Navigating Self-Defense and International Law in Gaza

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Jack Capizzi:  Well, hello, and welcome to today's Federalist Society virtual event. Today, Tuesday, November 28, we're discussing "Navigating Self-Defense and International Law in Gaza." My name is Jack Capizzi, and I'm an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are delighted to be joined by Professor Jennifer Maddocks, Assistant Professor of Law at the U.S. Military Academy at West Point and a former military lawyer for the British army. We're also joined by Professor Paul Stephan, the John C. Jeffries Jr. Distinguished Professor of Law at the University of Virginia School of Law.

 

      After our speakers have given their opening remarks, we will turn to you, the audience, for any questions you might have. If you do have a question at any point, please type it into the Q&A feature at the bottom of your screen, and we will handle questions as we can towards the end of the program.

 

      With that, thank you all very much for being with us today. I'll turn it over to our moderator, Professor Jeremy Rabkin, Professor of Law at the Antonin Scalia Law School at George Mason University. Professor Rabkin, over to you. 

 

Jeremy Rabkin:  Thank you. I want to start with a question which hasn't been much debated in public, but people who are interested in international law, it might be something that comes to mind, and I think it might also be a way of setting a framework for this, which is, one of Israel's announced goals is to end Hamas's rule in Gaza. They have committed to the goal of changing the regime in Gaza, and I wonder if that is consistent with the UN charter.

 

      Many scholars—I think mostly Europeans—say the charter acknowledges an inherent right of self-defense, but that is only to repel an armed attack and not to go beyond that. And you might say the armed attack ended on October 7. So, Paul Stephan, do you have ideas about this? And take your time if you want to set up different views.

 

Paul Stephan:  Thank you, Professor Rabkin. I'd like to answer that, if I may, by trying to set up three different perspectives for answering that question because I don't think it's something that you find a simple yes or no answer. So one perspective is what I might call—this as my own terminology—the great power perspective, which regards the right of self-defense under Article 51 of the charter as easy to trigger; for example, that any use of force is regarded as armed force, which is the language in Article 51, and that the right to self-defense—the inherent right, as the charter calls it—extends not just to actual attacks, but to threats of attack, with the standard being imminency and also, I think, at least simplicity, gravity.

 

      And then the issue what is authorized by self-defense, I think it is the view of the United States, Russia, probably China, and Israel that this right includes regime change, which I think is invoked by the concept of removing Hamas. There is a more mainstream what I might call UN view, if you will, the view of most of the countries in the so-called Global South and many Europeans, certainly in the academic community, in both United States and Europe, that are critical of the quick-trigger provision, arguing an armed attack is different from simply the use of force; it's bigger, greater on scale, that imminency is not a legitimate criteria, and that the right of self-defense is more limited than things such as regime change.

 

      And then, finally, there is a point of view which is certainly that of the Palestinians, perhaps the government of Iran, and many civil society and academics people, those who support the Palestinian cause and, more generally, who see themselves as de-colonialists who argue that the charter doesn't apply, that the establishment of Israel was illegitimate because the UN, at that time, was itself an instrument of colonial powers, and that the rules that apply to a decolonial war of liberation are much broader.

 

      And so, by that position, any attempt to regime change in Palestine is inherently illegitimate; indeed, any use of force against Palestine is illegitimate, and that the rules of law, such as codified in the Geneva Conventions and the additional protocols, aren't necessarily applicable, at best by analogy, and only partially.

 

      And I might just add as an adjunct to that -- So the International Criminal Court in particular, both Israel and the United States, I don't think, have committed to the position that Palestine is able to join the Rome Statute, and therefore, do you extend the court's jurisdiction over activity in Palestine? The issue is whether Palestine is a state under international law, but we can come back to that.

 

Jeremy Rabkin:  Let's come back to that. Jennifer Maddocks, did he lay that out in a way that's satisfactory to you?

 

Jennifer Maddocks:  Yes. And before I comment specifically on that, I do need to give a quick disclaimer because I currently work at the United States Military Academy and obviously need to make clear that the views I express this morning are very much my own and not those of the U.S. government or any department of it.

 

      But, in general, yes, I do agree with the background that's just been laid out. Just a few comments on it. Regarding the revisionist view that was mentioned, that seems to be gaining traction perhaps in some spheres, particularly from the Palestinian viewpoint. That doesn't seem to me to have any basis in current international law as agreed by states. There is no lawful basis for Hamas's actions on October the 7th.

 

      First, the right to use force in self-defense is limited to states, and even if Hamas did have a right to use force, it was not entitled to effectuate that right by targeting the civilian population, taking hostages, etc., which violate not only the law of armed conflict but also the requirements in necessity and proportionality that relate to the use of force and self-defense.

 

      Regarding the other two viewpoints that have been outlined, the great power view and the middle view, I think there is a good deal of overlap between those. I don't think that even Israel would say that their right to use force in self-defense is not limited. Clearly, the principles of necessity and proportionality apply, and then the question comes to how you actually apply those.

 

      And one feature of the conflict ongoing in Gaza is, clearly, there's so much complexity. And the way in which you answer vary a wide range of questions, such as, is Palestine a state? Is Gaza still occupied, etc.? These uncertain ambiguous issues all have implications for some of the legal conclusions that you reach regarding this conflict.

 

      So one key difference between states with regard to the question that you first posed with regard to this, does Israel have the right to self-defense, is, does that right apply to use of force -- against non-state actors that use force against the state? Whereas, clearly, Israel, the United States, many other states agree that it does, there's other states have made clear before the United Nations that they don't; Brazil, Jordan, Pakistan, for example, don't agree with that from the outset.

 

      And so that leaves the question, well, if Israel doesn't have that right, what is it supposed to do when it's facing an attack like the one that occurred on October the 7th? My own personal view, I think, that's been gaining traction since 9/11 is that states do have the right to use force against a non-state actor that's perpetrated unarmed attack against them, but clearly, that's still going to be restricted by necessity and proportionality.

 

      And then you come on to very different difficult questions then, particularly on the proportionality font, which can be interpreted in very different ways when you look at how Israel is conducting its operations in Gaza.

 

Jeremy Rabkin:  I just want to have two quick follow-ups so you don't have to give the disclaimer because you're not working for the British government now, but it seems to me it would be hard for the British government to dissent from this view after participating in the invasion of Iraq, the goal of which was a regime change.

 

Jennifer Maddocks:  Yes, and I think the UK probably takes a similar view on this to the United States. I think, obviously, that was a different situation, and it wasn't an action taken, strictly speaking, in self-defense because there was no armed attack by Iraq. It was more anticipatory. And I think that that stands on a much less firm legal footing and raises different issues from the conflict that we're talking about today.

 

Jeremy Rabkin:  And then I just want to go back to the third alternative that Paul Stephan laid out. The Palestinian view, if it is the Palestinian view, seems to me really hard to defend. I believe most of the Arab states were already in the UN when Israel was admitted; they were just outvoted. Have they had a chance to argue about it? Iran, I think, was a member and voted in favor of Israeli admission to the UN.

 

      If you're going to say, well, but it didn't have the right regime, Ukraine was admitted as a state, I guess it would have already been a member, but it was, you could say, under different circumstances, and now Putin's Russia wants to change its recognition of Ukraine as an independent state. This seems like a just an impossible doctrine to implement in any kind of fair and reliable way, or did I miss something?

 

Jennifer Maddocks:  No, I would agree. Sorry. Go on.

 

Paul Stephan:  Yeah, so I don't subscribe to this doctrine. I'm just trying to portray it as an argument that's in play, which I think is helpful for us to understand how to respond to these arguments. But I think your particular claim -- I think the argument would be -- And I'm being devil's advocate here because I don't believe this stuff, but I think the argument would be that the UN's mandate does not apply to any part of the world that was colonized at the time that it acted.

 

      It doesn't matter that there were former colonies that were members. No part of Africa, except Egypt, I think, was a member at the time, and the Palestinian mandate was a colonial structure imposed on the people and under the principles of national self-determination, in some sense, illegitimate. And the UN has its version of national self-determination, but the colonized may have their own. I think the argument will go somewhere along those lines. It takes you to some pretty dark places. I agree with you.

 

Jeremy Rabkin:  It takes you to some very dark places. I just wonder whether it is really credible to say this is an interpretation of international law. It seems instead to be saying, "We don't care about international law because it's a Western toy, and we're interested in Islamic law, which is what really matters."

 

Paul Stephan:  So there is a tradition in international law of revolutionary states, starting with the Soviet Union, saying that international law begins with us. And because we represent a revolutionary break, the past is simply not binding on us. The Soviet Union came around, of course. China did something similar. And you can argue that., for the colonized world, a similar process is in play.

 

Jeremy Rabkin:  I just want to say, on behalf of the United States, that it started with a decent respect to the opinions of mankind, which meant our Founders were quoting Vitale to the Europeans to say, "Under international law, it's acceptable for us to have this revolution."

 

Paul Stephan:  I'm not going to argue with you. I'm just pointing out that others have different perspectives.

 

Jeremy Rabkin:  Well, not every revolutionary regime starts by denouncing international law altogether. Okay. So one of the things that stirred a lot of controversy -- And now we're back to almost the range of what people think could be international law. Israel started its offensive by cutting off delivery of food, water, electricity, and gasoline, and a lot of people said immediately, "Oh, that's against international law." And I want to just hear whether the two of you think that is correct. Maybe we should start with Jennifer Maddocks, just your personal view and not the West Point view, necessarily.

 

Jennifer Maddocks:  Of course. It's all my personal view, obviously. There's some real, again, differences of opinion on this, and I'm not sure as to whether I've actually formulated a clear view as to which one I think is the best, so maybe I'll start by outlining some of the contrasting views on this.

 

      So the first one depends on whether the Gaza Strip is still occupied by Israel because, if it is, then the law of occupation applies, and Israel has much clearer duties to ensure that the population within the Gaza Strip has food, medical supplies, etc. So if it's occupied, Israel clearly has that duty and probably did violate international law, but obviously, it's in dispute whether Gaza has been occupied since Israel withdrew in 2005.

 

      It seems to me that given that it's Hamas that controls the Gaza Strip—or certainly did before October the 7th—rather than Israel in terms of day-to-day life. Israel's control of the borders, the sea, the airspace, etc., is insufficient to exercise effective control over the territory, but that is an open point.

 

      So if you accept that Gaza was not occupied, then the question comes down to the law relating to sieges and allowing humanitarian access, which is hugely contested. And obviously, siege is considered by the United States and many other states to be a valid military effort to isolate, cut off an area, typically a city, to deny movement in, isolate them electronically, cut off food, water, fuel, etc., as Israel stated that they would do.

 

      And from a purely military perspective, to achieve success, the greater the degree of isolation, the greater the likelihood that the attacker is going to be able to force its adversary into submission by depriving it of everything it needs to operate. And if civilians are within that besieged area, then provided that the purpose of the siege is not to starve them, there's no violation of this prohibition of starving the civilian population.

 

      So incidental starvation, if your aim is to starve and isolate the enemy, that would not violate the law. So that's one view, but clearly, that's contested, particularly when we can see on our television screens the harm that this kind of policy causes. And so then you have the other much more humanitarian view, which is saying that the operation is targeting the population of Gaza as a whole. It includes large numbers of civilians, intentionally depriving them of food, water, etc. It fails the defense policy of distinction, and even if the starvation is incidental, that does violate this prohibition on starvation of civilians.

 

      And it's really difficult. It's really hard because the pure military perspective has horrible consequences for the civilian population. So the more humanitarian approach clearly prioritizes humanitarian considerations. And when you think of the whole of the law of armed conflict being this balance, on the one hand, between military necessity and humanity on the other, it's really visible quite starkly in these kinds of situations of siege.

 

      But if it's right that the law is developing in a way that you cannot cut off all of these essential provisions to the populations within a besieged area, then what we're moving towards is saying that siege is no longer a lawful military objective, and I don't know whether we're there yet.

 

Jeremy Rabkin:  I'd just ask, in responding, Paul, if you have any differences there, whether you could address this question. Israel, at present, seems to be involved in negotiations regarding what can be delivered from Egypt. So this is not now a matter of whether Israel has an obligation to continue supplying things that it used to supply as through pipelines—I think there was a pipeline for water—but whether it can actually cut off deliveries from third parties. Is that a harder question?

 

Paul Stephan:  Well, I think the idea of blockade would encompass third parties as well. I agree with everything that Professor Maddocks said and would just note that the arguments do trace back to how you feel about the doctrine of self-defense. I think that essentially every country, every state now with us that exercises uses of kinetic force to protect its interests takes a generous view of self-defense and regards things like blockades as an acceptable tactic.

 

      They regard the humanitarian equation to be based on intention, and as long as the goal is to pursue legitimate military objectives, which become stronger the more you believe in the principle of self-defense, the idea of distinction and proportionality still applies, but it's a more generous test in favor of the use of force, including armed blockades.

 

      If you believe in the legitimacy of the self-defense objective, the more you have doubts about self-defense, and the more that your state itself does not participate in projections of armed force, which covers all of, I think, the current members of the European Union, except maybe Turkey. No, I'm sorry. Turkey is NATO, not EU. I correct myself.

 

      So the more skeptical you are about the use of armed force for anything, including self-defense, the more relentless you will be on looking at the actual outcomes rather than the intentions and the attempt to balance legitimate military targets against the need to distinguish and take into account the interest of non-military interests.

 

Jeremy Rabkin:  I see that abstractly. Really, what I was asking is, they started by saying—Israel did—"We are not supplying these things that we used to supply." But they are now in a situation of saying, "Okay, we are going to allow some food and some fuel, but we're going to inspect carefully each of these trucks that deliver things."

 

      And they seem to have been -- I'm not saying it as a criticism, but they've agreed to the principle that, yes, there can be humanitarian relief, but not too much. And they wonder if, having agreed to humanitarian relief, this makes their position weaker in saying, "But only this number of trucks" or "Only trucks that we have a chance to inspect very, very carefully," or do you think that is really irrelevant?

 

Paul Stephan:  Well, to me, I would be part of the balance between the military interests and the humanitarian impulse. And one could argue -- I think the U.S. applied -- The coalition, I should say, applied similar procedures in the case of Iraq that an appropriate balance of the two interests includes allowing humanitarian assistance as long as it does not impose a threat to the military objectives. And things like rationing and inspection are part of the implementation to that balance.

 

Jeremy Rabkin:  Let's move on to the thing that has stirred the most controversy. There's been a lot of damage to civilian infrastructure, and there have been a lot of civilians killed. I think that we do not have reliable figures because Hamas doesn't seem interested in distinguishing between what you might call combatant casualties and civilian casualties. But still, there have been pretty clearly a lot of civilians injured and a lot of civilians killed. Is there any ceiling to this, or is it enough for Israel to say, "We didn't mean to harm civilians. It was incidental, so it doesn't count"? You could start if you want, Paul.

 

Paul Stephan:  Sure. So again, I think this really divides what I call the great powers from, say, the bulk of Europe, the bulk of much of the Global South; in other words, a large majority of countries around the world. So the argument would be that, of course, mistakes can be made, but war is an ugly business. The objective is to pursue military goals, taking into account civilian interests and the principles of distinction and proportionality.

 

      And when you're dealing with an adversary that deliberately locates its military objectives within the civilian population, if you will, the great power of perspective will be that the obliquely and guilt rests with those who make those choices, that Hamas also has an obligation to minimize civilian death, and it's making choices that, to the contrary, seem to increase that.

 

      Now that, again, is the great power argument. I think the European argument is there are some practices that are just so inherently ghastly and so inherently dangerous and fatal to civilian interest that they should not be pursued, full stop.

 

Jeremy Rabkin:  So, Jennifer, I want to hear your views on this, but let me just start with Paul Stephan's distinguishing the great power view from, as he says, others in Europe a bit. I would frame this a little bit differently perhaps—I invite your reaction to this alternate framing—which is, we are really talking about customary law here because neither the United States nor Israel is signatory to the API standards.

 

      And surely, when you're looking at customary law, you ought to give more weight to the countries which have actually engaged in the custom of fighting, that have actually engaged in the practice. So most Europeans, seems to me, are irrelevant. It's just not interesting what Belgium's views are because it's never fighting. It's maybe slightly interesting what France's views are, but mostly, Britain is the one that we should take seriously because it has a stake in it, or is that an unfair way of characterizing this?

 

Jennifer Maddocks:  So to deal with your second question, first, I think, clearly, the views of specially interested states are those states that actually carry out the conflict, the combat. Yes, they are particularly important when you're trying to determine what actually is a customary norm and what is not. And so we all know that many European states are quite reluctant to get involved. France obviously has, to a certain extent. UK has a lot alongside the U.S.

 

      To your first point, do I agree with this distinction that has been made with regard to great power of viewpoint as opposed to Europe? I certainly don't as far as the UK is concerned because my experience as a British Army officer is that we didn't share all of the same views as the U.S. with regard to the conduct of hostilities, but in many ways, we did. And we've worked along alongside the U.S. in many, many operations over the last couple of decades, so I don't necessarily agree with that that distinction.

 

Jeremy Rabkin:  I remember when the UK was involved in bombing Libya. And I think the Attorney General, some very senior figure, went to Parliament and said, "No, this is consistent with international criminal court standards because we're not hurting civilians, hardly any." And he was very concerned to explain that this was very, very limited in its effects on civilians.

 

      So it's a little crude, but I'll just ask you straight out. I'm asking your personal opinion whether it should be accepted or not, but do you think, if the British government were engaged in this kind of conflict, it would find the number of casualties that seem to have been accumulated civilian casualties to be acceptable?

 

Jennifer Maddocks:  That's obviously a hypothetical question that's quite a difficult one to answer. And the thing is that, when you're thinking about proportionality and issues of the numbers of civilian casualties, you have to think about it from two quite separate perspectives, and one relates to the very first question you asked to do with the jus ad bellum or the law really relating to the use of force and whether the overall very high number of civilian casualties that Israel has caused means that its overall operations in self-defense against Hamas are disproportionate and, therefore, unlawful.

 

      There are some academic viewpoints that are sort of pointing towards that, that you need to weigh the overall civilian harm against the attacker's defensive objectives, and if the civilian harm is clearly disproportionate, then that makes the overall campaign unlawful. I don't think that has reached accepted customary international law as yet, but maybe we're moving in that direction because of reactions to what's going on at the moment.

 

      So that's one way of looking at it, but the other basis on which of looking at it is obviously under the law of armed conflict itself, which looks at attacks from a much more tactical perspective. It looks at one attack at a time. And obviously, I'm very familiar with this from my time in the military, and it's an ex-ante perspective.

     

      So before the attack is even conducted, it's looking at what is in the commander's mind with regard to the anticipated military advantage. So what is he hoping to achieve, or she, from this attack? And then you're sort of evaluating that as against your expected harm to civilians and civilian objects, and you're expected to collateral damage or civilian harm must not be excessive in relation to the concrete and direct military advantage. That's the test of proportionality.

 

      And there's been a lot of commentary saying, well, Israel is clearly in violation of the proportionality rule in the law of armed conflict, but I would say it's very hard to tell without knowing what intelligence or information Israeli commanders were acting on prior to all of these attacks without knowing what information or intelligence they had with regard to the likely civilian casualties. And so it's very hard to say.

 

Jeremy Rabkin:  I noticed that President Macron said the number of civilian casualties was excessive, and this was unacceptable and that Prime Minister Sunak has not said that. Do you think this is just, they have different personalities, or they have different views about the Israel-Gaza conflict at a high level of abstraction, or do you think this could actually reflect differences in a fighting philosophy of the two countries?

 

Jennifer Maddocks:  It's hard to say because it's difficult to know whether President Macron was saying that from more of a political viewpoint or from a legal perspective. And if it was legal, was he saying it more from this use of force and self-defense that overall was disproportionate, or is he saying that individual attacks are a disproportionate?

 

      And from the UK's perspective, obviously, like the U.S., the UK has expressed considerable support for Israel and supports its right to take action in self-defense and whatever action is necessary to defeat Hamas and stop the threat of future attacks. And it doesn't surprise me that the prime minister has not said a similar statement to President Macron, but I couldn't tell you whether that actually represents a fundamental difference of opinion on this.

 

Jeremy Rabkin:  To go back to Paul's original framework, it may be the difference between an actual great power and the very former great power.

 

Paul Stephan:  And, Jeremy, I do want to be clear that I consider, in my categorization, the United Kingdom as a great power.

 

Jeremy Rabkin:  Yes. It's Great Britain.

 

Paul Stephan:  Well, that too, but it participates in coalitions with the United States that are relevant to the formation of custom, as France and Germany and other European states do not.

 

Jeremy Rabkin:  So we have a few questions that have accumulated, and I want to take up one other topic before getting to those questions, which is the International Criminal Court and whether it could make a useful contribution or whether it actually would be a factor at all, perhaps a stabilizing factor. So let me ask Jennifer first because you come from a country that is party to the ICC Statute.

 

Jennifer Maddocks:  Yes, and as such, I think I'm probably less of a skeptic than the Americans on this call. And clearly, the UK has been bitten by being a party to the Rome Statute. We went through a very extensive investigation into our operations in Iraq. Ultimately, the prosecutor decided not to proceed, but it has an impact, it really does, in terms for the armed forces of states party to the Rome Statute of the International Criminal Court.

 

      It means that you've really got to take domestic proceedings against anybody that there's allegations of war crimes, crimes against humanity, etc. So it's something you need to take into account, but notwithstanding the problems it has caused to the UK, in terms of -- You know, we set up a whole Iraq inquiry to make sure that we were complying with the standards we needed to. Nevertheless, at heart, I think international accountability is a good thing rather than a bad thing.

 

      And clearly, in terms of the ICC's jurisdiction, because Palestine, even though there's huge debates as to whether or not it's a state, it did join the Rome Statute in 2015. Israel clearly would dispute whether or not it was entitled to, but it did, and that means that, in terms of this conflict that's ongoing at the moment, the ICC does have jurisdiction both over crimes perpetrated by Palestinian nationals—so it will cover the actions of Hamas in Israel on October the 7th—and also the actions of Israel occurring in Gaza at the moment because that is Palestinian territory.

 

      And so it does have jurisdiction. Israel obviously is not happy about that, and the ICC prosecutor, Karim Khan, has made statements indicating that the ICC is investigating is investigating both Hamas's actions and Israeli actions.

 

Jeremy Rabkin:  And just two follow-up questions about this. One is, I don't even know what it means to be investigating because they don't have access to Gaza, and probably Israel will not allow them access, and probably Hamas will not allow them access, so they're just opining from the sidelines. So I don't know how you get past that.

 

      And the second thing is, it seems to me just inherent in this situation that Hamas doesn't care what names you call them because Hamas has, as Paul said at the outset, a whole lot of peace People saying, "We're revolutionaries. We don't need no stinking badge, and we don't care what you say, -so hurrah, hurrah."

 

      People who are still with Hamas after the events of October 7th don't care, but that's not true for Israel, and it's not true for Israel supporters. And Israel being a country that's tied into the international economy is very much more vulnerable. And so the idea that you're going to assert jurisdiction and impartially handout justice just seems preposterous. You can only hurt Israel. You cannot deliver justice to Hamas. Right?

 

Jennifer Maddocks:  I wouldn't necessarily agree with all of what you've said. So I agree that not having access to Gaza is going to be a problem, but there are other ways to collect evidence. Everyone has a mobile phone these days, and I'm sure that they potentially would have access to Palestinian nationals that might get out of Gaza who will be able to send their information to the International Criminal Court. So I don't think that's necessarily going to prevent any kind of action.

 

      And I would agree that Hamas doesn't appear to care about international law, etc., at all, but nevertheless, that's not to say that it wouldn't be a good thing if Hamas individuals did end up before the ICC because it might have a broader impact on --

 

Jeremy Rabkin:  How would that happen?

 

Jennifer Maddocks:  Good question, but if the ICC investigates, it could find that it has sufficient evidence to prove crimes against humanity, war crimes, for example.

 

Jeremy Rabkin:  I don't think these people travel, but is it believable to you that a European government would arrest someone from Hamas? I'm skeptical.

 

Jennifer Maddocks:  Yes. Yes.

 

Jeremy Rabkin:  Yes? You believe that?

 

Jennifer Maddocks:  I think it might.

 

Jeremy Rabkin:  They would risk terrorist retaliation --

 

Jennifer Maddocks:  I think they might.

 

Jeremy Rabkin:  -- because they're so committed to the ICC?

 

Jennifer Maddocks:  I think they might.

 

Jeremy Rabkin:  Well, might. It is possible.

 

Jennifer Maddocks:  I can't say they would, but I don't think it's beyond the realms. Many countries in the world that are parties to the ICC, and they have a duty to arrest people. Who knows? So actually, I think, if the ICC does proceed in its investigated investigation, then it's I think it's probably more likely that they would find the evidence to bring Hamas to justice than they would Israeli military commanders, for example, because as I mentioned earlier, it's really hard to prove that the commander launched a disproportionate attack and knew that they were doing so.

 

Jeremy Rabkin:  Paul, are you as optimistic about the ICC?

 

Paul Stephan:  Well, optimism may overstate my view, but I would say, at least theoretically, it has a role. I think you're not quite right that Hamas doesn't travel. I think their top leadership travels a lot and mostly stays out of the conflict area. And I honestly don't know whether Qatar is party to the Rome Statute, but I could see Hamas political leadership strain into countries that are signatories.

 

      And I don't think the fear of terrorism is a complete knockdown argument that they wouldn't cooperate, and I also think that there may be indirect knockdown effects in terms of financial assistance. Hamas clearly gets a lot of financial assistance, probably more from Iran than anywhere else, but not only Iran, and probably some private oligarchs in countries that are technically signatories to the Rome Statute.

 

      So I agree that the impact is probably disproportionate with Israel, that it's more likely for Israeli political military leaders to travel to countries that are parties and be easily identified, and so that will be an issue.

 

      But I also note that the chief prosecutor, at least in the early days, said all the right things, I think, in talking about his respect for the IDF 's approach to the rule of law and regretting he did not have access to Gaza, but hoping that he would find ways of doing so. So I don't think the ICC should be seen as our salvation, but will it be at least an irritant and maybe even a problem for actors principally but not exclusively Israeli? I think I would answer the question yes.

 

Jeremy Rabkin:  Okay. So one of the questions that audience has posed here is, could Israel go after Hamas leaders outside of Gaza, as in Qatar? Would that be justified as self-defense?

 

Paul Stephan:  Well, if you look at U.S. practice in the GWOT—the Global War on Terror, as we used to call it—certainly there is custom. It's, of course, a behavior that was widely denounced by mainstream actors, but it is an example of state practice. You know, Israel has done the same. Go back to the Munich incident.

 

      So I'm giving a very limited answer, which is, there is space within the positions, like so-called great power position, to justify those actions, and legal justification is always different from prudence. There's a lot of political expediency that has to be taken into account. That means not necessarily exercising your legal entitlements, especially understanding that your view of your legal entitlements is not widely shared.

 

Jeremy Rabkin:  Yeah. So someone has asked, "Can we get citations to the laws cited during the presentation?" You could just keep this in mind for the rest of the discussion. I think a lot of things that are inferences from the UN charter are hard to give citations to, and I guess you could say things in the Statute of Rome court.

 

      Paul Stephan:  If I could just jump in, Jeremy, Mike Schmidt at—what is it—a British university -- Is it Reading? I can't remember. So he has done several posts that address these issues that I think are very useful. And then Ryan Goodman and Oona Hathaway, also using the Rational Security blog post, have a sort of complementary narrative, not always agreeing with Mike Schmidt. But those are two pretty good places to start. I'm not sure—in fact, I'm pretty sure they wouldn't embrace my attempt, like Julius Caesar, to divide the world into three parts, but if you want citations, there are good places to start on the Rational Security blog.

 

Jeremy Rabkin:  Yes.

 

Jennifer Maddocks:  If I could jump in, I'm actually a managing editor of Articles of War, which is run by the Lieber Institute here at West Point, and we've been covering an awful lot of these issues recently, so I can give a plug for Articles of War as well.

 

Paul Stephan:  Yep.

 

Jeremy Rabkin:  Yes. I was going to do that, but I'm glad you did. Fine. Good. So we've had a number of questions, which are two aspects of two complicating conditions in the Gaza conflict when it comes to distinguishing civilians, and one is that Hamas has gone into so much trouble to embed itself in civilian infrastructure, situating its command posts under hospitals, things like that.

 

      And the second is, the civilian population seems to be rather supportive of this. At least so far as we know, they haven't been cooperating with Israel to say, "Yes, here's where they are." And they seem to express a lot of enthusiasm for Hamas. Is either of those things a decisive consideration when it comes to thinking about the level of civilian casualties?

 

Jennifer Maddocks:  So I'll take this one. So first off, I'd say that, by intermingling its military facilities, command centers, weapons stashes, etc., etc., in the civilian population in Gaza, Hamas is itself violating the law of armed conflict because they're known as passive cautions. All parties have an obligation to try and distinguish their own military facilities from the civilian population. Hamas has clearly failed to do that, but the fact that it's failed to do that does not relieve Israel from its own obligations to discriminate, to distinguish between civilian and military targets. It makes Israel's job, obviously, a lot harder.

 

      And then I think the second element that you talked about with regard to the support of the civilian population from Hamas in doing that, I guess that leads on to the question, well, do they lose their protection from attack as civilians simply because they're supporters of Hamas? And I think simply supporting a belligerent party does not mean that you lose your protection from attack.

 

      Clearly, it's a hugely contentious issue of the law of armed conflict, the, when does a civilian directly participate in hostilities so as to mean that they can be targeted and detained as they could if they're actually a competent that was fighting as part of the armed forces of the belligerent party?

 

      You know, there's questions as to whether, for example, voluntary human shields should lose their protection from attack. Some say you should distinguish between involuntary human shields and voluntary. Voluntary human shields lose their protection, whereas involuntary human shields must count as part of the civilian casualties within the proportionality analysis.

 

      I don't think that's necessarily settled either way. Or even for the attacker, can they tell? How can they tell whether the civilian is voluntarily present or not? So these raise some really interesting questions, but I think the fundamental point is, although Hamas is violating international law itself by doing this, it's --

 

Jeremy Rabkin:  How about if Israel says, "There's going to be an attack here in this quadrant of Gaza City. You should leave. And come to think of it, you should just get out of Northern Gaza," and they say, Well, we're staying"?

 

Jennifer Maddocks:  Which has obviously happened.

 

Jeremy Rabkin:  Of course.

 

Jennifer Maddocks:  Yeah.

 

Jeremy Rabkin:  Then maybe they forfeit some of their civilian immunity if they choose be in the line of fire.

 

Jennifer Maddocks:  No. No. And I think that's fairly clear that, just by not leaving in response to a warning, that doesn't mean they're no longer civilians entitled to protection. So therefore, if they choose not to leave in response to the warning, for whatever reason that might be, Israel must still count them as part of the proportionality analysis. So if it knows that it's going to go ahead with the strike and cause civilian harm, then it must take that into consideration before deciding whether to proceed.

 

Jeremy Rabkin:  Somebody has asked—which is a question I had not seen discussed—are the Hamas fighters lawful combatants? And I'll just extend this to ask, could Israel treat them simply as criminals by being part of Hamas in the way the United States and Britain treated the SS as a criminal conspiracy, and just by being a member, you were criminalized?

 

Jennifer Maddocks:  Is that again to me?

 

Jeremy Rabkin:  If you'd like. You talked about what Britian did in 1946. Very good work, I believe, your predecessors as military lawyers.

 

Jennifer Maddocks:  Clearly, Hamas is an armed group. It's not a representative of a state. Even if Palestine is a state, it seems that Hamas is not its representative; it's the Palestinian Authority that is. And so, if it's right this is a non-international armed conflict between Israel as a state and Hamas as a non-state armed group, then no, Hamas does not have competent immunity, meaning that they can be prosecuted as criminals for their participation in these attacks.

 

Paul Stephan:  And just adding on to the second part of your question, Jeremy, I think that you have to distinguish the issue, are you legitimate targets from, can you be prosecuted? And I think it's reasonably clear that supporters can be legitimately prosecuted. We have this in our own anti-terrorism law, and I think our anti-terrorism material support standard is consistent with international law, but it's not a standard for who you get to kill; it's a standard for who you can bring to justice for their support. I'd like that distinction to be sharp.

 

Jeremy Rabkin:  Do either of you think the debate about whether Israel is acting consistently with international law is having an effect on the way the war is being conducted on either side?

 

Paul Stephan:  If I could jump in first—but I defer to Professor Maddocks—my impression is that, when you get past the political leadership to the bureaucracies involved in armed force and intelligence, the rule of law culture is extraordinarily high. I've worked --

 

Jeremy Rabkin:  In Israel. In Israel.

 

Paul Stephan:  In Israel. In Israel. Yes. And it doesn't mean that there isn't radicalization and illegality in conduct, but I'm saying the institutional elements are in place, and that does make decisionmakers below the top political leadership very mindful of these issues. And as for Hamas, from their perspective, they're completely justified and seen as their objective the maximization of the number of martyrs in order to draw international sympathy, and that's consistent with their view of international law, as skeptical as we are about the foundations of that view.

 

Jeremy Rabkin:  I wonder if it doesn't follow from your analysis that intense debate about international law here is not actually helpful, that it doesn't add to restraint on Israel, and it doesn't affect Hamas because they're determined to have as many people killed as possible.

 

Paul Stephan:  Well, I wouldn't be quite so consequentialist as you want to be. I'm in the business of promoting intense debate, and I think acquiring insight into the structure of arguments of your own and the implications as well as your adversaries is always a useful enterprise. And whether or not it affects the conduct of the war in the next two or three months is different from how this will affect our evolving view as to a category of conflicts that I regret to say we can expect to see more of, and not only in the current locus.

 

Jeremy Rabkin:  You know, I've read many good articles on Articles of War—excellent work there, editing—but something that seems to me has not been emphasized enough is any conclusion about whether something is or is not, for example, proportional and requires a lot of facts which are not available to the people commenting. This is often acknowledged in passing, but it might be helpful if everybody commenting would say, "We don't really know enough now to draw any firm conclusions." I think that is not emphasized enough.

 

Jennifer Maddocks:  It is. And I've read some posts on our site, as well as on others, where some saying we do have enough information when taking particular strikes, for example—of course, large numbers of civilian casualties—saying that's clearly excessive, whereas others saying, "We don't know." I'm more in the latter camp; I think we don't know.

 

      But I think one conclusion we can draw is that the way Israel is conducting its proportionality analyses is different. They're weighing these different considerations—the military advantage on the one side, the civilian harm on the other—in a different way from the way, for example, the U.S. and the UK have over recent decades in counterterrorism strikes where, as a matter of policy—not necessarily law, but as a matter of policy—states decided to try and minimize civilian casualties because, as part of those counterterrorism campaigns, it would have been detrimental to lose the hearts and minds of the civilian population.

 

      So frequently, the U.S. and its allies wouldn't go ahead with attacks if they envisaged that even a very small number of civilian casualties would result. And so I think that's one thing that can be clearly concluded from Israel's strikes, that it's carrying out this analysis, this evaluation in a very different way from the way that other powers or states have done it in recent years. But that's not to say, I think, without further information, that we can say that that's necessarily unlawful.

 

Jeremy Rabkin:  Somebody asks, it seems to me, a very pertinent question and relevant to this conversation. How can we tell whether the numbers that were given of civilian casualties are at all reliable or even in the ballpark?

 

Jennifer Maddocks:  I don't know. I don't know that we can. You know, there's different sources of information, but it seems that Hamas is still in control in the large part of Gaza. Hamas is giving figures. We don't know how accurate they are, and equally, we don't know how many of the casualties that might have been caused by a strike are actually Hamas fighters who are legitimate military targets as opposed to civilians, who would be incidental. It's really hard to tell.

 

Paul Stephan:  Yeah. I don't think you have to go full postmodern to say that fact claims made by participants in an armed conflict have to be regarded with many tons of salt.

 

Jeremy Rabkin:  You're saying you agree that we need the salt, even though you are not a postmodernist?

 

Paul Stephan:  Exactly.

 

Jeremy Rabkin:  Yes. Okay. Sometimes the bowtie throws me off a little bit.

 

Paul Stephan:  That's its purpose, Jeremy.

 

Jeremy Rabkin:  Okay. I think that we have -- So there are a couple of comments which are basically, when we fought World War II, we didn't fool around, and people who raise this point out that Britain didn't fool around either. So perhaps you would both like to take a crack at, are we better off to have a law of armed conflict which now seems much more constraining than the last time there was a war against a genocidal regime?

 

Jennifer Maddocks:  Yeah. If I jump in first, I think, absolutely, we're far better off with the law of armed conflict. It's always that question of the balance and how far tips either one way in terms of the military necessity and humanity, and it seems that, since the end of the Second World War, there has been more of a humanitarian push.

 

      And one thing that we really try to do at the Lieber Institute and Articles of War is make sure that the military side of the argument still comes out, to make sure that that proper balance remains so that it's not always the International Committee of the Red Cross and academics that is always having the last word on the law of armed conflict, how you interpret it.

 

      And obviously, as a human being, I can see the humanitarian value of these steps they're trying to make, but you've got to remember that international law is made by states, and it's got to be acceptable to states, and therefore, it's got to take into account the military necessity.

 

Paul Stephan:  I agree with everything Professor Maddocks said but would add that one of the advantages to the law of war is not simply its humanitarian interests; it's also good order and discipline. The purpose of the law and war, among other things, is to emphasize command control of our troops in terrifying conditions, and it represents an investment in the lives of the troops consistent with other bureaucratic or structural things like having good noncommissioned officers as a way of imposing order and discipline.

 

      And there's a sharp contrast. Since I'm a Russian guy, I will note that Israel makes the United States both invest a lot in the quality of their armed forces and take the law of war very seriously, and Russia does not. Russia's business model has been prolific at waste of the lives of their troops. It worked for them in World War II, and they still follow that model in Ukraine. And although there is some training of law of war—and I have good friends and colleagues who are a part of that training in Russia—it still doesn't have nearly the investment that we see in the United States and Israel. And I have a preference for the U.S. approach.

 

Jeremy Rabkin:  Yes. I don't know if everyone can agree, but for what it's worth, I totally agree with everything that's been said. But something that I think -- I'll just pose this as a question. Does this make a difference? The United States became sensitive to civilian casualties in Afghanistan, and then in the end, it said, "All right. Never mind. We're out of here. Good luck." And now, we don't care about civilian casualties because it's someone else's problem.

 

      It's easy to be humanitarian when you don't really care much about the result, which was not the case when Britain was organizing the bombing of Germany in a serious way in 1942, when it was still really worried about what would happen to people in Britain.

 

      Israel is in that situation. It's really worried about immediate threats to its own population. And I wonder if a law of armed conflict, which is developed by western states for optional wars at a great distance, is really a good model for a country that is, in some sense, really fighting for its life now.

 

Jennifer Maddocks:  But I don't think it was, though, was it? The law of armed conflict, as we know it now, was largely developed after the Second World War in light of the Second World War, and I think one of the great things about it is that it is adaptable. You know, we can see that, and with its adaptability, it's an application to new domains of war, such as the cyber domain.

 

Jeremy Rabkin:  Yes. Just a factual point: It's not after the Second World War; it's after the Vietnam War that we have the additional protocols, and it's very much a gathering of countries that think America has fought unfairly because it used airpower, and that shouldn't have been allowed. So there's a real north-south divide over this.

 

      And going forward, how you interpret that makes a big difference, whether you're a country that is fighting, and whether you're actually fighting to defend your own country, or whether you're not fighting at all, or you're fighting at a distance and you don't really care about the result, right? Those things are relevant to how you view this.

 

Paul Stephan:  So let me say something that's going to get me in a lot of trouble. I think that --

 

Jeremy Rabkin:  We're about to end, so you can't get in much trouble.

 

Paul Stephan:  Okay. Objectively, in this conflict in this region, Israel is the 900-pound gorilla, and for Israel to think of itself as facing an existential threat provides a license to do things that I believe are not in Israel's interests. So I would dispute your contention that this is that kind of struggle and that the kind of no-quarter perspective that an existential perspective brings is applicable here.

 

Jeremy Rabkin:  I hope you are right about that. I don't have the confidence that you do because it depends on foreign investors feeling comfortable that there's not going to be a terror threat. It depends on talented people wanting to stay there because they're comfortable there's not a terror threat. So even if it's not Israel liable to a land invasion which will reach Tel Aviv, the threat of continuing terrorism can be really existential there.

 

Paul Stephan:  So the brain drain we're seeing in the modern world right now is out of Russia, which is not subject to a serious terrorist threat. And I haven't seen something comparable in Israel, although you're completely right, Jeremy, that it could happen.

 

Jeremy Rabkin:  Okay. Well, that's a happy thought to end on. I think that we promised to end at noon, and now it's noon. So Jack, do you say farewell now?

 

Jack Capizzi:  Thank you. Yes. Yes, I will do that. So on behalf of The Federalist Society, I want to thank Professor Maddocks and Professor Stephan for sharing their time with us today, and of course to you as well, Professor Rabkin for moderating the discussion.

 

      A recording of this program will be available on our website, YouTube channel, and also our Teleforum podcast feed in the next few days. If you have any comments, we do welcome listener feedback by email at [email protected]. And with that, thank you all very much for being with us. We are adjourned.

 

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