(Editor’s Note: This article is part of our new symposium on the ICC and the Israel-Hamas war.)
One of the issues in the recent International Criminal Court Prosecutor’s request for arrest warrants that potentially has broad implications is its classification of the ongoing conflict in Gaza. The request and the supporting expert report classify the conflict as simultaneously a non-international armed conflict between Israel and Hamas and an international armed conflict between Israel and Palestine. This issue was briefly touched on in some of the recent posts at Just Security.
Here, I will focus exclusively on the classification question with three claims in this regard. The first is that the classification in the report is not a simple interpretation of the relevant rules, but an interpretive choice that was made in the course of a long and ongoing public debate among experts over the classification of contemporary conflicts. Second, I will address some concerns that the classification raises and argue that these concerns are more apparent in international criminal law (ICL) than in international humanitarian law (IHL). Finally, I will address the potential implication of Hamas being the effective government in Gaza in the discussion.
The Classification of Extraterritorial Armed Conflicts between States and Non-State Armed Groups
Since the beginning of the 21st century, there has been a debate over the classification of extraterritorial conflicts between States and non-State armed groups. These conflicts do not fit easily into the definitions of international armed conflict (IAC) and non-international armed conflict (NIAC) under common articles 2 and 3 of the Geneva Conventions. During the first decade of the debate, it seems that the trend among relevant stakeholders and other actors was to classify such conflicts as NIAC, with the main exception being the Israeli Supreme Court in the Targeted Killings case, classifying such conflicts as IAC (para. 18). However, over the years several scholars offered a different approach according to which such conflicts should be classified as mixed conflicts – a NIAC between the State and the non-State armed group and an IAC between the two States. This late development in the classification analysis gained momentum when it was accepted by the ICRC in its new commentary on Common Article 2 in 2016 (paras. 257-264), and received support in the ICC’s Ntaganda Trial Judgment in 2019 (para. 728). It should be noted that even in Ntaganda the classification did not lead to applying different crimes to accused from both sides of the conflict, so the classification remained mainly theoretical rather than practical in its implications. I am not aware of a single case in an international tribunal in which accused from different parties to the same armed conflict faced different crimes based on classification. In the one instance in which there were cases from both sides (notably, it wasn’t an armed conflict), in the situation of Kenya, as will be discussed later, the tribunal used a broad interpretation of crimes against humanity to allow for prosecutions of people from the State and the non-State actor.
Even after the emergence of the mixed conflict approach, it remained contested, as the ICRC itself acknowledged, stating that “some” classify such extraterritorial conflicts as a NIAC without a parallel IAC (para. 262). The commentary itself was the subject of debate over its classification, with various authors criticizing the classification of such conflicts as IAC. Kenneth Watkin even suggested that “it is doubtful the ICRC notion of a parallel international armed conflict being created when no force is actually being used against territorial State security forces or its institutions will gain much traction, let alone acceptance, amongst States.”
While I focus in this essay on the general debate over the classification of these conflicts, in the context of the war in Gaza, as was discussed in more detail by others, the factual and legal debate over the status of Hamas and Palestine further complicates the classification debate, with different answers to those questions potentially support a single international or non-international classification of the armed conflict.
The classification debate demonstrates that when the relevant legal sources (such as Common Articles 2 and 3) do not provide an easy solution to the interpretive question, it provides broad discretion that increases the role of normative considerations in the interpretation process. This was recognized by various actors in the specific context of classification, including in the context of Gaza. For example, the RULAC project explicitly addresses the normative implications of their classification of the conflict in Gaza explaining that the classification of the conflict as an IAC “entails the application of a more protective regime for the persons in the power of the enemy.” The previous prosecutor also recognized these considerations specifically in the context of Gaza stating in the context of the Situation of Comoros that “as the protection accorded by the rules on international armed conflicts is broader than those relating to internal conflicts, it seems appropriate, for the limited purpose of a preliminary examination, in cases of doubt, to apply those governing international armed conflicts” (OTP, Article 53(1) Report, executive summary, para. 17).
With this understanding of the interpretative background, the rest of this essay focuses on the implications of different approaches to the classification of such extraterritorial conflicts.
The Mixed Conflict Approach in IHL and ICL
Concerns Under IHL
There are two main arguments against the adoption of the mixed conflict approach. The first is that it dramatically increases the complexity of the application of relevant legal norms to the situation on the ground. IHL is a body of law that operates under extremely difficult conditions, in the fog of war, and therefore traditionally involves an attempt to create rules that are relatively easy to apply during such circumstances. The ideal picture of IHL as a set of binary rules that are easy to apply, is not accurate, especially in urban warfare. However, these complexities often reveal areas of weakness in the ability of IHL to effectively mitigate suffering in warfare, and reinforce the need to strive for clarity and coherence in the interpretation and application of IHL.
the classification in the report is not a simple interpretation of the relevant rules, but an interpretive choice that was made in the course of a long and ongoing public debate among experts over the classification of contemporary conflicts.
It is important to note in this regard that not all mixed conflicts are born the same. In many cases, mixed conflicts include two separate armed conflicts, such as an active extraterritorial conflict between a State and an armed group and an internal conflict between two armed groups. While such conflicts present challenges to the application of IHL, it seems possible to differentiate between acts that are part of each conflict. This is not the case when the vast majority of conduct in a conflict is part of the two parallel conflicts. What is the legal regime that applies to an attack on a residential building that is used by an armed group according to the mixed conflict approach? It seems that the rules of NIAC apply since it is part of the NIAC between the State and the organized armed group as well as the rules of IAC since it is force that is used without consent against a State. This raises many questions that are not answered by most accounts that support the dual classification. For example, is the residential building targetable under the rules of IAC? If the territorial State does not support the armed group in a way that makes the group part of the IAC (in which case the entire conflict would have been an IAC), can we still consider the organized armed group’s (OAG) members and military infrastructure legitimate targets under the IAC? Ostensibly it could be argued that they are civilians in the IAC and they cannot be considered DPH because their actions are not related to the IAC but to the NIAC. This raises the question of what happens if there is a contradiction between the rules that govern the IAC and the NIAC. Is one of them the lex specialis? Should we adopt the more restrictive or the more protective regime in a specific case? (See also Amichai Cohen and Yuval Shany’s recent analysis of the difficulties arising from a mixed conflict approach for “military operations directed specifically against the non-State armed group but incidentally impacting the protection of civilians (e.g., rules on targeting or siege).”) These are just a few questions that demonstrate the significant challenges that result from a single conduct that is associated with two different armed conflicts.
The second concern is more fundamental. The mixed classification approach raises profound concerns with respect to the notion of equality of belligerents which is central to IHL. In the mixed approach, the State conduct is governed by the rules of both NIAC and IAC, while the OAG is bound only by the rules of NIAC. It means that similar conduct in the war can be lawful if conducted by the OAG and unlawful if conducted by the State. To be sure, this concern is mitigated to some extent by the tendency to minimize the gap between the applicable norms in NIAC and IAC, mostly through the identification of customary IHL, as reflected, for example, in the ICRC customary IHL study. This is not the case when it comes to contemporary ICL, however. While the International Criminal Tribunal for the former Yugoslavia’s landmark Tadić judgment famously contributed to the mitigation of the gap between the two types of conflicts (Tadić Interlocutory Appeal on Jurisdiction, para. 97), there are significant differences between the crimes of IAC and NIAC in the Rome Statute.
Concerns Under ICL
In the context of ICL, other interpretive considerations might be relevant to the classification decision. For example, Bartels argues that in ICL, in case of ambiguity as to the type of conflict or doubt as to the evidence supporting, for example, the existence of overall control, interpretation in favor of the accused should be taken into consideration in deciding whether a conflict is an IAC or NIAC (644, 663). It is, however, rather difficult to support such an interpretive approach in the context of international crimes, where the goal of ending impunity played a key role that led to more expansive interpretations of international law to increase accountability. As mentioned, the previous prosecutor chose the opposite direction and focused on increasing the protection of victims, as a key normative consideration in its classification decision (notably, in the early stage of preliminary examination). A similar position was made in the Aleksovski case at the ICTY. When discussing the overall control test, the Appeals Chamber stated that “[t]o the extent that it provides for greater protection of civilian victims of armed conflicts, this different and less rigorous standard is wholly consistent with the fundamental purpose of Geneva Convention IV, which is to ensure ‘protection of civilians to the maximum extent possible’” (Aleksovsky, Appeals Chamber Judgement, para. 146). That said, the existence of an ongoing debate over classification in the international law community, due to the vagueness of Common Articles 2 and 3, should be part of the consideration in the classification decision under international criminal law. In addition, in our case, the current classification does not offer a consistent application of either approach since it offers more protection to victims for crimes committed by the State and interpretation in favor of the accused for crimes committed by the OAG.
This line of analysis underscores the main concern: what is important about the gaps between IAC and NIAC war crimes in the Rome statute is not only the existence of differences between the two types of conflicts but the significance of the specific crimes that are only part of one classification. In the context of the war in Gaza, there are key crimes that are only part of IAC, including the crimes of starvation, disproportionate attacks, attacks against civilian objects, and the use of human shields. This creates a situation in which the same conduct carried out by both parties would only be criminal for one – the State.
When an ICC Pre-Trial Chamber faced a similar interpretive question about the potential unequal application of crimes against humanity, it determined in its decision to authorize the investigation in the situation of Kenya that crimes against humanity could be conducted by non-state actors (paras 89-93). Even the minority position accepted the possibility of crimes against humanity that are committed by “State-like entities” (paras 44-66). In our case, a similar interpretive approach that wishes to narrow the gap between the parties to the conflict would adopt a single classification, or some other unified approach, that applies the rules equally to both sides of the conflict.
The Kenya decision and the notion of State-like entities inform the last point, which relates to classification as well as broader trends in perspectives on the war in Gaza and the agency and status that is attributed to Hamas.
Hamas
Hamas is the de facto government in Gaza. It has an effective government that runs all aspects of life in Gaza and produces reports that many international actors rely on such as the reports of the Ministry of Health regarding the number of casualties in the current conflict. Its control of Gaza dates back to 2007, before Palestine joined the ICC and even before its 2011 application for membership in the UN and its 2012 receipt of Observer State status. It has highly organized armed forces and tight control over many public services. On the other hand, the Palestinian Authority (PA) has almost no effect on any governmental aspect in Gaza. Yet, Hamas is not treated as an effective government of the State of Palestine (The discussion in this section is based on the position of the Office of the Prosecutor regarding the statehood question, without taking a stand in the debate). The lack of recognition of Hamas as the government of Palestine is a reasonable (even if not the only) interpretation of the relevant norms, and it is shared, for various reasons, by actors from all sides. This stems from the fact that two different governments control two different parts of the Palestinian territory. Outside Gaza, the PA, controls parts of the West Bank, and Hamas does not control the West Bank. In addition, the PA is widely recognized as the government of the State of Palestine. However, the choice to see the PA as the government of Palestine has significant costs in the context of classification and various other issues in the current conflict in Gaza (the important question of the duties of the PA as the government of Palestine in the context of the current war is beyond the scope of this piece).
It seems that at least in some cases, the lesser status of non-State actors leads to favorable normative outcomes for those actors according to some interpretations of international law. Often, these favorable outcomes raise profound normative concerns. In the current case, the OTP classification of the conflict leads to a favorable outcome for the OAG/Hamas compared to the State/Israel. This applies also to some of the discussions of the right to self-defense in the context of the current war and beyond. More broadly, it seems that the non-State actor is often treated as an entity with limited agency, legally and ethically. That treatment is reflected in some of the discussions on the hostilities post-October 7, where the agency of Hamas has a limited role in the ad bellum and in bello discussions of the events, in the quest to end the bloodshed. Such positions can provide incentives to the non-State armed group to maintain its current status as an OAG and its current course of conduct. For example, if the crime of “utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations” does not apply to the OAG for purposes of the ICC, such conduct may then help them militarily without fear of legal accountability while increasing the prospect of the other side committing war crimes. Such incentives are most concerning when the non-State armed group is as powerful as Hamas (and perhaps Hezbollah), where the recognized government of the territorial State has a very limited ability to influence the actions of those entities, and where the non-State actor acts as the de facto government of the region.
A crucial point here is that ratcheting up the accountability of the non-State armed group does not affect the accountability of the State. Indeed, States had a major role in the creation of IHL, and it is possible to point to biases in favor of States in its design and interpretation. Moreover, arguments that focus on reciprocity are used to limit the accountability of States in asymmetric conflicts. In the face of such arguments, it is important to emphasize that IHL norms continue to apply even when one of the parties to a conflict systematically violates the law. In addition, I (as well as others) have, in the past, criticized the tendency of States, including specifically in the context of a previous conflict in Gaza, to interpret the norms in a way that does not provide the non-State actor sufficient incentives to comply with IHL. However, there is seemingly a thin line between emphasizing the obligations of States while insisting on the responsibility and accountability of the OAG, and ignoring or reducing the agency of the OAG while focusing on the conduct of the State. The latter approach is extremely problematic in cases of powerful OAGs such as Hamas which exercise extensive governmental functions and control over the civilian population.
In our case, if the office of the prosecutor wished to emphasize accountability, it could have insisted on classifying the conflict as a single international armed conflict (either through adopting such a (controversial] position in the general debate over classification, or through interpretations that focus on the specific context such as the status of Hamas, or occupation like the previous prosecutor). This would not have affected the accountability of the State but would only expose both parties to similar norms. The prosecutor could have also chosen to classify the conflict as a NIAC, in line with some of the positions in the scholarship and as some authors seem to suggest in the current case, perhaps adopting a normative position that focuses on interpretation in favor of the accused. In contrast, adopting a classification that places much greater weight on the accountability of one side, while excluding Hamas’ leaders from key war crimes that are highly important in the context of urban warfare in Gaza, such as the use of human shields, seems to me as the least favorable interpretive choice. And, it is important to recognize: this was a choice that needn’t be made.