Meeting

The Laws of Armed Conflict and Ethics in the Israel-Hamas War

Tuesday, December 19, 2023
MAHMUD HAMS/AFP via Getty Images
Speakers

George R. Killam Jr. Chair of Criminal Law and Director, Center for Military Law and Policy, Texas Tech University School of Law; Lieutenant Colonel (Retired), U.S. Army

Dame Louise Richardson Chair in Global Security and Co-Director, Oxford Institute for Ethics, Law, and Armed Conflict (ELAC), University of Oxford (speaking virtually)

Head of Regional Delegation for the United States and Canada, International Committee of the Red Cross

Presider

Adjunct Senior Fellow for International and National Security Law, Council on Foreign Relations; Partner, Arnold & Porter

As military operations resume in Gaza, panelists analyze the application of the laws of armed conflict, ethical and moral considerations, and the complexity of applying these principles in the context of the Israel-Hamas war.

BELLINGER: All right. Well good morning, everybody. And welcome to those who are listening online, here, and around the world. Welcome to our discussion of “The Laws of Armed Conflict, Ethics and the Israel-Hamas War.” I’m John Bellinger. I am adjunct senior fellow in international and national security law here at the Council on Foreign Relations.

So, as you know, since the horrific attacks on Israel by Hamas on October 7, and then Israel’s military response, the press has been filled with graphic pictures and descriptions of the conflict. But there have also been a lot of assertions, some of them fairly breathless, that both Hamas and Israel have violated international law governing armed conflicts. It’s very difficult for even lawyers, much less non-lawyers, to try to sort out the accuracy of these assertions.

So we have a distinguished panel of experts who are with us today to try to unpack these issues. I’m joined here in Washington by, to my immediate left, Lieutenant Colonel, retired, Geoffrey Corn, who’s the director of the Center for Military Law and Policy at Texas Tech University’s School of Law. And farther over on the left, Patrick Hamilton, who is the head of delegation to the U.S. and Canada for the International Committee for the Red Cross here in Washington. He’s essentially the ICRC’s ambassador here in Washington. And online, we are joined virtually by Janina Dill, who is the co-director of the Oxford Institute for Ethics, Law, and Armed Conflict at Oxford University. All of our panelists have the typical distinguished backgrounds, and their full bios are online.

So this morning’s conversation is on the record. I’m going to start by asking our panelists about thirty minutes of questions, and then we’ll open the floor at about 10:05 for questions from the audience here in the room and online. I also want to disclose before I begin that, as a lawyer in private practice in my day job, I have myself represented the government of Israel in a number of legal matters, including lawsuits here in the United States. So let’s get started.

First to level-set on the law, what are the international law rules that apply to the conduct of hostilities between Hamas and Israel? And do Hamas and Israel actually agree on these rules? And then, without turning this into a law school lecture, since Hamas has not signed up to any treaties and Israel, while being party to a number of treaties, has not agreed to rules in treaties with Hamas, what are the rules that apply to Hamas and Israel as a general matter? So, Geoff, let me start with you. And then I’m going to go to Janina online.

CORN: So the basic category of international law that applies to this conflict is referred to as international humanitarian law or the law of armed conflict. And essentially, that’s a body of law that regulates the conduct of hostilities between parties to a conflict, organized armed groups—whether they’re state or nonstate—and also has an important branch of the law that’s focused on protecting victims of war, the wounded and sick, civilians, captured and detained personnel, for example. That law is reflected in a number of treaties, but for purposes of our discussion almost all of the rules that we’re going to talk about are—have evolved into what we call customary international law.

And one of the most important foundational principles of this body of law is equality of application. And that means that the law applies equally to all parties engaged in an armed conflict. And that equal application is not impacted by whether or not the party is a state or a nonstate actor. Now, it’s an interesting international law discussion of how nonstate actors that have not signed up to the law in terms of treaties are bound by the law, but it is universally accepted today that as a matter of customary international law even if you’re a nonstate armed group you are bound by this law. It’s reflected also in the Statute for the International Criminal Cour and in international criminal jurisprudence, that holds nonstate actors responsible for violations of the law.

And another very important aspect of this equality of application is that it doesn’t matter if your opponent either doesn’t agree that they’re bound by the law or pervasively violates the law. That doesn’t release you from your obligation to respect the law. It’s a unilateral obligation. And there’s no qualification or kind of suspension of your obligations, even if you believe your opponent is not violating—is violating the law. So this equality of application means that what we’re talking about here are rules that apply equally to the IDF and to all of the organized armed groups that they are engaged with in Gaza.

BELLINGER: Good. Good summary. Thanks, Geoff. So, Janina, can you amplify that? And in particular, I do happen to know that Israel agrees that it is bound by certain rules. But does Hamas agree that it is bound by certain rules?

DILL: But it doesn’t really matter, right? As Geoff just said, distinction, precautions, and attack and proportionality, so the basic rules for the conduct of war, are customary law. In addition, there are some—a number of really specific prohibitions that are important on hostage taking, on sexual violence, on the use of starvation as a method of war. These are all customary obligations that bind parties to the war, whether or not they’re signatories to a treaty, regardless of the importance or legality of their war aims, regardless of how the other side behaves, regardless of whether you’re fighting terrorism or resisting occupation. It doesn’t really matter. You owe compliance with these rules not to the other party to the war but to civilians, to humanity, and to yourself. So this isn’t a context where the law runs out. We have the law. It is agreed, you know, that this law applies. Compliance is the is the issue, not the question whether the law applies.

BELLINGER: Good. Well, that’s a good segue to my next question. And, Janine, I’m going to start with you. I’m going to start with Hamas. Has Hamas clearly committed war crimes in its attacks on Israel, its continued rocket attacks on Israel, its taking of hostages, and, indeed, its actions inside of Gaza with respect to its own civilians? Has Hamas complied or violated the rules that you just said applied to them?

DILL: Yeah, so October 7 is sort of a laundry list of war crimes, really. We can particularly focus here on hostage taking, sexual violence, and willful killing of civilians. These are war crimes in an international or in a non-international armed conflict. And oftentimes, and I think we’ll talk about this again today, war crimes are hard to diagnose from afar because they require the commission of certain acts with intent and knowledge. And intent isn’t always visible in the action itself. But when it comes to October 7, this problem doesn’t quite arise with that urgency because, particularly hostage taking and sexual violence, they have no legitimate military purpose. There’s no context in which they can be legitimate. So the intent that’s required for it to be criminal is, in some sense, revealed in the action itself.

The only question I think that’s harder to answer here is whether rape and willful killing of civilians are war crimes or whether they’re also crimes against humanity. For the latter, you would have to show that these acts were committed in the knowledge that they were part of a widespread and systematic attack against civilians. This would have to be established on a case-by-case basis in the courtroom. But sort of for the more general diagnosis that there were war crimes committed on October 7, here that is relatively unambiguous.

BELLINGER: Thanks, Janina.

Geoff, do you want to add anything to that on Hamas?

CORN: Well, yeah, specifically on Hamas. I agree with Janina. I mean, they provided the video evidence of blatant war crimes on October 7. The summary execution of civilians, even if they detained some soldiers, if they summarily executed them that’s a war crime. Taking of hostages, indicating that they were going to use those hostages as human shields. Human shielding is another violation.

But one thing I would like to emphasize is there’s a lot of commentary in the media, and even from political leaders, that say, OK, we acknowledge there were war crimes committed by Hamas on October 7. The war crimes being committed by Hamas arguably did not end on October 7. The continuing perpetuation of the hostage taking is a continuing war crime. And not only are the individuals holding the hostages accountable for it, but all of the leaders that know or should know what’s going on are accountable under doctrines of command responsibility.

Furthermore, they fired more than ten thousand rockets at Israel. And I don’t think Hamas makes any pretense of actually trying to attack a military objective. They are firing those rockets for the purpose, in my view, of spreading terror among the civilian population. And customary international law applicable to all types of armed conflict prohibits conducting attacks with the specific purpose of spreading terror among the civilian population. So we can say that they’re indiscriminate. They’re not targeting military objectives. So my point is that we have to be careful about indicating that the only war crimes that were committed by Hamas, or violations, occurred on October 7. It’s an ongoing kind of deluge, if you will, of violations of international law and arguably war crimes.

BELLINGER: Good. Well, thank you both for that. All right. Well, let’s turn to Israel, since this is what the press and a lot of people have been focused on. So on the one hand, human rights groups are increasingly saying that Israel has committed war crimes or that there’s evidence of war crimes. On the other hand, many experts on the laws of war have been responding, no, it’s premature to say that Israel is committing a war crime. You have to know what Israel was actually targeting. What did the commander know? What was the commander’s assessment? We can’t call something a war crime until we know those things. Israel itself has said, we comply with the law of armed conflict. So, Geoff, let me start with you. How do we unpack all of these assertions?

CORN: Well, first off, let me emphasize that I believe—and I think anybody who has been in the uniform of their nation fighting wars—understands that any loss of life in war is tragic, especially the loss of life or injury to civilians or other innocent individuals. That is a sad reality of war. But the law of war or the law of armed conflict accepts that in war there will be inevitable casualties inflicted on civilians.

Looking at the results of attacks and the visual and very visceral images of the human suffering in Gaza, and extrapolating from that that there must be war crimes, in my view is almost like saying one plus I-don’t-know equals war crime. So the one is the consequences of attack. The I-don’t-know is what was the target, what was its assessed value, what measures did the commander implement to mitigate civilian risks that were operationally feasible, and, ultimately, what was the judgment as to whether or not the risk to the civilian population was or was not within the scope of what we call the proportionality rule, which I know Janina will talk about a little bit more.

What I would say is, I’d ask people to consider two things. First off, be very, very careful about falling into the trap of what I’ve called effect space condemnation. That you look at the results of an attack and you say that must be a war crime, or even that must be a violation of international law. Because you don’t know the other side of the equation. The law of war doesn’t regulate the effects of combat. It regulates the decision to engage in combat. It regulates the attack judgment, not the attack result. And that attack judgment is what we need to focus on. And oftentimes, that’s a difficult thing to understand because you don’t have all the details that the commander considered. But that doesn’t mean that you can revert to simply ignoring that aspect of the equation and resulting and engaging in an after-the-fact condemnation.

The other thing I would emphasize is, in my view, we have to recognize that there’s a difference between direct cause and responsibility for civilian casualties. It’s very easy to identify the direct cause of civilian casualties. If the Israelis drop a bomb or they fire an artillery barrage and it destroys a building and civilians are killed or injured, you can point to the Israelis and say: They caused the injury. But the most urgent question, and the hard question, is who bears responsibility for that? And in many cases in war, particularly when you’re fighting an enemy that disregards its obligations—its obligations to mitigate risks to its own civilians, in many cases in war the responsibility for civilian casualties actually lies at the feet of the party that is being attacked and not the party that’s doing the attacking.

So I guess my answer is, it’s complicated. Is it possible that there have been Israeli attacks that violate international humanitarian law? Of course it is. No military is perfect. Is it possible that some of them could rise to the level of war crimes, satisfy that difficult intent or knowledge standard that Janina talked about? Yes, that’s possible. But I think it’s wildly premature to look at the results of combat, look at an aggregate of civilian casualties, and say: Those must be war crimes.

BELLINGER: In a minute or two I’m going to get to some of the specific incidents that are on everybody’s mind. But, Janina, talk to us more generally about how you assess Israel’s compliance.

DILL: I’d like to point out first that it’s not just human rights groups, right? It’s several governments, international organizations, and expert observers that have alleged war crimes on the side of Israel. And it’s a pretty long list, right? We mustn’t trivialize it. The allegations include intentionally directing attacks against civilians, against civilian objects, against buildings for religious and educational purposes, medical facilities, committing outrages upon personal dignities, forced displacement or transfer, intentionally using starvation as a method of war, and potentially intentionally launching disproportionate attacks.

We don’t have time to talk about these allegations individually, so let me make three general points, particularly about this difficult question of what can—what must we say now, while the war is still ongoing and while we don’t have all the information. The first point is that many of the relevant actions here, and I agree here with Geoff, are of the type that are harder to interpret than, say, hostage taking or sexual violence. An airstrike that’s intentionally launched against a civilian object doesn’t look necessarily different than one that strikes that object as a proportionate side effect. The standard for finding somebody guilty of a war crime is beyond a reasonable doubt. And for many, though not all, of these alleged crimes that standard can only ever be reached in a courtroom. That’s almost trivial to say, right?

However, and this is the second thing I’d like to say, law has other functions besides punishing individuals for crimes. It has the function to guide and restrain action and express opprobrium and concern. And if we insist on the evidentiary standard that is appropriate for loss, punitive function beyond a reasonable doubt, we undermine the loss action guiding and expressive functions, which must unfold now while the war is going on rather than five years from now in a courtroom.

So therefore, and this is the third thing I’d like to say—and I’d like to say it plainly—there’s absolutely evidence to warrant serious doubts about the compliance of Israel’s military operations with the applicable law of armed conflict. This is different from saying: I know for certain that airstrike was a war crime. I wouldn’t say that. But there is a pattern of attacks here against normally protected objects, which none of them remain unscathed. There is a pattern of using high payloads in really densely populated areas, unguided munitions with catastrophic consequences. A fact pattern that we must see against the backdrop of statements by military and political leadership in Israel which suggests that the protected status of Palestinian civilians is in doubt.

Taking all of this together, while it’s not dispositive of war crimes it is enough to cast serious doubts about the legal compliance of these military operations. Enough doubt to say that a third party, like the United States, shouldn’t uncritically support this action. And that must mean more than repeating the mantra that Israel must comply with LOAC, right? Material support should be conditional on better compliance with the laws of war, lest the United States itself violates its obligations under international law.

BELLINGER: All right. Let me—I have not been excluding the ICRC. I put Patrick off in part because it is difficult for the ICRC to make these value statements while trying to serve as a neutral. You have been talking to both sides, I think. I have been personally on the receiving end of hundreds of hours of your talks when I was in the government myself with your predecessor. So I know something about these talks. I know you can’t, without breaching confidentiality, get into these. But tell us about what are the discussions that the ICRC are having with both sides? What are the issues that the ICRC is focusing on? And what are the challenges that the ICRC are having?

HAMILTON: Thanks, John. And great to be with you this morning. Really appreciate it.

And, yeah, indeed, I think what we’re trying to do as the ICRC, the International Committee of the Red Cross, is to live up to that mandate provided for us within the Geneva Conventions to try and protect and assist victims of conflict, as we’ve been trying to do since 1863. And we’ve been present in this context, all too regrettably, since 1967. So this is certainly not—regretted, sadly—all too sadly—the first round of conflict that we live out between these two parties, right? But for us certainly, I think we see a level of conflictuality going on right now that is certainly above and beyond what we have seen in recent decades, at very least, and a tremendous amount of suffering that is going on.

And so what we’re trying to do as an institution is, indeed, to try and work with both sides to limit and reduce the amount of suffering that is being experienced across the civilian population that is affected. And so we’re engaging with Israel, with the long-standing relationship that we have with the IDF in particular, as well as then with the Hamas leadership around, first and foremost, indeed, the conduct of hostilities and how these fundamentals of international humanitarian law, laws of armed conflict, proportionality precautions, and distinction can be better lived up to by both sides as they conduct their hostilities.

Secondly, we need to work with them on their obligation, which is the primary obligation also under IHL, to ensure that the essential needs of the affected population are met and people have the basics to be able to survive in terms of food, water, health care, and so on. Thirdly, to work with them on creating a minimal humanitarian space for us and other essential service deliverers to be able to operate safely, to bring more assistance materials into the Gaza Strip, to be able to cater to the essential needs of the population. And then, lastly, to seek access to all of those people that are being captured, detained, held in relation to these hostilities—be they hostages, be the detainees, and to be able to cater also to their needs.

I think what we see though is clearly the intensity of this conflict, the manner in which it started, and then the scale and scope of the needs that we’re confronted with, are challenging all of us, and not least us. Just as the degree to which the sides really want to engage more meaningfully and deeply on how we can reduce the overall levels of suffering that are going on. But those are the basic contents of what we’re trying to engage around.

BELLINGER: So you mentioned the hostages and the detainees. And all of us have seen the pictures of the ICRC escorting hostages out of Gaza. And that’s typically one of the most important things the ICRC does, is to have access to prisoners of war. Do you have access both to the hostages that—the Israeli hostages that are being held in Gaza and to Palestinian detainees in Israel?

HAMILTON: John, as you say, it’s very much a core area of our work to visit people that are captured and held in relation to hostilities. And today, regrettably, we have access to nobody on either of the two sides, be those the hostages nor the detainees on the—being held by—

BELLINGER: You presumably have asked both sides.

HAMILTON: Yeah, absolutely. So, I mean, from October—I mean, from before October 7, we were carrying out regular visits to Palestinians being held by the Israelis as part of a sort of regularized visit program. And since October 7, from October 7 itself, we have been relentlessly trying to seek access to the hostages being held by Hamas as well. We have also, since October 7, been calling for their immediate and unconditional release, because our view and our position is clear that they should not be being held in the first place. But for so long as they are being held, we have continued to offer our readiness to visit them, if not demanded the access to be able to visit them, to assess their conditions, to be able to help them in terms of medical needs and other needs, to act as a conduit for messages between them and their families. And, obviously, then to be able to act as a—to facilitate their releases.

So, thus far, I mean, of course, not least that week of ceasefire we were able to act to facilitate the release of the 105 hostages that week, on top of the four that already been released several weeks earlier. And then, simultaneously, to facilitate the release of 154 Palestinians that were in Israeli detention. And we continue to engage—to be able to have that access on both sides and understand, indeed, that, you know, the hostages, their families are profoundly concerned, as are we, about their conditions and the treatment that they may be experiencing. But, equally, we’re also trying to have that access on the Israeli side to the detainees that they are holding as well, and really appeal once more for that access to be granted.

BELLINGER: OK, thanks, Patrick.

I want to go back as briefly as we can have just a couple of specific incidents so that people can really understand how you apply the law as best we can in a particular circumstance. So I’m just going to list a couple of the incidents that we’ve all read about, and Janina and Geoff, I’m going to talk to you again about these. You know, about a month ago there was an Israeli attack that I think the Israelis have said was targeting a very senior Hamas leader, but he was in a refugee camp. But they targeted him and killed him. But a lot of Palestinian refugees were also killed.

Just over the weekend there were reports that two French citizens who were on the property of a Catholic Church in Gaza were shot, reportedly by a sniper, and killed. And the French government has expressed concern, as has the Catholic Church. You know, we’ve seen these reports of damage to hospitals, raids on the hospital, et cetera. How do we—how do we assess each of these? When all of us read these articles, and a group or a government comes out and says, no, that’s a violation, how do we assess those? Geoff.

CORN: Well, the first—it’s interesting. The first thing that comes to my mind, or came to my mind, when I saw the report of the attack on the refugee camp was, why is there a senior Hamas leader in that refugee camp? I mean, this raises the dilemma of fighting an enemy that uses the civilian population as camouflage and cover and concealment and fails to distinguish itself from the civilian population. The obligation to mitigate risks to civilians applies not only to the attacking force but also to the defending force, if we will. So how do we—how do we assess these?

First off, let’s recognize that no military is perfect. Mistakes happen in war. And sometimes deliberate violations happen in war. And the Israeli military bears an obligation to look very carefully at all of these incidents. I see my brother in the audience. He’s working on an editorial at this moment talking about the imperative of conducting credible, transparent investigations when you have suspicion of violations of the law. Maintaining discipline of forces in an environment like this is an incredibly challenging obligation of commanders. But it is an imperative obligation.

And it also relates to the comment that Janina made about the bombastic statements by senior political leaders. One of the functions of great commanders is that they screen that. They emphasize to their subordinates that that’s political talk. Our obligation is to fight the war in accordance with the law and with our values. And that’s your obligation. Maintaining that line between legitimate violence and revenge is essential, especially when you know that the instinct for revenge is going to be so pervasive and profound among your subordinates. So what I would say is, you know, you take the example of the—of the leader in the refugee camp. Again, that’s a very difficult question to analyze. If there was a legitimate assessment that he was there, that was a legitimate military objective, obviously, of significant value.

What I would be looking at is what measures did you consider to mitigate the risks to the civilians? Did you have to attack then? Did you have to attack with that munition? Could you have done something differently that would have achieved your military objective and reduced the risk to the civilian population? Before you get to the question of whether the risk to the civilians was proportionate to the value of attacking the target, you should be thinking about those precautionary measures.

And as we’ve discussed, I actually believe that at the operational level those precautionary measures, that intermediate step between I’ve identified a target and is the attack proportional, those precautionary risk mitigation measures hold the greatest promise of civilian risk mitigation because they’re objective. They’re not really about balancing—there is a balance. Is it feasible? I understand that. But they’re commonsense measures that a commander can consider. Can I attack in a different place? Can I attack at a different time? Can I use a different munitions package? This, I think, is what we need to be demanding of the IDF. And this is what I think is the best touchstone of assessing whether or not they’re complying.

As for the shooting of those two French citizens, I don’t know. Maybe it was a mistake. If it was a mistake, then like the three hostages that were killed by the Israeli soldiers, part of the reason for that mistake is informed by the tactics of the enemy itself. That are bait—they’re using civilians as bait, as traps. We saw the report the other day that they have recordings of Israeli children pleading for help that they’re playing in tunnels to bait Israeli forces into the tunnel to rescue them to ambush them. This is the environment that nineteen, twenty and twenty-one-year-old young men and women are encountering. And so the line between intentional violation and mistake, I think, is incredibly more complicated because you have an enemy that sees everything in the battle space as legitimate cover.

BELLINGER: So, Janina, I want you to answer that, but I’m going to squeeze in one more as well, on proportionality. Which is something that the law of armed conflict requires that a commander not launch an attack if the commander believes that the harm to civilians or civilian objects is going to be excessive, as compared to the military advantage that commander is trying to achieve. Now, you know, there’s no book that says what is excessive. But obviously, there are very large numbers of Palestinian casualties. So in addition to taking some of those incidents, if you could unpack proportionality of for us, please do.

DILL: Well, it can do it with regard to the attack that Geoff has been talking about, just to, you know, keep us grounded in the facts. And I’d like to add here first, and I’m not saying Geoff implied that, but, of course, when Hamas uses civilians in Jabalia as human shields, as they arguably do, that doesn’t mean they weigh any less in the proportionality calculus, right? These civilians must be taken into account and weighed as civilians in the proportionality calculus just as much as if Hamas didn’t use them as human shields. That’s a bedrock principle of international humanitarian law.

So proportionality asks the reasonable commander before they launch an attack to weigh the expected civilian casualties against the anticipated military advantage. The first thing to say is it’s incredibly difficult to pin down. And it’s—you know, not coincidentally, we don’t have international criminal jurisprudence where someone was indicted, was actually found guilty of, you know, disproportionate—intentional disproportionate attack, and that wasn’t overturned on appeal. So this is really, really difficult to operationalize. And it’s even harder to judge in hindsight.

I’d like to say two things in this context, though. One is that what matters for proportionality is neither what actually happened—so the civilians that died in an attack—nor what the attacker subjectively thought when they were launching the attack. But something, a third kind of standard is in play here, which is what the reasonable observer would have expected before the attack. So the reasonable military commander, what is the number of civilian casualties they expect? What is the military advantage they anticipate? That is the standard for proportionality. And so that depends on the informational environment.

And so it matters that Israel knows quite a lot about Gaza. It knows a lot about the population, who they are, where they are. It knows a lot about the architecture of the buildings, what it looks like when they crumble. And it knows a lot about the placement of schools, hospitals, and other protected objects. So from that perspective, you know, when we see that in these attacks, it’s fifty or sometimes a hundred civilians dying because a Hamas commander was attacked, then we should—you know, it’s not unreasonable to suggest that this was expected or expectable from the point of view of a reasonable military commander. That doesn’t mean, you know, I can say with 100 percent certainty this was a war crime. But it does matter for how we judge these attacks.

The second thing to say is that, again, it’s not necessarily an individual attack that I would want to judge. But there is a pattern of attacks here, right, against Hamas commanders across the chain of command. High value targets but also mid- and low-level fighters. And they get attacked when they are at home with their families. And these attacks cause really a lot of civilian casualties, in the dozens usually, but sometimes fifty, sometimes a hundred. And that, for me, it’s really, really hard to come to proportionality, to imagine the military advantage that would repeatedly justify attacks like that. Hamas has thirty thousand fighting members. You know, some of them can very easily be replaced. So what is the end goal here, right? To neutralize them all in this way? Clearly there these civilian casualties would—for me, it would be very, very difficult to come to a judgment of proportionality here.

BELLINGER: Good. Thank you.

Well, thank you, all of you. We’re now going to turn to audience questions. We’ve got something like 350 people listening online, as well as those in the room. So we will start with questions in the room. Right here in front of me, James. Now, please identify yourself and your affiliation. And since we have a lot of people, try to keep your question short.

Q: Yes, sir. Will do. My name is James Siebens. I’m a fellow with the Stimson Center.

I want to follow on what was just said about looking for patterns here, and to ask about the policy of essentially using siege tactics to deprive the population of Gaza of access to water, food, medicine, basic humanitarian needs. And whether that is, in and of itself, evidence of a war crime. Thank you.

BELLINGER: Great. Since we have three panelists, I’m going to generally ask only one panelist, maybe two, but not going to march all the way through. So, Geoff, do you want to take that?

CORN: Well, I mean, the framing of your question gives the answer. You frame the question siege tactics to deprive the civilians of Gaza of water, food, and electricity. If your purpose is to deprive the civilian population of essential requirements that would violate the law. And that’s, to me, not a difficult question. The difficult question is, are you using that tactic to weaken your enemy? And if you’re using that tactic to weaken your enemy, then your purpose is not necessarily to deprive the civilian population. It becomes a critically difficult proportionality assessment.

In my view, by the way, and I wrote about this early on, I also think that sometimes we get so wrapped up in the formalistic analysis of what specific rules are that we tend to overlook the more pragmatic core principles. I would ask first: Do you have a legitimate military necessity for cutting off something like water? When I wrote that commentary, my view was I was not particularly troubled with electricity because you’re fighting a subterranean enemy that relies on electricity extensively to conduct its maneuver, and logistics, and operations. When you provide 8 or 9 percent of the water and you’re going to cut that off, my view was if I were an intelligence officer I’d probably assess that whatever water is left in Gaza is going to be hoarded by the enemy anyway. So what real military advantage are you going to derive from cutting off the water? I would have questioned whether there’s a genuine military necessity to justify a prima facia, even if your intent is not to harm the civilian population.

So I think that the real question—the two critical questions are, what was your objective? What was your specific purpose? And, again, as Janina says, that’s often hard to assess because you’re not—you don’t have microphones in the decision-making center that’s making these tactical and operational decisions. And if your purpose is legitimate, AKA weaken your enemy, then what measures have you taken to mitigate the risk to the civilian population? And that goes to the point that my colleague made about providing some alternate method for the civilian population to get essential requirements satisfied through the intervention of humanitarian actors like the ICRC and other humanitarian actors. And we know that’s been a big area of debate. Have the Israelis done enough?

BELLINGER: OK, and going to the next question. And as we go along, Janina, Patrick, if you really want to come in on something—sort of and, Janina, particular you raise that finger—otherwise, we’ll try to keep taking the questions.

Carrie, we’ve got someone online.

OPERATOR: We’ll take our next question from Patrick Theros.

Q: Hi, my name is Patrick Theros. I’m a retired Foreign Service officer. I was ambassador in Qatar. I used to run the Counterterrorism Office in the Department of State.

I have a question here. The laws of war apply to legitimate combatants. According to the United States government, and according to the Israeli government, Hamas, is a criminal organization, a terrorist organization. Does this change how the laws of war apply to them? Is it primarily a criminal activity? Or the laws of war still apply?

BELLINGER: Janina, you want to take that?

DILL: Yeah, it’s relatively easy. The laws of war apply. This is either an international armed conflict or non-international armed conflict. Sort of, you know, criminal law enforcement can become a non-international armed conflict if it reaches a certain threshold of intensity or protractedness. Once that is reached, international law applies. It applies to the conflict, not necessarily to a particular party to the war. So it is contested among international lawyers whether this is an international or non-international armed conflict. I happen to think it is a little bit of both and that the laws overlay each other here. But it is definitely an armed conflict, just by protractedness and intensity. And at that point, regardless of how you view your enemy, the laws of armed conflict apply. This is quite important because in history you, you know, will imagine that a lot of the time belligerents have all kinds of designations for their enemies. And those have no legal relevance. Once we are in an armed conflict, the laws of war apply.

CORN: Completely agree.

BELLINGER: In the room. Peter Trooboff.

Q: Peter Trooboff, Coving and—sorry. Thank you. Peter Trooboff, Covington & Burling.

Could you say a little bit about the necessity and proportionality calculation when you have widespread use of drones? Here’s a kind of different—it’s different from air warfare. And I’m wondering has it been applied—how is it applied in this conflict?

BELLINGER: Geoff.

CORN: Yeah. Well, I mean, I think the drone is just—actually, I think, use of a drone, in many cases, would qualify as a precautionary measure because you’re increasing the precision and the accuracy of your attack and you’re gaining more intelligence on the value of the target. I mean, one of the aspects of drone warfare is the ability to linger, to sit above the target area and gather more intelligence. Gathering intelligence and confirming the target, the location of the target, the risk to the civilian population, the value of the target, those are all critical precautionary measures that are designed to, what? To enhance the legitimacy of the decision to attack and to inform the proportionality judgment.

So I think what—the if you have the opportunity to use drones, particularly in a densely populated area—which, by the way, employ a relatively low yield warhead as a general proposition—I mean, a hellfire missile, I think, has a fourteen pound warhead. If you have the opportunity to use that and it will achieve your military objective, then obviously that’s a better option than using a more destructive kinetic attack option. So does it inform the analysis? Of course it does, because it reduces the risk to the civilian population, enhances the probability of achieving your military advantage. And so when it’s available, you should use it.

Having said that, I think we all have to be careful to recognize that there is not an indefinite supply of the best or most precision weapon systems, especially when you’re a nation like Israel that has to contemplate the possibility that the northern front may flare up and you may have to be conducting operations in densely populated areas of southern Lebanon, where virtually every house is a rocket launcher, and maybe even against Iranian proxies or actual Iranian forces. There is a logistical element to the use of precision-guided munitions. And that is a calculation of how rapidly you can replenish what is considered essential resources. And that means that sometimes you just don’t have a feasible option of using that best tactic, in which case you have to consider other options.

BELLINGER: We’ll take a question online.

OPERATOR: We’ll take our next question from Missy Ryan.

Q: Hi, Missy Ryan from the Washington Post. I hope you can hear me.

BELLINGER: Yes.

Q: My question is—thanks. (Laughs.)

My question is for Janina. You know, given that it’s very difficult, if not impossible, to make a war crime determination but, as you said earlier, there could be very clear grounds to question whether or not there have been violations of IHL, what responsibilities are there on countries that are supporting the actions of such a combatant militarily? So, clearly, I’m thinking about the United States government. What obligations would they have under international humanitarian law as they continue to provide weapons to a country where there are, you know, reasonable grounds to question whether IHL is being violated?

DILL: Yeah. So countries have an obligation not only to comply with international humanitarian law in their own conduct of hostilities, but they also have an obligation under Common Article One of the Geneva Conventions to ensure the compliance of other parties with the laws of war. And this is a relatively open-ended provision. There are actually much more concrete legal requirements under U.S. domestic law about not sending wars to—into armed conflicts where a belligerent potentially commits war crimes. But under international law there is already sort of a general principle that parties—that third parties have an obligation to ensure compliance to the extent that this is possible.

This is a requirement that hinges on the ability that a belligerent has to act—a country has to actually influence a belligerent. So the United States has quite a bit of influence over Israel, partly because it diplomatically and materially supports it to such an extent. So I would consider these responsibilities to be very stringent in this case. And, to be perfectly frank, I don’t see these responsibilities being discharged. Because it takes more than saying that laws of war must be complied with. When there is so much influence that the United States has over Israel in terms of, you know, actual material support of it as a conflict party, then we would expect some amount of conditionality, right? Concrete steps to improve compliance with international humanitarian law as a condition for further weapons supplies.

BELLINGER: Geoff, you—but let me squeeze in a question, actually, for all three of you, which hasn’t come up yet. As we’ve all seen, there’s been a long line of U.S. officials from the president, to the vice president, to Tony Blinken, multiple times to Jake Sullivan, to most recently Secretary Austin yesterday, who said that—to Israel, there is a moral duty and even a strategic imperative to limit civilian casualties. I have never seen such a long line of U.S. officials making statements like this. So, Janina, I think I hear you saying that’s not enough. Geoff, Patrick?

CORN: So, I mean, I think if we say that’s not enough it presupposes agreement with my good friend’s assessment that there is clear evidence of violations of international humanitarian law. And I’m not sure I agree with that. And what I do know, and you know better than I do, is that in these engagements the Israelis are going to be as transparent as possible behind closed doors with what they’re doing, why they’re doing it, how they’re doing it. I mean, I’ve been on delegations that are not government—that are retired military officers that go over there to do studies. And the amount of access we’ve gotten has stunned me.

So I have to imagine that the amount of access that the secretary of defense and his subordinates are getting when they’re interacting with Israel and saying, show us that you’re complying, is pretty extensive. Now, again, I’m not saying that there aren’t violations. Maybe there are. I just disagree with the assumption or the assertion that there’s clear evidence of patterns of violations. And ultimately, that’s the judgment that the U.S. government has to make before it takes the next step of invoking statutory restraints on providing weapons and ammunition to another country. So I think we know what that judgment has been to date.

BELLINGER: So, Patrick, you are the ICRC’s ambassador here in Washington. Is the U.S. doing enough?

HAMILTON: So, John, as you know, I think, given what we have been seeing since October 7, and the intensity, the severity of the hostilities from October 7 through till now, we have been seeking to engage not only with the parties themselves—the Israelis, the IDF, as well as then Hamas—but also engage with all of the major influencers, state in particular, around the two sides. So here and in context with the U.S. government, and with whom we’ve been having a very robust exchange as well, but also the Qataris, the Egyptians, and other leaders from across the Arab world. And, indeed, with the Iranians as well.

So we do so again, discretely, confidentially, bilaterally, for all, you know, those public—those encounters. Many of those encounters have actually been publicized around the dialogue that our president has been having. But clearly, given all that we are seeing, in the scale and—the scale of the suffering, the way that we see the hostilities being conducted, and the need to try and enlarge the space for us and civilians within this context, I think there is definitely a need for everybody to try to do more to arrive at less suffering in this particular context at this moment.

So I think there’s really a call out to that broader international community to work with the parties to try to ensure that there is a general kind of gradual de-escalation of this conflict, and a better meeting of the needs of people that are affected by it.

DILL: I’m going to just jump back in, John.

BELLINGER: Oh, sorry, Janina. Yeah, go ahead, briefly.

DILL: Just—yeah. So certainly, I don’t assume that, you know, there’s violations on Israel’s part. That would be entirely unproductive in this discourse. I’d also just like to clarify that the clearest evidence, I think, for noncompliance with IHL isn’t necessarily in the airstrikes, right, which we have belabored quite a little bit, and in the actual kind of conduct of hostilities. I think it is actually around the arbitrary deprivation or denial of humanitarian access, and potentially around the treatment of detainees. These are the things where there’s quite a little bit of—quite a lot of evidence for violations of noncompliance of international humanitarian law, and where I would like to see much more clear conditionality on that being rectified.

BELLINGER: Good. Yes, please.

Q: Hi. Maryum Saifee. I’m a CFR member.

My question is on sort of the context leading up to October 7, and especially settlements and the settler violence—the uptick in violence, and how that sort of intersects with international humanitarian law and human rights law.

BELLINGER: Who wants to take that? Geoff, do you want to start?

CORN: I mean, I think one of the real challenges in how we process what’s happening in this conflict is the instinct to conflate multiple distinct issues, right? So, Janina, and I, and Patrick, we have been talking about the applicability and respect for international humanitarian law or the law of armed conflict in the context of the hostilities and associated activities in Gaza. There are other complicated issues related to the relationship between the Israeli and Palestinian people. And I also think that the Israeli government bears an obligation to do more to protect the Palestinian population in the West Bank. There have been incidents of violence that are really hard to understand how there’s not an immediate and significant reaction to it. You hold yourself up as a—as an entity or a nation that respects the rule of law. It’s broader than just in that one issue.

So in that regard, I think it’s important that we are able to credibly say—or, certainly, I believe it’s important for me to be able to credibly say: I think in this context your military is following the rules. I think you can do better in other contexts. And then, of course, there are the political and policy issues surrounding all of this. But if we’re going to critique respect for international humanitarian law in a conflict, we can’t start by saying, well, you’re to blame for all these other problems, therefore you have no credibility in this context. I think they have to be treated distinctly.

BELLINGER: I’m going to go to a couple more in the room here and then online. Daniel.

Q: Hi. Daniel Mandell. I’m a term member and international law wannabe practitioner.

I want to ask about what comes next. In a domestic situation, a violation of law leads to a court prosecution. In the international context we have the ICC, which Israel’s never going to appear before, the ICJ, which does not have criminal jurisdiction, ad hoc tribunals, which the U.S. will block in the Security Council. So what can or should be done to ensure accountability whenever the conflict does finally reach a point where we can go to that point? If nothing can, or is done, what does that mean for the rule of law, for the value of international humanitarian law, and the law of armed conflict?

BELLINGER: Janina, I’m going to go to you first.

DILL: So, first, Israel needs to investigate—and, ideally, Hamas, but, you know, it’s not going to happen. But Israel can and should investigate its own practices. I think they’ve already said they’re investigating the shooting of the hostages. They should certainly investigate the shooting of the two French women that we talked about. The international criminal kind of jurisprudence apparatus is one of last resort. In the first instance, belligerents are supposed to hold their own to account and to, like, police their own conduct. There are obviously very significant limits to this in reality. We don’t expect Hamas to, you know, all of a sudden turn around and say, well, we did a lot of war-criming. And there’s also limits on what Israel historically does in terms of investigating its conduct in Gaza.

But in the first instance, belligerents are meant to hold their own to account. Then, after that, the ICC is, in fact, investigating. And, legally speaking, it has jurisdiction about Israel—over Israel’s conduct in Gaza, because it attaches to the territory here. And the Palestinian Authority has accepted the jurisdiction of the ICC. So the ICC has jurisdiction and it can investigate. That is not withstanding the likelihood of any Israeli, you know, servicemembers ever appearing in The Hague. That is—I agree, there is a number of political obstacles in front of that.

But I think there is a larger point here, which is something I said earlier, right? We are very, very focused on the punitive function of law. And that is an important function. But law does much more than holding individuals to account, punishing and jailing individuals for wrongdoing. Law has a much, much larger function in war, which is ideally to restrain conduct in the first place. And particularly in a conflict as morally, politically, historically as complex as this one, I often think that the laws of war are last hope for any kind of bottom line—you know, kind of bottom-line conduct requirements that we can all agree on. And I would all urge us to focus on that function of the law, right? To come back to the basics and urge compliance with the really minimum standards that international humanitarian law puts forward, even if it will always fall short of our expectations on the punitive side of things.

BELLINGER: And, Janina, about Hamas, I mean, I think you focused—and international tribunals focus a lot on Israel because Israel is a state. Does that mean—and you’ve mentioned a couple times Hamas is unlikely to do anything to investigate. Does that mean Hamas simply is not held accountable?

DILL: No, Hamas can—the crimes of Hamas are also in the jurisdiction of the ICC. Even though Hamas is—Hamas’ actions are unlikely to be attributable to the state of Palestine. And, obviously, some people contest that it is a state. But these really, really gnarly legal questions don’t matter for the fact that in principle the ICC has as much jurisdiction over the crimes of Hamas as it has over the conduct of the IDF.

BELINGER: I’m going to go to a question online.

OPERATOR: We’ll take our next question from Mansoor Shams.

Q: Hi, my name is Mansoor Shams. And I’m the founder of MuslimMarine.org.

This is a question for Geoff. I hope you don’t mind, but I’m going to push back on some of the things that you’ve said during this call, as a military veteran. Like, “no military is perfect,” or “mistakes happen,” almost as a justification that this type of atrocities that are being committed by the Israeli government via the IDF are OK. And, as you know, the so-called mistakes and imperfections have limits. I would hope you would agree.

Having said this, can you clarify some of your comments that mass civilian casualties are not OK, but in the name of defense a greater military power, like the IDF, who according to U.S. intelligence, used dumb bombs instead of precision bombs as far as, I think, approximately 50 percent, which are known to cause mass casualties, bombarding hospitals and refugee camps, killing innocent civilians, if there is even a Hamas commander present. I just don’t want people walking away thinking that that’s the mentality of the U.S. military and that’s what we’re OK with. And you’re a senior official, so I’d like to hear that from you. Thank you.

CORN: Well, I’m not a senior official. I’m a law professor. I was in the Army. I was a military intelligence officer first, and then a military legal adviser. The first thing I would have to say, with all due respect, is the form of your question assumes mass atrocity. If you start with the assumption that what the Israelis are doing is inflicting a mass atrocity, I can’t defend that. If that’s what you believe is happening. I’m not going to defend a mass atrocity. What I will defend is the tragic but inevitable consequence of closing with and destroying your enemy in a densely urban environment where your enemy has no respect for the rules of war and makes no effort whatsoever to protect its own civilian population.

And, with all due respect, I would suggest to you also that for Hamas, they don’t view combat as a method of defeating your enemy in battle. They view combat as a supporting effort to their information campaign. And the fact that you’re characterizing what’s happening in Gaza as a mass atrocity is exactly the consequence of enabling an enemy to deliberately expose civilians to the consequences of urban combat in order to gain the ammunition through the suffering of their own civilians to create this narrative. So I fundamentally disagree with your basic narrative.

I come at this from a military perspective. And this is what I know: The mission of destroy is a doctrinal mission. When we say that the mission of the military is to destroy Hamas, it means that you are going to render Hamas’ military capability ineffective without substantial reconstitution. That is what the mission is that has been given to the Israeli Defense Forces. To do that, you have to close with and engage your enemy using combined arms operations. That means fire and maneuver. And that is deadly and destructive. And I think one of the great tragedies here is that there is not more condemnation on the enemy who has—who is using the civilian population, not just for cover. Human shielding is a war crime. We recognize that.

In my view, what’s happening here is an aggravated form of human shielding. I think in many cases, Hamas wants the Israelis to conduct the attack. Because those casualties provide value for their information campaign. We obviously are not going to disagree on that. What we will agree on is that no military commander should be indifferent to the human consequences of warfare. The burden on military commanders, on responsible commanders, is to do everything they feasibly can to mitigate civilian risk, even if they’re fighting an enemy that’s not doing the same. And that’s what we should be judging the Israeli military forces and American military forces on when we conduct combat operations.

BELLINGER: We are at time, unfortunately. I would love to take more questions, but I think that’s a good point to end on. So please thank our speakers. I hope everyone feels a little better educated on these difficult issues. Thank you all. (Applause.)

(END)

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