In the early hours of Wednesday morning on 31 July 2024, it was confirmed that Hamas political leader, Ismail Haniyeh, who had traveled to Tehran for the inauguration ceremony of Iran’s new president, was killed in Iran’s capital as a result of a strike in his place of temporary residence. The specifics of this strike are not exactly clear. At the time of writing, different reports point to conflicting scenarios regarding how this operation was carried out (see e.g. here and here). Both Iran and Hamas have blamed Israel for this attack.
Targeting Haniyeh in Tehran provokes a plethora of sophisticated questions regarding territoriality in armed conflicts. Such questions are compounded when taking into consideration that strikes in Tehran seem to stand at the intersection of two conflicts, namely, the Israel-Hamas conflict and the Iran-Israel conflict. To state the obvious, characterizing the nature of these conflicts is crucial for any inquiry focused on the imperatives of International Humanitarian Law (IHL) in such extraterritorial operations. Of the two conflicts in question, the Israel-Iran conflict definitely possesses an international character, while the characterization of the conflict between Israel and Hamas has proven to be somehow less straightforward (see e.g. here and here). There is scholarly literature that leans towards categorizing the conflict in Gaza as a non-international armed conflict (NIAC) (see here) and this post will proceed on this assumption. However, it should be noted that there is also literature that suggests that the conflict is mixed (international and non-international) with the Prosecutor of the ICC taking this view in his request for arrest warrants regarding the conflict (here, here and, here). To the extent that the targeting of the Hamas leader is seen as arising in the context of a NIAC in Gaza, the question surfaces as to whether the rules of IHL warrant targeting him in a territory that is both remote and foreign to the areas where actual conduct of hostilities is in progress. In this post, an attempt will be made to shed light on the IHL framework governing the extraterritorial targeting of Hamas leader in Tehran.
NIACs beyond the Battlefield: “Territorial-Based Approach”
The most restrictive approach to the geographical scope of IHL in NIACs asserts that IHL rules only govern the territories in which actual hostilities take place. The restrictive approach draws on Common Article 3 of the Geneva Conventions of 1949 which defines NIAC as ‘an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.’
The narrow approach, as observed by Michael N. Schmitt, has been rejected by the International Committee of the Red Cross (ICRC), which adopts a different approach since according to that body, NIACs often “spill over” into neighboring States. However, even for the ICRC, if a NIAC is to extend beyond the territory of a neighbouring state, it must satisfy the traditional requirements for triggering a NIAC: a sufficiently organized armed group sufficiently organized and a certain threshold of intensity of the violence (here). That is to say, for a conflict to be governed by the IHL of NIACs, any further spillover conflict (beyond the territory of neighbouring states) must independently meet the intensity requirement in the new territory (see here, p. 19). This sounds logical, as imposing no restrictions on the application of NIAC rules to conflicts would effectively create a global battlefield—a scenario that is neither feasible nor desirable. According to the ICRC:
‘ […] the notion that a person “carries” a NIAC with him to the territory of a non-belligerent state should not be accepted. It would have the effect of potentially expanding the application of rules on the conduct of hostilities to multiple states according to a person’s movements around the world as long as he is directly participating in hostilities in relation to a specific NIAC…’ (p. 22).
Under the restrictive view, NIAC rules do not follow the conduct of hostilities even though such hostilities may transcend the national borders of a state in which active hostilities are in place, unless the requirements for triggering a NIAC including intensity are met in the territory of the other state. Based on this reading, one way to conceive the targeted killing of Haniyeh in Iran is to argue that the Israel-Hamas conflict has somehow extended to Iranian territories. The facts on the ground do not support this assumption, as Iran is not a neighboring state where current hostilities are occurring. Therefore, extending NIAC to Iranian territories would not be considered logical. More to be said on the nature of conflict with Iran below.
NIACs beyond the Battlefield: “Conduct-Based Approach”
Another approach in IHL places its focus on the nexus of the conduct of an individual and the existing NIAC. According to this approach, the rules of NIAC in targeting matters apply regardless of the location of the person of interest. For example, it has been suggested that the IHL of NIACs applies wherever the warring members of each party involved in the conflict are located (p. 73). Therefore, when a person taking a direct part in hostilities crosses an international boundary, they effectively “bring the law with them” into that territory, meaning that IHL applies to interactions between the party to the conflict and that individual. By this logic, Haniyeh’s presence in Iran would implicate the application of NIAC rules in the Iranian territory. The ICRC considers this doctrine with suspicion and holds that this results in a “global battlefield” (p. 22) (see also here).
In its Report at the 32nd International Conference of the Red Cross and Red Crescent, the ICRC outlines the permissive approach to extraterritorial use of lethal force as follows:
‘…what is decisive is not where hostile acts occur but whether, because of their nexus to an armed conflict, they actually represent “acts of war.” Therefore, any extraterritorial use of force for reasons related to an armed conflict is necessarily governed by IHL, regardless of territorial considerations…’ (p. 14).
The ICRC rejects this expanded reading of exterritorial use of force. However, according to the extensive interpretation, it is not the presence of a person of interest in a given territory that would make him the target of an attack by the opposite party in a NIAC. Rather, it is a person’s conduct in the remote territory that would trigger the application of NIAC rules in that location. Therefore, if a person’s conduct in the territory removed from the place of hostilities is in furtherance of their party’s military objectives of that conflict, they can be made the lawful object of an attack, or any other measure approved by the IHL rules. As a result, not everyone who has a connection to a party to the NIAC is a legitimate target, rather it appears that their conduct must be in nexus to the NIAC to be a legitimate target. In the view of such commentators as Sassòli, IHL of NIACs can apply to other territories, ‘whether or not actual combat takes place there. However, this is only the case for conduct that has a sufficient nexus to the NIAC’ (p. 206) (see also here, pp. 337-341).
Accordingly, if it is proven that Haniyeh’s incomplete trip to Tehran had in one way or another related to the ongoing hostilities in Gaza, he would be deemed as a lawful target under the NIAC rules. Yet, even on this assumption, the situation would not be devoid of operational questions. For example, what kind of conduct by a proxy leader in the aiding and abetting state’s territory justifies targeting? Does an unofficial meeting on strategizing the continuation of conflict qualify? What about receiving directions on hostages? More importantly, what effect can be attributed to the status of a person as an armed group political leader?
Targeting of Political Leaders in a NIAC
The question of targeting political leaders has been the subject of debate in international armed conflicts (IACs), with the general consensus being that an enemy political leader can be targeted if it is determined that they act as a member of the armed forces or, at the very least, ‘control and command the operations of armed forces’ (here, p. 177). The issue is less clear in the context of NIACs, particularly with entities like Hamas, which have both military and political wings operating with complex dynamics, each acting independently of the other (here).
The ICRC commentary to AP II supports the view that fighters of non-state armed groups can be targeted at any time, regardless of whether they are taking direct part in hostilities at the time of targeting (para. 4789). This logic, however, does not hold true for political leaders of armed groups, particularly given that Haniyeh ‘appears not to have been in the operational chain of command of Hamas’s military wing, the al-Qassam Brigades’, and that there is no evidence to indicate that Haniyeh would fulfil ICRC’s “continuous combat function” criterion’ (CCF) (here).
Targeting Haniyeh in the Light of IAC between Israel and Iran
An alternative perspective is viewing the killing of Haniyeh through the lens of Israel’s conflict with Iran. Two arguments about the nature of the conflict with Iran merit examination: firstly, as a hypothetical, could be said that the function of Hamas as a proxy of Iran can potentially give rise to considering that Iran is responsible for the acts of Hamas? That is to say, Iran’s control over Hamas is of a degree such that Hamas’ actions are attributable to Iran. In this view, Israel and Iran are engaged in an international armed conflict, and therefore, targeting Haniyeh falls under both the NIAC between Israel and Hamas and the international armed conflict between Iran and Israel. However, the level of control exercised by Iran over Hamas does not meet any of the established tests of control for triggering its responsibility (for a discussion on these thresholds, see here). This applies even to the much criticized and lower “overall control” threshold (see here) posing an insurmountable barrier to this argument.
Secondly, one may be tempted to view the targeting of Haniyeh as an offshoot of the April conflict between Iran and Israel (here). If we posit that the conflict between Iran and Israel as initiated in April 2024 has not come to an end and therefore, the rules of IAC govern the killing of Haniyeh in the Iranian territories especially as the April conflict with Iran and the killing of Haniyeh may be closely interlinked. In this case, the focus would shift from Haniyeh’s conduct related to the ongoing Gaza conflict to his nexus with the supposedly continuous conflict between Iran and Israel. Even though the April hostilities between Iran and Israel ceased after what appeared to be a drone attack by Israel at a military site (here), one may argue that the recent Iran-Israel confrontation is still a far cry from the “general close of military operations” test (for more details see here). This argument is reinforced by the concern that acknowledging the closure of the April conflict would lead to a “revolving door” situation (here, p. 70) in which the law of armed conflict (LOAC) rules are repeatedly switched on and off. Even in the case of rejecting the argument for the continuation of the April conflict, there is no doubt that an Israeli attack on Iranian soil would trigger a separate IAC (here). Considering either scenario, Haniyeh’s status in relation to the armed conflict with Iran cannot be seen as equivalent to that of a member of the Iranian armed forces, even if Hamas is acknowledged as a proxy of the Islamic Republic. While his connection to Iran’s war efforts may qualify him as an imminent threat to Israel, this does not change his status from that of a civilian to a combatant under IAC laws.
Finally, Haniyeh’s targeting in Tehran could fall at the intersection of the NIAC between Hamas and Israel and the IAC between Iran and Israel. Yet, interestingly, Haniyeh’s status in neither conflict justifies targeting him. It might be argued that adopting a conduct-based approach could alter the rationale for targeting Haniyeh. However, even with a conduct-based approach, it does not grant a warring party the right to strike a political leader. Although the issue is more nuanced in the context of armed groups compared to similar situations in IACs, this highlights a gap where IHL, as it pertains to NIACs, could benefit from further clarification.
