Is the current conflict between Israel and Hamas a NIAC or IAC?

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by Travis Normand
November 7, 2023

This is a summary of (some) the substance found in two other articles, one of which I have posted/shared previously. You can find both of these articles, in their entirety, posted here:

The article by Ken Watkin dives into a lot of interesting topics (including whether this conflict could be classified as an IAC; depending on the degree of support, if any, Iran is providing to Hamas); but my point here in this post is to examine the question of whether the current conflict between Israel and Hamas is a NIAC or IAC. I am doing so by summarizing what is in the two articles posted above.

As you probably know by now, use of the term “war” isn’t much help in answering the question as to whether this is a NIAC or IAC. This is because IHL applies once an “armed conflict” has begun (and whether that armed conflict is called a “war” or “operation,” is irrelevant). Further, with the current situation, there is no doubt that the hostilities have risen to a level of armed conflict, and thus a determination needs to be made: Is the armed conflict a NIAC or IAC?

The reason this question needs to be answered is that it will affect what aspects of IHL apply to the conflict. Unfortunately, the answer is not easy. In fact, it is very complicated. Having said that, here are the supporting articles and/or decisions that argue it is one or the other.

The case for a NIAC:

Michael Schmitt has stated that he believes the conflict is properly categorized as a NIAC. (See: “Israel – Hamas 2023 Symposium – The Legal. Context of Operations Al-Aqsa Flood and Swords of Iron,” by Michael Schmitt, posted on October 10, 2023; at the Articles of War / Lieber Institute at West Point, found here: https://lieber.westpoint.edu/legal-context-operations-al-aqsa-flood-swords-of-iron/).

In fact, in his article, Schmitt states (emphasis added):

I believe that Hamas had no international law right to launch Operation Al-Aqsa Flood, while Israel was entirely within its rights to mount Operation Swords of Iron. The hostilities that have resulted are best classified as a non-international armed conflict. At the time of the attack, Israel was not occupying Gaza but may qualify as an occupying power if it moves into that area and controls it effectively. Each of these conclusions, however, is subject to reasonable disagreement or qualification. Sadly, much of the commentary on the conflict, especially on social media, has been far from reasonable and often inflammatory.

“Israel – Hamas 2023 Symposium – The Legal. Context of Operations Al-Aqsa Flood and Swords of Iron,” by Michael Schmitt, posted on October 10, 2023; at the Articles of War / Lieber Institute at West Point, found here: https://lieber.westpoint.edu/legal-context-operations-al-aqsa-flood-swords-of-iron/

The case for an IAC:

The Israeli Supreme Court has taken a unique view that the conflict is international in nature, and is thus an IAC (mainly because of its trans-border nature). Of course, if true, this would require Israel to apply the full body of IHL to the conflict. (See: Supreme Court of Israel, Public Committee against Torture in Israel v. Government of Israel, Case No. HCJ 769/02, 13 December 2006, available at http://elyon1.court.gov.il/files_eng/02/690/007/A34/02007690.a34.pdf or https://casebook.icrc.org/case-study/israel-targeted-killings-case or https://www.haguejusticeportal.net/Docs/NLP/Israel/Targetted_Killings_Supreme_Court_13-12-2006.pdf ).

Schmitt’s article disputes the claim of an IAC and properly concludes that this is a NIAC:

Schmitt states that the arguments for an IAC by the Israeli Supreme Court are unconvincing; as having a non-state armed group (like Hamas) merely crossing a border does not make a conflict international. In support of this, Schmitt points out that the international community has treated armed conflicts with al-Qaida, the Islamic State, and other organized armed groups as NIACs.

Schmitt then points out that the classification of an armed conflict as an IAC or NIAC depends on the parties to the conflict.

International armed conflicts are between States or between a State and an organized armed group under the “overall” control of a State. Common Article 3 to the Geneva Conventions defines NIACs in the negative as those that are “not of an international character.” The International Criminal Tribunal for the former Yugoslavia further developed the notion in Tadić, where it described such conflicts as “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State” (Tadić Decision on Defence Motion, para. 70). Accordingly, two criteria must be satisfied for a conflict to qualify as a NIAC: 1) participation by an organized armed group and 2) hostilities of significant intensity. All international tribunals are in accord [see, e.g., ICTR, Akayesu Judgment, para. 619; Rome Statute, art. 8(2)(f)].

Regarding the current hostilities, it is true that the Palestinians declared independence in 1988 and that 138 countries recognize Palestine as a State. The United States is not among them and, in my view, correctly so as a matter of law. But even if Palestine did enjoy Statehood, there is no indication that Hamas acted in collaboration with or under the direction of the Palestinian Authority. Similarly, although Iran has been supportive of Hamas, it does not appear to enjoy a level of control over the organization in this situation that would satisfy the overall control test, which requires “going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations” (Tadić Appeals Chamber Judgment, para. 145).

As to the Tadić criteria, Hamas is very well-organized, a fact illustrated by its ability to mount a complex surprise attack against a militarily powerful State with extensive intelligence capabilities. And the level of hostilities in the current round of fighting far exceeds any conceivable intensity threshold for NIAC. Indeed, it can be argued that the armed conflict with Hamas has been ongoing for many years. The group has been responsible for terrorist attacks against Israel since 1997 and there have been repeated rounds of very high-intensity operations since 2008 (see here).

This poses the question of whether the non-international armed conflict between Hamas and Israel has been underway throughout this period, with occasional ceasefires and other lulls in the fighting, or whether the major exchanges constitute separate conflicts. I favor the former view, but whatever the correct position as a matter of law, the conflict underway is non-international in character and as a matter of law subject only to the IHL rules applicable in such conflicts. Israel is, of course, free to apply as a matter of policy any protective IHL rules that govern international armed conflict; it has long done so in many cases, for instance, concerning occupation (even before the Supreme Court required it). Further, in many cases, the treaty and customary law rules governing the two forms of conflict are similar. This is especially the case with conflict of hostilities rules, like qualification as a military objective, the rule of proportionality, and, in large part, the requirement to take precautions in attack. Finally, having co-conducted an on-the-ground review of Israeli targeting practices (and the Military Advocate General’s Corp role in them), I can attest that the IDF’s rules of engagement sometimes exceed even the requirements of the IHL applicable in international armed conflict.

“Israel – Hamas 2023 Symposium – The Legal. Context of Operations Al-Aqsa Flood and Swords of Iron,” by Michael Schmitt, posted on October 10, 2023; at the Articles of War / Lieber Institute at West Point, found here: https://lieber.westpoint.edu/legal-context-operations-al-aqsa-flood-swords-of-iron/

In Ken Watkins’ article, he writes that other states, courts, and experts also view the conflict as a NIAC.

The effect of a NIAC:

If the conflict is a NIAC, the conflict is not subject to the full body of IHL (especially in regards to combatant’s privilege). But as Schmitt pointed out in his article, Israel is free to consider the conflict an IAC and therefore apply all aspects of IHL to the conflict (as that is potentially more protection, not less). After all, in many cases, the IHL that governs both IACs and NIACs are very similar, especially regarding whether something qualifies as a lawful military objective, the rule of proportionality, and precautions taken in an attack.

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