Since the outbreak of the hostilities on 7 October 2023, Israel has detained thousands of Palestinians from Gaza. 1,627 are being held by the Israel Prison Service (IPS) as of 6 November 2024, according to information obtained by HaMoked, while thousands more are estimated to be detained by the Israeli military.
Palestinians from Gaza arrested and detained by Israel fall squarely within the definition of “protected persons” enshrined in Article 4(1) of the Fourth Geneva Convention (GC IV) because they “find themselves … at a given moment and in any manner whatsoever … in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” This holds true regardless of whether one considers Gaza to be occupied, as the only requirement is for persons to find themselves in the hands of an occupying power, which Israel undoubtedly remains with regards to the West Bank, including East Jerusalem. (The view that Gaza is no longer occupied was held by some commentators in the wake of Israel’s withdrawal of its ground forces in 2005 but rejected by others. Since the start of Israel’s ground invasion of Gaza last year, it wields extensive control over much of the Strip with boots on the ground, making the contention that Gaza is not occupied even more difficult to sustain.)
Israel might argue that Palestinians from Gaza who are fighters in armed groups are not civilians and thus not protected by GC IV. This position cannot be maintained in case the armed conflict between Israel and armed groups from Gaza is classified as international in character (see, e.g., Quigley). Fighters who are members of these groups do not qualify for Prisoner of War (POW) status because they do not meet the requirements set out in Article 4(A)(2) of the Third Geneva Convention (GC III). There is no third category pursuant to the law of IAC; if persons do not qualify for POW status under GC III, they must be protected as civilians under GC IV (see, e.g., Article 4(4) of GC IV and Commentary).
The issue becomes more complex if one accepts that there is both an international armed conflict (IAC) – for example, by virtue of Israel’s occupation of Palestinian territory – and a non-international armed conflict (NIAC) between Israel and armed groups from Gaza based on the degree of organisation of these groups and the level of intensity of the fighting. The question then arises which rules govern the detention of Palestinians from Gaza who are fighters in an armed group that is party to the NIAC.
The NIAC rules on detention are scant, particularly when it comes to “grounds [of detention] and procedural safeguards.” By contrast, the law of IAC offers an elaborate set of protections both for POWs under GC III and for civilians under GC IV.
Possible theoretical approaches
It has been implied that a relevant concept for determining whether IAC or NIAC rules take precedence is that of nexus, which has been articulated in international criminal law. The notion of “belligerent nexus” is also accepted as a constitutive element of direct participation in hostilities.
Similar language has been used to describe the relationship between IAC and NIAC rules in a situation of dual classification, for example, in an amicus curiae submission to the ICC (“the Court would have to … carefully assess individual acts by reference to the particular circumstances in which they have been carried out—the belligerent nexus—and from there determine whether such conduct should be assessed under the rules applicable to IAC or NIAC”).
Grote suggested that “[p]erhaps, Israel can be considered to act in connection with the NIAC when it engages with individuals who are not forming part of the civilian Palestinian population and without interfering with Palestinian territory, e.g., when detaining Hamas fighters [emphasis added].”
The nexus argument thus seems to lend itself to the view that the NIAC rules should govern Israel’s detention of fighters because they are arrested and held in connection with the NIAC on the grounds of their suspected or actual participation therein.
Another approach, suggested by Lesaffre, is that “normative conflicts between the laws of IAC and NIAC” (for example, when it comes to targeting) would have to be resolved by means of “resort to the lex specialis principle.”
The lex specialis principle presupposes a genuine conflict of norms; other theoretical approaches in a situation where multiple legal frameworks apply concurrently, such as the well-researched and accepted interplay of international humanitarian law (IHL) and international human rights law (IHRL) in situations of armed conflict, are harmonious interpretation of different norms and determination of which norm has the closer “common contact surface area” with the situation at hand (Sassòli, para. 9.040).
The argument that GC IV prevails
The better view, recently advanced by the Diakonia IHL Centre, is that in a situation of dual classification, the detention of Palestinians from Gaza who are members of an armed group that is party to a NIAC with Israel is governed by GC IV.
First, this emerges from a textual analysis of relevant provisions of GC IV, which must be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (Article 31(1) of the Vienna Convention on the Law of Treaties). Article 5(2) of GC IV on derogations provides that protected persons in occupied territory who are detained as spies or saboteurs or under definite suspicion of hostile activity may have their communication rights forfeited under the Convention if absolute military security so requires. This provision thus explicitly accounts for the possibility that protected persons in occupied territory carry out hostile acts against the occupying power, which may at the most restrict their communication rights in response. On this basis, Akande has taken the view that “the law of occupation and other IAC rules (including on targeting) continue to regulate how the occupier may respond to an uprising in the foreign territory.” Furthermore, Article 8 of GC IV stipulates that protected persons cannot renounce any of the rights accorded to them by GC IV, underscoring the inviolability of protection.
The humanitarian purpose of the law may also be taken into consideration. Since the GC IV rules offer a greater level of protection than the NIAC rules on detention, they should be given precedence. Particularly in situations of occupation, there may be significant antagonism and longstanding dehumanisation processes vis-à-vis the population in the occupied territory, especially when the concerned persons are fighters. Furthermore, the ICRC has suggested that if a State detains persons in a NIAC, the grounds for internment and procedural safeguards should be applied in accordance with the ICRC’s Procedural Principles and Safeguards for Internment/Administrative Detention, thus reducing the protection gap between IACs and NIACs.
Even on the assumption that the IAC and NIAC rules on detention give rise to a genuine norm conflict, the GC IV rules should take precedence pursuant to the lex specialis principle because they are more specific and detailed to the situation at hand (for an argument along similar lines see, e.g., Longobardo). Protected persons from occupied territory, even if they are simultaneously fighters in a parallel NIAC, find themselves in a position of particular vulnerability when detained by the occupying power as accounted for specifically in the law of occupation.
On a more accurate reading, there is no genuine conflict of norms: by complying with the more protective IAC rules on grounds and procedure for detention, the occupying power can at the same time discharge its obligations under the law of NIAC. The law of NIAC is largely silent on these matters but does not prohibit applying such standards.
In the alternative, pursuant to the nexus approach, one could argue that the closer nexus of Israel’s conduct when detaining fighters belonging to armed groups from Gaza – when these persons are no longer involved in actual fighting and, thus, the lesser their “geographical proximity to the hostilities” (Sassòli, para. 6.83) – is with the occupation. Put differently, the relationship between an individual protected person detained by an occupying power is better described as a vertical one, rather than the “bilateral” or horizontal relationship that exists between the occupying power and the non-State armed group during hostilities. This is similar to civilians who directly participate in hostilities – they are targetable for as long as they do, but they must still be detained as civilians.
As an aside, even if one were to accept that the NIAC rules govern the detention of fighters under the nexus approach, at a minimum a mechanism would have to be put in place to ascertain that those detained are actually fighters (and the initial presumption should be that they are not). This would reduce the risk that persons without any nexus to the NIAC are detained unlawfully without the protections they are entitled to under GC IV.
Conclusion
The detention of all Palestinians from Gaza, including those who are fighters in armed groups party to a NIAC with Israel, is governed by GC IV.
While some open questions remain about the relationship between IAC and NIAC rules in a situation of dual classification, the general inquiry should proceed along the lines that the more protective framework should take precedence. This follows from the spirit of IHL – its underlying humanitarian purpose – and the situation of extreme vulnerability that detainees find themselves in. International lawyers bear a special responsibility in this regard, as legal argumentation can easily be used to justify the ill-treatment of detainees and other abhorrent practices.
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Postscript
On 21 November 2024, Pre-Trial Chamber I of the ICC issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu, Israeli Defence Minister Yoav Gallant, and the Commander of Hamas’ military wing (the Al-Qassam Brigades), Mohammed Deif.
The Chamber determined that the law of IAC is applicable on the grounds that Israel occupies at least a part of Palestine’s territory, and that Israel and Palestine are parties to the Geneva Conventions, while the law of NIAC governs the fighting between Israel and Hamas. It proceeded to apply the law of IAC to the war crimes allegedly committed by Netanyahu and Gallant (starvation as a method of warfare and failure to suppress intentional attacks against civilians) on the basis that the acts in question were directed “against the civilian population in Palestine, more specifically civilians in Gaza” and “therefore concerned the relationship between two parties to an international armed conflict, as well as the relationship between an occupying power and the population in occupied territory.”
This could imply either that the Court considered the law of IAC to be the lex specialis or that it viewed the conduct in question as having a closer nexus to the IAC. In any event, the conclusion the Court arrived at is identical to the position advocated for in this blog post – the conduct of Israel vis-à-vis protected persons in the occupied territory is governed by the more protective IAC rules.
