Israel in Gaza: The Impact of Conflict Classification on Criminal Accountability

In the complex world of international law, there are two main sets of rules that govern how wars are fought. One set applies when two countries fight each other, known as an international armed conflict. The other set applies when a country fights against a rebel group or an organized armed faction within its own borders, known as a non-international armed conflict. While the goal of both rulebooks is to protect civilians and limit suffering, they are not identical. Some serious crimes, like using starvation as a weapon or attacking civilian buildings, are explicitly defined as war crimes in the first scenario but are missing or defined differently in the second. This distinction matters deeply because it determines who can be held legally responsible for atrocities. When a conflict blurs the lines between these two categories, it creates a legal gray area where the same violent act might be a crime for one side but not for the other, leaving victims without justice and perpetrators without accountability.

A legal scholar at the University of Essex has examined this exact problem in the context of the ongoing war in Gaza. The research focuses on a recent decision by the International Criminal Court, which has characterized the conflict there as both an international armed conflict and a non-international armed conflict at the same time. On one hand, the court views the fighting as an international war between Israel and the State of Palestine. On the other hand, it views the fighting as a civil war between Israel and the Hamas militant group. The author of this paper argues that holding these two classifications together creates a confusing and unfair legal situation. By treating the conflict as two different types of war simultaneously, the court has created a system where the rules of engagement change depending on which side is being judged, rather than the nature of the violence itself.

The paper details how this dual classification leads to a significant gap in accountability. Under the current rules of the International Criminal Court, certain severe acts are only considered war crimes if they happen during an international war between states. For example, the deliberate starvation of a civilian population or the destruction of civilian infrastructure like hospitals and schools are explicitly criminalized in international conflicts. However, these same acts are not listed as specific war crimes in non-international conflicts under the current treaty. Because the court has labeled the conflict in Gaza as both types, it creates a paradox. If the court treats the actions of Israeli leaders as occurring within an international conflict, they can be charged with these specific crimes. Yet, if the actions of Hamas leaders are treated as occurring within a non-international conflict, those same specific crimes cannot be charged against them, even if the conduct is identical.

The author illustrates this imbalance by looking at specific allegations against both sides. There are claims that Israeli forces have targeted civilian objects and used starvation tactics, which would be prosecutable if the conflict is strictly international. Conversely, there are allegations that Hamas has used human shields and attacked civilian areas. If the conflict is viewed as non-international, the specific legal charge for using human shields does not exist in the same way, and the crime of starvation has not yet been fully adopted for non-international conflicts by all the countries involved. This means that under the current mixed approach, one side could face charges for acts that the other side is legally immune from, simply because of how the war is labeled. The paper points out that this is not just a technicality; it undermines the principle that justice should be blind to the identity of the accused.

To understand why this happens, the researcher compares the situation in Gaza to other complex wars, such as those in Libya and Syria. In those conflicts, scholars have tried to apply similar mixed models, but they have run into the same problems: it is difficult to decide which rules apply to which fighter when the battlefield is a mix of state armies and rebel groups. The paper argues that trying to force a single war into two different legal boxes creates more confusion than clarity. It suggests that the current system allows for "legal invisibility," where a group like Hamas is treated as a state actor for some purposes but as a non-state actor for others, leaving them without clear legal status and making it hard to hold them accountable for specific crimes.

The core finding of the research is that the current approach is structurally flawed. The author contends that the International Criminal Court's decision to use a dual classification is incompatible with the established framework of international law. The paper argues that a single conflict cannot logically be two different types of war at the same time, and trying to do so results in inconsistent application of the law. The researcher suggests that the solution is not to keep trying to fit the conflict into existing boxes, but to change the boxes themselves. The paper recommends that the international community should harmonize the rules, creating a single, unified list of war crimes that applies to all types of armed conflicts, whether they are between states or within them.

This proposal is grounded in the observation that the laws of war have already evolved in practice. Many rules that were once only for international wars are now considered standard for all wars under customary international law, which is the unwritten body of law formed by consistent state practice. The paper notes that the International Criminal Court is lagging behind this reality because its treaty, the Rome Statute, has not been updated to reflect these changes fully. By adopting a unified list of crimes, the legal system would ensure that the same violent act is treated as a crime regardless of who commits it or what label is placed on the war. This would eliminate the artificial double standards that currently allow some leaders to evade justice while others face prosecution for the same conduct.

The study concludes that the current legal fragmentation threatens the very purpose of international criminal justice. If the law is applied selectively based on technical classifications rather than the reality of the violence, it loses its moral authority. The author argues that the path forward requires a reform that aligns the written treaty with the actual customs of international law. By ensuring that the rules of war are the same for everyone, the international community can better protect civilians and ensure that those responsible for the gravest crimes are held accountable, regardless of the complex political labels attached to the conflict.