Justifying restrictions on reconstructing Gaza : military necessity and humanitarian assistance
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Israel law review, Vol. 49, issue 2, July 2016, p. 149-168
This article analyses the relationship between the scope of security needs that are cited as justification for restricting humanitarian assistance in situations of occupation and the scope of the occupant's obligation to facilitate and/or proactively provide humanitarian relief. It argues that, compared with a non-occupant, an occupying power may consider broader security goals as reasons to restrict humanitarian assistance, but that doing so imposes a greater responsibility on the occupying power to provide alternatives to the humanitarian assistance being restricted. In addition, as a normative matter, as increasingly long-term security goals are included in the ‘military necessity’ cited as a reason for restricting humanitarian assistance, the ambit of what is included in humanitarian assistance should be expanded to include the economic development and investment in infrastructure needed to provide for humanitarian needs in the long term. This kind of regime would enhance the self-regulation of warring powers by requiring those with the ability to engage in long-term security planning to use that ability also to provide for the long-term humanitarian needs of the civilian population. The article examines restrictions on humanitarian assistance in Gaza as an example of how this normative arrangement might work in practice.
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