Classifying the Armed Conflict in Gaza

Abstract

This article reviews the different arguments which have been put forward for classifying the armed conflict in Gaza as being an international armed conflict (IAC) and/or a non-international armed conflict (NIAC) for the purposes of international humanitarian law. In doing so, it first reviews arguments that Gaza was occupied prior to 7 October or afterwards. It then goes on to consider what this means for whether the hostilities between Hamas and Israel should be treated as an IAC or NIAC, reviewing arguments that Palestine exercises overall control over Hamas, the question of whether Article 1(4) of Additional Protocol I has any relevance in this context and the argument that any hostilities in occupied territory should be regulated by IAC rules. Rejecting this latter argument, the article proceeds to consider whether and how the armed conflict between Hamas and Israel can be considered a NIAC, either on its own or alongside an occupation. Concluding that it can, it then briefly surveys academic arguments that any NIAC between Hamas and Israel has become an IAC, because Hamas has been recognised as a belligerent. Before concluding, the article discusses one further basis for the conflict to be classified as a IAC, by examining the double classification theory. Finally, the article takes a step back to consider the practical challenges relating to the simultaneous application of NIAC and IAC rules in Gaza. In its conclusions, the article calls for more reflection on the overly technical nature of IHL scholarship and sounds a caution about the current vulnerability of the legal framework to manipulation and misinterpretation.