27 November 2023
Following the attacks carried out by Hamas and the Palestinian Islamic Jihad on October 7, 2023, and Israel’s subsequent operation – still ongoing –, we have updated our entry on our Rule of Law in Armed Conflict (RULAC) online portal that covers the military occupation of Palestine by Israel.
Our main findings include that Israel still occupies the Gaza Strip and that the ongoing fighting between Hamas, the Palestinian Islamic Jihad and Israel qualifies as an international armed conflict.
Our update also covers a new non-international armed conflict between Israel and Hezbollah, along with two new international armed conflicts respectively involving Israel and Lebanon, and Israel and Syria.
Our Research Fellow Dr Eugénie Duss, in charge of RULAC, answers our questions related to this update.
The majority view still considers that Israel is the occupying power in the West Bank, including East Jerusalem, and the Gaza Strip. Despite the withdrawal of Israeli ground forces from Gaza in 2005, it continues to be recognized as the occupying power due to the level of control it exercises over this territory.
In parallel, there is also the question of the classification of the ongoing fighting between Hamas, the PIJ and Israel, which is more controversial. Some classify it as a non-international conflict, others as an international armed conflict, while the majority refrain from doing so.
Our approach in RULAC is to consider that Hamas and the Palestinian Islamic Jihad, because of their belonging to Palestine, are fighting Israel within the framework of an international armed conflict.
The occurrence and the intensity of military operations and confrontations involving Hamas, the Palestinian Islamic Jihad and Israel are not inherently incompatible with occupation. This is true as long as the occupying power, in this case Israel, continues to exercise effective control over the territory, which is the case as previously mentioned.
Similarly, in our updated content, we specifically address the interplay between siege and military occupation and conclude that a military occupation is not ruled out by the establishment of a siege.
The main controversy we have addressed regarding the ongoing fighting between Hamas, Palestinian Islamic Jihad and Israel revolves around considering these actors as belonging to Palestine. Because the Palestinian authorities have never clearly distanced themselves from Hamas and the Palestinian Islamic Jihad, it is possible to consider them as belonging to Palestine and, thereby classifying the situation as an international armed conflict – which is what we have done. However, saying that these actors belong to Palestine does not mean that their members would be entitled to prisoner-of-war status in the event of capture. Other conditions must be fulfilled for this purpose.
Although the rules on the conduct of hostilities are similar whether an armed conflict is classified as an international armed conflict or as a non-international armed conflict, this classification is fundamental to identifying the type of protection afforded to persons in the power of the enemy. In this regard, our classification of the armed violence between Hamas, the PIJ and Israel as an international armed conflict – as opposed to a non-international armed conflict – entails the application of a more protective regime for the persons in the power of the enemy. Similarly, classification as an occupation entails the application of specific protections for inhabitants.
Our assessment indicates the existence of a non-international armed conflict between Israel and the Hezbollah, attributed to the intensity of the fighting and Hezbollah's fulfilment of the organizational criterion.
Furthermore, because of Israel’s use of force against the territories of Lebanon and Syria, two parallel international armed conflicts are ongoing: one between Israel and Lebanon and another one between Israel and Syria.
The frequency of updates will largely depend on the evolving situation. Nevertheless, considering the need for thorough legal analysis and internal discussions among experts, we prefer to adopt a monthly or bi-monthly update schedule.
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