Ask Haviv Anything - Episode 14: Should Israel give up on international law ? A conversation with a former IDF lawyer

Episode Date: May 18, 2025

If the requirements of international law mean that Israel is effectively prohibited from defeating its enemies or protecting its borders, should Israelis turn their backs on international law? Why do we need "law?" Isn't it enough to just do our best to be as moral as possible?After all, the institutions of international law seem so unfair to Israel. Just this past year, Israel was made to stand in judgment, accused of genocide, before a judicial panel whose president hails from an enemy country (Lebanon) and then left half-way through the proceedings to serve as the prime minister of that country. That is, the top judge who sat in judgment of Israel was campaigning in the political system of an enemy state.Then there are the many reports that accuse the ICC's prosecutor of rushing to issue arrest warrants for Israeli leaders without bothering with normal procedures because he was trying to cover for credible sexual assault accusations against him?If the institutions cannot be trusted and the rules themselves are abused by every one of Israel's enemies, is this really a "law?" Can it ever be applied fairly?I ask former IDF legal advisor Ben Wahlhaus, who spent 12 years as an international law officer whose duties included counseling senior officers on the legality of military operations, including during the Gaza war.Today’s episode is sponsored by Sapir, the quarterly journal edited by Pulitzer-prize-winning commentator Bret Stephens. If you’re in the US, you can get this excellent journal sent to you absolutely free by going to http://sapirjournal.org/AskHaviv. Please use the link. It helps the podcast if they know we sent you.Please join me on Patreon to support this project: ⁠ www.patreon.com/AskHavivAnything⁠ If you would like to sponsor an episode, please email us at ⁠[e-mail]⁠.A podcast by Haviv Rettig Gur

Hello, everybody. Welcome to another episode of Ask Haviv Anything. A great many of our Patreon subscribers, a great many people I have spoken to over the last 19 months. I myself personally have been asking a lot of questions about international law. It makes sense. There's a war in Gaza. There's a tremendous amount of human suffering. There is an enemy, an enemy that talks constantly about annihilating us. And in pursuing that enemy, there is best case in nature. tremendous civilian suffering involved. And that is if you like the Israelis and trust the Israelis. If you don't like the Israelis, don't trust the Israelis and think they're evil human beings,

then everything gets worse. And the language of international law has been developed over the decades, partly since World War II, mostly since World War II, but we're going to talk to an expert to learn more about it, in order to try and make war, which is necessarily evil, necessarily suffering, necessarily with terrible consequences. It's almost impossible to have one of those postmodern wars where a couple of robots exchanged missiles and everything's fine. War often involves it as a test of wills between combatants willing to suffer a lot of blows,

and there are usually civilians in the way. How do you fight a war in the most moral way possible, with the least damage possible? That is, as I understand it, not a lawyer, just a civilian, once a soldier, as I understand it, the purpose of international law. And yet, international law, in my view, and I'm going to be asking whether this is a serious view or not, has been deeply misused. International law allows to fight a war. International law says that if an enemy combatant uses a hospital, that hospital is a legitimate target for warfare.

And we've had international organizations claiming to speak for international law argue otherwise that there are no conditions under which a hospital is a legitimate target for warfare, even if an enemy uses it to attack you from it or to organize or to have military infrastructures in that hospital. I believe we have an enemy that has a fundamental strategy of using international law, of manipulating a violating international law as a strategy in order to drag the Israelis into perceived violations of international law that are in fact not at all violations of international law and that serious experts all agree are not violations of international law. For example, fighting a war in a hospital. We've had a huge debate over the Ghazan death toll and it matters. It sounds

like if you have 50,000 dead, what does it matter? How many are combatants? How many are civilians? But of course, that's the fundamental question. If there's a one-to-one ratio of civilian to combatant dead, that's one of the most moral war-fighting events in the history of war. And if there's 10 to one civilian death ratio compared to combatants, then that's a very bad war in which civilians maybe probably were not taken care of as they should have been by the combatant armies. So who died, not just how many died, is fundamental to knowing how international law, and I would say also morality, should be understood in the context of the Gaza war. All of these huge, important, fundamental questions have been tugging at our conscience,

have been part of our understanding of this war, have been part of the intense debate around this war. My friend Ben is a tremendous expert on this, and an expert on this that's actually very hard to get because Ben Wallhouse has spent 12 years in the Israel Defense Forces International Law Department. He has actually been responsible for providing international law advice to IDF commanders on operational issues, such as targeting, weapons, detainees. His last position in the Army before he left for civilian life was head of foreign agreements and negotiations in the International Law Department. He gave advice on Israel's peace treaties, on security arrangements with other countries in the region. He works in international law and corporate law at probably Israel's premier law firm, once known as Herzog-Folks-Nemann, today rebranded to just Helzog.

On October 7, Ben was called back to reserve duty and spent many months in the International Law Department, traveled overseas to give briefings to other militaries, to diplomats. He's been in the media a little bit, but he's also worked on the Israeli. Israeli proceedings at different international courts. It was part of Israel's team at the Hague, defending Israel against South Africa's claim that there's a genocide underway. You don't usually get the actual lawyer in the room to come on and speak publicly. It's going to be really interesting and exciting.

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S-A-P-I-R-Journal.org slash Ask H-V-A-V-H-A-V. That tells them that you came from us. It helps out the podcast. Thank you so much. to Sopjeer for sponsoring this episode. Ben, how are you? Good, Javiv. Thank you for having me. As your friend and as a lawyer, it is a privilege. I want to dive right in with my most basic concern over these many years that I have brought to you many times. Why do we abide by international law? And to clarify, I don't mean postal agreements that help packages move around

the world, and I don't mean the law of the sea. I mean international humanitarian law. in war. I am a big, big fan of morality in war. We cannot, you know, drop a bomb that kills vast numbers of civilians for no good military purpose in a war, obviously. That is both international law illegal, but also profoundly immoral. Why isn't the profoundly immoral enough? Why do we need international law? And I don't come to this as a neutral party. I, as a soldier, as a young man, standing on the Lebanese border, where I was living in a kibbutz during my military service, looked out at villages in South Lebanon, knowing that Chisbalah fighters are there,

knowing that there are tens of thousands and later hundreds of thousands of rockets and missiles buried under South Lebanese villages, whose sole purpose was to set our cities on fire. We have enemies that openly talk about our extermination. We have enemies whose fundamental strategies are violations of international law. Mass-scale civilian harm is their strategy.

We have enemies who want to destroy our nation and remove an entire people by force and by blood and International law has absolutely no power to protect us International law is basically telling us you should struggle mightily to fight chizbalah You should not be able to actually defeat Hamas you should rain yourself in and be unable to live safely why We international law people who don't face the challenges you face, who don't face the enemies you face, and the ideologies seeking your extermination have decided it is so. And so we stand in judgment before the world with this language of international law. And again, I'm not asking you about morality. We have to have morality in war.

Why do we need law? What does law give us? What is Geneva conventions and Rome statutes and courts, the ICJ and the ICC? What is all that for that helps us, that gives us anything that just morality doesn't give us. Yeah. Well, you've got a lot of frustration there and I understand it. The simple fact is is that Israel does see it as important to abide by international law. The fact is that successive chiefs of staff of the army have publicly and repeatedly expressed that commitment. The fact is is that compliance with the law permeates throughout whatever the IDF does. IDF members receive training and education in international law. operational plans and standard operating procedures

upward together together with legal advice. The lawyers that I served with are involved in the operational planning process and giving legal advice on weaponry and detainees and targeting. We even have a system of reserve duty lawyers, Israel's top lawyers in the public sector in private practice who receive training throughout the year

and in times of contingency are called up and deployed to predetermined positions to be a part of the forces that are managing this war and to give them that legal advice. And we also have a very robust law enforcement system, both in the IDF and in our civilian justice system. So the simple factors is that Israel sees this commitment to international law important and important enough to translate that into action at all areas of IDF conduct. I think there are many reasons for that. The first reason is that the IDF is the military of a state that is committed to the rule of law and is committed to international conduct.

international law. And Israel is a member of the family of nations. We are a UN member state, and we count amongst our allies and friends other states that share that same commitment. The second reason is that there are ramifications for not complying with the law. There are some very real world ramifications. It could be damage to your standing, to your image, it could be diplomatic fallout, loss of trade relationships, and so on. And the third thing I think is that in many respects international law reflects an embodiment of the values that we have come to see his binding in when it comes to armed conflict you know bringing our hostages home and defeating Hamas is a moral imperative it's something that israel has to do but it's the kind of

fight that is replete with moral hazards Hamas draws the fighting into the urban terrain it disguises itself as civilian it uses its own civilians as a shield and endangers them purposefully and so every soldier every IDF soldier and commander in Gaza faces really challenging and you unique dilemmas. And you need to give them a framework to know how to contend with those dilemmas. And that basic framework, it is very, very basic is international law. And if we start to say, well, the adversary doesn't abide by international law, so why should we? I think that's something that could have some very fundamental moral implications. You know, Hamas is bound by the law. That's not a question. It also doesn't abide by the law. That's also undisputed. But if you use that to say,

shouldn't then where does that leave us as a state and as a society now I agree with you that there's a problem there is some dissonance or a lot of dissonance between what's said publicly about Israel's adherence to the law and all these things that I've just described would show just how important Israel treats the law and sees the law but that problem is not always with the law itself I think there's very much often a misunderstanding of the law and also a misapplication of the law so just one second before you before you get into the problem isn't the law itself I want to hone in. It's not just misapplication, not just misunderstanding,

not just people morally responding because seeing, you know, dead kids from an airstrike on their TikTok feed triggered their amygdala and they're genuinely decent people horrified and read. I'm talking about total fictions, total fictions, like people arguing that it is international law that you are allowed to resist occupation. So it is international law that Hamas's October 7 massacre was. Coulcher. This is a very common argument out there on the interwebs, as they say. It's very common argument out there in the activist community and in the human rights community. And you hear it,

and you read it, and you see it. Just total willy-nilly use of this terminology just to mean whatever the person wants it to mean, international law is a mess. And I think people don't have any idea what it really is and what it really demands. And a lot of bad actors are that or using that to advance their agendas to support Hamas, for example. So we should care what people say on TikTok about what international law is, because at the end of the day, public opinion is important. But first and foremost, we should care what we think about international law and how we abide by international law internally.

And when IDF commanders ask us for legal advice when they're carrying out a target planning process, or they're putting together an operational plan of action for a suburb in Gaza, or they're looking for ways to fight Chisbolan in southern Lebanon, I don't think they're asking us, or I'm sure they're not asking us, because they're worried about what people are going to say on TikTok. They worry because first and foremost, they want to know that they're complying with the law. They want to know that they're sending their soldiers into harm's way in a way that complies with Israel's most basic commitment

to the system of laws that states and only states have put together over the power. past decades to give expression to that need to balance between what is unfortunately in a necessity that we have to go to war, to balance that against also our moral commitment to try and mitigate harm to civilians in any way that we can. And that's what the international laws of armed conflict or international humanitarian law are trying to achieve. They're trying to achieve that balance between what it is that I have to do to protect our civilians, to bring our hostages home, to defeat the terrorist organizations that

are attacking us. But to do that in a way where we do try to mitigate the incidental and the very tragic but unintended harm to the civilians that these terrorist organizations are using as a shielder for their tactical and strategic advantage. As we told people, you were in the room. colonels, brigadier generals sat there and said, you know, Ben, can I do this? And you gave the legal advice on that particular question. And I don't know any details. It's all very classified, and I don't expect you to tell me details. But at the most general level, what does that process look like?

You just talked about it. The brigadier general wants to know they're okay, right? that they have to fight a war. We're not going to have this war without civilian harm. Thousands of tunnel entrances sprawling through all of the cities and towns of Gaza with 500 kilometers of tunnels in a 25-kilometer territory. So if you're going to remove that infrastructure

that Hamas plans to use in the future for a new October 7th, according to Hamas, that's going to cause massive destruction in Gaza, massive demolition in Gaza, just to remove the actual military infrastructure planned to be used for the next war by Hamas, right? they know there's going to be damage, yet they want to know that they have followed this standard that exists that is external to us, external to Israel, external to their little military needs, specific military need at that moment. So what is that process?

Well, the lawyers in the idea for a part of the team in the same respect that other people with different professions are. And if you're talking about the target planning process, for example, so the intel guys will bring along the intel that they know that there's a Hamas command and control center. or rocket launching abilities or what have you in a certain structure in Gaza. And the Air Force guys will come along with their analysis of what kind of munitions are needed and what kind of direction you can attack in in order to achieve the objective that we're doing. And we might have someone who will give you information about the surroundings, is it in the vicinity of a kindergarten or a UN structure or so on. And the lawyer's role in that is to give the legal advice.

So they're a member of the team in a somewhat unique way because the lawyers and the idea are actually independent from the chain of command, which means that when they're sitting around the table giving that advice, they're not subject to the professional chain of command of the commander who's making the decision. Rather, the lawyers are subject only to our commanders in the military advocate general's unit, all the way up to the military advocate general herself, who is a major general, which is the highest rank in the IDF, say, for the chief of staff. And she herself is also not subject to the chain of command of the chief of staff, but rather to the Attorney General, who's the highest civilian legal authority in Israel.

So there's this built into the system of legal advice in the Army, this idea of independence of giving legal advice. So the IDF is committed to these international standards. It has a whole process and procedure and immensely powerful legal advisors, which generally in the Israeli government, if it is professionally under the Attorney General ultimately, it's a very powerful Attorney General. one of the more powerful attorneys general in the democratic world. So there is this very strong legal advisory system involved in the deepest levels of operational planning.

Then why do we keep running into international legal institutions? Why are there international criminal court warrants right now issued for a defense minister, former defense minister, Arab Galant and Prime Minister Benjamin Netanyahu? Why, at the ICJ, do we sit there and listen to South Africa, who, you know, never broke off diplomatic relations with Assad, with 600,000 dead in his war, listen to South Africa accuse us of genocide? Why does the system seem so rigged against us? At the ICJ now, the deliberations were headed by a judge from Lebanon, who then, mid-trial, mid-trial, mid-disc. deliberations, leaves the court and becomes prime minister of Lebanon, which is officially an enemy state of Israel. So Israel stands before a man running to be prime minister of an enemy state

who is the chief judge of whether or not it is committing a crime. Why does it feel so unfair? And also, maybe it isn't. Why are we in such hot water with international legal institutions all the time? So I think this is a demonstration of what I was saying, that the problem is not with the law always, but with a misapplication or a misuse of the law. And it's certainly true what you're saying, that Israel is treated differently, and the International Criminal Court is a good example. The idea of the International Criminal Court, I think, is one that I assume we can all get on board with. The idea that there should not be impunity for the most serious crimes that humanity is identified.

The idea that it doesn't matter what position you have in a state, there should be justice if you violate these very serious crimes. But it does come into conflict with this idea of state sovereignty, that it should be states that decide what the law is, and it should be states that sit at the top of the hierarchy. So the solution for that was that you have to sign up to the ICC, you have to sign up to the Rome Statute in order to have jurisdiction used against you, or you have to have the Security Council think it's so important

that it warrants them referring it. But as you know, we now have a situation where the first Western democracy with a tried and tested system of law, rule of law, the arrest warrants against the first liberal democracy like that is against Israel, a non-member state. And that's also occurred in very questionable circumstances. You know, the court hasn't really addressed some very, very fundamental questions, not just the fact of how do you get jurisdiction over a non-member state, but also whether the entity that triggered this process, that Palestinian, who joined the court and applied for this process,

do they really meet the definition of a state under international law because only states can join the ICC? And besides those very serious legal questions, there's also been some very questionable conduct of the office of the prosecutor who requested the arrest warrants. Firstly, with Israel, he didn't really engage properly with Israel over these issues or at all. In fact, the very day that members of his team were meant to fly to Israel,

instead of boarding the plane, they didn't board the plane, and we got a public announcement that the prosecutor is requesting arrest warrants, much to the chagrin of people like the US Secretary of State who had been the steward the very opposite by the prosecutor. And also internally, there are very serious allegations now against the prosecutor of sexual abuse and perhaps using these arrest warrants as a way to deflect from those allegations. So all these things raise serious questions about. the conduct of the ICC, both in terms of how it's engaged with Israel and how it's assessed the case legally. And, you know, it's like a cup of water where you put in a drop of ink

and it turns the entire water red. Once you start to taint the process like this, it raises some very big questions. And I think that's something that we should be concerned about. And not just Israel, I think other states should be concerned about this, because at the end of the day, it is undermining this idea that, as I said, we're all on board with, that there should be a way to achieve justice for these crimes that humanity is deigned as the most serious. But do you think it's undermining the, you know, I'm so cynical about international law because of all these things. And again, you know, I think I've said this a couple of times. I'll say it again. The question for me isn't Israel's criminality. You know, let's imagine for a moment, just for the

sake of argument, that Israel absolutely behaved criminally, okay? And we have a lot to be ashamed of for all time. You still need a court that's not biased. Okay, you have a criminal comes before a court in a domestic right criminal case that the guy actually robbed the bank. Okay, it's really important that the court ask itself what the evidence is and what the guy's crime is rather than what race does the guy come from? What nation does the guy come from? Is he from a powerful nation or from a non-powerful nation, a small nation that's easy to step on? That's not a court. It's so, you know, whether you think Israel is good or Israel's bad, the same basic question applies if you take international law seriously. And to me, it looks like very few people actually take international

law seriously, including the judges of these international courts, because they do not behave as though the court needs to be a serious, objective, detached court in as much as is humanly possible. They simply don't behave that way. If the exact same war was happening between to other countries, there would not be this ICC proceeding or an ICJ proceeding on Genesis. There simply wouldn't be. There aren't other examples. And so I comment it from this very cynical place. Is international law going to be harmed or can you just, you know, abuse the Jews? The Jews are always going to be a minority. If the Jews and the Muslims go up against each other in the General Assembly, we're going to be outvoted, always and forever and for all time.

So can we trust in international law? I think you're expressing something which I think expresses real frustration and real problems with the international legal system, but it's actually quite sad because I think the promise of international law is a good promise. And there are things that international law have brought us, which are good and beyond the very functional things that you mentioned before, about maritime shipping routes and planes flying over, other countries, airspace and so on. For example, international human rights law, the very idea that in today's day and age, we as the international community have identified certain rights that an individual should have, no matter where they are or under whose authority they are,

I think that's something that, you know, when you look historically, that's something that we should not let go of easily. So the fact that you've identified these very real grievances with the international law of conflict, I think is something that we should all take seriously. And I think people do see these problems and do identify that there are things that need to be fixed. And I think we're starting to see some indication that there are problems. We've had states who are withdrawing from the International Criminal Court. We've had other states, including, for example, Congo.

Congo has a very long and storied history of engagement with the International Criminal Court and the prosecutor's office. They submitted a submission to the court saying that the prosecutor's conduct in Israel's case has been unacceptable. and that perhaps we need to create rules that will ensure that such conduct won't happen in the past. So we're starting to see some indications of change. I think there are some things that can be done to shore up support for international law and make sure that it is being kept at this standard and level of which is good for all of us as a humanity. And the most important thing there is to remember what it's for. And to remember that the whole point of the international law of conflict is to ensure that there's this balance

between the military necessity, what it is that I have to do to defend my people, and this idea that we want to try to mitigate harm to civilians. We want to retain our humanity even in the face of the most serious challenges to that. And there are some problems where that balance is not being adhered to. I think one of the best example is the International Committee of the Red Cross, who is really supposed to be the guardian of international over-arm conflict. But I think they're starting to lose their way. And there are some indications. of that. For example, they have an initiative called explosive weapons in populated areas, where it's very basic level, they're trying to outlaw the use of explosive weapons in populated

areas. Now, I look at that and I think, well, that's just ludicrous because I don't choose as a state to fight in urban areas. It's my adversary that is drawing the fight into urban areas. So if you want to stop the destructive forces of explosive weapons in populated areas, you should be turning your focus to groups like Hamas and ISIS. that fight out of urban areas. But I understand their approach because it's much easier to try and heap more and more restrictions and more and more rules on the states that actually see themselves bound by international law rather than having to actually deal with the very real challenge

of stopping terrorist organizations from exploiting urban areas. But they're really trying to patch up a dam using paper. But more dangerous than that, they're undermining the importance of international law and the significance of international law, because if you go down that, route, then at some point, international law will become irrelevant. So I think reminding everyone and reinforcing that international rule is all about this balance, I think is one of the most important things we can do. I think another thing that we need to do is call out where there is unfair treatment. You know, Israel is not being treated properly at the international criminal courts, not being

treated properly at the International Court of Justice. And those things that we are lucky to have allies who do call that out in our name, and we need to work together with our allies to make sure that that continues. But perhaps most importantly, I think, and perhaps this is a little bit optimistic or maybe even naive, I think the most important thing is to ensure our continued commitment to international law. I think we need to do that first and foremost for ourselves, because we need to be able to say to ourselves that we are operating in a way that we see as binding for everyone and that reflects our values as a state that's committed to the rule of law. But also because I think at the end of the day, that that's what protects us. You know, there was a, a very, a,

a very tragic incident last year in April in 2024, where Israeli forces conducted an airstrike against a convoy of humanitarian personnel from the World Central Kitchen. And a number of World Central Kitchen personnel were tragically killed, including an Australian citizen. And the Australian Foreign Minister, for some reason,

decided not to trust Israel's investigations into this incident, which Israel undertook very quickly and very thoroughly, but to send, to dispatch ex-ex, Australian head of the Australian Defence Forces to come and investigate it on his own. And Israel opened its doors, it gave him access to people, it gave him access to materials, and he published a public report. And the public report confirms what the Israeli investigation found. He says it appears that this really was a case of mistaken identity and that no one in the

IDF intended to kill humanitarian personnel, but he also said some interesting things. He said firstly that Israel's system of commitment to the international law of conflict very closely reflects the same what the Australian Defence Forces does. And he also said that Israel's method and mechanisms for investigating allegations of violations of that law also mirrors the Australian system. And in some way, seems we can get these investigations done even quicker. And in many respects, that's not what the Australian foreign minister wanted to come out of that visit. But I think that's so important that at the end of the day, when you bring the real experts and you give them access to the right people and to

the right materials, if they come around and they come out afterwards and turn around and say, yes, we do think that Israel is biting by international law, then that's what's most important to us. And all the noise of the TikToks can stay. I think, you know, a lot of the things that I hear when people respond to the Israeli arguments, which are legally correct. And then the answer is, but Israel doesn't actually investigate enough and it doesn't enforce enough. And it doesn't, uh, force enough and it doesn't, you know, bring people to trial enough. Are we failing that test just substantively? Do we investigate enough? I think that allegation is not borne out by the facts. And in fact, recently I was having a discussion here in Israel with some UK parliamentarians.

And we were talking about Israel's law enforcement mechanism. And I pointed out that in 2020, the ICC, the then-ICC prosecutor, closed an examination into UK misconduct in Iraq. And the ICC prosecutor looked at the way the UK handled complaints internally inside the UK legal system. And I thought it was sufficient. Now, that process took well over a decade, required investigations both within the UK security forces, as well as investigations outside, because the other ones weren't happening sufficiently quickly. And then the ones outside weren't happening properly, so they had to set up a new system. And it took well over a decade and also led to pretty much naught.

But there the prosecutor thought that that was sufficient to say, well, the UK is handling it so we don't need to get involved. And I said to them, I said, you know, look at our context now. The prosecutor of the ICC asked for arrest warrants less than a year after the incidents that he was concerned about, not only less than a year, but while the war is still going on. And not just while the war is still going on, but also while Israel's Supreme Court,

with its excellent reputation and its independence and its judicial involvement, was considering a petition on the very issues that the prosecutor is concerned about. Yet the prosecutor deemed all that irrelevant and said, Israel is not sufficiently dealing with these things. I'm getting involved. So the facts, I think, show that, firstly,

Israel has a robust and efficient mechanism. for investigating allegations. And it also shows that that mechanism has been used and has been utilized, including in this current conflict. We've already had incidents where the military advocate general has filed indictments against soldiers, for example, in the circumstances of detainee mistreatment. And not only have those indictments already been filed, but decisions have already been reached and those people have already been sentenced.

So Israel's system is not only built in a way that allows, to be effective, it has also shown itself to be effective. And that's before we even get to the Supreme Court, which I think in contrast to many other countries, does not shy away from intervening in military matters and does not shy away from doing so whilst the conflict is ongoing. In this petition that I was talking about, for example, about the humanitarian policy to Gaza, the court actually required senior IDF officers, generals, to come to the court in the midst of this conflicts and give both open door and closed door testimony to the court so it could make its decision. That's something which I think indicates something very important about Israel's legal system.

You're saying, in fact, their mistreatment of Israel is being seen, being noticed and actually bringing a new focus on what international law should be? Yes, you certainly hope that that is the case, and I think that's one of the reasons why it's so important that Israel retain its commitment to this international law because it needs to the support of its allies in order to make that voice heard. In some respects, I think states are starting to see that there are some problems that might be undermining this idea of international law and the system of international law. And that's why you start to see some states withdrawing from the ICC or filing submissions that protest the way that the ICC has been conducting itself. But we also

have to remember that international law is something that's decided upon by states, states make the law and that it also adapts to the changing factual circumstances. So recently we've seen states like Finland who have either withdrawn, who have announced their intention to withdraw from certain treaties regarding methods of warfare, particularly mines. And we can all understand the reason why they do that because they have the threat from a big power who's either on their border and close by their border, and they now see the need to use these sort of means in their fight or in their

defenses against this potentially invading power. And therein lies Israel's challenge, because Israel has pretty much always been at the forefront of these changing circumstances. Where else have you seen a state that needs to contend with the sorts of operational challenges that Israel is contending with in Gaza, a neighboring entity run by a terrorist organization that controls territory and population as an almost unlimited budget and support from other States and has used every single centimeter of that territory and its control over the population to create an urban warfare battlefield.

And while Israel has to contend with those challenges and not only fight Hamas but also secure the release of our hostages, it also has to contend with the challenges on our northern border, it has to contend with a new state in Syria, it has to contend with shoring up our peace arrangements with regional countries and so on and so forth. So Israel has always been at this forefront of these new service. or really the biggest challenges that states have had to face in fighting. And we can't alone force the development of international law. We can't alone force it to adapt to the changing factual circumstances.

So you need to retain your relationships. You need to retain your allies in order to help make your interests heard and hope that those interests will be shared by others. And you can't do that if you throw off the yoke of international law. Last question. Hamas spent 17 years ruling Gaza. Of them, give or take 12, systematically building out the largest tunnel network in the history of warfare. The tactical purpose of the tunnels is to force an enemy that comes for Hamas to cut through cities to get to them.

That's the purpose. And in 19, 20 months of war, civilians have never been allowed into those tunnels in Gaza. They're meant for Hamas to survive while civilians face the Israeli military onslaught to get Hamas. On October 7, if you're in Israeli, from the Israeli perspective, Hamas carried out essentially two atrocities. The first atrocity was against us. And the second atrocity was forcing us, convincing us, we have to actually remove Hamas because it is an undeterable enemy.

And how do we know it's an undeterable enemy? because its fundamental warfighting strategy was the mass sacrifice of its own civilian population. Hamas expected many more Ghazan civilian dead. Hamas strategically needed many more Ghazan civilian dead.

Hamas uses the mass violation of international law on its own side as it's not as a strategy, not as a force multiple, as the fundamental strategy. We are surrounded by enemies who have seen these rules, have read these rules,

have understood Israel's limitations, Israel's weakness in front of the international community where it will be judged with a microscope, and has set that as its fundamental, in other words, you can't deter the Houthis because they don't care what happens to the Yemeni people. You can't deter Hamas because Gaza is a worthwhile sacrifice to sacrifice on the altar of the destruction of Israel

because of their religious ideology and all the complex things. Ditto Chizbalah, dido other enemies and Iranian proxies, etc. And we are now basically testing whether a democracy that does want to obey these laws, that does try to stay within these laws, can fight an enemy whose fundamental strategy is the violation and undermining of these laws. And for ideological reasons, a great many of the banner carriers of international law have decided to try and figure out ways to side with the other side while protect. intending it still international. We are testing whether it is possible under international law to fight an enemy whose basic strategy is using international law against you, violating it in ways that force you to violate it because the costs are on you and not on them.

They don't perceive that civilian harm on their side as a cost. They perceive it as a cost to you. It's a war between the kind of person you are, the kind of ideas you're bringing. we need international law, we want to know we're okay, we need this standard, it's diplomatically important and all these other reasons, but actually, actually it matters for us. And people who say, if this is a limitation of yours, my entire war strategy is going to be around this. I can't defeat you in the battlefield, right? Soldier to soldier tank to tank. So I'm going to defeat you by forcing a battle inside my own civilian population,

during which I will have spent a generation building out the biggest tunnel system in the history of warfare while the civilians stand in the way on purpose. That is the purpose of this kind of war. Israel has to fight this war, win this war, with minimum civilian casualties for their side, both morally, legally,

but also strategically, every dead Palestinian civilian is a win for Hamas and a loss for Israel, just literally in battlefield, just how this strategically, how this kind of war works. So it's a whole new kind of war. in which international law is the game, is the battlefield.

And we're testing whether international law can withstand the kind of assault on international law that Hamas, Chizbalah, Iran, et cetera, are now mounting on it. And I would submit to you that that's my takeaway from this conversation. And that has me very worried, because I feel like I see it, I feel like you see it. I don't feel like the ICC and the ICJ and the international advocacy world for international law has any clue this is happening or willing to admit that this is happening? So I know who I want to be and I know who IDF commanders want to be. And that's not dependent on the way our adversary fights.

But in addition to our continued commitment to the law, which I think is unshakable and unquestionable, I think we do need to insist that people apply the right law. And by people, I don't just mean the public. I mean institutions like the ICC and the ICRC. they need to apply both the right law and they need to apply it to the right facts. So if the ICRC keeps putting out these videos or tweets decrying Israel's military operations in hospitals in Gaza but doesn't address the root cause that Hamas is using hospitals for its military activities, or if the ICRC keeps pushing initiatives like explosive weapons and populated areas,

which is essentially designed to stop states from fighting in urban areas, but doesn't address the root causes of why there is fighting. in urban areas, then I think we're going to be in trouble, not just Israel, but the entire system of international law. But you know, there is one beautiful thing, and I think that that's the opposite is also true. I was one standing at the UN and a foreign diplomat came up to me, and he handed me something, and I said to him, I said, yes, I know what this is. This is a report that Israel put out after the 2014 Gaza conflict. We put out a very detailed report explaining our legal justifications for the conflict, how we conducted ourselves during the conflict according to

international law, how Hamas violates international law during the conflict and how we investigate allegations of misconduct. And it was a very long process and heavy process to do that, but it was a very important report. And I said, yes, I know where this is. So he said, no, look a bit closer. And I looked at it. And it was a report put out by another state that had basically taken our report, even down to the color scheme of the front and back pages and put out a report, doing the same thing about one of their conflicts. So I think that when Israel shows itself to be committed to international law and is transparent about that and holds itself to these standards that we have set for ourselves,

I'd like to hope that at the end of the day, that's what wins out. And, you know, recently there was a UN special rapporteur for counterterrorism, who if you look at his public statements and his writings, he definitely can't be counted amongst Israel's supporters or friends or even a fair, giving a fair analysis to Israel's conduct. But in a press conference he was giving, he was talking about the standard of IDF lawyers. And he said, you know, I've engaged with the IDF in many occasions.

And they're some of the best lawyers. They have excellent, excellent international law lawyers. And he was trying to use that to say, you know, Israel is creating these new legal justifications to get away with what they're getting away with. But he ended up complimenting Israel. And I think, you know, Israel retains that excellence, both in its adherence to the law, but also in our understanding of international law. I mean, from my experience, Israel is some of the best international lawyers in the world.

And if you speak to real experts who give Israel a real fell go, they'll say the same. Both within the IDF, the international law department, is very highly regarded internationally amongst the right people, but also in Israel's public service generally. And I think we were exposed to a little bit of that at the Hague, where the public, finally got a bit of a look into these people who are usually behind the scenes, negotiating, drafting, defending and so on, but here suddenly they were at the forefront. And you really saw the caliber of Israel's international lawyers. And that too is a reflection of Israel's commitment to international law, that we continue to invest in these people and that these people continue

to invest in international law itself to the point where we become world-renowned experts. And I think as long as we retain that commitment and show our expression to that commitment, both in our deeds and in our words, I'd like to hope that at the end of the day, that will keep us protected. How's the last year and whatever it is, 19 months, year and a half been for you, someone who's had to do a lot of reserve duty, someone who has been involved in the war effort, and with a lot of these moral struggles and questions, how has this wartime period been for you? Well, as a citizen, I think for citizens, it's been a very, Israel, it's been a very trying time.

You know, the fact that we still have 59 hostages being held in Gaza, many of whom are alive, including, for example, Henri Miran, who is two daughters waiting for him at home. That's quite a trying and testing thing to be it, not to say the fact that we still remain under attack from various arenas. As an IDF officer, it's been challenging too. I think, you know, having to look at the way that Israel is being treated in, in, you internationally, sometimes it's quite difficult. On the 11th of October, I did a BBC radio interview, and I got asked how long we're going to milk the 7th of October for in order to attack Gaza.

And as a lawyer, it's been quite challenging. I would say, as a representative experience of this, sitting in the Hague in January last year, you're sitting on the bench for the crime of genocide, you know, the crime of crimes, a crime where the term itself was coined, after the Holocaust. And now the Jewish state is being accused of genocide. And that's quite a lonely experience to sit there, even though we sat there with the most incredibly talented and professional and smart colleagues.

You're still sitting there on the bench as the accused. And you actually look up and you see the judge that Israel sent to the court as its ad hoc judge, Aron Barak. And you think this man, he actually is a Holocaust survivor. He's a child Holocaust survivor. And my family experience, my family is originally from Germany, some were lost during the Holocaust and some survived, thank God. But to sit there on that bench and think of that history

and then listen to these furious and basis claims is something that's quite challenging. But at the same time to see the way that Israel's public service and that Israel's lawyers have stood up to the challenge and it's not just the ICJ, it's the ICC, it's other states, it's sanctions, it's BDS, it's all these things that are going on. I think that provides a sense of optimism in the fact that not only do we have a state that retains its commitment to international law and acts on that, acts on that in its deeds, but also that we have a cater of public servants who can meet the challenges that are facing Israel right now. Ben Wallhouse, thank you so much for joining me.

Thank you, Javiv.