INTERNATIONAL LEGAL STATUS OF THE GAZA CONFLICT AND WAR CRIMES ACCOUNTABILITY

This article is written by Pavni Dua of OP Jindal Global University, an Intern under Legal Vidhiya

ABSTRACT

This article examines the international legal status of the Gaza conflict through the framework of International Humanitarian Law (IHL) and international criminal accountability. It addresses the contested classification of the conflict as an International Armed Conflict (IAC), a Non-International Armed Conflict (NIAC), or a hybrid model, and analyses the legal consequences of each classification for the applicability of the Geneva Conventions and customary IHL. Israel’s status as an occupying power in Gaza and the implications of belligerent occupation for the characterisation of hostilities and the protection of civilians are examined. The article further evaluates the interaction between jus ad bellum and jus in bello, with emphasis on the principles of distinction, proportionality, and precaution, and their relevance to allegations of war crimes, including starvation of civilians, attacks on protected objects, and the use of human shields. Finally, the study explores the available mechanisms for accountability, focusing on the jurisdictional reach and limitations of the International Criminal Court, the role of the International Court of Justice, and the potential of universal jurisdiction in domestic courts. It argues that the primary challenge in the Gaza context is not the absence of applicable legal norms, but the persistent failure to enforce them due to political constraints and contested territorial status.

KEYWORDS

Gaza Conflict, International Humanitarian Law (IHL),International and Non-International Armed Conflict (IAC/NIAC), Belligerent Occupation, War Crimes Accountability, International Criminal Court (ICC), Universal Jurisdiction, Jus ad Bellum and Jus in Bello

INTRODUCTION

The conflict centred on Gaza presents one of the most complex and contested challenges in contemporary international law, seeking to examine both the conflict’s governing legal status and the mechanisms available for accountability.  The unique and contested status of Gaza makes the classification of the conflict under the Laws of War and subsequently the application of International Humanitarian Law (IHL) a challenge. This article navigates the blurred legal lines in understanding the classifications available under international law and the extent of their applicability, ultimately seeking mechanisms through which accountability can be accorded. These mainly concern the application and principles of Jus ad Bellum(the right to wage war) and Jus ad Bello (conduct during war), along with classification of acts as War Crimes and Crimes Against Humanity under the Roman Statute. Furthermore, it assesses the challenging jurisdictional landscape of international bodies, particularly the International Criminal Court (ICC), and the potential for Universal Jurisdiction in national courts, to determine how the global community can enforce IHL and confront the profound impunity gap in the Gaza context.

CLASSIFICATIONS UNDER IHL

A central legal question in the analysis of the Gaza conflict concerns how the hostilities should

be classified under international law, as this determination governs which rules of the Geneva Conventions and customary International Humanitarian Law apply. International legal scholarship traditionally distinguishes between International Armed Conflicts (IACs) and Non-International Armed Conflicts (NIACs), each triggering different—but overlapping—legal regimes. NIACs are generally characterised by sustained armed violence of sufficient intensity involving organised non-state armed groups, and are regulated primarily by Common Article 3 of the Geneva Conventions and Additional Protocol II. Arguments supporting the classification of the Gaza conflict as a NIAC rely largely on the contested nature of Palestinian statehood and the status of Hamas as a non-state armed group. From this perspective, the absence of universal recognition of Palestine as a sovereign State precludes the existence of an interstate conflict, thereby situating the hostilities within the framework of a NIAC. Even where Palestinian statehood is accepted, Hamas’s actions are often viewed as independent of any State attribution, reinforcing the non-international character of the conflict. However, limiting the conflict’s classification exclusively to a NIAC has been widely challenged. Israeli military operations are not confined to Israel’s own territory but extend into the Gaza Strip, a territory over which Israel does not claim sovereign title. This extraterritorial use of force complicates a purely non-international classification and has led even Israeli judicial authorities and international legal commentators to question the adequacy of the NIAC framework alone. As a result, characterising the Gaza conflict solely as a non-international armed conflict fails to capture the full legal and territorial dimensions of the hostilities.

While the Gaza conflict does not neatly fit within the traditional definition of an International Armed Conflict, some scholars support a hybrid approach that recognises the simultaneous existence of both international and non-international dimensions. Under this view, hostilities between Israel and Hamas may constitute a NIAC, while Israel’s use of force in the Gaza Strip engages an international legal relationship with Palestine. The use of armed force by a State in territory beyond its sovereign domain has been interpreted by international bodies, including the ICRC, as capable of triggering the application of the law of international armed conflict, even where a non-State armed group is the immediate target.

In practical terms, however, this distinction remains largely theoretical. The absence of formal Palestinian armed forces and the overlap between applicable humanitarian protections mean that civilians and infrastructure are subject to largely the same legal standards regardless of classification. As a result, the hybrid model does little to resolve the underlying humanitarian concerns arising from the conduct of hostilities on the ground.

THE QUESTION OF OCCUPATION

Another central legal question concerns whether Israel continues to qualify as an occupying power in the Gaza Strip. Despite Israel’s position that its 2005 disengagement brought the occupation to an end, numerous international organisations and States maintain that Israel retains effective control over the territory. This assessment is based on Israel’s continued authority over Gaza’s borders, airspace, territorial waters, population registry, and essential civilian infrastructure, including electricity and water. Control over these elements enables Israel to exert decisive influence over daily life in Gaza, even in the absence of a permanent military presence within the territory. Arguments denying the existence of occupation often rely on the absence of continuous Israeli troop deployment inside Gaza. However, international humanitarian law does not require a permanent physical presence to establish effective control. What matters is the capacity to exercise authority over the territory, which may be achieved through technological, military, and administrative means. The maintenance of a long-standing blockade, the ability to impose sieges, and the regulation of goods and movement into Gaza all point toward the continued application of the law of occupation. Nevertheless, treating the conflict as international solely on this basis raises complex questions regarding the legal status of non-State armed groups and the consequences of extending combatant privileges beyond their traditional scope.

While the classification of conflicts is important for legal analysis of International Humanitarian Law, the European Centre for Constitutional and Human Rights (ECCHR) along with other legal scholars agree that ultimately, categorizing the armed conflict between Hamas and other Palestinian armed groups and Israel as either international or non-international is largely a matter of theoretical concern, given that the bulk of IHL rules applies to either situation. At a minimum, the standards laid out in Common Article 3 of the Geneva Conventions apply, as they serve common standards applicable in all armed conflicts.

PRINCIPLES UNDER IHL

Debates surrounding the legality of Israel’s military operations frequently invoke jus ad bellum, particularly the prohibition on the use of force under Article 2(4) of the UN Charter and the recognised right of self-defence under Article 51. Since Hamas is not a State and its actions are generally not attributable to another State, its conduct does not fall within the traditional framework governing interstate uses of force. Israel, for its part, asserts that its actions are directed against a non-State armed group and are justified on grounds of self-defence. Even if this position is accepted, it does not displace the constraints imposed by jus in bello. Compliance with the principles regulating the conduct of hostilities remains mandatory, and violations of these rules—grave breaches of the Geneva Conventions—may give rise to individual criminal responsibility.

Proportionality plays a key role in international humanitarian law (IHL). It is essential to regulate the conduct of hostilities, requiring that the expected incidental harm is not excessive in relation to the anticipated military advantage (art. 51(5)(b), 57(2)(a)(iii) and (b) Additional Protocol I). Its application to the Gaza conflict is paramount as it helps us analyse in real-time a forward-looking judgment of military advantage versus civilian harm. All feasible precautions must be taken to minimise civilian harm. This applies to both the attacking party, that is, offensive precautions, and the defending party, that is, defensive precautions (Principle of Precaution). The Principle of Distinction states that all parties must distinguish strictly between military objectives (combatants and infrastructure contributing effectively to military action) and civilian objects (civilians and infrastructure not contributing to military action).  The conflict generates high-intensity allegations concerning specific crimes under the Rome Statute (Article 8) that seem to violate most of the provisions under jus in bello.

The use of starvation as a method of warfare has emerged as one of the most serious allegations arising from the Gaza conflict. Reports indicate that large segments of the civilian population are experiencing extreme food insecurity, raising concerns under international humanitarian law. Starvation of civilians is expressly prohibited by Additional Protocol I and is recognised as a war crime under the Rome Statute of the International Criminal Court. Alongside allegations of hostage-taking and attacks on protected civilian objects such as hospitals and schools, these claims implicate the regime of grave breaches under the Geneva Conventions. Such violations trigger individual criminal responsibility and may give rise to the exercise of universal jurisdiction by States.

ACCOUNTABILITY AND AUTHORITY

The complexity of the Gaza conflict’s legal status is most pronounced when seeking to impose accountability through international judicial mechanisms. The ICC investigation represents the most significant legal pathway for accountability, but it is confronted at all junctures with jurisdictional and political challenges. The ICC’s jurisdiction over the conflict is based on Palestine’s 2015 accession to the Rome Statute as a State Party. This grants the ICC jurisdiction over crimes (genocide, war crimes, and crimes against humanity) committed in the “territory of Palestine” (including the West Bank, East Jerusalem, and the Gaza Strip) by any national (Israeli or Palestinian) since June 13, 2014. The Complementarity Principle is the primary legal filter governing the ICC’s intervention, as enshrined in Article 17 of the Rome Statute. The ICC is a court of last resort and can only assume jurisdiction if a State with national jurisdiction (Israel or Palestine) is genuinely unwilling or unable to investigate and prosecute the crimes themselves. The challenge thus posed is that since both parties may argue that their national judicial systems are functioning and capable, thereby potentially blocking the ICC’s intervention. Proving a State is “unwilling” (e.g., that investigations are undertaken solely to shield perpetrators from ICC scrutiny) is a substantial legal and evidentiary hurdle. The ICJ, while primarily ruling on disputes between States, has become central to the conflict’s legal status through two mechanisms.

 The ICJ has jurisdiction to hear cases brought by States alleging violations of the 1948 Genocide Convention. The legal burden of proving Genocide is exceptionally high, requiring demonstration of specific intent(dolus specialis) to destroy, in whole or in part, a national, ethnic, racial, or religious group. Even if the final finding does not establish genocide, the ICJ’s orders for provisional measures (e.g., demanding a State prevent genocidal acts) carry immense political and diplomatic weight and establish an international legal record. However, the ICJ may issue advisory opinions on questions of international law referred to it by the UN General Assembly. A recent request for an opinion on the legal consequences of Israel’s policies and practices in the OPT directly addresses the overall legal framework of the occupation and its long-term effects.

Given the slow pace of international mechanisms, national legal systems remain a critical avenue for accountability. The principle of Universal Jurisdiction allows national courts in a third country (e.g., in Europe) to prosecute perpetrators of grave international crimes (war crimes, torture) regardless of where the crime occurred or the nationality of the perpetrator or victim. The doctrine of Command Responsibility (Rome Statute, Art. 28) is essential for penetrating the hierarchy of leadership. This holds military commanders and civilian superiors criminally responsible for crimes committed by subordinates if they knew or should have known and failed to take necessary measures to prevent or punish the crimes. The dominance of the top courts means that justice is filtered through a heavy political lens. The Complementarity Principle, intended to empower domestic courts, often functions as a political shield, allowing national systems to avoid international scrutiny if they undertake minimal investigations deemed “unwilling” or “unable” by the ICC. This reliance on the political will of the international community further compromises the system’s ability to impose objective accountability.

CONCLUSION

The Israeli-Palestinian conflict in Gaza exposes the deep limitations of the current IHL and international justice framework. The core legal problem is not a lack of applicable law, but rather the failure to enforce it due to contested territorial status and political impediments. The study submitted to the UN, which classifies the long-term occupation as an internationally wrongfulact due to breaches of peremptory norms (Self-Determination, Annexation, Apartheid), pushes the legal debate into the highest realm of State responsibility. Achieving an enforceable legal future requires that the international community move toward a unified classification of the territory to stabilise the legal environment. We must move towards decentralising justice through activating mechanisms of Universal Jurisdiction in third States to decentralise the accountability burden and prosecute grave breaches when the ICC and domestic courts remain in their current positions. There needs to be collective action by the international community, and the Gaza conflict should attract changes in the way that the application and operation of law has been structured; it is only then that we can start to arrive at a possible solution.

REFERENCES

1. Charter of the United Nations arts. 2(4), 51.
2. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277.
3. Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Aug. 12, 1949, 75 U.N.T.S. 287.
4. Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907, 36 Stat. 2277.
5. International Committee of the Red Cross, Customary International Humanitarian Law, Volume I: Rules (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005), https://www.refworld.org/reference/research/icrc/2005/en/98261.
6. International Committee of the Red Cross, ICRC Work in Israel and the Occupied Territories: Frequently Asked Questions, https://www.icrc.org/en/document/FAQ-icrc-work-Israel-and-occupied-territories.
7. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136.
8. International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (South Africa v. Israel), Provisional Measures, Order of 26 Jan. 2024.
9. International Criminal Court, Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf.
10. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/56/10 (2001), https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.
11. Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70, Case No. IT-94-1-AR72 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is personal.