In the course of the Middle East conflict since 1948, both the Arab states and Israel have tended to take harsh measures against civilians based on their national, ethnic, and religious origins. This practice has been partially legitimized by a norm in international law that permits states to infringe the liberty and property interests of enemy nationals during armed conflict. Middle Eastern governments have misused the logic behind this theoretically exceptional rule to justify far-reaching measures that undermine the “principle of distinction” between civilians and combatants and erode the principle of non-discrimination that lies at the center of human rights law.
In this article I trace the history of the enemy nationals doctrine in international law and its application in the Middle East. I argue that the enemy nationals doctrine, properly understood, in most cases did not actually permit the types of policies applied in the Middle East. Instead, the existence of the enemy nationals rule produced ambiguity that governments could use to lend perceived legitimacy to policies that were actually illegal. Because there were inadequate international means by which to test the legality of such policies, ambiguity in the law facilitated ethnic divisions that still traumatize the region. The dangers posed by such ambiguities in law are an important reason to strengthen international judicial mechanisms capable of addressing high-stakes issues.
38:2 Colum. Hum. Rts. L. Rev. 263 (2007).
Kagan, Michael, "Destructive Ambiguity: Enemy Nationals and the Legal Enabling of Ethnic Conflict in the Middle East" (2007). Scholarly Works. Paper 635.