Karim Khan’s Dubious Characterization of the Gaza Hostilities

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In his 20 May 2024 press statement announcing his intent to seek arrest warrants for Palestinian and Israeli figures, Prosecutor Karim Khan of the International Criminal Court says, “My Office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas running in parallel.” Khan thus is saying that there is not one, but two armed conflicts in the current Gaza hostilities. In support of this analysis, Khan appends a statement from a Panel of Experts in International Law Convened by the Prosecutor of the International Criminal Court. This Panel produced an analysis, saying that it agrees with the Prosecutor that the hostilities in Gaza involve two separate types of armed conflict, one “international” and the other “non-international,” the two “running in parallel.” The Panel uses a characterization it gives of Hamas as its starting point. “Hamas is a highly organized non-State armed group,” the Panelists say, “and the hostilities between Hamas and Israel have been sufficiently intense to reach the threshold of a non-international armed conflict. The Panel’s assessment is that the non-international armed conflict between Israel and Hamas began, at the latest, on 7 October 2023, when Hamas and other Palestinian armed groups launched Operation al-Aqsa Flood against Israel and Israel launched its Operation Iron Swords in response.”

Then, however, the Panel continues, saying that they have “also concluded that there is an international armed conflict between Israel and Palestine on the basis either that: (a) Palestine is a State in accordance with criteria set out in international law, for which there is a sufficiently strong argument for the purpose of an application to the Court for an arrest warrant, and an international armed conflict arises if a State uses force against a non-state actor on the territory of another State without the latter’s consent; or (b) Palestine and Israel are both High Contracting Parties to the 1949 Geneva Conventions, and that pursuant to the text of Common Article 2 of the Conventions, an armed conflict between two High Contracting Parties is international in character; or (c) There is a belligerent occupation by Israel of at least some Palestinian territory.” The Panel does not say which of the three possible rationales it finds to be valid.

The bottom line in any event, according to the Panel, is that there are two distinct conflicts, one between Israel and Hamas (non-international), and another between Palestine and Israel (international). The Panel does not explain further. Khan is charging not only war crimes, but crimes against humanity. The crimes against humanity charges do not turn on the type of armed conflict involved. But the war crimes charges do.

Is Hamas part of Palestine?

If there is a Palestine-Israel armed conflict that is separate from what is occurring in Gaza, the Panel does not explain what it has to do with the Gaza hostilities, which is the focus of the requested warrants. The Panel’s analysis hinges on Hamas being an entity separate from Palestine and, further, on Hamas being a non-state actor. Hamas, however, is a political party that stood in Palestine legislative elections in 2006. Its candidates prevailed in that election, which was certified as fair by the Carter Center, which said at the time that “the published results are believed to reflect the will of the Palestinian people.” The Hamas list in those elections was headed by Ismail Haniyeh, one of the figures Khan is charging. As a result of the Hamas victory, Palestine President Mahmoud Abbas appointed Haniyeh as Prime Minister of Palestine. In 2007, as a result of internal dissension, the Hamas party took control of the Gaza sector of Palestine. It has governed Gaza since that time. The Panel gives no explanation for how a political party that won an election and is governing territory can be a non-state actor.

The analysis by Khan and the Panel is at odds with what has been understood since 1967 by all relevant international institutions. A given conflict, to be sure, can have both international and non-international aspects. An example is intervention by a foreign state in a civil war to assist a party fighting against the government. In that situation, as the International Criminal Court has said (¶726), there would be a non-international conflict between the two domestic parties and an international conflict between the two states. But in Gaza, no such situation obtains. There are only two parties to the armed conflict.

When is an international conflict not international?

The analysis by Khan and the Panel of Hamas as an entity separate from Palestine does not bear scrutiny. From 1948 to 1967, the Gaza sector of Palestine was occupied by Egypt. In 1967, Israel displaced Egypt as occupying power in an armed conflict that was international in character. That conflict has yet to be resolved by treaty. As noted by the International Court of Justice as an indication that the conflict is indeed international in character, Israel’s military command issued Order No. 3 in 1967 to say that Israel’s military courts in the occupied territory “must apply the provisions of the Geneva Convention dated 12 August 1949 relative to the Protection of Civilian Persons in Time of War with respect to judicial procedures. In case of conflict between this Order and the said Convention, the Convention shall prevail.”

The international character of armed conflict between Israel and resistance groups in the territories Israel occupied in 1967 was affirmed by the Supreme Court of Israel. In Public Committee Against Torture in Israel v. Israel in 2002, a panel of judges that included Justice Aharon Barak, currently sitting in the International Court of Justice in South Africa’s case against Israel, ruled that the armed conflict between what they called “terrorist organizations” in “Judea, Samaria, and the Gaza Strip” involved a “conflict of an international character (international armed conflict). Therefore, the law that applies to the armed conflict between Israel and the terrorist organizations is the international law of armed conflicts. It is not an internal state conflict that is subject to the rules of law-enforcement. It is not a conflict of a mixed character.”

The Israeli court quoted approvingly from Antonio Cassese: “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.” In a 2005 case, Adalah v. IDF, the Supreme Court, again with Justice Barak, identified (¶20) as applicable to the armed conflict in the occupied territories the Hague Regulations of 1907, which govern international armed conflict only.

The Israeli court’s analysis is consistent with that of international institutions. They similarly regard the armed conflict between Israel and resistance groups in Gaza and the West Bank to be of an international character. Examples are the 2009 UN Fact-Finding Mission on the Gaza Conflict (at ¶¶ 272-274), and the 2004 advisory opinion of the International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In this advisory opinion, the ICJ (at ¶¶89-92) found both the Hague Regulations and the Geneva Civilians Convention to provide the law applicable to Israel’s conduct in the territories it occupies.

All may end well

While there is, to be sure, overlap in the Rome Statute between war crimes for the two types of armed conflict, the provisions on conflicts of an international character are more all-encompassing. The Panel of Experts does not explain which allegations should be under which type of conflict. The logic of their dichotomy would seem to require that charges involving actions between Israel and Hamas would be framed as occurring in a non-international conflict. Khan’s war crimes charges against Hamas figures, as recited in his press statement, are all framed that way, but with the Israeli figures, some of his war crimes charges are framed under Rome Statute provisions on crimes in international armed conflict, while others are framed under Rome Statute provisions on crimes in non-international armed conflict.

Prosecutor Khan has levelled war crimes charges that may well be solid on the facts. He has muddied the waters, however, by a questionable characterization of the type of armed conflict he finds to exist. In the end, that characterization may not be fatal. Re-framing may be required. But when Khan presents his request at a hearing before the Pre-trial Chamber I, one can expect that it will ask pointed questions as to why his analysis of the character of the Gaza hostilities differs from the one that has been universally regarded as valid. Does he intend for the International Criminal Court to take a view at odds with that of the International Court of Justice? Can he cite precedent for the proposition that a political party that won an election is a non-state actor, or for the proposition that an armed group opposing a state in occupation is engaged in a non-international conflict? Was the French Résistance that used armed force to try to drive the German army out of France in World War II engaged in a non-international armed conflict? Khan will need a good night’s sleep before that hearing to plan his answers.

The editorial team notes that Professor Marko Milanovic was not involved in reviewing or editing this post.

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Anaelle Meyer says

May 28, 2024

Can Hamas be considered an armed-group “opposing a state in occupation” considering Israel withdrawn from Gaza in 2005? And can a terrorist group, though elected by the people of Gaza, be considered a political party?

Ralph Janik says

May 28, 2024

"Resistance groups in Gaza..."... why not use the technical term "non-state armed group" for Hamas? I fail to understand why one should use the same word for Hamas as for the French Résistance.

Leila Nadya Sadat says

May 28, 2024

This is beautifully written, but alas, I must dissent! The post neglects to note that the ICC Prosecutor’s long standing position is that these conflicts are running in parallel, which was the Court’s published position in 2019 and 2020 in the Preliminary Examination Reports published at that time.Thus, suggesting this is an invention or innovation of Prosecutor Khan is both off key and unfair. I note that all of your sources are older; I do not contest in the slightest Palestinian statehood, but do contest the idea that there are two separate "governments" in Palestine or that there is one government shared by Fatah and Hamas which is not correct.

In my view, the OTP position is the correct one, because the “government” of Palestine that represents "State of Palestine" at the UN neither supports, controls, or agrees with the actions of Hamas, although they have some link of course to the Gaza strip. The State of Palestine acceded to the Rome Statute and joined the Court; Hamas objects to that.

The better view is that Hamas is a nonstate actor, which is why I agree with the OTP characterization that there are both elements of IAC and NIAC in this conflict. You are not the only one making that point, but it seems unnuanced. Yes, it is complicated, but alas, the situation is complicated. With crimes against humanity, of course, no such difficulty arises, there is no distinction between NIAC and IAC but there will have to be an identification of the "State or organizational policy". I think your proposal actually makes things more complex than the Prosecutor's arrest warrants.

Finally, I don’t think Hamas is tantamount to the French resistance. Indeed, it is a strange analogy. The Resistance was affiliated with the Free French government headed by DeGaulle, who considered Vichy and it's cooperation with the Germans illegitimate. The Vichy government engaged in mass deportations and atrocities in its collaboration with Germany. Are you really suggesting that the Fatah-led government of the State of Palestine should be deposed by Hamas? Hamas has brought death and destruction to the Gaza strip. I cannot imagine why suggesting they become the legitimate authority in the West Bank promote either peace or justice.

Heiko Recktenwald says

May 29, 2024

The solution is the recognition of Palestine for the purposes of the ICC. They can recognise whatever they want. Reality as in the borders of 1967 and so on does not matter.

Heiko Recktenwald says

May 29, 2024

Hamas is the government of Gaza and Gaza is a part of Palestine. As far as I understood an article by Menachem Klein in 972mag Hamas and Fatah had been planning something new:

"In February and March 2021, Fatah and Hamas, the two rival Palestinian political parties, reached an agreement to hold elections for the presidency of the Palestinian Authority, its Legislative Council, and Hamas’ entry into the Palestine Liberation Organization (PLO). The elections were planned to take place in accordance with the Oslo Accords, after which negotiations would continue with Israel toward the establishment of a Palestinian state.

The agreement included a commitment to uphold international law, establish a state within the 1967 borders with East Jerusalem as its capital, recognize the PLO as the legitimate and exclusive umbrella framework, conduct a peaceful popular struggle, and transfer the separate government in the Gaza Strip to the Palestinian Authority."

Their favourite was Marwan Barghouti, currently in prison. This is still an option.

https://www.972mag.com/hamas-fatah-elections-israel-arrogance/

Myrthos Barthos says

May 31, 2024

To me the distinction the Prosecutor is making is legally correct and appropriate. To suggest otherwise would be neither prudent nor acceptable since a party that assumes violence as its main means of political influence cannot be equated with the whole nation. Palestine is allegedly not a state because it’s not widely recognised as such (although the attitude is changing and they are few recognitions already). But recognition itself is rather declaratory than constitutive in character and therefore it’s not the main determinative element. But in terms of international legal requirements Palestine arguably posses all elements of statehood. So, Hamas is not part of Palestine; if it’s accepted that it is then the stronger side in these “hostilities”, as the author suggests would have even less constraints in dealing with the Palestinians generally, since Israel would be able to apply even tougher measure and practices, basically to treat all Palestinian structures and individuals as criminals. So, the distinction is wise and based on recognition that a nation is more than a political party, a permanent entity that does not depend on any temporary attributes or strategies that any given political party may pursue. Secondly, I am not sure about this description “hostilities”. When Russia invaded Ukraine the action was properly and promptly referred to as “invasion”. Hostilities imply that the parties to a conflict are more balanced and equal in terms of fighting capacities and access to weapons, which is really not the case here.