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From Gaza to Geneva: Distinction, Proportionality and Non-State Actors in the Israel-Hamas Conflict

The concept of just war theory, a cornerstone of International Humanitarian Law (hereinafter IHL), primarily concerns the ethics of engaging in war. At its core, just war theory aims to provide a moral framework to determine when resorting to war is permissible (jus ad bellum) and how war should be ethically waged (jus in bello). Over the centuries, the theory has evolved into principles such as just cause, right intention, last resort and proportionality in initiating war, along with distinction, necessity, proportionality and humanity in conducting hostilities. International law later incorporated many of these elements of just war, culminating in the United Nations Charter’s restrictions on the use of force between states following World War II. In the context of asymmetrical warfare, where state forces confront non-state actors embedded within civilian populations, the application of jus in bello principles—especially those of distinction (differentiating combatants and non-combatants) and proportionality (ensuring military actions are proportionate to the military advantage)—faces significant challenges.


This essay aims to analyse challenges IHL faces, primarily in context of the principles of distinction and proportionality in asymmetrical warfare involving state forces and irregular non-state actors. This is done using the Israel-Hamas conflict as a case study. The essay also attempts to suggest how IHL could evolve to better uphold civilian protection.


The analysis will unfolds in four parts. Firstly, it traces origins of  IHL and consequently the challenges that endanger civilians in asymmetric urban warfare between states and non-state actors. Secondly, it spotlights principles of distinction and proportionality tested by parties contravening these amid dense neighbourhoods as evident in Israel-Hamas - causing heavy suffering. Thirdly, it notes legal uncertainty around irregular combatant rights given the ambiguity of classifying the conflict as international or otherwise. It concludes with policy innovation suggestions fundamental to IHL principles if civilian protections are to be upheld in asymmetric contests.


IHL, historically centered on state-to-state conflict, has evolved significantly since its inception. The Geneva Conventions of 1949 and their Additional Protocols of 1977 are pivotal in this evolution, emphasizing the protection of civilians and restricting warfare methods. This development was largely in response to the changing nature of warfare, particularly the emergence of internal conflicts and non-state actors. However, the adaptation of IHL to modern warfare contexts, such as asymmetrical conflicts, present unique and often unaccounted for challenges, especially in ensuring the protection of civilians when combatants and non-combatants are intermingled.


The fundamental principles of distinction and proportionality enshrined in IHL face severe and multidimensional challenges when applied to asymmetric warfare in urban environments. The principle of distinction obligates all conflicting parties to differentiate and distinguish between combatants and non-combatant civilians, restricting deliberate attacks solely to the former group. However, non-state armed militants frequently exploit the realities of dense urban territories by blending in amongst noncombatant resident populations and disguising themselves as civilians in order to conceal movements and launch strikes, in clear violation of this bedrock legal principle. These intentional violations compromise civilian immunity from attack and protections.


Likewise, the principle of proportionality seeks to constrain excessive incidental civilian losses that are disproportionate in scale compared to the direct concrete and tactical military advantage anticipated from a discrete operation. However, non-state groups strain adherence to principles by embedding military assets within civilian infrastructure, including schools and hospitals. By co-locating munitions and fighters with civilians, they use residents as involuntary human shields, deterring attacks on legitimate targets. When assaults do occur, regardless of precautions taken by state militaries to minimize harm under IHL standards, substantial unintended casualties frequently result given the reality of warfare in dense urban zones. These hybrid tactics exponentially escalate civilian risk and suffering in contravention of IHL protections through the intentional conflation of combatant and non-combatant persons and spaces. These principles are foundational to preserving humanitarian values during hostilities.


The conflict between Israel and Hamas starkly demonstrates these dynamics. Hamas utilizes tactics violating the principle of distinction by launching attacks against Israeli civilians from Gazan population centers, deliberately exploiting civilians to shield themselves from Israeli counterattacks. In response, Israel claims its strikes comply with proportionality rules, but invariably causes heavy civilian death tolls given Hamas’s embedment in Gaza’s densely packed urban terrain.


Another important point is that of the uncertainty regarding whether Hamas should be legally classified as a non-state actor or de facto authority further obfuscates analysis on whether norms of international or non-international conflict apply. Hamas, a non-state actor with significant organisational structure and control over Gaza, engages in armed conflict with Israel, a state actor. The intensity and protracted nature of this conflict necessitate the application of IHL in accordance to The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY), in the Tadić case, which provided for the twin criterion. However, the classification of this conflict as either international or non-international remains contested. In earlier scenarios the Israeli Supreme Court has deemed it as international, yet many scholars and international bodies classify it as non-international. This distinction has significant implications for the application of IHL norms, particularly in the protection of civilians and the treatment of combatants.


If deemed an international conflict, the full panoply of Geneva Convention and Additional Protocol I protections for civilians as well as privileges for lawful combatants would apply. This would require distinction between civilians and Hamas fighters, constrain disproportionate force, and grant POW status for detained militants.


However, if classified as a non-international conflict, fewer legal safeguards would govern. Only Common Article 3 basic humanitarian protections would clearly bind Israel regarding Palestinian non-combatants. Hamas militants may be denied lawful combatancy rights and face domestic criminal prosecution.


This legal uncertainty regarding which framework applies fosters potential exploitation where parties apply whichever standards are expedient for military or political interests. It may enable unlawful attacks on Gazan civilians in violation of distinction and proportionality by claiming non-international conflict, while simultaneously denying Hamas fighters POW protections. Eliminating this uncertainty through unambiguous classification is vital to uphold IHL integrity.


IHL developments haven't fully reconciled the rules for international and non-international armed conflicts, largely due to states' reluctance to limit their authority over non-state actors. This results in weaker norms for proportionality and civilian distinction in asymmetric internal conflicts. Israel, for example, avoids classifying the Gaza conflict as international to deny Hamas fighters lawful combatant status, preferring to prosecute detainees domestically rather than as POWs and allowing more civilian collateral damage under lenient non-international conflict rules. Israel's approach, prioritizing counterterrorism over IHL protections for Gazan non-combatants and treating Gaza incursions as law enforcement, exacerbates the disparity in norms between inter-state and non-international conflicts, diminishing civilian protections.


Despite the fact that granting non-state groups belligerent or POW status remains controversial, observed state practice during unstable truces or peace negotiations illustrates that some degree of recognition enables managing conflicts controlled by non-state entities. Recent phenomena like ISIS also test the boundaries of IHL applicability and protections for transnational non-state belligerents.


Addressing civilian protections in asymmetric urban warfare contexts like the Israel-Hamas conflict demands a robust international approach. This paper aims to offer some such strategies diiscussing both promises and limitations around implementing such reforms.


Firstly, Advanced surveillance and data technologies are crucial for detecting breaches against Gaza non-combatants, with AI and sensors tracking force buildups and targeting risks in populated areas. Their success, however, relies on consistent funding and wary state and non-state group cooperation. On the ground, skilled independent observers are key, both for witnessing potential violations and advising combatants on legal obligations in complex urban settings. Nonetheless, recruiting neutral experts and ensuring their safety in conflict zones is challenging.


Secondly, the absence of a legal framework for Hamas as a non-state actor leads to ambiguity, affecting civilian safety. A protocol is needed to guide actions in asymmetric urban combat, considering weapon disparities. Negotiations on distinction, necessity, and proportionality, balancing security and humanitarianism, are vital. Yet, diplomatic stagnation and Hamas' resistance slow progress. Precedents like Common Article 3 and the Second Additional Protocol could shape this framework.


Thirdly, frequent breaches of legal duties call for sanctions on capabilities, finances, and leadership, balanced to minimize harm to Gazans yet enforce legal compliance. However, if not carefully applied, such measures risk increasing resentment and escalating cycles of violence, deviating from the primary aim of protecting innocents in conflict.


Finally, Specialized tribunals led by IHL experts can navigate jurisdictional hurdles in cases with high civilian casualties, fostering uniform standards for urban warfare. Yet, the unclear status of groups like Hamas complicates detainee treatment. Evolved legal frameworks for non-state actors could help tribunals achieve consistent, IHL-aligned rulings.


In essence, principles central to preserving humanitarian restraints and civilian immunity during armed conflicts face deliberate defiance through the strategies of non-state groups intermixing with urban populations. Overcoming these challenges requires creative legal and policy innovations if fundamental IHL protections are to be upheld in asymmetric contests. Enhancing civilian safety in conflicts defined by urban dynamics and non-state armed groups concentrated amid residents demands concerted efforts yet each component entails complex tradeoffs. Prioritizing humanitarian rights has exposed limitations in the international system historically oriented toward state prerogatives. Innovations protecting innocents are vital even if challenging for powerful interests.

Author: Kashvi Chaudhary


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