This post examines which potential branch of international humanitarian law (IHL) is applicable to the hostilities that are currently ongoing in Gaza between Israeli armed forces and Hamas military wing: the law of international armed conflicts (IAC) or that of non-international armed conflicts (NIAC). Classifying these hostilities is a complicated matter which, ultimately, depends on whether Palestine enjoys Statehood under international law and on whether Gaza is an occupied territory under IHL. For those suffering of the conflict, particularly as the conflict rages on, it might be thought untimely to consider the niceties of the IHL framework of classification. This exercise is nevertheless both important and necessary to precisely determine the applicable legal regime of protection of individuals and identify the rights and obligations of belligerents. It is true that, owing to the development of customary IHL, the law of IAC and that of NIAC on the conduct of hostilities – which are very much relevant at this stage of the conflict – are now largely similar. They remain however different regarding the protection of individuals and the accountability for IHL violations under international criminal law (ICL). I will come back to this issue below.
In light of these preliminary considerations, I will distinguish four scenarios: (i) Palestine is regarded as a non-State entity and Gaza an unoccupied territory; (ii) Palestine is a State, but Gaza remains an unoccupied territory; (iii) Palestine qualifies as a State and Gaza as an occupied territory; and (iv) the status of Palestine is considered to be unsettled, but Gaza occupied. While I do not intend to examine here the well-known controversies relating to the definition of Palestine as a State and as an occupied territory, I will show that, under certain conditions, the third scenario increases protection of vulnerable individuals and objects, while not necessarily negatively impacting military interests of belligerents.
Before starting the analysis, two observations need to be made. For a technical reason, hostilities between Israeli forces and Hamas militias cannot fall under the category of “wars of national liberation” under Art. 1(4) of Additional Protocol I and, thus, be ipso facto governed by the law of international armed conflict (IAC). Israel has not ratified this Protocol and this, consequently, prevents the application of Art. 1(4) in this context. Secondly, the resurgence of combat operations involving third powers – like the Hezbollah or Syrian armed forces – which is currently taking place in neighboring areas is intimately connected to the Gaza conflict and may well further complicate its legal nature, if, for instance, these powers are directly involved in military operations in Palestine or closely collaborate with Hamas militias. However, due to space constraints, I will not analyze the legal nature and implications of these operations.
Scenario 1: Palestine is not a State and Gaza is no longer occupied
Let us first assume that Palestine is not a State under international law and that Gaza is no longer an occupied territory under IHL. Indeed, it has sometimes been argued that Palestine lacks a sufficiently effective government and define territory to be considered as a State. Moreover, Palestine has not been recognized by more than 50 States. It has also been occasionally contended that Gaza is no longer occupied mainly because Israeli forces withdrew from its territory since 2005 and those forces are, thus, unable to exercise governmental authority (see here and here). It may also be asserted that current hostilities in Gaza are of such a nature and intensity that they prevent Israeli authorities from exercising their obligations under the law of occupation.
This first scenario should facilitate classification matters. In that case, Gaza hostilities should be qualified as a NIAC (except if Hamas is controlled by a third State, an option that, for the sake of clarity, will be examined under scenario 2). Undoubtedly, hostilities have reached the required level of violence to be considered as a NIAC (see here) and the military wing of Hamas is sufficiently organized to be treated as an armed group (see here). Even if the level of organization and of control by Hamas over the territory of Gaza is such that it could constitute a NIAC under Additional Protocol II, this Protocol does not apply in this case. Indeed, Israel has not ratified this instrument. Hence, under the first scenario, the conduct of hostilities and the protection of individuals would only be governed by common Art. 3 to the four GCs and related customary principles.
Scenario 2: Palestine is a State and Gaza is no longer occupied
It can be argued that Palestine possesses all elements of Statehood under international law. In fact, a great number of States and international organizations recognize and treat Palestine as a State. A State which, for instance, has acquired the status of non-member observer State at the United Nations (UN) (see UN General Assembly Resolution 67/19) and is a party to several treaties, including the Statute of the International Criminal Court (ICC). If Palestine is, indeed, a State under international law without being occupied, the qualification of the Israel – Hamas conflict will hinge upon the nature of Hamas military wing: (i) an armed force fighting on behalf of the State of Palestine or of a third State on the one hand, or (ii) an armed group conducting its own military operations, independently of any State, on the other hand. In the first case, the armed conflict will become an IAC; in the second, an NIAC (with an international dimension).
Let us analyze separately these two sub-scenarios.
An IAC. As the ICC stated in the Bemba Decision on the Confirmation of Charges (§ 223), “an international armed conflict exists in case of armed hostilities between States through their respective armed forces or other actors acting on behalf of the State” (emphasis added) (see also Bemba Trial Judgment, §§ 654-656). Accordingly, in order to talk about an IAC in this situation, it should be demonstrated that the actions carried out by Hamas militias are linked to the State of Palestine because the former could be treated as an agent of the latter. In other words, pursuant to the 2016 ICRC Commentary to Art. 2 of GC I (§§ 265-273), it should be proven that a close relationship – if not of subordination – exists between the two entities because, for instance, Palestine wields overall control (Tadic, § 131) over the Hamas, not only by equipping and financing it, but also by coordinating or helping in the general planning of its military activity. This does not, however, seem to reflect the current situation on the ground. Indeed, the Fatah – which is the official authority of Palestine and, for example, represents that State before the UN – has been entertaining a conflictual relationship with Hamas since 2006. In the same vein, it appears difficult to assert that the conflict has become international because Hamas is the agent, not of Palestine, but of a third State, like Iran which provides weapons and training to Hamas military wing. Even with such a support, it remains unlikely that Iran possesses a level of control over Hamas that would satisfy the above overall control test required under IHL to internationalize the conflict. Accordingly, this first sub-scenario can safely be rejected.
It is interesting to point out in passing that, if Hamas was effectively fighting on behalf of Palestine or a third State, this would not mean that its combatants would automatically be entitled to prisoners of war (POW) status. Indeed, they would fall within the purview of Art. 4(A)(2) of GC IIII, that is: members of “other militias or volunteer corps” not formally integrated into State armed forces but “belonging” to it. And, pursuant to this provision, they would benefit from POW status only if, as a group, they would fulfill conditions of organization, distinction, and respect for “the laws and customs of war.” Given the massive war crimes already committed by Hamas combatants, it could easily be considered that their acts “entail large-scale or systematic non-compliance” with IHL. Hence, these persons would ipso facto be disqualified from POW status. They would nonetheless remain combatants for conduct of hostilities purposes and would be targetable by virtue of their de facto “membership” of theses militias. It could however be also argued that, under customary IHL, to obtain POW status, it is no longer required to respect “the laws and customs of war.” In that case, Hamas would still be obliged to establish an internal disciplinary system to enforce compliance with IHL (see Art. 43 of AP I).
A NIAC (with an international dimension). The fact that Hamas does not act on behalf of Palestine or of a third State does not mean that the recognition of the State of Palestine has no impact on the qualification of Gaza hostilities. Indeed, in that case, this would entail that Israeli forces would be carrying out military operations in the territory of another State against a non-State armed group. According to the 2016 ICRC Commentary to Art. 2 of GC I (§§ 257-264) and some scholars, we would then be compelled to check whether the Palestinian Government has officially consented to these operations. If yes, the conflict would be non-international and only regulated by IHL minimal rules. If no, Israeli intervention would constitute an “intrusion into the State sphere of sovereignty” of Palestine amounting to an IAC between Palestine and Israel (in parallel to the NIAC opposing Israel forces to Hamas militias), even if there are no concrete hostilities between the armed forces of the two States. It can be deduced from Palestinian President’s recent call for “an immediate end to the comprehensive aggression against the Palestinian people” that no such consent exists. This could significantly increase protection of civilians since Palestinian nationals residing in Israel and, conversely, Israeli nationals residing in Palestine, would then both benefit from the full protection of GC IV.
Scenario 3: Palestine is a State and Gaza is occupied
Let us now consider the hypothesis according to which Palestine is a State and is still occupied. Indeed, despite the withdrawal of its troops on the ground, Israel has continued to control certain borders, the airspace, and territorial waters of Gaza. Furthermore, it has been stated that, given its technological superiority, Israel could re-establish full control over the territory of Gaza within a reasonable time (see here). The evolution of the current situation will demonstrate whether this assertion is still valid today. In any event, owing to the geographical proximity between Israel and Gaza, Israeli authorities can exercise, from outside Gaza, some governmental functions that were acquired when the occupation was undoubtedly established. Thus, according to the ICRC, “Israel continues to be bound by obligations under occupation law that are commensurate with the degree to which it exercises control.” (see also here) Nevertheless, it remains unclear whether ongoing hostilities affect the authority of Israel to such an extent that it can no longer fulfill its responsibilities under the law of occupation and, consequently that it interrupts or terminates relevant legal obligations. Such an interruption or termination would probably not apply to certain duties that are entirely satisfied from outside Palestine like the furnishing of the necessary oil, gas, and electricity to the occupied population. Indeed, respecting these duties should not be disrupted by combat operations – albeit of an intense nature – that take place inside Gaza.
To determine the legal nature of the conflict under this scenario, two sub-scenarios should be distinguished: (i) when hostilities within Gaza constitute a NIAC because Hamas is a non-State actor; and (ii) when all hostilities are regulated by the law of IAC because the situation of occupation is, by itself, the result and the continuation of a previous IAC.
A NIAC (co-existing with a situation of (functional) occupation). The traditional approach would be to qualify hostilities that are currently taking place between Hamas militias and Israeli forces as a NIAC that runs in parallel to the occupation of that territory by Israel. This conception is founded on the idea that it is the status of the parties involved in the conflict that dictates its nature. According to this option, since the Hamas is a priori fighting autonomously – that is, neither on behalf of Palestine nor on behalf of a third State – and therefore constitutes an independent armed group, the conflict must be non-international. This would concretely signify that Israel would be obliged to respect simultaneously the law of occupation vis-à-vis Palestinian populations and the law of NIAC vis-à-vis Hamas. Should hostilities break out between Israeli forces and other armed forces acting on behalf of Palestine (or of third States), Israel would also be bound to by the law of IAC when combating such forces.
An IAC (co-existing with a situation of (functional) occupation). A minority of scholars (see the excellent analysis of Longobardo, pp. 214-240) consider that all hostilities that occurs within a situation of occupation – including those between the occupying forces and armed groups – should be submitted to the law of IAC. Indeed, the situation of occupation is usually triggered by – and the continuation of – a confrontation between States and is therefore by nature international. It is true that applying the law of NIAC in parallel to the law of occupation (and the law of IAC in case of hostilities between occupying and occupied forces) is rather artificial. This is especially the case when armed groups are combatting the occupying power alongside the armed forces of the occupied State. Even if there is no such close relationship between belligerents – as it seems to be the case in Gaza – a clear delineation between operations carried out against Hamas, strictly speaking, and operations that directly impact the occupied State might turn out to be difficult – if not impossible – in practice. For instance, one may wonder whether attacks directed at Hamas forces which, at the same time, cause significant damage to Palestinian infrastructures and the natural environment should be regulated by the IHL (and ICL) normative frameworks of IAC or by those of NIAC?
Therefore, in my view, good reasons exist for regulating the entire Gaza conflict by the unique regime of IAC. This approach has also the merit of reinforcing legal protection for individuals and objects threatened by the hostilities. Indeed, the ICC would then be competent to prosecute and try several important war crimes that fall under its jurisdiction only if they are committed in IAC, i.e., disproportionate attacks (Art. 8(2)(b)(iv) of ICC Statute), using human shields (Art. 8(2)(b)(xxiii) of ICC Statute), using starvation as a method of warfare (in the absence of ratification by Palestine of the 2019 amendment that incriminates this violation in NIAC) (Art. 8(2)(b)(xxv) of ICC Statute), attacks against civilian objects (Art. 8(2)(b)(ii) of ICC Statute), attacks against undefended places (Art. 8(2)(b)(v) of ICC Statute), attacks against the natural environment (Art. 8(2)(b)(iv) of ICC Statute), and employing certain prohibited weapons or methods of warfare (Art. 8(2)(b)(xx) of ICC Statute). Moreover, civilian populations of both sides would benefit from the entire regime of protection contained in GC IV and the ICRC would be granted regular access to all persons deprived of their liberty to verify the conditions of their detention and to restore family links, without having to seek the consent of belligerents (Rule 124 of ICRC Customary Law Study). Finally, as far as the conduct of hostilities is concerned , it is important to highlight that using methods or means of warfare that are intended, or may be expected, to cause “widespread, long-term and severe damage to the natural environment” would be prohibited (Rule 45 of ICRC Customary Law Study). Indeed, this is one of the few rules on the conduct of hostilities which is not foreseen by the law of NIAC, neither conventional nor customary.
If the entire conflict is qualified as an IAC, a thorny question remains to be solved: how to treat Hamas forces when arresting and targeting them? In an IAC, because they do not fall within the category of regular or irregular armed forces that belong to the Palestinian State and because, therefore, they are not entitled to POW status, they would need to be qualified as civilians who could be punished for participating in hostilities (independently of the commission of any war crimes) and detained under the conditions set forth by GC IV (Art. 79 to 116 of GC IV). Nonetheless, it is clear that States would never accept to treating Hamas militias as “civilians participating in hostilities” who are protected against attack “unless and for such time as they take a direct part in hostilities.” In reality, military considerations dictate that these militias be assimilated to armed forces for targeting purposes even if they do not formally belong to a party to the conflict (see Schmitt, p. 20). I do understand that this solution would go beyond IHL rules as they stand. Indeed, it would amount to creating a new “hybrid category” of persons who are members of armed forces under the Hague Law and civilians under Geneva Law. But this might be the price to pay to adequately balance humanitarian interests and military considerations in such a complex situation.
Scenario 4: the status of Palestine remains unclear entity and Gaza is occupied
For the sake of completeness, I should mention a last possible scenario: Gaza is considered an occupied territory while the status of Palestine remains disputed. Indeed, according to the 2016 ICRC Commentary to Art. 2 of GC I (§ 324), the unclear status of a territory should not prevent the application of the law of occupation. The ICRC further noted that:
“[f]or the fourth Convention to apply, it is sufficient that the State whose armed forces have established effective control over the territory was not itself the rightful sovereign of the place when the conflict broke out.”
Similarly, in the Wall Advisory Opinion (§ 101), the International Court of Justice expressed the view that the existence of the 1967 war triggered the application of GC IV to the Palestinian territories that were occupied by Israel during that conflict without “need for any enquiry into the prior status of those territories.”
Under this option, in the absence of clarity over the status of Palestine, the current Gaza conflict could only be qualified as a NIAC (that runs in parallel to the Israeli occupation) and thus be protected by IHL rules that apply in this context. Indeed, Hamas could not be considered as fighting on behalf of a clear State entity and the conflict could not be described as a prolongation (or a revival) of the 1967 war which opposed different belligerents.
Concluding observation
After a brief overview of the above scenarios, it appears that the third option – under which Palestine is treated as a State and Gaza as an occupied territory – unsurprisingly offers the most protective legal framework for vulnerable persons and objects under both IHL and ICL. But this is the case only if all hostilities – including those involving Hamas – are qualified as an IAC. For that to happen however, Hamas militias would need to be treated as a new type of belligerent – beyond the traditional categories of combatants protected by GC III and civilians protected by GC IV: armed forces without proper ties to the Palestine State for targeting purposes on the one hand, and civilians for protection purposes on the other. A category that, today, most States would certainly be reluctant to welcome on the battlefield!
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