Call Me Back - with Dan Senor - The Laws of War — with Matt Waxman

Episode Date: October 20, 2023

In President Biden’s address from the Oval Office, we continue to hear calls for Israel to respect the laws of war. In recent days, we have also heard others call for “proportionality” in Israel’s response. What does that actually mean? According to what definition of proportionality? And according to whose rules? Is Israel subjected to different rules of war than other countries? Is Hamas a different kind of enemy? These are some of the issues we get into with Matt Waxman, who is Professor of Law at Columbia Law School, where he chairs the National Security Law Program. He is also Adjunct Senior Fellow for Law & Foreign Policy at the Council on Foreign Relations, and he is affiliated with the Lieber Institute for Law & Warfare at West Point. Among his many areas of expertise, Matt is a scholar of the laws of war, including their history and their application to new technologies of warfare. During the Bush administration, Matt served in senior positions at the U.S. State Department, Defense Department, and National Security Council. Earlier in his career, he was a defense analyst at RAND, where among other things he worked on the law and strategy of urban warfare.

Well, certainly in my view, Israel has every right to defend itself militarily. This is a war of self-defense, but it's also a war against a terrorist adversary that does not itself follow any rules. How do we take a body of rules that was developed primarily for state versus state, army versus army, and how do we translate and apply that body of law to a.30 a.m. in Israel on Friday, October 20th. President Biden just gave his address from the Oval Office. My immediate reaction both to the speech and to President Biden's historic visit to Israel earlier this week was generally quite positive.

First off, it was extremely important that he was in Israel. I can assure you that when the Hamas leadership was planning this invasion of Israel, they did not expect in a matter of days that the commander-in-chief of the most important and powerful military in the world would come into Israel into a war zone in no time to stand shoulder to shoulder with the Israeli people and to even attend a war cabinet meeting with Prime Minister Netanyahu and Israel's political leadership. It continues to be important that the president compares Hamas to ISIS and the Nazis. As I've said on this podcast and elsewhere, in using that comparison, President Biden is putting markers down as you look at the history of how the U.S. and our allies dealt with eradicating

the threats of ISIS and the Nazis. It was also notable that President Biden mentioned Hamas's use of human shields and that he blamed Hamas for civilian deaths. Remember that it is Hamas that is responsible for civilian deaths on the Israeli side and the Palestinian side. It was also good that the president said he will continue to hold Iran accountable. It was the first time he mentioned Iran in the context of any of his comments or remarks since October 7th. The absence of an acknowledgement of Iran's role, if not centrality, has been notable to all observers and analysts who know Iran to be at the center of the threats circling Israel. And of course, Israel in the medium term can't really deal with the threats to Israel's south or north without at some point dealing with Iran. The

president, as I said, made clear he would hold Iran accountable, but he said that as they're attacking U.S. forces in the region. So far, as far as we know, without a U.S. response. It was good that the president made a commitment to Israel's security, but he mostly expressed it in a defensive manner, highlighting Iron Dome. Don't get me wrong, Israel cannot survive this war without Iron Dome, and the fact that the president and Congress have been so committed to Iron Dome and will continue to be so committed to Iron Dome should only be applauded. But it would be helpful if the president made clear that he feels equally as strong about Israel's offensive

operations, not just its defensive operations, especially offensive operations in Gaza or wherever else it has to go. But it was the lecturing of Israelis on the laws of war and how they needed to control their rage that I actually found quite tone deaf. Do Israelis really need a lecture about controlling their rage? I actually think when you consider what they have been through since October 7th, they've kept their rage in check. Their response has been very measured. They've worked very closely in tight coordination with the United States government, with European governments, with the international community. They have delayed their invasion of Gaza. They have been working to modify how they isolate Gaza to get critical supplies,

humanitarian supplies into Gaza at the request of various players in the international community and in the Arab world via the United States. So I actually am perplexed by this notion, this repeated reference to the importance of Israelis controlling their rage. But on balance, I thought it was a helpful speech followed by an historic trip by our commander-in-chief. Finally, not related to the topic of this conversation tonight, I thought the president's speech on Ukraine was very strong. It was actually felt to me like more of a speech about Ukraine with a small part about Israel. But now on to some other updates. We are

on day 13 of the war with Hamas. Here are the latest developments. More than 1,400 Israelis were killed in the October 7th massacre, and thousands were wounded. Every day, more bodies are identified. It is believed that 250 Israeli hostages are being held in Gaza between Hamas and Palestinian Islamic Jihad, 50 of which are children, some very young children, and elderly people, people well into their 80s, some of whom are Holocaust survivors. The bodies of Noya Dan, a 12-year-old Israeli girl with autism, and her grandmother, Carmela, 80, who were initially believed to have been held hostage by Hamas in Gaza, have been found today. Around 300,000 Israelis are believed to have been internally displaced since

the start of the war with Hamas. The death toll in Gaza has risen to 3,785 Palestinians, according to the Hamas-run health ministry in Gaza. But put an asterisk next to that, as we should be skeptical on any numbers provided by Hamas authorities on casualty counts, given their record always, but especially this week. We'll come to that in a moment. Israel's Defense Minister Yoav Golant spoke with IDF troops who have amassed on the Gaza border and said that the Gaza incursion is coming soon. The IDF southern command chief says that the ground operation will be, quote, long and intense. Israel has warned more than one million Palestinians living in the northern Gaza Strip to move to a safer part of the territory in southern Gaza or potentially face the wrath of 350,000 Israeli soldiers who are preparing to annihilate Hamas

terrorist units, many believed to be hiding in a miles-long network of tunnels under residential civilian neighborhoods. Israel's northern border has continued to heat up amid the ongoing war with Hamas in the Gaza Strip. Rockets were fired from Lebanon at northern Israel towns, injuring two men and a small girl in Kiryat Shmona. Hezbollah attacked several Israeli army posts along the border as skirmishes on the frontier continued on Thursday. A trilateral commission of Israel, the United States, and Egypt has been formed to facilitate and monitor the entry of humanitarian aid into Gaza through Cairo's Rafah crossing. U.S. officials said the USS Carney, a Navy destroyer located in the Red Sea,

intercepted the three missiles fired from Yemen, likely at Israel. British Prime Minister Rishi Sunak arrived in Israel today on a two-day visit to demonstrate British backing for the Israeli government. He spoke at a joint press conference with Israeli Prime Minister Netanyahu. I know that you are taking every precaution to avoid harming civilians in direct contrast to the terrorists of Hamas, which seek to put civilians in harm's way. You describe this as Israel's darkest hour. Well, then it's for me to say, I'm proud to stand here with you in Israel's darkest hour as your friend. We will stand with you in solidarity. We will stand with your people. And we also want you to win. Thank you.

Under the threat of rocket strikes and heightened security, President Biden, as I said, arrived in Israel Wednesday morning. In his farewell speech, President Biden said, quote, October heightened security, President Biden, as I said, arrived in Israel Wednesday morning. In his farewell speech, President Biden said, quote, October 7th, which was a sacred Jewish holiday, became the deadliest day for the Jewish people since the Holocaust. It has brought to the surface painful memories and scars left by a millennia of anti-Semitism and the genocide of the Jewish people. The world watched then, it knew, and the world did nothing. We will not stand by and do nothing again. Not today, not tomorrow, not ever. During his visit, President Biden met with a group of survivors of the October 7th attack and first responders. Here's some audio from that exchange. We were there in the first moment seeing the atrocities that happened. We saw

women that were raped and then murdered, children, little babies that were torn around, taken away from their parents, murdered in front of their parents. We were very proud to serve the people in Israel. A lot of us are Americans. We're so proud that you, the president of the United States, came here to Israel to support this country. You uplifted the whole spirit in this country and all the Jewish people in the world. So I want to thank you, Mr. President. Thank you. Biden's visit comes as additional U.S. leaders have visited Israel this past week, including Senators Mitt Romney and Senate Majority Leader Chuck Schumer,

New York Governor Kathy Hochul, and California Governor Gavin Newsom has planned to arrive in Israel on Friday. New York Governor Hochul toured Kibbutz Kfar Aza following Hamas's murderous rampage, calling it, quote, hell on earth. U.S. State Department spokesman Matt Miller knocked media organizations after many of them initially reported the Hamas-run health ministry claim that the IDF was responsible for the Tuesday Gaza City hospital blast that sparked anger throughout the Arab world. It is now clear that it was a misfired rocket, not an Israeli missile, that caused the deaths. That did not stop major news outlets, including

the BBC, the New York Times, and of course Al Jazeera, from reporting that it was an Israeli attack that killed 500 Palestinians. Now it is time to call up that asterisk, as it has been confirmed that it was a few dozen deaths, and again, the deaths were not a result of the IDF, but they were from a rocket fired by Palestinian Islamic Jihad. It took most news outlets more than 24 hours to slowly moonwalk back their initial reporting, but the damage was already done as hundreds of thousands of Muslims took to the streets in Europe and the Arab world in protest in response to the disinformation. In Beirut, an angry mob clashed with Lebanese forces outside the U.S. embassy. In Istanbul, 80,000 people

massed outside the Israeli consulate, including some who attempted to storm the building with stones and sticks and torches. Israel has withdrawn all of its diplomats from Turkey over concerns for their safety. The leaders of Jordan and Egypt canceled a meeting with President Biden in response to those reports about Israel's responsibility for the hospital explosion. In recent days, we've seen calls for Israel to use proportionality in its response. You heard hints of this from President Biden tonight in his address from the Oval Office. But what does that actually mean? According to what definition of proportionality? Is Israel subjected to different rules of war than other countries? Is Israel held to a higher standard? Is Hamas a different kind of enemy than most countries face?

These are some of the issues we get into with today's guest, Matt Waxman. Matt is the perfect person to give us a tutorial. He's a professor of law at Columbia Law School, where he chairs the National Security Law Program. He is also adjunct senior fellow for law and foreign policy at the Council on Foreign Relations, and he's affiliated with the Lieber Institute for Law and Warfare at West Point. Among his many areas of expertise, Matt is a scholar of the laws of war, including their history and their application to new technologies of warfare. During the George W. Bush administration, where I first got to know Matt, he served in senior positions at the U.S. State Department, the U.S. Defense Department,

and the National Security Council. Earlier in his career, Matt was a defense analyst at RAND, where, among other things, he worked on the law and strategy of urban warfare. Matt Waxman on the laws of war. This is Call Me Back. I'm pleased to welcome to this conversation, for the first time, my longtime friend, Matt Waxman, who's a professor of international law at Columbia University, has a lot of experience in law and in government, worked in the U.S. government on some of the issues we're going to talk about today. Matt, thanks for being here. Thanks, Dan, for having me.

There would have been many reasons to have you on in light of this, the October 7th war, but especially after this awful bombing, misfire it sounds like, a Palestinian Islamic Jihad misfire of a rocket that landed on a hospital in northern Gaza that lit up some of the issues that we're going to talk about today, so it's especially timely. But I just want you to start with a brief overview. And keep in mind, it's a podcast. It's not a Columbia Law School seminar. Can you just provide a brief overview of the laws of war? Then we'll get to how they apply to urban warfare and the dilemmas created by Hamas's tactics.

But first, brief overview of the laws of war. Sure. So let me see if I can summarize that briefly. And, you know, before even jumping into the law in this area, I'll just say, you know, I study war crimes for a living. And the level of barbarity that I saw in last Saturday's pogrom by Hamas was truly shocking, even by the standards of war crimes. Now, that observation, of course, doesn't mean that we can't or shouldn't sympathize with civilian casualties and suffering in Gaza. We absolutely can and we should. But I do need to just start by noting just the inhuman barbarity of it. So that's because I know based, you know,

we overlapped in the Bush administration. I mean, I know you've seen a lot. I presume you see a lot that the news doesn't cover. And and so I'm surprised to hear that you say this is like a whole other level. Yeah. You know, I think it's it's a couple of fold. One is just some of the inhuman tactics. I mean, murdering babies, the kinds of stuff that goes even beyond Al-Qaeda, just the inhuman cruelty of it, not just death, but the inhuman cruelty in which, uh, in, in which it's, uh, imposed. Plus, uh, we're really talking about something, uh, atrocities committed with, with truly genocidal intent. Um, and I think those are among the reasons why it's just so shocking. Like I said, even, even amid the landscape of war crimes. Okay. So now, in light especially of that, give us your overview of the laws of war. Great. So overviews of the laws of war. The technical term here is usually international

humanitarian law, or I prefer the term law of armed conflict. This is a body of law that's developed over hundreds of years, but much of it was eventually codified in treaties, especially in the late 19th and 20th centuries. For example, many of us have heard of the Geneva Conventions, right, which spell out certain protections for civilians, for prisoners of war. And besides those treaties, there's something called customary international law. And the starting point in applying them to a situation like this is that, well, certainly in my view, Israel has every right to defend itself militarily. This is a war of self-defense, but it's also a war against a terrorist adversary

that does not itself follow any rules. And that's going to be important as we get into some of the details. The fact, though, that Hamas perverts and exploits international law rules for its own gain, even at the expense of civilians in Gaza, doesn't mean that Israel can't and shouldn't follow the law itself. It absolutely should. And if I were to boil down the law of armed conflict into just a couple of minutes, I'd do it this way. At the most general level, the law of armed conflict balances two interests, military necessity or the imperative to wage war effectively and humanitarian values like reducing human suffering. And those balances are reflected in a pair of key principles, basic principles that are especially relevant here,

distinction and proportionality. So the principle of distinction means that military forces may only deliberately strike military targets or military personnel. You can't deliberately target civilians or civilian property. Now, this is not a rule that no civilians may be killed, killed incidentally. That's a tragic consequence of every war, and it's going to be a horrible consequence of this war and probably on a very large scale, already on a large scale. Let's just stand up for one second. So so you it is it is understood that civilians will be collateral damage in a war. It doesn't mean you can target or you should target civilians, and it doesn't mean you can terrorize a civilian population, as Hamas did to Israel on October 7th. You can't do that, but it is understood that when you are going after combatants, there are civilians who may get caught in the crossfire.

And I guess the question is, is this an even more complex test of that question, given that not only are there civilians in a very densely populated area in Gaza, but Hamas as a tactic, as a tactic of war, co-locates its military capabilities and its military personnel, its combatants, deliberately in civilian areas, in UN-run schools, in hospitals, in other civilian areas. That's exactly right. So there are a couple of features of this war that make it especially difficult to comply with the principle of distinction. One is, as you said, we're talking about urban warfare, urban combat in one of the most densely populated areas on the globe in which Hamas has embedded itself and is continuing to embed itself.

So one problem is just the sheer proximity of Hamas, its military infrastructure with a densely packed civilian population. The other factor that you mentioned is that we're dealing with an adversary who holds no regard for civilian life. In fact, it sees strategic advantage in civilian suffering. It's a way of imposing costs on Israel for the civilian population in Gaza to suffer. And that comes through in a number of tactics, using human shields of operation, either to store military supplies, to launch rockets and so on. And when Hamas uses these kinds of tactics, in a sense, it secures an advantage in one of two ways. Either Israel refrains from striking those targets or Israel does strike them anyway and suffers

the costs of diplomatic isolation, criticism in the sort of court of global opinion. So it's a win-win for Hamas because either they get deterrent value from embedding in civilian areas and fighting from civilian areas, or they get PR value. Correct. Correct. There's a second principle, though, that then comes into play here. So the first principle is distinction, right? An attacking force cannot deliberately strike civilian targets or civilians, only military targets and military personnel.

And there's a corollary there that the defending side is supposed to take affirmative steps to protect the civilian population. But the other major rule that comes into play here, and I want to spell this out because it's often misstated, is the principle of proportionality. It says that in conducting military operations, the anticipated civilian harm of a military operation can't be excessive compared to the expected military gain. So the expected or anticipated civilian harm can't be excessive, that's the key, compared to the expected military gain. Now, of course, those two sides of that equation are very difficult to calculate, right? Military necessity, military gain is hard to quantify. That's interesting because proportional is not that the harm should be proportional to the harm imposed, or let's put it in very practical terms, that if

Israel is expected to demonstrate proportionality in its response, what you're saying is the standard is not that Israel's response should be proportional to the attack it suffered or to the harm it suffered. It's proportional to what it's trying to achieve in its response. Correct. The big error that's common is essentially a body counts method. Right. Israel suffered this many deaths, wounded. So it can only impose up to that amount. Anything beyond that is disproportionate. No, that is not how proportionality works. How do you actually, like, I'm just really struck by this because I've been thinking about it as you're speaking

generally, how does one quantify military gain? So a Hamas leader who orchestrated, planned, and oversaw what happened on October 7th, taking out that leader is extremely important. So that is, to me, an extraordinarily high military gain. So how do you quantify what is proportional in pursuit of that gain? Dan, that is a great question and another super hard one because, I mean, you're getting it. If we take the formula that the anticipated civilian harm can't be excessive compared to the anticipated expected military gain, we need to be able to quantify those apples and oranges and do some sort of comparison. And perhaps it's a little easier to quantify the civilian harm, but even that's hard, right? If you talk about turning out electricity, very, very hard to really quantify what the target is and what its operational value is.

But for observers outside, for reporters outside who may not even understand what the target is, all they see is a bomb is dropped on a building. It's destroyed. They may be able to count how many people died, but they don't have a good sense of what was the military gain or especially important, the anticipated military gain. And I think you're onto something important here, right? Which is that in a war against a terrorist organization, figuring out, calculating military gain is especially difficult because you're not really talking about, you know, counting up enemy tanks and howitzers and MiGs and things like that. The most militarily useful things that Hamas has is often going to be its commanders, its coordinators, its intelligence operatives, and things like that. Those are going to be among the most important nodes for the IDF to try to take out. And so Israel needs to make, I mean, the obligation is on Israel to make a reasonable proportionality calculus.

And it's going to be very, very difficult for outside observers to understand what that calculus looks like. I'm hearing in many corners of the media talk about proportionality and less so in this conflict than I have in past conflicts of skirmishes between Gaza and Hamas. And maybe we're hearing it less because of what you talked about at the beginning of the scale of the barbarism that we saw on October 7th, so people are less fixated on proportionality. That said, I'm still hearing it more in Europe than here. But I think most people throwing around the term in the media don't understand the definition that you just articulated.

You're right. It's misstated. It's misapplied all the time. It's a prospective judgment by a commander. What military advantage do I expect to gain from this action? And is that far outweighed by the civilian harm that I reasonably expect to cause? a good example would be that if there's a sniper firing from a housing complex, I can't blow up the most cruel, torturous, barbaric ways one could possibly imagine than at any time in Jewish history since the Holocaust. It is understood by every, all forces of civilization, that Israel cannot have an organization, a terror organization, that orchestrated and executed this invasion the way it did on its border any longer, that Israel has to wipe it out the way the U.S. decided it had to wipe out ISIS more than once. So once you make that decision, and it's in this tiny area, as we said,

embedded with civilians, how do you address what is, I mean, I take your point that if there's one sniper, you can't wipe out a whole building, but that seems like a pretty, that's a pretty stark and sort of obvious example. There's so much gray area between that and doing nothing. And I, you know, the gray area is the muck that I think Israel typically finds itself in. It's going to be walking through a lot of muck, a lot of legal muck, a lot of operational muck. I think that's right. That we're talking, as I said before, about a very densely populated civilian area in which Hamas has already embedded itself and is trying to embed itself further. It's one reason why Hamas is trying to dissuade civilians from leaving the area of combat. It wants to keep it populated because that protects itself. As you said before,

either way, either Israel refrains from striking out of fear of causing civilian casualties or it strikes, causes civilian casualties and faces significant blowback. In addition to the, obviously the, the incredible civilian, just the humanitarian harm that's caused as a result of these kinds of tactics. Okay, so let's stay on that. So just for our listeners to understand, Israel has given a number of warnings to the civilian population that they should get out of northern Gaza. And Hamas is, you know, based on very credible reporting, news reporting, Hamas is doing everything it can to prevent large numbers of Palestinians from getting, so if you assume that northern Gaza is where most of the fighting is going to be, and Israel therefore wants most of the Palestinians from the area to get to southern

Gaza, the civilians, so that it can conduct its fighting in an area that's not densely populated with civilians. So there's still a lot of people in northern Gaza. What is Israel supposed to do at that point? How do you start having conversations about this legal standard of proportionality when Israel's doing everything it can to remove the civilian population. Hamas is preventing it for all the reasons we're discussing. So then what? Right. So that's that's the dilemma, right? It's a densely packed. We're talking about densely packed civilian neighborhoods in which Hamas is embedded. Israel needs to neutralize Hamas and its infrastructure. So one possible solution to that would be to move the civilians. And that's what this controversy about the evacuation order was, right? There's, or evacuation order, I don't even like that term, right? In the last few days, Israel issued warnings to Gazan civilians to leave their homes and go south within 24 hours.

This was described as an evacuation order, but Israel doesn't govern Gaza. It can't order anything there. It has ordered, actually ordered evacuations in northern Israel. But what it did was warned civilians in Gaza to go south for their safety. And keep in mind, issuing warnings is otherwise not a very, it poses some costs, right? You're basically telegraphing where you plan to attack when and so on. Pretty obvious in this case. But warnings, warnings are problematic to give. Now, this has generated a lot of controversy, understandably, because we're talking about, you know, approximately a million people and asking them to move south.

And that can't be done without a lot of widespread suffering. And I think, by the way, it can't be done by Israel. And by the way, it's, you know, it was never going to be possible within 24 hours. And so it's no real surprise that Israel backed off of that kind of 24 hour warning. I don't know whether it ever planned, you know, how quickly it planned to move in or to escalate its bombardment. But I think the idea of a 24-hour warning was to say, don't wait. You've got to do this immediately. And the condemnation was immediate. You know, the International Committee of the Red Cross, the ICRC, already issued what's very rare. ICRC usually communicates confidentially. It issued a rare public rebuke that this evacuation order was

unlawful. I think this judgment, this condemnation was too hasty and it's misunderstanding what's going on here, which was a major effort by Israel to try to minimize civilian harm, civilian suffering. We often talk about Gaza as though it is only bordered, shares a border with one country, which is Israel, right? It's always about, it was about Israel's occupation of Gaza, it was about Israel's withdrawal from Gaza, it was, it's about the Israel-Gaza border, very little press coverage, and I'm not, you know, a lot of journalists listen to this podcast, so I'm not looking just at you all, but I think it bears mentioning that there's another border that Gaza shares with Egypt. And there's a lot Egypt could be doing here to help with this exact issue you're talking about, so it's not all on Israel. Egypt, to my knowledge, is doing very little, if not nothing. Why?

There is a lot that Egypt could be doing. I think the position that Egypt has taken publicly is that it's been Israel that has been preventing Egypt from alleviating suffering. Israel's case on this has improved dramatically in the last 24 hours or so at the time that we're having this conversation because Israel has committed to letting in food, water, humanitarian assistance, but insisting that it go through Egypt to get there. And I think it's understandable that Israel would take that position, given that it needs to really seal off its own borders with Gaza. And what about the issue of Israel denying fuel being transported into Gaza, or at least it had been and and charges that Israel had knocked Gaza or suspended Gaza from the Israel's electric grid. So denying it electricity access. Yeah. So I often don't get invited back a second time on on shows because I begin a lot of answers with, it's complicated, but this is a little complicated, but let me try to boil it down. At the beginning of this war, Defense Minister Gallant says, we're imposing

a complete siege of Gaza. We're cutting off everything, fuel, water, food, medicine. We're sealing it off. Nothing's going in or out. And this triggers controversy about, is this an unlawful, is this an illegal siege? And I think analyzing that and adjudicating that is complicated for a couple of reasons. One, because the law is unclear. And two, because the facts are unclear. The law is unclear because there is a split of view among international lawyers, among states, among international organizations about exactly how the law of siege operates in the modern era. The facts are unclear because Israel has been shifting its position on just how tight that siege is.

And it has, as I said, in the last 24 hours or so, essentially clarified that humanitarian assistance, food, medicine, are going to be able to enter Gaza from Egypt. Now, is it going to be enough to deal with all of the humanitarian needs there? No. But it is loosening the siege for those particular resources. I'll just say those, I think those resources are easier to justify because let's take electricity. Besides the fact that electricity is mostly provided from Israel, electricity is traditionally often viewed as a dual use resource, right? It obviously it's needed to power sanitation systems and hospitals, but military forces rely on electricity and other fuel to maintain their military communication networks, to maintain their logistical and supply networks and things like that. And so look at, for example, the 1991 Persian Gulf War. One of the major targets that coalition forces struck was electric electric grids in in Iraq, trying to deny the military forces the the resources necessary to sustain their operations. Yes, there's going to be significant civilian suffering, significant civilian harm and hardship. And that's where that proportionality consideration comes in, is there needs to be an assessment of what does Israel hope to gain militarily from cutting off electricity, cutting off other fuel,

and what is the anticipated civilian harm that's likely to come from it. And all of this gets complicated by another factor here, which is that Hamas is likely to do everything it can essentially to maximize the civilian suffering part of that equation, right? If there's only so much electricity, if there's only so much food, who's going to get it first? It's is going to eat first. And so we know it's entirely foreseeable that there is going to be a lot of human suffering. That's one reason why I think it becomes very difficult to analyze the legality of siege in a case like this. And let me add in another complicating layer, which I think would even make this war challenging to apply a very clear legal standard to, which is the fact that Israel's fighting a war against an organization that has taken at least 200,

we think more, hostages over the border into Gaza. So, you know, the idea that Israel is expected to do anything else than seal the border and completely isolate this territory until it figures out how it's going to rescue those hostages, to me sounds like absurd that Israel is expected to start figuring out how to accommodate the population. Now, I'm not saying do disproportionate harm to the population, but the idea that its first priority is figuring out how to accommodate this population in this very difficult time when a couple of hundred of its citizens are being held hostage. It's a matter of time before they get killed. Others are being tortured, raped. I mean, we've heard the stories. I don't need to keep rehashing them. And Israel's saying, unconditional, immediate release of the hostages. Our hostages are not going to be bargaining chips.

We want them released immediately and unconditionally and full stop. And obviously, that's not a position that Hamas is going to take. So what does Israel do there? So I think that's a strategic dilemma, a moral dilemma, and a legal dilemma. All three dilemmas are really, really hard. A couple of points. First of all, the taking of hostages is a war crime. That's just an easy call. Hamas, that's among the war crimes that Hamas has perpetrated. As a legal matter, as purely a legal matter, I'm just putting aside strategy and putting aside morality. As a legal matter, the fact that Hamas has committed that war crime doesn't entitle Israel to commit a war crime back. We can talk about what Israel is doing and whether it would be a war crime. That's a separate question. I'm just, as a legal matter. I get it. I get it. Israel doesn't get

a green light to commit war crimes just because Hamas committed war crime. But what I'm wondering is the nature of this particular war crime makes Israel's ability to prosecute its response, its military response, that much more difficult. And so it does seem to me that the standard is or should be considered in a different light. I think it is considered in a different light. And let me tell you how it how it features, because I think you're absolutely right. The taking of hostages is, you know, in a case like this gives Hamas an immense amount of leverage. Just to look at the governments and not just Israeli governments, other other governments that are standing with Israel who also have citizens, nationals who are held hostage, getting those hostages out, rescuing them, saving them. among the highest of imperatives. And so one way in which that becomes relevant to the legal analysis is in this issue of proportionality, because a critical question in analyzing Israel's actions, cutting off electricity, for example, moving the civilian population or encouraging the civilian population in northern Gaza to leave. One of the major aspects, one of the major factors in analyzing the legality of those moves is military necessity, right? In what ways do those actions, cutting off electricity, for example, encouraging the civilian population to leave, how important are those actions to Israel's expected operation to try to rescue those hostages. And if those kinds of actions are

necessary to help get those hostages back, then yes, that becomes a major point in analyzing whether Israel's actions are appropriately proportionate. Okay, I want to ask you about two comparisons that come up a lot. One is 2004 in Iraq, when I was in Iraq, we, in April of 2004, U.S. forces, Marines, had to go into Fallujah in some ways a very similar situation where Al-Qaeda in Iraq had taken over Fallujah, and it was urban door-to-door counterinsurgency combat, and our forces, U.S. forces, had to go into Fallujah and just drive out AQI's control of Mosul. Fast forward to U.S. and Iraqi forces conducting a similar operation in 2016 in Mosul, and also comparable in many respects to what Israel's dealing with. And then, of course, U.S.-led forces trying to wipe out ISIS in Raqqa. And, you know, and that was done, you know, through the course of three administrations,

through the Obama administration, the Trump administration, and even the Biden administration. So I'm just pulling these examples up. How does Israel's set of dilemmas from a legal standpoint, from an international legal standpoint, compare to those? You know, I think in some ways the dilemmas are similar. You're talking about the need to try to distinguish between military targets and civilian ones, especially with an adversary that, you know, they don't wear uniforms, they don't carry their arms openly the way that military forces, regular military forces do, that ease the process of distinguishing between military and civilian targets. So in some ways, the operations are, or the dilemmas are very similar. One way in which they're different is, I think, that Israel is often held to a higher standard. I think it's held by the media to a higher standard. It's held by other governments to a higher standard. It's held by UN-sponsored commissions of inquiry to a higher standard. And one way in which we see

that is even just in the last 24 hours, the snap judgments that are made based on very, very little facts. I'm thinking here about, for those who are listening perhaps later, I'm thinking here of the hospital explosion in northern Gaza that was instantly pinned on the IDF. The allegation was IDF bombed a hospital in northern Gaza. We now know 24 hours later, it wasn't the IDF. It was an errant missile coming from Gaza that caused this damage. It's almost too late for that to even matter because there was already so many diplomatic costs to Israel, in this case for collateral damage that it didn't even cause. And whether that's just or not is not really relevant. It's a reality of the legal, diplomatic, political environment in which Israel has to operate aside from even the operational environment. Okay. So in World War II, President Biden has cited not only ISIS, compared Hamas to ISIS, but he's also compared Hamas to the Nazis. In World War II, America prosecuted a war with its allies against the Nazis. It did things like bomb cities in Germany, like Dresden, to, you know, smithereens. It, you know, dropped firebombs in Tokyo. It ultimately dropped, you know, we're all watching Oppenheimer these days, dropped atomic bombs in Japan. I mean, I can go on and on and on with what the United States did. I'm not

being critical of what the United States did. I'm just stating these facts. And I could drop a much longer list than I'm doing now. I don't need to, to just make the point. Were those proportional gains? I think it's easy, and especially in retrospect, to say no. I think the military gain from a lot of that bombardment didn't actually match the obvious, very predictable civilian harm. I think, first of all, I think we now, though, in retrospect, know a lot more about the effectiveness and ineffectiveness of strategic bombing. But international law has also developed and progressed a lot since then. So, you know, I don't think it's right to look to 1944 and say that's our baseline that we're going to judge 2023 military operations against. I think he was primarily talking about the kind of existential threat that Israel faces and also talking about the clear justice, the clear justice of Israel's war of self-defense. And I interpreted President Biden's remarks as really saying there is not just a strategic imperative, but a moral imperative that the world and especially the world's democracies rally behind Israel in its defense. OK, I just want to close with this one question.

The whole idea of the law seems to be predicated to some degree on the idea that this is a level playing field and everyone is held to the same account. From a legal perspective, Hamas is fighting an asymmetrical war here. I mean, in that Israel will be held to a much higher legal standard. And Hamas knows that, and it's a factor. It's not only the deterrent effect it gets from its tactics, it's not only the PR impact it gets from its tactics, but it's this asymmetrical effect which results in uneven application of the law. How does international law of armed conflict deal with that and take that into account? To some extent, it doesn't. To some extent, it doesn't. What you've just identified are some of the strategic dilemmas that face a rule of law democracy that's fighting against an enemy that doesn't just flout the law. It seeks to exploit and pervert the law for its own benefit, even at the expense of the civilian population that it claims to be protecting. And that is a problem that unfortunately the law itself doesn't really solve.

What I would say is an important agenda for trying at least to chip away at some of the benefit that Hamas seems to reap for violating the law is to educate journalists, educate diplomats, educate civil society organizations about what the law actually means, including the fact that using human shields is a war crime, that deliberately co-locating military weaponry, basing military logistical supplies in close proximity to civilians, civilian property is a violation of the law of armed conflict. We need to turn around some of the narrative, the mistaken narrative that the civilian harm that results from urban combat is the fault and responsibility of the IDF and the side that's actually complying with the law. Is part of the problem here that these rules were written for a world in which sovereign nations were fighting each other with actual armies and not it was never designed to deal with non-state actors, terrorist organizations like Hamas.

That is part of the problem. That is part of the problem. The law of armed conflict did also deal with internal conflicts, civil wars and things like that, guerrilla wars. But it's mostly, as you say, a body of law that developed to deal with war between states. And I'm thinking back to my own service in government in the immediate aftermath of 9-11, where the U.S. government was dealing with exactly this question on a whole range of things, detention, interrogation, targeting, and so on, how do we take a body of rules that was developed primarily for state versus state, army versus army, and how do we translate and apply that body of law to a war against a transnational terrorist organization. In this case, it's not really a transnational one, it's a very localized one, but a lot of the same dilemmas, a lot of the same problems of applying the law, I think still in here. Okay, Matt, this is a lot to digest. I appreciate you sticking with us and our listeners may get educated, but they won't get a law school credit from Columbia,

even though they may deserve it. But we do appreciate you taking the time and hope to have you back on. Because as I mentioned to you offline, there are other topics we're going to want to hit with you in the weeks ahead. So hopefully you will return our call. That sounds great, Dan. Thanks a lot for having me. That's our show for today. In the next few days, we'll be posting new episodes, including having a regular cast of guests like Avia Sakharov and Haviv Retikur returning the

days ahead. Call Me Back is produced by Alain Benatar. Until next time, I'm your host, Dan Senor.