The question of balancing rights becomes more complicated when the threat of terrorism is across the territorial borders of a State. A case in point is the Hamas launch of missiles on Israel on October 7, 2023. An attack constitutes an act of violence against the adversary, whether in offence or in defence.^[15] Considering the fact that Hamas has constantly viewed Israel as an adversary, it initiated its actions as response to past Israeli attacks and the constant Israeli “occupation” of the west bank, arrest of Hamas leaders, isolation, and bombing of Gaza.^[16] Its actions could be classified as an attack on the State of Israel. However, whether such an attack constitutes an act of terrorism is dependent on article 2.1.b of the International Convention for the Suppression of the Financing of Terrorism.While the attack was meant to force the Israeli government not to act in a particular way, it also resulted in over 1700 civilian casualties who were not taking active part in armed hostilities.^[17] Hence, it arguably constitutes a terrorist attack. Israel was then compelled to respond within its right to self-defense against the terrorist attack as supported by article 51 of the United Nations Charter.^[18] The scope of article 51 encompasses the right to collective self-defense, where states do not have the independent capabilities for self-defense, in the bid to neutralize the attacks from the hostile party.^[19] The United States’ support for Israel may be thus be classified as an attempt to trigger Article 51 of the United Nations Charter in response to Hamas’ attack on Israel on October 7, 2023.

Whether the legality of self-defense also embodies the concept of exterritorial self-defense raises significant questions, including whether Palestine can be considered a state in the interpretation of Article 1 of the Montevideo Convention on the Rights and Duties of States;^[20] and whether authorities within the Palestinian territory exercise effective control over Hamas in accordance with Article 8 of the Draft Articles on the Law of State Responsibility.^[21] However, this section shall limit itself to Israel’s right to self-defense and the protection of Civilians within the region of hostilities.

While one could argue that Israel has a legitimate right to use armed force to defend its sovereignty, any use of force must be targeted at lawful military objectives. In realizing these objectives, the lawful targets ought to be clearly defined. As defined in the Additional Protocol  1 to the Geneva Conventions,  “…In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”^[22] For this reason, all forms of objects with combat character or dual use purpose belonging to Hamas such as control and command centers, tunnels, ammunition stockpiles or factories producing both civilian and military hardware may be legitimately targeted by Israeli forces. Nonetheless, the situation becomes more complex when dealing with personnel recognized as lawful military target.

Article 3 of the 1907 Hague Regulation states that “The armed forces of the belligerent parties may consist of combatants and non- combatants.” The term ‘belligerent party’ is implied in the article to mean a state, while ‘armed forces’ refers to the state’s organ entitled to perform acts harmful to the enemy while protecting the state.^[23] Following from this, Article 43 of Additional Protocol 1 to the Geneva Conventions limits combatant status to members of the armed forces of a state within the context of international armed conflict.

However, this doesn’t automatically make Hamas forces non-combatants or civilians. More so, because the concept of non-combatant in Article 4 of the Fourth Geneva Convention limits non-combatant status to protected persons, as well as members of the regular armed forces who are not entitled to commit acts harmful to the enemy unless in self-defense such as army chaplains. For these reasons, and for the fact that the prisoner of war status is limited to combatants, non-combatants as explained and civilians, Hamas forces are then lawful military targets not subjected to prisoner of war status under article 4 and 13 of the Geneva Convention III but they may be treated as unlawful combatants when captured.^[24]

The importance of separating combatants from non-combatants in armed conflicts was clearly expressed in article 48 of the Additional Protocol I to the Geneva conventions. As it states, “in order to ensure respect for and protection of the civilian population and civilian objects, the parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”^[25] Belligerent parties must thus ensure that they take precautions which are practicable or practically possible, taking into account all prevailing circumstances at the time, including humanitarian and military considerations. These are to be considered before launching any attack.^[26] Following from this provision, Israel’s right to self-defense does not legitimize the launch of indiscriminate attacks, especially on civilian population.

3.2. The Concept of Civilians

Article 50.1of the Additional Protocol 1 defines the concept of civilians as any person who does not belong to one of the categories of persons referred to in its Article 43 or Article 4A (1), (2), (3) and (6) of the Third Geneva Convention. Article 4A of the Third Geneva Convention stipulates that people that are entitled to the prisoner of war status include:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied.

In reference to article 50.1 of Additional Protocol 1, people not entitled to combatant status under article 4A of the Third Geneva Convention can be classified as civilians. However, it is important to note that the presence of individuals who do not come within the definition of civilians within the civilian population does not deprive the population of its civilian character.^[27] Hence, the Palestinian civilians are entitled to protection from attacks, even when it is with respect to Israel’s self-defense claims. However, there could be certain conditions for exceptions. For example, Palestinian civilians may be lawfully targeted if they directly participate in the armed hostilities (DPH).^[28] Also, even Palestinian civilians not engaged in DPH could become casualties as collateral damage within the ambits of the law, especially if the concrete and direct military advantage anticipated by Israeli forces is much greater.

4. The Role of the Judiciary in Balancing Rights in the Era of the War on Terrorism

The judiciary is charged with the duty of interpreting laws and to make sure any legislation that contradicts the constitution is rendered null and void. For example, Article 130 of the Constitution of the Republic of Ghana states that, the Supreme Court shall have exclusive original jurisdiction in;

• All matters relating to the enforcement or interpretation of this Constitution;
• All matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.

The legal provisions in the United States is not different to this as the Supreme Court performs judicial review functions, or the Supreme Court is empowered to declare a Legislative Act or Executive Act null and void when either is in violation of the Constitution. This was evident in Marbury v. Madison (1803).^[29] In relation to this case, the onus was on the court to decide whether an Act of Congress or the Constitution was supreme. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus (legal orders compelling government officials to act in accordance with the law). Considering the fact that Article 6 of the Constitution stipulates that the Constitution is the supreme law of the country, the court made it clear, that any act that is found inconsistent with the provisions of the constitution cannot stand, hence the Supreme Court dismissed the case on the basis of lacking merit.

However, the powers given to the president to appoint justices of the Superior Court of States raises significant questions on the independence of the judiciary from the other organs of government, as it could amount to conflict of interest. Instead of oversight functions from other arms of government, ‘executive unilateralism seems to be gaining much grounds.”^[30] This concept of ‘executive unilateralism’ depicts a higher degree of autonomy being enjoyed by the executive branch to make decision with little or no oversight from other arms of government.

Trust is an essential part of judicial activities, but when it becomes questionable, the  balancing of rights becomes more difficult. However, the judiciary has chalked massive success in other situations where it exercised independence such as with the case of Beit Sourik Village Council v. The Government of Israel et. al. This was achieved on the basis of Article 46 of the Hague Regulations and Article 27 of the Fourth Geneva Convention. In this case, the court highlighted that, even though the wall to be constructed on the West Bank was to safeguard the people of Israel from terrorist attacks, such a wall also hindered the fundamental human rights of the Palestinian villagers. These included the right to basic amenities of life such as food since most of them are farmers, as well as freedom of movement. By this, the court proposed an alternative barrier route that offered slightly lesser security protection, but considerably reduced humanitarian harm.

On the international scene, the International Court of Justice in its recent ruling on the case of South Africa v. Israel applied the Convention on the Prevention and Punishment of the Crime of Genocide to the War in the Gaza Strip. This enabled it exercise a sense of balancing between the rights of the Palestinian civilians and Israel’s right to defend itself against the terrorist attack that was perpetrated by Hamas fighters. The court, by so doing, did not call for an immediate ceasefire, but rather called on Israel to respect and uphold “its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, (and) in relation to Palestinians in the Gaza strip, take all measures within its power to prevent the commission of all acts within the scope of Article II of the Convention.”^[31]

5. Conclusion and Recommendations

From the analysis above, it can be concluded that a greater value is often placed on the right to territorial sovereignty of States; both within State boundaries and on the international stage in times of terrorist attacks. However, such prioritization often put the basic rights of civilians at risk. Hence, there is need for the judiciary to be completely independent from all the other organs of government, for it to be particularly effective in adjudicating measures of counterterrorism within state boundaries. In line with this, certain parameters may be taken into consideration to ensure effective balancing of rights as will be discussed below.

Firstly, Aristotle’s idea of equality could be taken into account. He stated that, “all people or things should not be treated equally because none can be equal. If you treat unequal people or things equally, you end up widening the gap between their inequalities”. By this, rights and freedoms should not be categorized as one. There should be the need to champion the necessity of fundamental human rights including the right to life, right to basic amenities of life such as food, clothes, shelter, right to freedom of movement, right to free and fair trial among others.

It is worth acknowledging that constitutional provisions on the need to restrict some rights for societal good has some merits. However, more priority should be placed on inherent/non derogable rights as enabled by international humanitarian and human right laws. The importance of these rights while enforcing the state of emergency cannot be overemphasized when one considers the number and situation of the people affected. They become even more important when vulnerabilities are significant, in particular where people with disabilities, children, and the aged people are being affected.

 Bibliography 

1. Aswadi, K. (2023). The Double Standards of International Law: A Comparative Study of the Conflict in Ukraine and Palestine. Tirtayasa Journal of International Law, 2(1), 71-81. Retrieved from https://jurnal.untirta.ac.id/index.php/tirtayasatjil/article/viewFile/19694/10755

2. Johnson, G. (2015). Executive Power and Judicial Deference: Judicial Decision Making on Executive Power Challenges in the American States. Political Research Quarterly, 68(1), 128–141. http://www.jstor.org/stable/24371977

3. United Nations Office of the High Commissioner on Human Rights. (2014). Basic Human Rights Reference Guide: Conformity of National Counter-Terrorism Legislation with International Human Rights Law. New York. Retrieved from https://www.un.org/counterterrorism/sites/www.un.org.counterterrorism/files/counterterrorismlegislation.pdf

4. United Nations Security Council. (2003). Resolution 1456 (2003). Adopted by the Security Council at its 4688th meeting, on 20 January 2003 [UNSC, S/RES/1456 (2003)]. Retrieved from; https://documents.un.org/doc/undoc/gen/n03/216/05/pdf/n0321605.pdf?token=w1k93G03mwDwabq6pf&fe=true

5. United Nations Security Council. (2014). Resolution 2178 (2014). Adopted by the Security Council at its 7272 meeting, on 24 September 2014 [UNSC, S/RES/2178 (2014)]. Retrieved from; https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_res_2178.pdf

INTERNATIONAL LEGISLATIONS

1. Amended Protocol II to the Convention on Certain Conventional Weapons. Article 3(10).Retrieved from https://disarmament.unoda.org/ccw-amended-protocol-ii/

2. Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) 205 CTS 277 (1907 Hague Convention IV).

3. International Law Commission. (2001). Draft Articles on Responsibility of States for Internationally Wrongful Acts: Text of Article 8. Retrieved from https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.

4. International Committee of the Red Cross. (1977). Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. United Nations Treaty Series, vol. 1125, p. 3.

5. International Committee of the Red Cross (ICRC) (1949) Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: http://www.refworld.org/docid/3ae6b36d2.html, retrieved 16/11/2014. abbr.: ICRC 1949

6. Montevideo Convention on the Rights and Duties of States. (1933). Article 1. Retrieved from https://www.ilsa.org/Jessup/Jessup15/Montevideo%20Convention.pdf

7. United Nations. (1999). International Convention for the Suppression of the Financing of Terrorism, opened for signature 9 December 1999, Article 2.1.b. United Nations Treaty Series, vol. 2178, p. 197.

NATIONAL LEGISLATIONS

1. Cornell Law School. (n.d.). 18 U.S. Code § 2331 – Definitions. Retrieved from https://www.law.cornell.edu/uscode/text/18/2331

2. Government of Israel. (2016). The Counter-Terrorism Law, 5776-2016 (p. 5). Retrieved from https://www.gov.il/BlobFolder/dynamiccollectorresultitem/counter-terrorism-law-2016-english/he/legal-docs_counter_terrorism_law_2016_english.pdf

3. 1992 constitution of Ghana (Rev.1996);Retrieved from https://www.constituteproject.org/constitution/Ghana_1996

CASE LAWS

1. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).Retrieved from https://supreme.justia.com/cases/federal/us/542/507/

2. ICJ (2024, January 26). Summary of Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) (Document No. 192-20240126-SUM-01-00-EN, Case No. 192, Press Release No. 2024/1).Retrieved from https://www.icj-cij.org/node/203454

3. Jacobson v. Massachusetts, 197 U.S. 11 (1905);Retrieved from https://supreme.justia.com/cases/federal/us/197/11/

4. Marbury v. Madison, 5 U.S. 137 (1803).retrieved from ; https://supreme.justia.com/cases/federal/us/5/137/

[1] United Nations Security Council. (2014). Resolution 2178(2014). Adopted by the Security Council at its 4688th meeting, on 24^th Sepember, 2014 [UNSC, S/RES/2178 (2003)]. Retrieved from; https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-

CF6E4FF96FF9%7D/s_res_2178.pdfhttps://documents.un.org/doc/undoc/gen/n03/216/05/pdf/n0321605.pdf

[2] United Nations Office of the High Commissioner on Human Rights. (2014). Basic Human Rights Reference Guide: Conformity of National Counter-Terrorism Legislation with International Human Rights Law. New York. Retrieved from https://www.un.org/counterterrorism/sites/www.un.org.counterterrorism/files/counterterrorismlegislation.pdf

[3] Aswadi, K. (2023). The Double Standards of International Law: A Comparative Study of the Conflict in Ukraine and Palestine. Tirtayasa Journal of International Law, 2(1), 71-81. Retrieved from https://jurnal.untirta.ac.id/index.php/tirtayasatjil/article/viewFile/19694/10755

[4] Government of Israel. (2016). The Counter-Terrorism Law, 5776-2016 (p. 5). Retrieved from

https://www.gov.il/BlobFolder/dynamiccollectorresultitem/counter-terrorism-law-2016-english/he/legal-

docs_counter_terrorism_law_2016_english.pdf

[5] Cornell Law School. (n.d.). 18 U.S. Code § 2331 – Definitions. Retrieved from https://www.law.cornell.edu/uscode/text/18/2331

[6] United Nations. (1999). International Convention for the Suppression of the Financing of Terrorism, opened for signature 9 December 1999, Article 2.1.b. United Nations Treaty Series, vol. 2178, p. 197.

[7] University of Colorado Boulder. (1961). The social contract of Thomas Hobbes. Retrieved from

https://rintintin.colorado.edu/~vancecd/phil215/contract.pdf

[8] Jacobson v. Massachusetts, 197 U.S. 11 (1905)

[9] Habeas Corpus is a principle by which an individual , a supposed prisoner or other detainee (such as.

Institutionalized mental patient) must be brought before the court to determine if the person’s

imprisonment or detention is lawful (see Cornell Law School, Legal Information Institute. (n.d.). Habeas Corpus.). It is a fundamental right in many legal systems, including that of the United States, and it guarantees that a person has the right to challenge the legality of their detention before a court of law.

[10] See the criteria for qualification as a combatant; International Committee of the Red Cross (ICRC), Geneva

Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 UNTS 135, 12 August

1949, https://www.refworld.org/legal/agreements/icrc/1949/en/35606

[11] The Authorization for Use of Military Force (AUMF) passed by Congress after 9/11 granted the President

broad authority to use military force against those responsible for the attacks.

See :United States Congress. (2001). Public Law 107–40: Joint Resolution to authorize the use of United States

Armed Forces against those responsible for the recent attacks launched against the United States. 115 Stat.

224. Retrieved from https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf

[12] The Mobbs declaration was a legal document used by the government to justify Hamdi’s detention.

[13] HAMDI V. RUMSFELD (03-6696) 542 U.S. 507 (2004); retrieved from

https://www.law.cornell.edu/supct/html/03-6696.ZS.html

[14] Hamdi v. Rumsfeld, 542 U.S. 507 (2004).Retrieved from https://supreme.justia.com/cases/federal/us/542/507/

[15] International Committee of the Red Cross. (1977). Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.  United Nations Treaty Series, vol. 1125, p. 3.

[16] Center for Strategic Studies. (2023, December 6). Why Hamas Attacked When It Did.Retrieved from https://www.csis.org/analysis/why-hamas-attacked-when-it-did

[17] Center for Strategic Studies. (2023, December 19). Hamas’s October 7 Attack: Visualizing the Data.Retrieved from https://www.csis.org/analysis/hamass-october-7-attack-visualizing-data

[18] Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. United Nations. (1945). Charter of the United Nations. Retrieved from https://www.un.org/en/about-us/un-charter/full-text United Nations Treaty Series, vol. 1, p. 16.

[19] J Kunz ‘Individual and collective self-defence in article 51 of the Charter of the United Nations’ (1947) 41.4 American Journal of International Law 873.

[20] A state, within international law, should possess the following qualifications: (a) A permanent population, (b) a defined territory and (c) capacity to enter into relations with other states. Montevideo Convention on the Rights and Duties of States. (1933). Article 1. Retrieved from https://www.ilsa.org/Jessup/Jessup15/Montevideo%20Convention.pdf

[21] Article 8. Conduct directed or controlled by a State The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. International Law Commission. (2001). Draft Articles on Responsibility of States for Internationally Wrongful Acts: Text of Article 8. Retrieved from https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.

Even though the draft articles on the law of state responsibility is not a binding document, much of it have been recognized as customary international law, making it effective in its application.

[22] International Committee of the Red Cross. (1977). Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.  United Nations Treaty Series, vol. 1125, p. 3.Article 52.2.

[23] Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 1910) 205 CTS 277 (1907 Hague Convention IV).

[24] See the explanation of unlawful combatants given in the  Ex parte Quirin, 317 U.S. 1 (1942) case.

[25] International Committee of the Red Cross. (1977). Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.  United Nations Treaty Series, vol. 1125, p. 3.Article 48

[26] Amended Protocol II to the Convention on Certain Conventional Weapons. Article 3(10).Retrieved from https://disarmament.unoda.org/ccw-amended-protocol-ii/

[27] International Committee of the Red Cross. (1977). Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.  United Nations Treaty Series, vol. 1125, p. 3.Article 52.2.article 50.2..

[28] International Committee of the Red Cross (ICRC) (1949) Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: http://www.refworld.org/docid/3ae6b36d2.html, retrieved 16/11/2014. abbr.: ICRC 1949

[29] Marbury v. Madison, 5 U.S. 137 (1803).retrieved from ; https://supreme.justia.com/cases/federal/us/5/137/

[30] Johnson, G. (2015). Executive Power and Judicial Deference: Judicial Decision Making on Executive Power Challenges in the American States. Political Research Quarterly, 68(1), 128–141. http://www.jstor.org/stable/24371977

[31] ICJ (2024, January 26). Summary of Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) (Document No. 192-20240126-SUM-01-00-EN, Case No. 192, Press Release No. 2024/1).Retrieved from https://www.icj-cij.org/node/203454