24 Nov Classification of the Israel-Palestine Conflict under the Laws of War
[Ayesha Malik is Deputy Director at the Research Society of International Law where she leads the Conflict Law Centre. She is also Adjunct Faculty at the Lahore University of Management Sciences where she has taught war law, refugee law, and public international law to undergraduate students.]
As Israel launches its most recent military campaign (Operation Swords of Iron) after Hamas’ attacks on October 7, international lawyers have been grappling with the character of this conflict. A number of different theories have been offered and this post will seek to analyze them. While post-Tadic, the distinction between international and non-international armed conflicts has been eroded somewhat; it remains one of significance in a number of ways. Importantly, whether Israel is the occupying power or not is central as the obligations incumbent on it would be greater compared to those applicable in an international armed conflict sans occupation. It would also mean that Israel does not possess the right to self-defence in a territory it occupies (Wall para.139).
It seems that there are four plausible theories for how this conflict can be classified:
- A non-international armed conflict
- An international armed conflict and a parallel non-international armed conflict
- An occupation
- An occupation and a non-international armed conflict
I will go through all of these in more detail:
1. A Non-International Armed Conflict
Under this argument (based on Schmitt’s analysis where he explores all possible classifications but settles on this one), there is only a non-international armed conflict between Israel and Hamas. This is because Hamas is a non-state actor and its actions cannot be attributed to another state. Under this theory, there is no occupation of the Gaza strip after Israel disengaged in 2005 as its soldiers are not in that area on a permanent basis and therefore do not exercise ‘effective control’ (as per Art. 42 of the Hague Regulations 1907). However, the physical presence of permanent troops in occupied territory is not required to determine effective control. Boots on the ground are not required so long as the occupying power has the capacity to exercise it. As Dinstein (pages 301-02) states, “when an Occupying Power withdraws its land forces from part of an occupied territory but retains control over the airspace and the maritime areas, effective control need not automatically be looked upon as relinquished”. Israel’s maintenance of a blockade on the strip for the past 12 years plus its ability to lay siege to the territory, order evacuations, and control the goods that enter it (a duty its High Court has upheld), indicates that it remains in effective control of the territory.
Furthermore, a simple NIAC classification is one that Israel’s own courts have shrugged off in favor of that applicable to IACs (Targeted Killings para. 18). This is despite acknowledging the armed conflict is between a state and a non-state actor. The fact that Israel is not simply using force against Hamas in its own territory but also in territory to which it has no sovereign title (the Gaza Strip) indicates that characterizing the conflict as non-international only is largely untenable.
2. An International Armed Conflict and a Parallel Non-International Armed Conflict
Under this theory, there does exist a NIAC between Israel and Hamas but one which takes place outside the territory of Israel and therefore also requires the application of IAC law. This is because the Gaza strip is Palestinian territory or at the very least not territory for which Israel has sovereign title. As force is being used outside its territory, Israel must apply IAC law with regards to any attacks against the Palestinian population and Palestinian infrastructure/territory, but NIAC law applies between Israel and Hamas. As a result, Israel is not entitled to give POW status or combatant immunity to those enjoying a continuous combat function in Hamas or those which directly participate in hostilities for it but would be required to for members of the Palestinian armed forces (if we assume one exists). Largely, this remains a distinction without much difference as the IAC and NIAC law applicable to the Palestinian people/infrastructure is mostly the same and there are no Palestinian armed forces. However, it does change the nature of international armed conflicts from being one which is not necessarily inter-state but merely cross-border which is tricky (see Milanovic, page 384).
3. An Occupation
Under this approach, Israel is an occupying power in the Gaza Strip having fulfilled the tripartite criteria in Article 42 of the Hague Regulations (1907) of a territory, a hostile army, and effective control. The ICRC has further recently released FAQs stating it also believes that Gaza remains occupied territory given Israel “still exercises key elements of authority over the strip, including over its borders (airspace, sea and land – at the exception of the border with Egypt)” and as a result continues to be bound by its obligations under the law of occupation.
According to Cassese (page 420) and quoted in Targeted Killings (para. 18) “An armed conflict which takes place between an Occupying Power and rebel or insurgent groups – whether or not they are terrorist in character – in an occupied territory, amounts to an international armed conflict.” This view is also supported by the Naletilić & Martinović case (para. 217) in which the ICTY Trial Chamber states that “battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation”. It is further supported by Armed Activities where the ICJ applied the law of occupation and IAC law to Uganda’s actions against non-state actors in the Ituri region it occupied (also see Lubanga, para. 220). This is supported by Akande who argues that the law of occupation recognises through certain provisions that individuals who are not combatants may imperil the security of the occupier (Art.5 GCIV and Art.45(3) API) and nonetheless grants them the fundamental guarantees of Article 75 of API.
This would suggest then that Hamas would possess state-like characteristics in that they would have combatant immunity and Israel would need to give them, if captured, prisoner of war status so long as they complied with Article 4, Geneva Convention III. However, the elevation of a non-state group to state-like status simply by the conflict occurring in occupied territory may be problematic. While it could be supported by Article 1(4) of Additional Protocol I, to which Palestine is a party, Israel is not and the provision’s customary status is contested. Application of that provision is therefore complex in a state which is not fighting a national liberation movement on its own territory but in a territory that is not its own. Moreover, the notion that Hamas is the authority for representing the Palestinian peoples’ fight against occupation and not the Palestinian Authority is a difficult case to make.
The key issue with the classification of this as an occupation to which the law of IAC applies only is that the factual status of an occupation does not preclude parallel non-international armed conflicts from existing.
4. An Occupation and A Non-International Armed Conflict
Perhaps a better view, though one not currently supported in jurisprudence, is that the law of occupation would apply between the occupying power and the occupied population but that the law of NIAC would govern the conflict between the occupier and the non-state group. This has also been supported by some in an Experts Meeting of the ICRC related to occupied territory. Moreover, Milanovic also contends that “[i]t therefore does not seem at all obvious that the Israeli–Palestinian conflict should be regarded as an international, rather than as a non-international one, just because it is taking place, at least in part, in a territory which is under belligerent occupation.” He goes on to argue (page 384) that:
The major humanitarian treaties are also of little help, since they relate only to the original armed conflict during which the territory was occupied, but not to a new armed conflict occurring long after the end of the initial one. Likewise, the new armed conflict could be regarded as an internal one, since (i) the occupying power is the only state for decades to exercise exclusive effective control over the territory; (ii) no other state is laying claim to the territory; and (iii) the insurgents themselves are not purporting to fight on behalf of any other state, nor is their struggle directly related to the initial international armed conflict.
While Hamas did win elections in the Gaza Strip in 2007, these were only won in the Gaza Strip and not the West Bank, furthermore, they have not been held since 2007. Hezbollah has also won elections in Lebanon and yet remains a non-state actor, therefore, the importance of elections or Hamas’ winning of them should not be overstated. Similarly, it is clear in Hamas’ name itself (Islamic Resistance Movement) that it does not present itself as the Palestinian armed forces but clearly as a non-state group. However, its struggle is directly related to the initial fact of the occupation itself and therefore, contrary to Milanovic’s argument, it is directly related to the ‘initial international armed conflict’ itself.
Under this mode of classification, though, in which a NIAC exists between the occupier and non-state actor and an occupation (and therefore an IAC) exists between the occupier and the population, the non-state actor remains a non-state actor and does not take on a state-like role due to the mere fact of occupation. Moreover, only the armed forces of the ousted sovereign remain capable of possessing combatant immunity and attendant prisoner of war status. In the case of Palestine, where such an armed force does not exist, any non-state actors in conflict with Israel remain regulated by the law applicable to NIACs. The law of occupation, including the obligation to restore public order and respect the laws in force (Art.43 HRs), to ensure public health and hygiene (Art.56 GCIV), allow relief supplies into the territory if inadequately supplied (Art.59 GCIV), the prohibition on the destruction of private property (Art.53 GCIV) and the prohibition on demographic transfer (Art.49, GCIV) continues to apply between the occupier and the occupied population.
This then seems to be the most tenable explanation for how the conflict should be classified as it preserves the inter-state nature of IACs as well as the obligations owed to occupied populations in line with the object and purpose of LOAC. While those arguing for an occupation framework only would argue that Hamas does not fulfil the criteria of Article 4(2) GCIII, and therefore they would constitute civilians directly participating in hostilities, this argument is also a bit suspect as it negates the existence at all of an organised non-state group which does not operate in the same way as mere civilian resistance to an occupation. This qualification denies the status of a fighter engaging in a continuous combat function who are targetable even when not directly participating in hostilities (ICRC Guidance on DPIH, p.34) and is somewhat impractical in a state of ‘hot’ conflict between the occupier and non-state group.
Another question which arises is what law the non-international armed conflict between Israel and Hamas will be governed by. While Palestine has ratified Additional Protocol II, and Hamas does satisfy the additional criteria of a APII-NIAC (control of territory, sustained and concerted military operations, responsible command), Israel has not ratified the Protocol. It would then seem most apt for the NIAC to be one regulated by Common Article 3 between the two parties to the conflict.
The classification of conflicts continues to determine what law applies and the obligations incumbent on a state in the course of an armed conflict. While the classification of the Israel-Palestine conflict remains unclear, this may be a key issue that the International Court of Justice will have to determine in its upcoming Advisory Opinion. As with most questions of law in this ongoing war, it is one which is highly contested.
[This post was updated by the author on the 26th of November 2023.]