The Daily - The Rules of War

Episode Date: January 22, 2024

 In the International Court of Justice, South Africa is accusing Israel of committing genocide in Gaza.Amanda Taub, a human rights lawyer-turned-journalist at The Times, walks through the arguments of the case, and the power that the rules of war have beyond any verdict in court.Guest: Amanda Taub, writer of The Interpreter for The New York Times.Background reading: What might happen next in the genocide case against Israel.With its accusations against Israel, South Africa is challenging the Western-led order.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Sabrina Tavernisi, and this is The Daily. In the International Court of Justice, South Africa is accusing Israel of committing genocide in Gaza. Today, my colleague Amanda Tao on the arguments in that case and the power that the rules of war have beyond any verdict in court. It's Monday, January 22nd. So Amanda, right now, the International Court of Justice in The Hague is considering South Africa's accusation that Israel is committing genocide in Gaza. You happen to be a former human rights lawyer, and you've been following this case in the larger conversation around the rules of war and whether those rules are being broken in this conflict. Both sides presented their arguments a couple of weeks ago.

So explain what exactly this case is. So this case, I think, is just the latest way in which international law has really become one of the most crucial lenses for understanding this conflict. Obviously, it's incredibly politically contentious. This is something that has just tremendously painful emotional resonance for people around the world, as well as very significant consequences for the people in Israel and Gaza. And so I think there has been a real turn to the principles and norms of international law as something that can provide a neutral ground, a neutral framework for understanding what's going on, for saying, okay, these are the standards that we've already agreed to adhere to. Are they being met? So South Africa, several weeks ago, filed an application

with the International Court of Justice, which is a UN tribunal that hears disputes between states, saying Israel is violating its obligations under the Genocide Convention. And that does two things. One, it begins a case where the court will eventually make a determination about whether this treaty has actually been violated. court will eventually make a determination about whether this treaty has actually been violated. But the second thing which I think is actually most important here is that South Africa requested what are called provisional measures, which are kind of the international law version of a restraining order or like a temporary injunction where you can get relief now. You can get an order now from the court. And to be clear, this case is just about Israel and what they're doing in this conflict, right? And not about Hamas and what it's doing toward Israel.

That's right. And that's because it actually can't concern Hamas. The cases before the ICJ, which only hears disputes between states, and it also concerns a treaty that Hamas is not a part of. So there's actually just no basis legally for Hamas to be part of this case. Why South Africa? I mean, why is South Africa the country bringing this case against Israel? So there are two ways to answer that question. The legal answer to that question is that they are also a party to the Convention on Genocide. And so legally, they're considered to have an interest in its enforcement anywhere in the world. Okay. This isn't the first time something like that has happened.

Previously, Gambia brought a case against Myanmar alleging that they were committing genocide against the Rohingya minority there. So there is some precedent for a seemingly unconnected member state of this treaty to bring a case like this. And then the other way to answer that question is more about the politics of it, which is that South Africa, because of their own history with apartheid, has long been a major political supporter of the Palestinian cause. I think a lot of people within South Africa see some parallels between their history and the situation of Palestinians. And so it's something that has a lot of political resonance for them. Okay, so there's this treaty that lots of countries, including South Africa and Israel, have signed on to. And if one country thinks another country is committing genocide, you can bring a case to this international court,

this International Court of Justice. And that's what South Africa is doing. They're saying, Israel is committing genocide right now, and we essentially want a temporary restraining order to stop it. Exactly. Okay, so when South Africa says that Israel is committing genocide, what exactly does that mean? So I think it's really helpful here to start with what the Genocide Convention, which is the treaty at issue, actually says. treaty at issue, actually says. So it defines genocide as acts that are committed with intent to destroy a group in whole or in part. And that can be a racial group, an ethnic group, a religious group. So South Africa really has alleged two things here. They've alleged actions on Israel's part, which are both things that its

military has actually done and things that it has condoned, such as allowing people to make statements that South Africa argues constitute incitement to genocide without stopping them or punishing them. And that these things were done with the intention for the purpose of destroying the civilian population in Gaza in whole or in part. Okay, so the idea that South Africa is asserting is that this is an intentional attempt to destroy people because they are part of a particular group, in this case Gazans. That's genocide, even if that attempt fails. That's right. And one thing that is often a little bit confusing to people about this is that it's not actually a matter just of the level of violence that takes place. And this is really what distinguishes it from a lot of other crimes

under international law, such as other crimes against humanity, is really about that intent. You could have very, very high levels of violence, but if it is done for another purpose, if it doesn't have that genocidal intent, then it wouldn't constitute genocide. And conversely, you could actually have a relatively small amount of violence, but if it is done with that intent to destroy a group,

then that would constitute genocide under this definition. And when they presented their case in court a couple of weeks ago, what evidence does South Africa point to to support this claim? Thank you, Madam President and distinguished members of the court. So South Africa's team of lawyers pointed to a number of statements, including by very senior officials within the Israeli military and the Israeli government. Israel's political leaders, military commanders, and persons holding official positions

have systematically and in explicit terms declared their genocidal intent. One of the most important ones was a statement that the defense minister, Yoav Galant, made on the 9th of October, just two days after Hamas's attack on Israel. Where he said that as Israel was imposing a complete siege on Gaza, there would be no electricity, no food, no water, no fuel. Everything would be closed because Israel is fighting human animals. And one reason why it's so important that this statement came from Golland

is that he is somebody who's not only very senior within the Israeli government, he's also somebody who's in a command authority position within the military. He's the defense minister. Right. Genocidal utterances are therefore not out in the fringes. They are embodied in state policy. So what else does South Africa point to? I mean, either in terms of Israel's intentions or, as you say, its actions. Israel has subjected Gaza to what has been described as one of the heaviest conventional bombing campaigns in the history of modern warfare. So they also speak about the bombings that Israel has been carrying out in Gaza. where they seek shelter, in hospitals, in schools, in mosques, in churches, and as they try to find food and water for their families.

The idea here is to show not just the scale of violence, but that taken together, it's a pattern that suggests that civilians are being targeted just because they are people within Gaza, not because they are Hamas fighters, not because they are combatants. The imminent risk of death, harm and destruction that Palestinians in Gaza face today and that they risk every day during the pendency of these proceedings on any view justifies, indeed compels, the indication of provisional measures. Some might say that the very reputation of international law, its ability and willingness to bind and to protect all peoples equally, hangs in the balance. So that was South Africa's case.

That concludes South Africa's address. Thank you. Okay, so what was Israel's defense? So the next day, the day after South Africa delivered its arguments... Madam President, distinguished members of the court. Israel's lawyers had a chance to deliver their rebuttal, in effect.

The state of Israel is singularly aware of why the genocide convention, which has been invoked in these proceedings, was adopted. And their focus was really on reframing this to focus on Hamas, to focus on the violence that Hamas perpetrated in Israel, and tying that to Israel's history as a state that was in many ways born as a reaction of genocide. Seared in our collective memory is the systematic murder of six million Jews as part of a premeditated and heinous program for their total annihilation. And they moved from there to talk about the attacks on October 7th.

The events of that day are all but ignored in the applicant's submissions, but we are compelled to share with the court some fraction of its horror. compelled to share with the court some fraction of its horror, the largest calculated mass murder of Jews in a single day since the Holocaust. And they said Hamas is engaged in a genocidal project of trying to erase the state of Israel and that the violence that they committed on October 7th was an example of the type of genocidal violence they are using as part of that project. If there have been acts that may be characterized as genocidal, then they have been perpetrated against Israel. And then from there, they addressed the statements like the

one that Golland had made and some others that South Africa had pointed to. Some of the comments to which South Africa refers are clearly rhetorical, made in the immediate aftermath of an event which severely traumatized Israel, but which cannot be seen as demanding genocide. They express anguish. Saying, in effect, these were emotional statements made in the heat of the moment for a domestic political audience, and they didn't reflect actual policy. So their position is that this factually is not happening, and also this wasn't really showing intent. This was just words and emotional speech. speech. Israel has publicly stated repeatedly that there is no limit on the amount of food,

water, shelter, or medical supplies that can be brought into Gaza. And just to be clear, Times reporting and statements by the UN have said that, in fact, there are major restrictions on the humanitarian aid that's being allowed into Gaza. Listening to the presentation by the applicant, it was as if Israel is operating in Gaza against no armed adversary. And the other thing that they argue is that to the extent there is a threat to the civilians of Gaza, that threat comes from Hamas. But the same Hamas that carried out the October 7 attacks in Israel is the governing authority in Gaza. And the same Hamas has built a military strategy founded on embedding its assets and operatives in and amongst the civilian population. And so their argument here is that actually it is Hamas that's endangering civilians by using them and the places where civilians are located in order to conduct its military activities.

And then their last argument was that, in fact, Israel cares deeply about international law and is going to great lengths to ensure that it's followed. As the authority responsible for international law advice to Israel's government and cabinet, I can attest that in contending with these challenges, Israel remains committed to international law. So the lawyer who argued this particular point is somebody called Gilad Noam. He is one of their deputy attorney generals. And he basically came to the court to say,

not only is this something we take very seriously, this is my job, I am the person, and I'm ensuring that these standards are met. When the cannons roar in Gaza, the law is not silent. And so with that, Israel's day of presenting their arguments came to an end. But Israel's day of presenting their arguments came to an end. Okay, so this makes me want to understand better these international rules he's talking about. Yeah, so even though this case just concerns genocide and just concerns the treaty, the convention against genocide, it's actually just one very small part of this broader legal universe, which has become so crucially important

in the way that this conflict is not just being fought, but actually viewed and understood by the rest of the world. We'll be right back. So what is this broader legal universe, you know, the international rules around war? And where do they come from? So this is a group of laws that were largely developed after World War II in response to the world kind of looking at the horrors that took place during that conflict and realizing that technological capabilities had reached the point that there was really no limit to the amount of destruction that war could wreak and that we needed some sort of limits that could be collectively agreed on in order to protect everyone.

And they are mostly concerned with protecting people who are non-combatants. So that means civilians. It also means prisoners of war. And the idea is that if you are not actively a participant, then you are entitled to certain protections. And if you think about this, you know, this was happening in the years immediately after World War II. So not only were things like the full horrors of the Holocaust becoming known, but Europe was still literally rebuilding from these horrific bombing campaigns that had happened. This was also, you know, after Hiroshima, after Nagasaki, we were really kind of waking up to the fact that law and other kind of principles

around this were going to be the only thing that restrained this level of violence. So one of the set of laws that came out of this was the Geneva Conventions. Those are the most important kind of legal treaties that govern how wars can be fought and actually became so important within the international legal system that they're now considered universally binding on all countries in almost every case. And importantly, these also apply to individuals and to armed groups that aren't states, which means that almost all of these rules apply to Hamas. Hamas is able to commit violations of the laws of war, and its members are able to be criminally

liable for attacks that they committed on October 7th and other things that they have done before and since. So the world decided that there were absolute red lines that every country or person in any conflict anywhere has to abide by because a world without these rules was too horrific to contemplate. And if you don't abide, there's a whole system of international courts to hold you responsible. That's right. Okay, so give me some examples of the actual rules under international law. So give me some examples of the actual rules under international law. So I think the easiest way to understand this is to start from this basic principle that civilians have to be protected.

So that means you can't target civilians directly in warfare. That's illegal. But then there's also this really important principle that says even if you're going for a military target, so an opposing commander or soldiers or something like that, the harm that that causes to civilians has to be proportional to the military gain that you're going to achieve. So this is called the rule of proportionality. It's something that I think is really widely misunderstood. So they might say more than 20,000 people, most of whom are civilians,

have been killed in Gaza, and around 1,200 Israelis, again, most of whom are civilians, have been killed. And they just compare those numbers and they say, how could this be proportional? But actually, that's not how it works. It's not a comparison of the numbers on each side of the conflict. It's a comparison of the civilian harm of a particular attack and the military advantage to be gained. So then if this rule of proportionality is about each individual attack

and not sheer numbers, how do actors in a conflict figure out what is just under this rule? So it ends up basically looking like an equation. So they have to take an evidence-based estimate of what they think the civilian harms of a particular attack might be, and they have to calculate also the military value of the target that they're trying to achieve. And then they weigh them against each other. And it seems strange to kind of assign numerical values to some of those things. But in effect, what the law requires is for the harm to be less than the value.

target is important enough, you can accept a higher level of civilian harm. There has to be a really good reason, in other words. Right. But this seems kind of squishy, right? Like, how do you define good enough reason? Like, what is that math? How do people think about that? So this is something that militaries tend to keep secret most of the time because it's part of their operational policy. So that kind of information tends to be classified. But we know from some information that has been released about previous wars what this kind of thing can look like. So, for instance, the U.S. has said that during the war in Afghanistan, the usual acceptable level of casualties that were considered proportional in most attacks was zero. That they just, you know, had that as their baseline. And that at the very top, if you were going after Osama bin Laden, the highest level of casualties that could be acceptable for somebody like that was 30. So that gives you a sense of kind of

the scale that the U.S. was considering in that war. And also importantly, even if these are the legal guidelines that are being given within militaries, they're not always followed and attacks don't always go the way you expect. Okay, so Amanda, it feels worth at this point pointing out that Hamas has said that no civilians were killed in Israel on October 7th. And it's questioned, what even is a civilian? What even is a civilian? It's suggested over and over that all Israelis are engaging in an illegal occupation, and therefore everyone really is a legitimate military target. Now, obviously, civilians were killed on October 7th.

You know, the idea that they weren't is not true. So how do we think about that? I mean, if one side doesn't really consider civilians civilians, they're not doing this math that you're talking about. really consider civilians civilians. They're not doing this math that you're talking about. And I assume under the rules of war that the definition of a civilian is not subjective and certainly not defined by one's enemy. That's right. So a civilian is a civilian, and you certainly don't get out of your legal obligations to protect and ensure that all attacks are proportional just by saying they're not civilians. That is not how that works.

But also, this is not something where a violation by one side affects the protections that other civilians enjoy. So, for instance, if Hamas makes these statements publicly disavowing its intention to comply with these protections for civilians, that doesn't change the protections that Israeli civilians have under the law, but it also doesn't change the protections that Gazan civilians have under the law. Those protections are rules that apply to all people just because they're people, and it's not something that can be canceled out by wrongdoing on the part of one party or another to the conflict. Got it. So you're saying basically that even if there was an inciting event that was a violation, it doesn't mean that the other side has just caused to do its own violation. Exactly. There's no tit for tat here. It's not eye for an eye under

the system. The civilians have the protection because they're civilians. Okay, so what if a legitimate military target is intentionally embedded within a civilian area, which Hamas is accused of doing, specifically to make that calculation actually harder for Israel? So I think this is a great example of a case in which violations from one side don't change the rules for the other. So if Hamas is intentionally embedding itself in civilian areas in order to protect its military operations and thereby endangering civilians, that is a violation of international law on Hamas's part. But even if it is the case that Hamas is committing such a violation and that is why the civilians are in harm's way, that doesn't change the other party's obligation to comply with the rules of proportionality.

So they still have to treat those civilians as civilians. They still have to take them into account when they're determining whether an attack is legitimate. So even if it's a violation, it still does make the calculation harder for Israel. Like it kind of works if you're Hamas, right? Yeah, I mean, it is true that some of these rules can make fighting a war and winning a war more difficult. But the point of this international system is to say it's worth giving up some military advantage sometimes in order to have this protective system, which we all benefit from. So here's something we thought about on the show that kind of pushes this idea to the limit.

And that is if Hamas is putting their central command centers underneath hospitals, like the Israelis are asserting, Israel would still have to take into account the civilian casualties during any kind of attack on those hospitals, even if their goal is to destroy that command center. That's right. So hospitals actually have special heightened protection under international humanitarian law because they're seen as essential to civilian life. So it's not just the immediate consequences that are so serious when targeting a hospital, but that the loss of a hospital, if a hospital is attacked, also has significant consequences for the civilian population. So the baseline assumption is that hospitals are entitled to protection from attack. However, if a hospital is being used for a military purpose, which to be clear would be a very

serious violation of international law by whoever was using the hospital that way, then the hospital would lose that protection. But the same rules of proportionality still apply. So the civilians who are within that hospital still have to be taken into account. And any military action to take out the command center or arrest people or similar needs to be targeted. And the goal needs to be to allow the hospital to return to its function afterwards. This speaks to what you've been saying about the fundamental function of these rules of war, which is to protect civilians' ability to live in the context of war. Like they're still entitled to food, water, and medical care.

That's right. And, you know, there are many different provisions within the Geneva Conventions and other parts of international law that are really designed to protect that principle. So, for instance, collective punishments are illegal. You can't punish civilians collectively for the actions of a government or an action of somebody else. It's also illegal to use starvation of civilians as a weapon of war. You know, you can't use that for strategic advantage, even if you could get one. And likewise, you know, you can't kill civilians. You cannot take them hostage, et cetera. Right. You said this term collective punishment, you hear that a lot bandied about. I mean, you heard the UN Secretary General say that just the other day. Yeah. And I think he's really referring to this situation in Gaza where the civilians there collectively are facing grave harm. So the United Nations has warned that the whole Gaza Strip is at

risk of a severe famine. They've been warning for months now of other humanitarian concerns and, of course, the effects of the actual conflict itself. I want to ask about another aspect of destroying civilian infrastructure, humanitarian concerns and, of course, the effects of the actual conflict itself. I want to ask about another aspect of destroying civilian infrastructure, which is the destruction of people's homes. Now, we know that a huge percentage, the UN says 85 percent at this point, which is like two million Gazas, most of the population, have been displaced from their homes. What do the rules say about displacement? So this is a little bit of a complicated area of law because there are two principles here that can really be in tension with each other.

So the first is that before an attack, the attacking military or party has to warn civilians and give them a chance to leave. And early in this conflict, when Israel told Gazan civilians to leave the north, Israel framed that as a warning. But many people saw it as in conflict with this other principle, which is that it's illegal to intent is to displace them in order to take their land, in order to force them out of a territory, gain political power, etc., then that's not okay. So Israel has said that people will be allowed to return to their homes. Prime Minister Netanyahu has spoken to this specifically. But there is still going to be a practical consideration of whether that's possible. Right. If you're allowed to return, in this case to the north, but there's really nothing left to return to because so many of the homes are destroyed,

does that really count as being allowed to return? Yeah, I think that's where the legal questions start to get muddy about what the obligations are to enable return and what that's going to look like. And I think that that is something that is hugely unclear at this stage of the conflict, what there will be to return to. The Palestinians have already had displacement as such an important part of their history that questions of displacement happening now, I think, have particularly heavy emotional resonance for them. Okay, so say one side or another of any conflict appears to violate these rules that you've laid out. What could happen? We know that one option is that a country can accuse one of the sides of genocide, because that's what's happening before the International Court of Justice right

now. But what else could happen? Yeah, so I think that's a good example of how there can be consequences for states, such as, you know, an action like that's a good example of how there can be consequences for states, such as, you know, an action like that one, which was brought over a treaty violation. And the same thing has happened in the case of Russia, for instance, to do with their invasion of Ukraine. But there can also be consequences for individuals. So, you know, going back again to this example of Russia, there's also a criminal case pending against Putin in a different international court that is also related to the way the war in Ukraine has been fought. And so this is something that comes up often when there is a conflict with severe violence and allegations of atrocities.

That can lead both to consequences for the states involved, but also to individual consequences, including criminal charges. So that can include charges for war crimes and crimes against humanity. So war crimes need to happen in the context of a war, but crimes against humanity can happen in other contexts as well. Okay, so countries and individuals can face these really serious charges if they violate these rules around conflict. But what actually happens if you're charged and found guilty? Because it seems difficult to enforce and actually to hold people and countries accountable. It seems hard. It is hard.

So, for instance, the ICJ case over genocide, even if they do issue provisional measures in that case sometime in the next few months, that court doesn't have any police officers. It doesn't have peacekeepers. It doesn't have any way to kind of militarily enforce any kind of judgment. But it does still carry a huge amount of weight in terms of the way that its judgment is perceived and the way that it could affect Israel's standing in the world and particularly with its allies in Europe and North America. So we've already seen it have some effect, I think, although it's hard to know for certain. It seems very notable that in the weeks since South Africa originally filed their case, Israel has started to make new agreements

on allowing in humanitarian aid. Their attorney general has announced that she is going to investigate statements by certain lawmakers to determine if they could be considered incitement. They have announced that their military operation will soon be scaling down, kind of entering a new phase. And I think that those actions both reflect a desire to maybe affect the court's judgment. It also reflects, I think, a desire to show that it is a law-abiding country. So you're basically saying even if these courts can't put people in jail, there are other forms of accountability that having these universally agreed upon rules give. That, you know, these rules provide a way to figure out who is essentially allowed to be in good standing in the world. Yeah, I think that that's one reason why these rules and this

broader system of justice really matter. You know, they matter to Israelis, they matter to Palestinians, they matter to the rest of the world. But I think they're also doing something here that's really important that goes beyond this particular conflict, but is also really, really relevant to it, which is it gives us a way to understand right and wrong and fair and unfair, even when we're completely overwhelmed by the emotion of, you know, reading about a particularly horrific attack, of hearing about something that is a level of unimaginable violence happening to families or children or, you know, people who might remind us of ourselves. And that can be one of the hardest circumstances in which to make a kind of reasoned judgment and figure out the best way forward.

And so having this set of rules, which has already been agreed on, has already been worked out, it applies not just to both sides in this conflict, but to the entire world, really offers a way forward in how to think about this, how to understand this, and how to envision maybe even possible solutions that the parties to this might eventually reach. Amanda, thank you. Sabrina, thank you so much. In a televised news conference earlier this month, Israeli Prime Minister Benjamin Netanyahu said he would not relent in the war in Gaza until Israel had achieved what he described as total victory.

He added that nobody would stop Israel, quote, not the Hague and not anybody else. The court in the Hague could issue a preliminary ruling as soon as next month. We'll be right back. I'm going to produce a favorable outcome, more campaign stops, more interviews, I would do it. But I can't ask our supporters to volunteer their time and donate their resources if we don't have a clear path to victory. Accordingly, I am today suspending my campaign. On Sunday, Governor Ron DeSantis of Florida suspended his campaign for president and endorsed the frontrunner, former President Donald Trump, with the primary race in New Hampshire in its final 48 hours.

I've had disagreements with Donald Trump, such as on the coronavirus pandemic and his elevation of Anthony Fauci. Trump is superior to the current incumbent, Joe Biden. That is clear. I signed a pledge to support the Republican nominee, and I will honor that pledge. The move cements the Republican contest as a two-person race between Trump and former Governor Nikki Haley of South Carolina, a little less than a week after DeSantis' devastating 30-percentage-point loss to Trump in Iowa. It remains to be seen whether DeSantis' devastating 30 percentage point loss to Trump in Iowa. It remains to be seen whether DeSantis' departure will help Haley, who is believed to be better positioned than DeSantis was in New Hampshire and South Carolina, or whether more of his supporters will migrate to Trump. And.

One of the types of two-state solutions. Over the weekend, President Biden pressed Israeli Prime Minister Benjamin Netanyahu to agree to the creation of a Palestinian state after the war in Gaza is over. It was their first phone call in more than a month, amid tensions between Israel and the United States over the war. Biden told reporters after the call that he had presented options that would limit Palestinian sovereignty to make the prospect more palatable to Israel. There's a number of countries that are members of the U.N. that still don't have their own military.

A number of states have limitations. And so I think there's ways in which this could work. But on Saturday night, Netanyahu doubled down on his opposition to an independent state for the Palestinians, saying he would not compromise on Israeli security, adding that, quote, that is irreconcilable with a Palestinian state. That is irreconcilable with a Palestinian state. Today's episode was produced by Olivia Natt, Muj Zaydi, Diana Wynn, and Michael Simon Johnson.

It was edited by Paige Cowett and Brendan Klinkenberg, contains original music by Pat McCusker, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Lansberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi. See you tomorrow.