The Rules of War

from The New York Times I'm Sabrina. tavernes and this is the. [Music]. daily in the international court of. justice South Africa is accusing Israel. of committing genocide in Gaza today my. colleague Amanda t on the arguments in. that case and the power that the rules. of War have Beyond any verdict in.

[Music]. [Applause]. court it's Monday January. [Music]. 22nd so Amanda right now the. international court of justice in the. Haag is considering South Africa's. accusation that Israel is committing. genocide in Gaza you happen to be a.

former human rights lawyer and you've. been following this case in the larger. conversation around the rules of war and. whether those rules are being broken in. this conflict both sides presented their. arguments a couple of weeks ago so. explain what exactly this case is so. this case I think is just the latest way. in which international law has really. become one of the most crucial lenses. for understanding this conflict. obviously it's incredibly politically.

contentious this is something that has. just tremendously painful emotional. resonance for people around the world as. well as very significant consequences. for the people in Israel and Gaza and so. I think there has been a real turn to. the principles and Norms of. international law as something that can. provide a neutral ground a neutral. framework for understanding what's going. on for saying okay these are the. standards that we've already agreed to. adhere to are they being met mhm so.

South Africa several weeks ago filed an. application with the international court. of justice which is a un tribunal that. hears disputes between states saying. Israel is violating its obligations. under the genocide convention and that. does two things one it begins a case. where the court will eventually make a. determination about whether this treaty. has actually been violated but the. second thing which I think is actually. most important here is that South Africa. requested what are called provisional.

measures which are kind of the. international law version of a. restraining order or like a temporary. injunction where you can get relief now. you can get an order now from the court. and to be clear this case is just about. Israel and what they're doing in this. conflict right and not about Hamas and. what it's doing toward Israel that's. right and that's because it actually. can't concern Hamas the cases before the. icj which only hears disputes between.

states and it also concerns a treaty. that Hamas is not a part of so there's. actually just no basis legally for Hamas. to be part of this case why South Africa. I mean why is South Africa the country. bringing this case against. Israel so there are two ways to answer. that question the legal answer to that. question is that they are also a party. to the convention on genocide and so. legally they're considered to have an.

interest in its enforcement anywhere in. the world okay this isn't the first time. something like that has happened. previously Gambia brought a case against. Myanmar alleging that they were. committing genocide against the rohinga. minority there so there is some. precedent for a seemingly unconnected. member state of this treaty to bring a. case like this and then the other way to. answer that question is more about the. politics of it which is that South.

Africa because of their own history with. apartate has long been a major political. supporter of the Palestinian cause I. think a lot of people within South. Africa see some parallels between their. history and the situation of. Palestinians and so it's something that. has a lot of political resonance for. them okay so there's this treaty that. lots of countries including South Africa. and Israel have signed on to and if one. country thinks another country is. committed genocide you can bring a case.

to this International Court this. International court of justice and. that's what South Africa is doing. they're saying Israel is committing. genocide right now and we essentially. want a temporary restraining order to. stop it exactly okay so when South. Africa says that Israel is committing. genocide what exactly does that mean so. I think it's really helpful here to. start with what the genocide convention. which which is the treaty at issue.

actually says so it defines genocide as. acts that are committed with intent to. destroy a group in whole or in part and. that can be a racial group an ethnic. group a religious group so South Africa. really has alleged two things here. they've alleged actions on Israel's part. which are both things that its military. has actually done and things that it has. condoned such as allowing people to make.

statements that South Africa argues. constitute incitement to genocide. without stopping them or punishing them. and that these things were done with the. intention for the purpose of destroying. the civilian population in Gaza in whole. or in part okay so the idea that South. Africa is asserting is that this is an. intentional attempt to destroy people. because they are part of a particular. group in this case gazin that's genocide.

even if that attempt fails that's right. and one thing that is often a little bit. confusing to people about this is that. it's not actually a matter just of the. level of violence that takes place and. this is really what distinguishes it. from a lot of other crimes under. international law such as other crimes. against humanity is really about that. intent you could have very very high. levels of violence but if it is done for. another purpose if it doesn't have that. genocidal intent then it wouldn't.

constitute genocide and conversely you. could actually have a relatively small. amount of violence but if it is done. with that intent to destroy a group then. that would constitute genocide under. this definition and when they presented. their case in court a couple of weeks. ago what evidence does South Africa. point to to support this claim thank you. Madame President and distinguished. members of the court so South Africa's. team te of lawyers pointed to a number.

of statements including by very senior. officials within the Israeli military. and the Israeli government Israel's. political leaders military commanders. and persons holding official positions. have systematically and in explicit. terms declared their genocidal intent. one of the most important ones was a. statement that the defense minister yav. Galant made on the 9th of October just 2. days after hamas's attack on Israel.

where he said that as Israel was. imposing a Complete Siege on Gaza there. would be no electricity no food no water. no fuel everything would be closed. because Israel is fighting Human. animals and one reason why it's so. important that this statement came from. Gand is that he is somebody who's not. only very senior within the Israeli. government he's also somebody who's in a. command Authority position within the. military yeah he is the defense minister. threats genocidal utterances are.

therefore not out in the fringes they. are embodied in state. policy so what else does South Africa. point to I mean either in terms of. Israel's intentions or as you say it's. actions for the past 96 days Israel has. subjected Gaza to what has been. described as one of the heaviest. conventional bombing campaigns in the. history of Modern Warfare so they also.

speak about the bombings that Israel has. been carrying out in Gaza they are. killed in their homes in places where. they seek shelter in. hospitals in. schools in mosques in. churches and as they try to find food. and water for their families the idea. here is to show not just the scale of. violence but that taken together it's a.

pattern that suggests that civilians are. being targeted just because they are. people within Gaza not because they are. hos Fighters not because they are. combatants the imminent risk of death. harm and destruction that Palestinians. in Gaza face today and that they risk. every day during the pendency of these. proceedings on any view justifies it. indeed compels the indication of. provisional. measures. some might say that the very reputation.

of international law its ability and. willingness to bind and to protect All. Peoples equally hangs in the. balance so that was South Africa's case. that concludes South Africa's address. thank. you okay so what was Israel's defense so. the next day the day after South Africa. delivered its arguments Madam president.

distinguished members of the Court. Israel's lawyers had a chance to deliver. their rebuttal in effect the state of. Israel is singularly aware of why the. genocide. convention which has been invoked in. these proceedings was. adopted and their focus was really on. reframing this to focus on Hamas to. focus on the violence that Hamas. perpetrated in Israel and tying that to. Israel's history as a state that was in.

many ways born as a reaction of. genocide seared in our Collective memory. is the systematic murder of 6 million. Jews as part of a premeditated and. heinous program for their total. Annihilation and they moved from there. to talk about the attacks on October. 7th the events of that day are all but. ignored in the applicant submissions. but we are compelled to share with the.

court some fraction of its. horror the largest calculated mass. murder of Jews in a single day since the. Holocaust and they said Hamas is engaged. in a genocidal project of trying to. erase the state of Israel and that the. violence that they committed on October. 7th was an example of the type of. genocidal violence they are using as. part of that project if there have been. acts that may be car characterized as.

genocidal then they have been. perpetrated against Israel and then from. there they addressed the statements like. the one that Gallant had made and some. others that South Africa had pointed to. some of the comments to which South. Africa refers are clearly rhetorical. made in the immediate aftermath of an. event which severely traumatized Israel. but which cannot be seen as demanding. genocide. they express anguish saying in effect.

these were emotional statements Made In. the Heat of the Moment for a domestic. political audience and they didn't. reflect actual policy so their position. is that this factually is not happening. and also this wasn't really showing. intent this was just words and emotional. speech Israel as publicly stated. repeatedly that there is no limit on the. amount of food water. shelter or medical supplies that can be.

brought into Gaza and just to be clear. times reporting and statements by the UN. have said that in fact there are major. restrictions on the humanitarian Aid. that's being allowed into Gaza listening. to the presentation by the applicant it. was as if Israel is operating in Gaza. against no armed adversary and the other. thing that they argue is that to the. extent there is a threat to the. civilians of Gaza that threat comes from. Hamas. but the same Hamas that carried out the.

October 7 attacks in Israel is the. governing Authority in Gaza and the same. Hamas has built a military strategy. founded on embedding its assets and. operatives in and amongst the civilian. population and so their argument here is. that actually it is Hamas that's. endangering civilians by using them and. the places where civilians are located. in order to conduct its military.

activities and then their last argument. was that in fact Israel cares deeply. about international law and is going to. Great Lengths to ensure that it's. followed as the authority responsible. for international La advice to Israel's. government and cabinet I can attest that. in contending with these challenges. Israel remains committed to. International so the lawyer who argued. this particular point is somebody called. gilad Noam he is one of their Deputy. attorney generals and he basically came.

to the court to say not only is this. something we take very seriously this is. my job I am the person and I'm ensuring. that these standards are. met when the Cannons Roar in Gaza the. law is not. silent and so with that Israel's day of. presenting their arguments came to an. end okay so this makes me want to. understand better these International.

rules he's talking about yeah so even. though this case just concerns genocide. and just concerns the treaty the. convention against genocide it's. actually just one very small part of. this broader legal Universe which has. become so crucially important in the way. that this conflict is not just being. fought but actually viewed and. understood by the rest of the. world. [Music].

we'll be right. [Music]. back so what is this broader legal. Universe you know the international. rules around war and where do they come. from so this is a group of laws that. were largely developed after World War. two in response to the world kind of.

looking at the horrors that took place. during that conflict and realizing that. technological capabilities had reached. the point that there was really no limit. to the amount of Destruction that war. could wreak and that we needed some sort. of limits that could be collectively. agreed on in order to protect everyone. and they are mostly concerned with. protecting people who are non-combatants. so that means civilians it also means. prisoners of war and and the idea is. that if you are not actively a.

participant then you are entitled to. certain protections MH and if you think. about this you know this was happening. in the Years immediately after World War. II so not only were things like the full. horrors of the Holocaust becoming known. but Europe was still literally. rebuilding from these horrific bombing. campaigns that had happened this was. also you know after Hiroshima after. Nagasaki we were really kind of waking. up to the fact that law and other kind.

of principles around this were going to. be the only thing that restrained this. level of violence right so one of the. set of laws that came out of this was. the Geneva conventions those are the. most important kind of legal treaties. that govern how Wars can be fought and. actually became so important within the. international legal system that they're. now considered universally binding on. all countries in almost every case and. importantly these also apply to. individuals and to Armed groups that.

aren't states which means that almost. all of these rules apply to Hamas Hamas. is able to commit violations of the laws. of war and its members are able to be. criminally liable for attacks that they. committed on October 7th and other. things that they have done before and. since so the world decided that there. were absolute red lines that every. country or person in any conflict. anywhere has to abide by because a world. without these rules was too horrific to.

contemplate and if you don't abide. there's a whole system of international. courts to hold you. responsible that's right okay so give me. some examples of the actual rules under. international law so I think the easiest. way to understand this is to start from. this basic principle that civilians have. to be protected so that means you can't. Target civilians directly in warfare. that's illegal but then there's also Al. this really important principle that.

says even if you're going for a military. Target so an opposing Commander or an. soldiers or something like that the harm. that that causes to civilians has to be. proportional to the military gain that. you're going to achieve so this is. called the rule of. proportionality it's something that I. think is really widely misunderstood so. they might say more than 20,000 people. most of whom are civilians have been. killed in Gaza and around 1,00 Israelis. again most of whom are civilians have.

been killed and they just compare those. numbers and they say how could this be. proportional but actually that's not how. it works it's not a comparison of the. numbers on each side of the conflict. it's a comparison of the civilian harm. of a particular attack and the military. advantage to be gained so then if this. rule of proportionality is about each. individual attack and not sheer numbers. how do actors in a conflict figure. figure out what is just under this rule.

so it ends up basically looking like an. equation so they have to take an. evidence-based estimate of what they. think the civilian harms of a particular. attack might be and they have to. calculate also the military value of the. Target that they're trying to achieve. and then they weigh them against each. other and it seems strange to kind of. assign numerical values to some of those. things but in effect what the law. requires is for the harm to be less than.

the value so the rule is not you can't. harm civilians ever the rule is if your. military Target is important enough you. can accept a higher level of Civilian. harm there has to be a really good. reason in other words right but this. seems kind of squishy right like how do. you define good enough reason like what. is that math how do people think about. that so this is something that. militaries tend to keep Secret. most of the time because it's part of.

their operational policy so that kind of. information tends to be classified but. we know from some information that has. been released about previous Wars what. this kind of thing can look like so for. instance the US has said that during the. war in Afghanistan the usual acceptable. level of casualties that were considered. proportional in most attacks was Zero. that they just you know had that as. their Baseline and that at the very top. if you were going after Bin Laden the. highest level of casualties that could.

be acceptable for somebody like that was. 30 so that gives you a sense of kind of. the scale that the US was considering in. that war and also importantly even if. these are the legal guidelines that are. being given within militaries they're. not always followed and attacks don't. always go the way you expect okay so. Amanda it feels worth at this point. pointing out that Hamas has said that no. civilians were killed in Israel on. October 7th. and it's questioned what even is a.

civilian they suggested over and over. that all Israelis are engaging in an. illegal occupation and therefore. everyone really is a legitimate military. Target now obviously civilians were. killed on October 7th you know the idea. that they weren't is not true so how do. we think about that I mean if one side. doesn't really consider civilians. civilians they're not doing this math. that you're talking about and I assume. under the rules of war that the. definition of a civilian is not.

subjective and certainly not defined by. one's enemy that's right so a civilian. is a civilian and you certainly don't. get out of your legal obligations to. protect and ensure that all taxs are. proportional just by saying they're not. civilians that is not how that works but. also this is not something where a. violation by one side affects the. protections that other civilians enjoy. so for instance if Hamas makes these.

statements publicly disavowing its. intention to comply with these. protections for civilians that doesn't. change the protections that Israeli. civilians have under the law but it also. doesn't change the protections that. gazan civilians have under the law those. protections are rules that apply to all. people just because they're people and. it's not something that can be canceled. out by wrongdoing on the part of one. party or another to the conflict got it. so you're saying basically that even if. there was an inciting event that was a.

violation it doesn't mean that the other. side has just cause to do its own. violation exactly there's no Tit for Tat. here it's not eye for an eye under the. system the civilians have the protection. because they're civilians okay so what. if a legitimate military Target is. intentionally embedded within a civilian. area which Hamas is accused of doing. specifically to make that calculation. actually harder for Israel so I think. this is is a great example of a case in. which violations from one side don't.

change the rules for the other so if. Hamas is intentionally embedding itself. in civilian areas in order to protect. its military operations and thereby. endangering civilians that is a. violation of international law on. hamas's part but even if it is the case. that Hamas is committing such a. violation and that is why the civilians. Are In Harm's Way that doesn't change. the other part's obligation to comply.

with the rules of proportionality so. they still have to treat those civilians. as civilians they still have to take. them into account when they're. determining whether an attack is. legitimate so even if it's a violation. it still does make the calculation. harder for Israel like it kind of works. if you're Hamas right yeah I mean it is. true that some of these rules can make. fighting a war and winning a war more. difficult but the point of this. International System is to say it's.

worth giving up some military Advantage. sometimes in order to have this. protective system which we all benefit. from so here's something we've thought. about on the show that kind of pushes. this idea to the Limit and that is if. Hamas is putting their Central Command. centers underneath hospitals like the. Israelis are asserting Israel would. still have to take into account the. civilian casualties during any kind of. attack on those hospitals even if their. goal is to destroy that Command Center. that's right so hospitals actually have.

special heightened protection under. International humanitarian law because. they're seen as essential to civilian. life so it's not just the immediate. consequences that are so serious when. targeting a hospital but that the loss. of a hospital if a hospital is attacked. also has significant consequences for. the civilian population so the Baseline. assumption is that hospitals are. entitled to protection from Attack how. however if a hospital is being used for.

a military purpose which to be clear. would be a very serious violation of. international law by whoever was using. the hospital that way then the hospital. would lose that protection but the same. rules of proportionality still apply so. the civilians who are within that. hospital still have to be taken into. account and any military action to you. know take out the command center or. arrest people or similar needs to be. targeted and the goal needs to be to. allow the hospital to return to its.

function afterwards this speaks to what. you've been saying about the fundamental. function of these rules of War which is. to protect civilians ability to live in. the context of War like they're still. entitled to food water and medical care. that's right and you know there are many. different Provisions within the Geneva. conventions and other parts of. international law that are really. designed to protect that principle so. for instance Collective punishments are. illegal you can't punish civilians. collectively for the actions of a.

government or an action of somebody else. it's also illegal to use starvation of. civilians as a weapon of War you know. you can't use that for strategic. Advantage even if you could get one and. likewise you know you can't kill. civilians you cannot take them hostage. Etc right you said this term Collective. punishment you hear that a lot bandied. about I mean you heard the UN Secretary. General say that just the other day yeah. and I think he's really referring to. this situation in Gaza where the. civilians there collectively are facing.

grave harm so the United Nations has. warned that the whole Gaza Strip is at. risk of a severe famine they've been. warning for months now of other. humanitarian concerns and of course the. effects of the actual conflict itself I. want to ask about another aspect of. destroying civilian infrastructure which. is the destruction of people's homes now. we know that a huge percentage the UN. says 85% at this point which is like 2. million Gaza most of of the population. have been displaced from their homes.

what do the rules say about displacement. so this is a little bit of a complicated. area of law because there are two. principles here that can really be in. tension with each other so the first is. that before an attack the attacking. military or party has to warn civilians. and give them a chance to leave and. early in this conflict when Israel told. Gaz and civilians to leave the north. Israel framed that as a warning but many. people saw it as in conflict with this.

other principle which is that it's. illegal to forcibly displace or Deport. civilians if the intent is to protect. civilians then that's basically okay but. if the intent is to displace them in. order to take their land in order to you. know force them out of a territory gain. political power Etc then that's not okay. so Israel has said that people will be. allowed to return to their homes prime. minister Netanyahu has spoken to this.

specifically but there is still going to. be a practical consideration of whether. that's possible right if you're allowed. to return in this case to the north but. there's really nothing left to return to. because so many of the homes are. destroyed does that really count as. being allowed to return yeah I think. that's where the legal questions start. to get muddy about what the obligations. are to enable return and what that's. going to look like and I think that that. is something that. is hugely unclear at this stage of the. conflict what there will be to return to.

the Palestinians have already had. displacement as such an important part. of their history that questions of. displacement happening now I think have. particularly heavy emotional resonance. for them okay so say one side or another. of any conflict appears to violate these. rules that you've laid out what could. happen we know that one option is that a. country can accuse one of the sides of. genocide because that's what's happening. before the international court of. justice right now but what else could. happen yeah so I think that's a good.

example of how there can be consequences. for states such as you know an action. like that one which was brought over a. treaty violation and the same thing has. happened in the case of Russia for. instance to do with their invasion of. Ukraine but there can also be. consequences for individuals so you know. going back again to this example of. Russia there's also a criminal case. pending against Putin in a different. International court that is also Rel. ated to the way the war in Ukraine has. been fought and so this is something.

that comes up often when there is a. conflict with severe violence and. allegations of atrocities that can lead. both to consequences for the States. involved but also to individual. consequences including criminal charges. MH so that can include charges for war. crimes and crimes against humanity so. war crimes need to happen in the context. of a war but crimes against humanity can. happen in other contexts as well okay so.

countries and individuals can face these. really serious charges if they violate. these rules around conflict but what. actually happens if you're charged and. found guilty because it seems difficult. to enforce and actually to hold people. and countries accountable it seems hard. it is hard so for instance the icj case. over genocide even if they do issue. provisional measures in that case. sometime in the next few months that. Court doesn't have any police officers. it doesn't have peacekeepers it doesn't.

have any way to kind of militarily. enforce any kind of judgment but it does. still carry a huge amount of weight in. terms of the way that its judgment is. perceived and the way that it could. affect Israel's standing in the world. and particularly with its allies in. Europe and North America so we've. already seen it have some effect I think. although it's hard to know for certain. it seems very notable that in the weeks.

since South Africa originally filed. their case Israel has started to make. new agreements on allowing in. humanitarian Aid their attorney general. has announced that she's going to. investigate statements by certain. lawmakers to determine if they could be. considered incitement they have. announced that their military operation. will soon be scaling down kind of. entering a new phase and I think that. those actions both reflect. a desire to maybe affect the Court's. judgment it also reflects I think a.

desire to show that it is a law-abiding. country so you're basically saying even. if these courts can't put people in jail. there are other forms of accountability. that having these universally agreed. upon rules give that you know these. rules provide a way to figure out who is. essentially allowed to be in good. standing in the world yeah I think that. that's why one reason why these rules. and this broader system of justice.

really matter you know they matter to. Israelis they matter to Palestinians. they matter to the rest of the world but. I think they're also doing something. here that's really important that goes. beyond this particular conflict but is. also really really relevant to it which. is it gives us a way to understand right. and wrong and fair and unfair even when. we're completely overwhelmed by the. emotion of you know reading about a. particularly horrific attack of hearing.

about something that is a level of. unimaginable violence happening to. families or children or you know people. who might remind us of ourselves. and that can be one of the hardest. circumstances in which to make a kind of. Reason judgment and figure out the best. way forward and so having this set of. rules which has already been agreed on. has already been worked out it applies. not just to both sides in this conflict. but to the entire world really offers a.

way forward in how to think about this. how to understand this and how to. Envision maybe even possible solutions. that the parties to this might. eventually. [Music]. reach Amanda thank you Sabrina thank you. so much.

in a televised news conference earlier. this month Israeli Prime Minister. Benjamin Netanyahu said he would not. relent in the war in Gaza until Israel. had achieved what he described as total. Victory he added that nobody would stop. Israel quote not the hag and not anybody. else the court in the hag could issue a. preliminary ruling as soon as next. month. we'll be right.

[Music]. back here's what else you should know. today if there was anything I could do. to produce a favorable outcome more. campaign stops more interviews I would. do it but I can't ask our supporters to.

volunteer their time and donate their. resources we don't have a clear path to. Victory accordingly I am today. suspending my campaign on Sunday. Governor Ron DeSantis of Florida. suspended his campaign for president and. endorsed the FrontRunner former. president Donald Trump with the primary. race in New Hampshire in its final 48. hours I've had disagreements with Donald. Trump such as on the Corona virus. pandemic and his elevation of Anthony. fouchy Trump is superior to the current.

incumbent Joe Biden that is clear I. signed a pledge to support the. Republican nominee and I will honor that. pledge the move cements the Republican. contest as a two-person race between. Trump and former Governor Nikki Haley of. South Carolina a little less than a week. after desantis's devastating 30. percentage Point loss to Trump in Iowa. it remains to be seen whether desantis's. departure will help Haley who is.

believed to be better positioned than. DeSantis was in New Hampshire and South. Carolina or whether more of his. supporters will migrate to. Trump and are a number of types of two. State. Solutions over the weekend President. Biden pressed Israeli Prime Minister. Benjamin Netanyahu to agree to the. creation of a Palestinian state after. the war in Gaza is over it was their. first phone call in more than a month. amid tensions between Israel and the.

United States over the war Biden told. reporters after the call that he had. presented options that would limit. Palestinian sovereignty to make the. prospect more palatable to Israel. there's a number of countries that are. members of the UN that are still don't. have their own militaries number of. states have. limitations and so I think there's ways. in which this work but on Saturday night. Netanyahu doubled down on his opposition.

to an independent state for the. Palestinians saying he would not. compromise on Israeli security adding. that quote that is irreconcilable with a. Palestinian. State today's episode was produced by. Olivia Nat MOJ zadii Diana win and. Michael Simon Johnson it was edited by. Paige cowt and Brendan clink BG contains. original music by Pat mccusker and was.

engineered by Alyssa Moxley our theme. music is by Jim runberg and Ben Lanser. of. [Music]. [Music]. wonderly that's it for the daily I'm. Serina tavc see you. tomorrow.