The Weight of Words in the Qualification of Armed Conflicts in International Law: Comparative Reflections on Gaza and the DRC

Introduction

Since the resurgence of conflict in eastern DRC earlier this year, numerous voices have criticised the response of the international community. When contrasted with reactions to other ongoing conflicts, such as those in Ukraine and Palestine, commentators have underscored what they regard as culpable inaction, both on the part of the international community in general and peacekeeping bodies in particular. It is therefore necessary to return to the doctrinal foundations of international law governing armed conflicts in order to understand more clearly the legal framework within which the international response to the situation in the DRC must be situated.

The distinction between international and non-international armed conflicts

In international law, the classification of an armed conflict is never a matter of mere terminology. It determines the applicable legal regime, the role of the UN Security Council, the possibility for states to invoke the right of self-defence, and the manner in which the international community perceives and responds to crises. The distinction between an international armed conflict (IAC) and a non-international armed conflict (NIAC) exemplifies the weight that such legal characterisation carries. The current situations involving Israel and Hamas on the one hand, and the DRC and the M23 on the other, demonstrate how decisive this distinction can be.

An IAC is defined in Common Article 2 to the Geneva Conventions of 1949, which stipulates that the Conventions apply “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.[1] Accordingly, any resort to armed force between states is sufficient to trigger the comprehensive application of international humanitarian law, including Additional Protocol I of 1977.[2] Situations of occupation likewise fall within this framework, even in the absence of armed resistance.

A NIAC, by contrast, is regulated by Common Article 3 to the Geneva Conventions, which applies to hostilities “not of an international character” occurring within the territory of one of the High Contracting Parties, typically between a state and one or more organised armed groups.[3] This framework is supplemented by Additional Protocol II of 1977, which applies when rebel groups exercise control over part of the state’s territory and display a sufficient degree of organisation.[4] The International Criminal Tribunal for the former Yugoslavia, in Tadić (1995), clarified two cumulative criteria for the classification of a NIAC: the intensity of the hostilities and the organisation of the groups concerned.[5]

These distinctions are of profound significance. In an IAC, states may lawfully invoke the right of self-defence pursuant to Article 51 of the UN Charter, and the Security Council may exercise its full enforcement powers under Chapter VII.[6]In a NIAC, however, state sovereignty is paramount, and international law strictly limits the attribution of non-state actors’ conduct to third states, unless effective control can be established, as affirmed by the International Court of Justice.[7]

Legal bases for attributing the acts of non-state actors to a state

Attributing the conduct of non-state actors to a state remains one of the most sensitive issues in international law. While the ICJ’s case law requires proof of effective control, state practice and legal scholarship have suggested additional foundations.

The first is the harbouring doctrine, under which a state may be held responsible when it harbours or tolerates an armed group operating from its territory. The paradigmatic example is that of the Taliban accused of sheltering Al-Qaeda in 2001.[8] The second is the unwilling or unable doctrine, which posits that a state may be held responsible when it refuses or is unable to neutralise an armed group operating from its territory. This interpretation, linked to the duty of due diligence, has been particularly developed in Anglo-American scholarship.[9] The third is endorsement, where a state explicitly supports, approves of, or identifies itself with the acts of an armed group. In this case, attribution rests upon a fusion of intent between the state and the non-state actor.[10]

These approaches broaden the conditions under which attribution may be made, but they do not displace the ICJ’s strict standard of effective control.

Comparative analysis: Israel–Hamas and the DRC–M23

In the case of Israel and Hamas, several elements lend themselves to the attribution doctrines. Gaza, governed de facto by Hamas, can be assimilated to a sanctuary, thereby supporting the harbouring argument in so far as the territory functions as a base for armed operations against Israel.[11] The Palestinian authorities, whether unable or unwilling to neutralise Hamas, further reinforce the unwilling or unable reasoning.

By contrast, the endorsement argument is less persuasive. Although Hamas exercises political and military control over Gaza, this alone does not amount to endorsement by Palestine within the meaning of Article 11 of the ILC Articles on State Responsibility, which requires express adoption of conduct.[12] The absence of such adoption weakens reliance on endorsement. Nevertheless, the combined effect of harbouring and unwilling or unable strengthens the case for treating the situation as an international armed conflict, thereby reinforcing Israel’s legal position in invoking the right of self-defence under Article 51 of the UN Charter.

The situation in the DRC is markedly different. The M23 and the AFC are recognised as Congolese rebel groups, albeit with external support from Rwanda.[13] Yet no evidence has demonstrated Rwanda’s effective control over their military operations under the strict criteria established by the ICJ. Neither the harbouring argument nor the unwilling or unable doctrine can apply, since the groups operate primarily within Congolese territory. While several reports have documented Rwanda’s logistical, military, and strategic support to the M23 and the AFC, such assistance does not in itself suffice to meet the strict requirement of effective control established by the ICJ for the attribution of non-state actors’ conduct to a state.[14]

The M23 and the AFC have established military bases in the towns they have captured in the eastern part of the DRC, where since January they have even set up a parallel administration.[15] In this context, the unwilling or unable argument cannot assist the Congolese government, which is presumed to guarantee sovereignty across its entire national territory. As a result, the conflict continues to be classified as a non-international armed conflict, limiting Kinshasa’s ability to invoke self-defence against Rwanda or to activate coercive mechanisms within the UN framework.

Conclusion

This comparative perspective highlights a striking asymmetry. In Israel, the combined use of expanded attribution doctrines has facilitated the characterisation of the conflict as international. In the DRC, by contrast, the strict standards of international law preserve the classification as non-international, despite increasing evidence of external interference. The disparity is not merely theoretical; it directly shapes the ability of states to invoke international law as a shield for their sovereignty.

The cases of Israel–Hamas and the DRC–M23 illustrate that the terminology used to qualify a conflict carries significant consequences. Behind legal categories lie political realities: the right of self-defence, the attribution of state responsibility, and the exercise of powers by the Security Council. Israel has been able to rely on broadened attribution doctrines to link Hamas’ conduct to the Palestinian entity. In contrast, the DRC remains constrained by the ICJ’s requirement of effective control, despite evidence suggesting Rwandan involvement. These situations demonstrate that the classification of armed conflicts is never neutral. It is simultaneously a legal and political contest, in which law and narrative converge to shape both the meaning of sovereignty and the scope of international responses.