School of War - Ep 98: Matthew Waxman on the Israel, Hamas, and the Law of Armed Conflict

Episode Date: November 14, 2023

Matthew Waxman, Liviu Librescu Professor of Law at Columbia Law School, joins the show to talk about what’s lawful on the battlefield, what’s not, and how the laws of war apply to Israel and Hamas. ▪️ Times      •    01:49 Introduction      •    02:25 What is the law of war?     •    05:05 How does it all work?     •    08:15 What does it matter?     •    11:06 A rule of law society     •    12:16 10/7      •    15:14 Military necessity vs humanitarian interest     •    19:54 Bright line rules     •    25:23 Reasonableness     •    28:07 Sieges     •    32:30 Weaponizing the law     •    36:34 Perverse incentives     •    39:09 How does the law evolve? Follow along  on Instagram Find a transcript of today’s episode on our School of War Substack

The war in Israel is ongoing, and with it, there's building international pressure on Israel to look out for the humanitarian needs of Gaza's civilian population. It's a regular feature of these kinds of conflicts that we in the West tend to invest a lot of sincere care into the laws of war while the other side. Terrorist groups like Hamas cynically manipulate these laws and public perception to secure tactical or strategic advantages. Today, we'll get into these issues with the specialist in the law of armed conflict and sort through just how we should think about right and wrong on a place as chaotic as a battlefield. Let's go.

It is a prescription for war, this Iraqi invasion of Hawaii. December 7, 1941, a date which will live in infamous. The bloody experience of Vietnam is to end in a stale. We continue to face a grave situation in Iran. The people who are not seen... We shall bite down the beaches. We shall fight on the landing grounds. We shall fight in the fields and in the streets.

We shall never surrender. For maps, videos, and images, follow us on Instagram. And also feel free to follow me on Twitter at Aaron B. McLean. Hi, I'm Aaron McLean. Thanks for joining School of War. I'm delighted to welcome to the show today. My friend Matt Waxman, who is the Liviu Librescu. Did I get close?

Professor of Columbia Law School, where he chairs the National Security Law Program. He's an adjunct senior fellow at CFR. He's an affiliated scholar at the Lieber Institute for Law and Warfare at West Point. He served in the Bush administration. He was an analyst at Rand. He is an author and consummate scholar of the laws of war, which is our subject today. Matt, thank you so much for joining the show.

Thanks for having me, Aaron. I really feel. I should have asked you how to pronounce that to that professorship that you have before I launched in. So it was a tense moment. I'm glad I made it true. No problem. We'll recover. So obviously,

We're going to talk about Israel and Gaza and Hamas today. That is, I think, the reason why this conversation is really timely. But let's consider the bigger picture for a moment. I have spent a little bit of time on the battlefield. You have been around defense policy, your whole career. I didn't say any police officers when I was out there. There is something slightly odd about the notion of a law of war. What are we talking about when we talk about the law of war and why should any of us take it seriously?

Yeah, so the law of war is a body of law that's developed and evolved over hundreds of years. Earlier it was based on a lot of religious influence, then on concepts of natural law, then it was codified in a patchwork of treaties, especially in the late 19th and early 20th centuries. It's also, it also is made up of what's called customary international law, general and consistent practice among states. And as your question gets at it, you know, it seems almost antithetical the idea of law in war. And I do think the laws of war present one of the toughest tests for this question of, does international law really matter? Because you're talking about usually existential stakes.

You're talking about parties that are trying to kill each other. These are the most violent encounters. So it's a real challenge for international law. Can it matter? And I hope as we talk through this, I can persuade you that it does matter. But it matters very imperfectly, right? It's not, nobody should have illusions that this is a body of law that works, that works perfectly. And I think, you know, to really understand what this body of law means and how

what's developed, it's important to recognize that it basically tries to balance two things. Military necessity or the need to wage war effectively and humanitarian considerations, like reducing human suffering. And a lot of the rules kind of are based on some balance between those two things. And you need to be attentive to both. You want the humanitarian considerations to play into the development of the law. because we do want to reduce human suffering. It's not about making war humane.

It's about making it more humane. But law also has to be attentive to military necessities. Because if it's not law is going to collapse. It's just not going to work if it's not giving states what they need to do in order to defend themselves. Well, actually, let's stay general for a moment. You know, we typically think about law. We think about a sovereign state enforcing it.

And then you made reference to international law for which there are institutions and mechanisms. Practically speaking, who is meant to administer this body of law that you're referring to? How does it actually work? Yeah. So I would say, and you can appreciate this as a military veteran yourself, I would say that the most important way in which this law gets enforced in which we see compliance with the law is through training and doctrine. You know, a lot of people when they think the laws of war, the law of armed conflict, they're thinking international criminal court, right? They're thinking, they're thinking criminal prosecutions and probably criminal prosecutions in the Hague. And that's just one very, very,

very small part of the enforcement of international law in this area. I think, as I said, The most important way in which compliance is assured or encouraged is through training and doctrine. You develop, states develop military manuals. They train their armed forces to comply with it. They put in place disciplinary measures to ensure that their own forces are abiding by the law of armed conflict. So that's kind of one level. Another level is what is happening on the international plane. And that includes political pressure, diplomatic pressure, the kind of sanctions that states might impose on states that aren't abiding by the law.

And then, yeah, it is possible and it is sometimes the case that there might be international tribunals that get involved. But even when you're talking about war crimes and criminal accountability, most of that is done at the national level through things like courts martial. You know, I was at the Nuremberg courthouse this past summer. You can go into the room where the post-World War II Nuremberg trials were held. And sort of a fascinating experience in the decision-making behind that whole process is fascinating. One of the things that stuck with me, and you'll no doubt be able to correct me on the details here, is that Churchill was opposed to it.

Was he not? And I'm going to summarize my vague understanding of it, and then you can give me the correct version. But essentially that if we lost, they would do this to us. We are going to do it to them. They're evil, bad people. We're talking about senior Nazis. You're talking about people who are definitionally evil and bad.

They would say the same of us, but we know we're right. We know it's true. And so let's just be done with them. Let's essentially have some version. of summary executions and pick pick the number that seems right to us. This was, by the way, this was Eisenhower's view, at least as late as the summer of 44. There's a famous passage in his aide, Harry Butcher's memoir where Eisenhower is having lunch with someone.

I think it's maybe the U.S. ambassador to the UK. He's having lunch that summer, and he proposes something similar. Just pick the top 3,000 Nazis and be done with it. Obviously, that's not the view that prevailed. The view that prevailed was one of due process and evidence. You know, did the skeptics of the process have something to be said for their view and why? I'm going to assume that your view is that it's better that Nuremberg was hell. Why is it better that something like Nuremberg occurred?

Yeah, let me give you two reasons and then talk about another critique. So one reason why it's important is that we are a rule of law society and we were part of a coalition made up of mostly rule of law states, not entirely. and as part of our own commitment to legal rule, legal process, it was important to use that and show that. I think a second reason was in order to try to further codify and advance certain legal boundaries, right? One thing that was interesting about Nuremberg, and actually one of the critiques of it was that it, yeah, it was applying the law, but it was also making up some of the law. And I think many of us look back on that.

It's something we may be skeptical of, skeptical when courts do that, but many of us look back and say, yeah, but you know what the kinds of things that it was, that it was not just applying, but shaping were for the good. I think a critique that's worth mentioning, though, is that oftentimes international justice is a certain victor's justice. You know, on the whole, it's the leadership of losing states that end up in the dock, and those who lead winning states aren't. And I think that actually is a reasonable criticism of international courts and international justice.

We may conclude that that's just the reality in a world that is mostly governed by power, but we do have to accept that as a limitation of international criminal justice. Yeah. No, your point about the fact that we are rule of law states and as such we should act in ways that pay due respect to the notion that law matters is I think it's an interesting one. It actually reminds me of Thucydides. You know, I'm sure you're familiar. There's a pretty common reading of Thucydides that indeed his vision is as dark as everyone says and thinks it is. And in fact, it's all kind of anarchy out there.

But as a state like Athens in his account embraces that view and increasingly acts as though that is the case, Athens itself falls apart. Athens decays sort of spiritually as it grows more and more savage in its prosecution of the war. So I don't know if that is ultimately like the most deep and metaphysically serious reason to be invested in the notion of the rule of law. but it's certainly a practical one to be invested in the rule of laws. It applies to the law of war. It's not aiding holding together in a way. Yeah, it also reminds me of this sort of recurring debate, especially throughout American history,

which is, is American sort of Republican democracy, is it better or worse than a lot of the kind of systems that we go up against? Is it better or worse at warfare than than monarchies or fascist or authoritarian? societies or or terroristic ones. And in every era, there's this debate about whether or not being a democracy is empowering or it means fighting with one hand kind of tied behind our backs because of a certain internal checks and balances. So let's start to get practical here. Maybe we'll start with October 7th itself and Hamas's assaults.

What are, you know, we've, we've had several episodes in the show where we've discussed what happened on the 7th of October. You're obviously deeply familiar. You know, when you consider there's sort of practical dimensions of the law of war and you look at what actually happened on October 7th, like what's your, what's your evaluation? How is, how is, how is, how is, how is Hamas doing? Yeah. So October 7th included truly unspeakable war crimes. I mean, massacring civilians, including babies, taking hobbies. taking hostages, rape, all of those things are war crimes, abducting babies, elderly,

a kind of sadistic savagery also committed with a genocidal intent that is shocking. And obviously, a lot of attention has been and remains on those kinds of terroristic tactics that were perpetrated. At the same time, Hamas fired throumars. thousands of rockets indiscriminately yet at populated areas in Israel, also a war crime. So there's no doubt that Hamas, a terrorist organization, was violating the law in all kinds of ways. We also, though, see that Hamas doesn't care, right? I'm sure this is something that we're going to get into, which is various ways in which Hamas has not just violated the law, but perverted it for its own strategic gain. I'm thinking here of things like use of human shields.

But as a result of all of what I've just described, to me, I think it ought to be unquestioned that Israel has a right to self-defense. It is waging a just war, but Israel must wage that just war justly. And I've just talked about Hamas war crimes, but I do also want to mention before we get into some of the specifics that even as Israel fights an enemy that is grotesquely inhumane, those of us who support Israel can't lose our own humanity. And among other things, that means feeling and expressing sorrow, empathy for the many civilians in Gaza who are innocent and who are now suffering and will be suffering on a very large scale. So I obviously am in agreement with your characterization of the seventh. Many would say, and regular listeners to the podcast will know I would not be one of

them, but many would rejoin that Israel's conduct toward Gaza is, you know, let's sort of channel a semi-intellectually honest version of this year, is tantamount to the same thing. Sure, there's less, more or less in the way of theatrical psychopathy, but the results are basically the same. You have bombing, repeated bombing of built-up urban areas. A lot of civilians die, no matter how you cut it. I think everyone accepts that a lot of, there's no one rejecting the fact that a lot of civilians die one way or the other, even if we disagree about the details. And Israel is dropping bombs and pulling the trigger knowing that civilians are going to die. It's not like a total, well, as I get into that phrase, I realize that we're kind of into

the heart of the matter. But how do you evaluate, I guess we can say, but broadly the Israeli response thus far, but then the specific question of bombing in built up areas where civilians are present. So, Aaron, in answering that question, it's useful to take a step back and talk about what the laws of war, law of armed conflict actually says. what are the main rules? And I began earlier by saying the law of armed conflict, laws of war, based on a balance of military necessity and humanitarian interests. And that really boils down to a pair of very basic principles that are especially relevant to a lot of Israel's Israel Defense

Forces conduct, the principle of distinction and the principle of proportionality. So the principle of Distinction means that 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 incidentally. That's a tragic consequence of every war, and it's going to be a horrible consequence of this war on a very large scale. In part for reasons that you mentioned before, we are talking about urban combat. in one of the most densely populated places on earth against an enemy that has embedded itself

very deliberately within that civilian population. So the principle of distinction, though, says you can't deliberately target civilians. The principle of proportionality, though, says that when a force is prohibited from taking a military action where the, the humanitarian consequences, the humanitarian harm would be excessive in relation to the expected, anticipated military gain. Of course, neither of those sides of that balance are very easy to quantify, right? How do you measure humanitarian consequences? How do you measure military consequences or military advantage? And this requires some judgment. A good example might be that you couldn't bomb an entire housing complex or hospital just because there was a single sniper firing from it.

And I spell it out this way in order to distinguish this concept of proportionality from a way that it's often, I think, portrayed in the press and the media in commentary, which is that proportionality means some sort of comparison of body. counts, right? Hamas killed this number of people, so Israel can't kill more than this, or it's a war crime, right? An eye for an eye, two eyes for two eyes. That's not how it works. The principle of proportionality is a comparison of the expected military gain and a question whether that's outweighed by the anticipated civilian harm. There are a lot of other more specific rules, but I think a lot of the law of armed conflicts, the laws of war boils down to those two principles, distinction and proportionality. Well, and I realize this follow-up kind of gets us into deep waters jurisprudentially or maybe

philosophically. But when you talk about these prudential decisions, you know, you can't, you can't take out a whole housing complex to get one sniper of it. Maybe for one high value target or maybe for 20 snip, you know, like at some point, at some point, presumably we would reach the point where, prudence would actually dictate that it's okay, tragic but okay. That doesn't seem very, I'm not sure exactly what the word is I want here. Legal.

When I think of the law, I think of something that says black, you know, X equals X, Y equals Y. And then we have judges and humans, you know, we have humans in the process of law enforcement and the courts to apply the law to specific situations in ways that, you know, it suggests that prudence will become involved. But you're actually saying that it's in the commission of the actions themselves that the rule of law demands. Help me. Do you understand my confusion? Like, help me get through. I do. And now we're getting, you know, I knew we'd be talking history, but now we get to talk legal theories.

So this is great. So in law, legal theory, we sometimes distinguish between two different kinds of, two different flavors of law. You can have, whether it's sometimes called bright line rules. and you can have more flexible standards. And the law of armed conflict, laws of war, like most bodies of law, is made up of some of each, right? There are some bright line rules. You can't use weapons that have this specific character, right? Just prohibited.

But there are other parts of the law that are more flexible standards. Bright line rules are good because they're clear. You sort of know you can determine very quickly whether they've been breached or not, but they're very rigid, right? They don't fit well in a lot of other circumstances or there may be issues that can't really be reduced well to a bright line rule. And for those situations, we often use a more flexible standard. And that's where proportionality, I think, fits. is you're talking about a balancing calculation, and it's usually framed in terms of a reasonable commander based on information that is reasonably available. Of course, this means that different people

looking at events might make different judgments. I actually think there's plenty of room to debate whether some IDF actions are permissible or not, and I might say, set the lines, the thresholds differently than the IDF does, though it's easy for me to say that from the comfort of Columbia Law School. But I would say that proportionality does require some judgment. And as you say, it's going to be judgment that isn't often adjudicated by courts. And the result is that there is going to be a wide range of opinions. There is going to be some who would defend every Israeli action and say it's fully compliant with the law of armed conflict. There are going to be some who think absolutely not. It is breach after breach. And there are

going to be some in the middle who say, you know what, it depends a bit on the facts. And I think often these things do depend on the facts. You know, when you see with the naked eye, a, when you see a crater, where there used to be a house. To a naked eye, that could look like a military, a legal military strike, or it could look like an illegal one. You need more information. What was the intelligence? What was the expected military advantage of taking out what was believed to be a military target?

Who could the commander or the operator have reasonably known to be in the, vicinity of that target. These are specific facts that you'd need to know in order to evaluate whether a particular strike, a particular action was or was it compliant with the law. I have a follow-up question, but before I ask it, a fun story that your account here inspires me to recount is in Afghanistan, we would have to fill out, there's sort of a slide deck. It sounds terrible, but it's the way the military work, sort of slide deck format for any kind of civilian casualty that we dealt with. And it was not an infrequent experience that Taliban fighters, the engagement distances where I was were quite long, usually, usually hundreds of meters.

And so you often didn't get a real good look at the people that you were fighting with. And they had a habit of after the shooting was done, storing their weapons away and approaching our positions in search of medical care. This was not uncommon at all. I happened numerous times while I was there. And you would notice, military age male with a gunshot wound, rocks up to your position and says, I just got caught in the crossfire, please help. I happen somewhat frequently, and you know, you sort of have the challenge. How do you fill out the slides when this occurs? So I would do my best.

I have a vivid memory of doing it once in this precise situation. I sort of show where these guys were, where I thought they were and where they said they were and then where we were. And I sent it up in our battalion, judge advocate officer calls me and says, hey, Lieutenant McLean on the slides, it kind of looks like you shot these guys. Yeah. Yeah. It does look like that.

I agree. Anyway, so this process occurs in real time, this evaluation, as you suggest. It's a side of my background, perhaps, that I find that to be a funny story. Others would probably find it to be a horrifying story. So, Mike, can you get, is there an analog in domestic law, normal, like criminal law, law that the average Joe like me might be familiar with that is similarly a law of flexible standards? I'm still trying to just wrap my mind around how this, because I'm used to, you know, I feel like the world in which I live just as a, you know, a citizen of the state of Virginia,

Commonwealth of Virginia, excuse me, is, you know, you just don't, you can't drive if your blood alcohol level is over 0.08. If it's 0.09 that you're breaking the law, you get in trouble. Now a judge has ways of, you know, understanding, mitigating circumstances, but that's not the law itself. And what I feel like I'm there's stuff I'm not understanding here. And I just want you to help me understand it. Yeah. An example that we see throughout the law is a concept, I mentioned it earlier, a concept of reasonableness. Right. So the Fourth Amendment prohibits unreasonable searches and seizures. Well, we may be able to come up with certain bright line rules, right?

You can't, a cop can't do this or that. But over time, what courts have been asked to do is figure out, all right, what makes a search unreasonable? And unreasonableness is going to be based on a variety of factors, right? What was the perceived necessity? how urgent was the search? Were there alternative remedies or alternative mechanisms that a police officer might have been able to pursue?

Lots of different factors that we might think go into this idea of reasonableness. So certain things in the law make for very easy, bright line rules. As you say, let's figure out what's a safe speed. to drive on this street and then let's set the limit at that and if you're over it you violated the law if you're under it you're clean but some situation like you know ought the police in ought the police be able to frisk somebody or or enter a house there are a lot of different a lot of different contexts in which that issue might come up and a bright line rule seems awfully rigid in a case like that. So a standard probably works better. So far, I feel like we've been talking about

the use of violence in Gaza or in Israel in evaluating it. Let's talk about just measures that affect the population in Gaza in particular. So you have right now, you know, in effect, a very old-fashioned-looking siege of Gaza City with, I just saw a news break before we started recording, which is now it seems like a quite regular rhythm of ceasefires. to allow for folks to move down this quote-unquote humanitarian corridor to leave the city. Even before the war, though, you had plenty of critics of Israel suggests that what Israel was doing in Gaza was already a kind of siege. So we'll just, we'll start with this. Talk about, talk about this set of issues. Israeli behavior with regard to Gaza generally and the way in which

population movements are restricted. And now in particular that things are are intense for reasons. of military necessity. How is Israel doing in your view? Sure. So let me begin, as one often does as a law professor, by saying, well, it's complicated. And in this case, it's complicated, or the idea of a siege and the legal evaluation of it is complicated for a few reasons. One is the facts are shifting. Immediately after the October 7th attacks, defense minister Galant said, we're going to, We're going to impose a total siege. Nothing is coming in and out. And pretty quickly, Israel loosened that siege.

It started letting in humanitarian supplies, water, and so on. So even as we're recording this, the facts are changing. As you say, there's ongoing negotiations about some humanitarian pauses, corridors, to let people and goods in and out. facts are shifting is one reason why it's hard to draw clear conclusions. Two, modern law of siege is actually contested. One of the biggest debates is whether intent matters. Nobody doubts that in order for a siege to be legal, it has to have a military, it has to be

imposed for as a military measure to try to not starve the civilian population, but starve the enemy military force of the kind of resources it needs in order to sustain itself as, as an effective fighting force. It can't be used for collective punishment. It needs to be used for a military advantage. And one of the big debates among international lawyers is whether intent matters. Does legality turn on whether you intend to starve the population? I'll also just say there it depends a bit on the resource that you're talking about. Humanitarian relief is treated under the law differently than things like electricity. In the Persian Gulf War, the United States bombed electrical grids in order to, these are dual-use resources in order to try to

undermine the effectiveness of the Iraqi army. So the law treats food, fuel, electricity, humanitarian assistance in some different ways. A third reason why it's difficult in this case is that unlike most sieges, Israel is being asked to supply some of these things to Gaza, like electricity and water. And it's one thing to prevent others from providing these things. But one thing that's often being asked of Israel here is essentially for it to provide certain resources to the enemy. And the last point I just make here is that Hamas is sitting on vast stores of resources. It's stockpiling, food, fuel, et cetera.

And so if we were to say, as we should, that we're, We're worried about civilian deprivations and civilian deprivations on a very large scale. I think there is an important question, legal question, moral question, about who bears that responsibility? Well, then, so let me ask the obvious follow up that way. I frame that question about Israel's siege behavior and its legal status. How do you evaluate the Hamas pattern of behavior in terms of its, we talked a bit about human shields that we can get back into that.

but in the way in which civilians are clearly part of its strategy. Israel wants civilians, broadcast communicated repeatedly, it wants civilians to leave Gaza City and move to the southern part of the strip. Hamas is advised the opposite. Advised is not the right word. Hamas is insisting upon the opposite. And clearly the fact that there are streams of civilians moving south is a sign that it seems to be losing its grip of it.

It has these tunnel systems famously at this point. I think it's mostly widespread knowledge. If not, it should be. It has an extensive head. headquarters complex built under one of the major hospitals in Gaza City. Evaluate for us Hamas's sort of civilian relations and its legal status. Yeah, so let me make a couple of points on that. First of all, I mentioned before an important principle of distinction that, let's call it

an attacking force, is legally required to strike only military targets, deliberate. It can't deliberately target civilian persons or property. There's a corollary to that, though, which is that the defending force is obligated to segregate its military forces from its civilian population. There's an obvious reason for that, which is how can the attacking force only hit military targets if they're co-located and embedded together? More generally, the laws of war, assume that both sides care about civilians, especially their own civilians or the ones that they are

purporting to protect. And if they don't, if a side doesn't care about civilian lives, then that creates some very perverse incentives under the laws of war. It creates incentives to put civilians in harm's way, and in fact, the more, the better. And when a side uses human shields like Hamas is doing or tunnels underneath civilian sites to store weapons or command centers, that forces, in this case, the IDF, into a dilemma. It can either refuse to strike the target, in a sense, give it an immunity, or it can strike the target anyway and be blamed for the incident. or collateral deaths. And we see Hamas taking advantage of this again and again. To the extent that Hamas is using human shields, that is itself a war crime, but it is one that it's not paying much of a much of a price for. And I'll just add, you know, Hamas is also very adept at doing this in part

because its entire structure is deeply embedded in the in the civilian population. There's also, there's a long history of this. It didn't begin with Hamas, but we're seeing it, we're seeing it play out at a very large scale in this conflict. Yeah. Well, I want to sort of drive into this a little bit more, this question of the way in which perverse incentives get created if you don't care about civilian life because this is a regular feature of the battlefield that Americans have faced.

over the course of the last 20-plus years. My own experiences in Afghanistan, I have many memories of fighters moving around the battlefield with a kid on the back of their moped. That was a pretty common sight. You know, they'd choose to maneuver from point A to point B with an obvious non-combatant accompanying them. Just under pretty heavy fire, for that matter.

And so you have the sort of relentless, cynical exploitation of our well-meaning intent to not harm civilians. And this generates, well, generates a lot of bad consequences, one of which is a kind of contempt that can develop on the part of us and our troops for the rules. Because what they see every day, and I expect the Israelis, especially like young Israeli troops on the ground, is cynical, ruthless exploitation of the rules in ways that get more of them killed as a function of their own restraint, if that makes

sense. Because the more you follow the rules, the fewer bad guys you kill, one way or the other, it's worse for you. And arguably prolongs things, which is worse for everyone. So you get a kind of contempt and sort of easy set of counter arguments to, you know, what the heck it is we're doing here. What, how do you, how do you, you must have, I mean, you've had plenty of opportunities to think about this precise dynamic, which is my, my proposal, it's a common dynamic. How do you, how do you respond to it? Yeah, I think you've nailed it in, in describing the dilemma and describing the perverse incentives. And then the question is, so how does law deal with it? And I would say that this is, in general, a problem that the law hasn't really figured out, right?

The law isn't good at solving this problem, that when one side is willing to, willing and actually see some advantage in sacrificing its own civilian population, it's able to use the law to its own advantage and not just in in terms of let's say sort of direct military effectiveness, but also undermining the more responsible forces morale and perhaps even, as you say, inducing that otherwise more responsible force, inducing it to take its own steps that might breach the law. This is a common problem. You know, we've talked about this. in the current conflict, but a couple of other examples come to mind in the Vietnam War. The United States, for example, adopted some restrictive rules of engagement that it declared

off limits to bombardment certain population centers and dams. And lo and behold, population centers and dams were where the North Vietnamese forces started setting up surface-to-air missiles. In the Gulf War, the first Gulf War, the first Iraq War, Saddam Hussein used hostages and civilians to just put them on top of important buildings. Again, forcing, in those cases, the United States into this dilemma of either immunizing that target from strikes or giving the other side a major propaganda boost. and oftentimes we're talking here about adversaries that are pretty adept at exploiting for propaganda value civilian death. A few times over the course of the conversation you have alluded to disputes and the law

of armed conflict and evolution of these laws, where do you see this body of law going? Is the current conflicts, I mean, this also gets us to deep philosophical questions about you know, how law can change. But, you know, how does the law of armed conflict tend to change and what changes do you foresee ahead, if any? Yeah. So this is a big problem is how does the law of armed conflict evolve in order to deal with new kinds of warfare, especially as technology changes. And that's technological change is especially difficult because technology changes fast. And in fact, changing faster and faster, but law moves slowly, right? It takes decades sometimes to years, but even decades in some cases to negotiate and finalize a treaty or customary law is built up

over the practice by states of years and years. So law moves slowly, but technology moves fast. That's one problem. Second problem is that international law in this area has tended to look backwards more than it's looked forwards. You know, the Geneva conventions were developed in order to deal with previous wars, where civilians and prisoners were mistreated, or the chemical weapons convention prohibiting the use of chemical weapons occurs after the use of chemical weapons in World War I. Well, it's not based on some prediction. Hey, you know, down the road, this might happen. International law develops too slowly to do that, especially when states are still trying to even figure out whether they see some advantage or not relative to others in some new technology. Where this is playing out is in areas like outer space and military conflict or cyberspace.

And I think what we're going to continue seeing is not some new treaty. to govern those areas, but basically coming back to some of these foundational principles that I talked about up top, the principle of distinction, the principle of proportionality, and figuring out how do we apply those longstanding principles to conflict in these new domains? Matt Waxman, professor at Columbia Law, longtime friend of the podcast, and I hope multiple-time guest. Thanks for coming on. I really enjoyed this conversation. Thanks, Aaron. It was great to be here. This is a nebulous media production. Find us wherever you get your podcasts.