Consider This from NPR - Is Israel Breaking the Laws of War in Gaza?

Episode Date: November 3, 2023

On October 31st Israeli military forces bombed the Jabalia refugee camp just north of Gaza City. They said the area was a Hamas stronghold that included underground tunnels and a command center, and that they were targeting a Hamas commander there.The health ministry in Gaza says the strike caused a large number of civilian casualties. So what are the rules of war that might apply to such situations? NPR's Mary Louise Kelly speaks with Tom Dannenbaum, an associate professor of international law at the Fletcher School of Law and Diplomacy about the rules of war in an urban setting. Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Fear of darkness, general attention, a flashback, nightmares, avoidance, difficulty sleeping, and a recollection of their trauma. These are just some of the debilitating mental health symptoms of the children in Gaza. Iman Farjala is a psychologist who lives in the U.S., but she grew up in Gaza. Most of her family is still there. She knows firsthand what it's like to live in the center of a deadly conflict. The experience was so vicious, so scary, so harmful that there is no words that you can actually describe it. How can you describe when the Israeli soldiers, they come and jump from the walls to our home, beating up my brothers, beating up my mother?

Farzala works with refugee kids at a community clinic in San Francisco. But she also goes back to Gaza from time to time to talk to kids there and document how the violence is affecting them. It's completely debilitating. And their sense of the world is shattered. Eric Dubow is a professor of psychology at Bowling Green State University. They don't feel secure in their families. They don't feel secure in their relationships with others. Constantly on guard. Israel has continued to pound Gaza with airstrikes since last month. That's when Hamas militants crossed into southern Israel, killed 1,400 people, and took more than 200 hostage. The Israeli army now says its troops have surrounded Gaza City,

where they say Hamas is headquartered. According to Palestinian health officials, of the 9,000 Palestinians killed so far, nearly half were children. When I see a Palestinian child, a boy, a girl pulled from the rubble of a collapsed building, that hits me in the gut as much as seeing a child in Israel or anywhere else. That's Secretary of State Antony Blinken. He spoke with reporters before he traveled to Tel Aviv to meet with Israel's Prime Minister, Benjamin Netanyahu, and other Israeli leaders. After meeting with Netanyahu, Blinken emphasized at a press conference that the Biden administration

stands in solidarity with Israel's right to defend itself against Hamas, which Israel says is hiding among civilians. I also emphasize that the protection of civilians must take place not just in Gaza, but also in the West Bank, where incitement and extremist violence against Palestinians must be stopped and perpetrators held accountable. Just this week, the Israeli military launched airstrikes which hit the Jabalia refugee camp in northern Gaza twice. And conditions in Gaza continue to deteriorate, with only a trickle of humanitarian aid available. Consider this. As U.S. leaders continue to underscore Israel's right to defend

itself, there are growing concerns as the death toll of Palestinian civilians goes up. One question that's being asked, what are the rules of war? The answer to that is just ahead. From NPR, I'm Adrian Ma. It's Friday, November 3rd. It's Consider This from NPR. Earlier this week, Israeli military forces bombed a refugee camp in Jabalia, just north of Gaza City. They said the area was a Hamas stronghold that included underground tunnels and a command center. And the Israeli military blames Hamas for embedding itself in crowded civilian areas or tunnels underneath them.

United Nations human rights officials have said Israel's ground invasion of Gaza could be a war crime. So are there rules that govern how wars are waged? My colleague Mary Louise Kelly spoke with Tom Dannenbaum about this earlier this week, following the strike on the refugee camp. He's an associate professor of international law at Fletcher School of Law and Diplomacy. So I know there are entire tomes and law school classes designed for this, but can you briefly walk us through what are the key laws that might apply to an incident like this in a densely populated urban area? of situation. The first is the rule of distinction, which means targeting military objectives and not civilians or civilian objects. Second, the prohibition on indiscriminate attacks, which is to say that one has to have a discrete military target, not target an area in which there are military objectives, but also civilian populations and civilian objects. Third, that one has to take adequate precautions, which is to say, that one has to take adequate precautions,

which is to say, do everything feasible to minimize the expected civilian loss of life, injury and damage to civilian objects. And finally, not to engage in the attack at all. If the civilian loss of life, injury or damage to civilian objects that would be expected from the attack would be excessive in relation to the military advantage that the commander authorizing the attack anticipates from that attack. Who makes these laws? These laws are codified in various treaties going back to the Geneva Conventions and updated in the additional protocols to those conventions in 1977. but also they are embedded in what's called customary international law, which is the practice of states understood by those states to

be legally determined, which is reflected in how states articulate these rules in their military handbooks and in other expressions of their understanding of the law. And then the follow-up question, who enforces these laws? on the territory of Gaza. And that includes, in this particular context, the crime of engaging in a disproportionate attack, an attack where the expected civilian loss of life or injury or damage to civilian objects would be clearly excessive in relation to the military advantage anticipated. There are a whole lot of details about this incident that we don't yet know, that we're trying to pin down exactly what happened, where, how many people were injured or killed by this. But we do know

Israel says, look, we have been warning civilians to leave this area, northern Gaza. And Israel also says we have the right to defend ourselves. From a legal perspective, how much weight do those defenses have? The first thing to say is that acting in self-defense doesn't justify acting without constraint. The law of armed conflict, including all of the rules that I mentioned earlier, apply as much to the actor engaged in self-defense as any actor engaged in aggression. Both are restrained by the same set of the rules on the conduct of hostilities. The second thing to say is with respect to warnings, issuing warnings can be part of the required precautions that I mentioned, taking all feasible measures to minimize civilian harm that would be expected from an attack.

But complying with the rule on precautions does not itself relieve the duty to comply with the other rules. And again, with the caveat that there's a lot we don't know about what happened. I'm curious for someone with your background, as you followed news of this incident, what are the questions that spring to mind? Well, the biggest question that springs to mind is what exactly did they expect in terms of the civilian casualties? They seem to be very high for the targeting of a single commander. The second question is, who was that specific commander? What was the specific military advantage anticipated from taking that individual out? And the third question that I think is worth bearing in mind when making the proportionality calculation or performing an analysis of proportionality is, would the same decision

have been made were the civilians that were harmed in this particular context, Israeli civilians. Civilians are protected as civilians, regardless of nationality, regardless of the party with which they're associated. Would the commander justify this attack, regardless of the identity of the civilians, and instead recognizing them as having value inherent to their humanity. That was Tom Dannenbaum, Associate Professor of International Law at the Fletcher School of Law and Diplomacy, speaking with my colleague, Mary Louise Kelly. It's Consider This from NPR. I'm Adrian Ma.