A Tale of Two Conflicts

On the morning of 20 May 2024, a legal earthquake sent its shockwaves through the world: The International Criminal Court’s (ICC) Office of the Prosecutor (OTP) officially announced that it had filed applications for warrants of arrest in the situation in the state of Palestine. For many, this move has been shocking since the applications concern the acting prime minister and defence minister of Israel. However, from a legal perspective, some of the most intriguing aspects of the action taken by the OTP could lie in what many outsiders to the legal world might consider a small detail: the classification of the conflict in Palestine. The complicated question the OTP had to deal with in its application is whether this conflict, which continues to rage on with unabated brutality, is of an international or non-international character. Given that certain types of conduct (e.g., attacking civilian objects) are only criminalised when undertaken in connection with an international armed conflict (IAC), this determination is crucial.

In its statement, the OTP indicated that it considered the alleged crimes have been

‘committed in the context of an international armed conflict (IAC) between Israel and Palestine, and a non-international armed conflict (NIAC) between Israel and Hamas running in parallel’.

Considering both the strong arguments in favour of Palestinian statehood (see Panel of Experts Report para 13, lit a) and the involvement of Hamas as a non-state actor, this approach seems intuitively convincing. However, this post argues that the OTP’s approach risks creating gaps in accountability, weakening the principle of belligerent equality and rendering the law highly unpredictable.

A Question of Accountability: Is Hamas Exclusively Bound by the Law of NIAC?

The OTP decided to charge the three Hamas leaders exclusively with crimes listed in Article 8(2)(c) of the ICC Statute, i.e., crimes committed with a nexus to a NIAC. Does this indicate that the OTP believes that members of Hamas can only be charged with such crimes? This would mean that Hamas could not be held accountable, inter alia, for attacks against civilian objects pursuant to Article 8(2)(b)(ii) or for launching disproportionate attacks pursuant to Article 8(2)(b)(iv). This complication is neither limited to international criminal law, nor to the situation in Palestine; with a view to the 2006 conflict in Lebanon, an international humanitarian law (IHL) commentator noted that the ‘parallel IAC and NIAC’ approach might lead to a situation where a non-state armed group does not have to comply with certain IAC rules, entailing a significant decrease in the quality of protection for, e.g., prisoners of war. Similarly, non-state armed groups might not be held accountable for certain crimes, even if they engage in the same conduct that would be criminal in the concurrent IAC. Legally, this makes perfect sense, but intuitively much less so. Just as it would be typical in an IAC, Hamas is exercising control over the Israeli individuals it holds hostage and targets civilians and civilian objects in Israel. Admittedly, it does so as a non-state actor. However, given that the conduct it engages in is essentially closer to IAC than to NIAC conduct, it seems almost absurd if it could not be held accountable for certain IAC-specific crimes, such as disproportionate attacks. This absurdity becomes even more obvious when considering that such acts would become criminal the second Hamas were to align with the recognised government of Palestine. Still, charging Hamas leaders with Article 8(2)(a) and (b) crimes would be implying that Hamas was engaged in an IAC, which would be inconsistent with the OTP’s submission that only Israel is party to an IAC (against Palestine, not Hamas).

A Question of Equality: Is Israel Bound by the Law of Both IAC and NIAC?

The Israeli leaders, at the same time, are charged with both IAC and NIAC crimes. This is in line with the OTP’s submission that Israel is engaged in both an IAC and a NIAC. It should be noted that the OTP charges the Article 8(2)(c) and (e) crimes as alternatives to the equivalent IAC crimes. One might speculate that the only reason for charging the NIAC crimes as alternatives is to ensure that the charges would still stand, even if the Pre-Trial Chamber (PTC) decided that there was only a NIAC.

However, in light of the previous question and seen from an IHL perspective, this is problematic. The notion that Israel is bound by the rules on IAC and NIAC, while Hamas only has to respect the law of NIAC, is diametrically opposed to the principle of belligerent equality. This equality rests on the assumption that the same in bello rules should apply to both conflict parties. One might argue that this idea only applies between states and is thus limited to ‘pure’ IACs. There is some appeal in this argument if belligerent equality is understood as exclusively flowing from states being sovereign equals. However, the concept can also be construed as an expression of the principle of non-discrimination between all those affected by a conflict. Neither civilians nor combatants/fighters on either side deserve more or less protection. Yet, the OTP arrest warrants’ application might be considered as giving authority to an interpretation of IHL that, if applied consistently, makes such a disparity almost inevitable.

A Question of Predictability: How to Determine If Israel Is Acting in Connection with the IAC or NIAC?

From a practical ICL perspective, Israel being simultaneously engaged in two conflicts comes with a closely related but distinct problem: how to determine whether specific conduct was associated with the IAC or the NIAC? This question is crucial since a military operation could only amount to, e.g., the war crime of launching a disproportionate attack under Article 8(2)(b)(iv) if it was connected to an IAC. Take the example of Israeli airstrikes on residential buildings in Gaza suspected to cover ‘underground terror infrastructure’, reportedly killing and wounding a substantial number of civilians. Would this be considered forming part of Israel’s NIAC against Hamas because the presumed targets were Hamas facilities? In this case, Israel could not be held accountable for such an attack being disproportionate. Moreover, Israel will argue that all its operations target Hamas. Would it ever engage in an IAC then? Alternatively, the airstrikes could be considered as associated with the IAC between Israel and Palestine by virtue of interfering with the territorial sovereignty of Palestine and harming its population. Since there are no direct confrontations between Israeli and Palestinian armed forces, focusing on the effects of a military operation on Palestine as a sovereign state seems like the only way of justifying the position that there is an IAC between Israel and Palestine. Yet, in practice, this would mean that virtually all Israeli conduct is connected to the IAC. This would stand in an uncomfortable conceptual tension with the OTP’s ‘parallel IAC and NIAC’ approach and is inconsistent with the charges brought by the OTP against Israel. Perhaps, Israel can be considered to act in connection with the NIAC when it engages with individuals who are not forming part of the civilian Palestinian population and without interfering with Palestinian territory, e.g., when detaining Hamas fighters. However, the question of who is a civilian, thus forming part of the civilian population, and who is directly participating in hostilities or a fighter is notoriously complex, both factually and legally. If the determination of which conduct would be criminal with a view to a given military operation or conduct depended on the answer to this question, this would severely decrease the predictability of the law.

Conclusion

This post does not argue that the approach chosen by the OTP is legally incorrect or otherwise misguided. In fact, it is difficult to imagine any other approach if one wants to apply the law on the classification of conflict as it stands. Consequently, it is not the OTP that is to be blamed for the complications outlined in this post. Instead, they are the inevitable result of the progressive bending of the IHL rules on conflict classification that is necessary to keep pace with the ever-changing nature of armed conflict. The International Committee of the Red Cross recently reiterated its view that IHL is flexible enough to do so. When taking a closer look, the OTP’s application for arrest warrants in the situation in Palestine can be seen as a reminder of both the truth of this statement and the cost of this constant bending, namely increasingly thorny questions on how to avoid inconsistencies and asymmetries. It will now be on PTC I to, potentially, deal with these questions. It is to be hoped that in doing so it will not be obliged to cause another legal earthquake since such might be a lot more destructive than the tremor of 20 May 2024 – far beyond the world of international criminal law.