Law of War

Also known as hyper-violent litigation.

By and
92

Israel declares war on Hamas after the terrorist organization murders hundreds of civilians. But now, with Israel already carrying out attacks in Gaza, things are about to get litigious. David French analyses the meanings and implications of the Law of War and debates Sarah Isgur whether International Law is even a thing. Plus if you want to hear David explain the moral dimension of war law, join The Skiff for a short impromptu follow up discussion.

-Military tribunals

-Ukraine/Russia comparison

-The complicated, interesting, and weird details of the Acheson Hotel case

-Mootness versus standing doctrines in the CFBP case

Show Notes:

-Urban Warfare Project by John Spencer

-Law of Land Warfare

To get The Skiff on your personal podcast player:

CLICK HERE to get your personal feed.

How to subscribe to The Skiff:

To follow The Skiff on Apple Podcasts, Google Podcasts, or wherever you catch your podcasts, please follow these instructions:

-Choose which device you prefer to listen on (Mac, iOS, Android…).

–Click here to get your personal feed. (Make sure you’re logged in as a Dispatch member!)

-Select The Skiff.

-Select your device and podcast player (Apple Podcasts, Spotify, Pocket Casts, etc.): this will let you subscribe to the feed for direct updates!

Note: If your preferred podcast player asks you to subscribe by RSS feed you’ll need to copy and paste a URL link. To get that link, go back to the menu with all of the options to subscribe (the page with all of the player logos), scroll to the bottom, and copy the link you see there. Then, go back to your player and paste it in the field.

By and
Comments (92)
Join The Dispatch to participate in the comments.
 
  1. Benjamin E Norquist

    I appreciated the discussion about Laws of War, but kept waiting for occupation-related aspects. I am left wondering if David and Sarah consider the oPt to be under occupation legally speaking? Or the WB but not Gaza? This has implications for Israel's obligations.

    Collapse
  2. Kmsinatra

    How come no one is calling on Hamas to abide by law of war? Or exercise restraint?

    Collapse
  3. James Bennett

    Dead as a doornail isn't from the literal meaning of dead as in not living, but from the meaning of fixed or not moving. Such as in "dead ball foul"

    https://grammarist.com/idiom/dead-as-a-doornail/#:~:text=Origin%20and%20Etymology%20Behind%20'Dead,as%20a%20dore%2Dnayl.%E2%80%9D

    Collapse
  4. Avatar photo
    Calvin.Siler

    I thought this was a good podcast for explaining the law of war.

    I was a little surprised at Sarah's comment that there is no such thing as a "law of nature". It seems like hundreds of theologians, political philosophers, and the writers of the the American Declaration of Independence would disagree.

    Based on Sarah's longterm oposition to the practicality of international law and Steve's comments on the UN in the recent Dispatch podcast, I think an episode on international law would be great sometime in the future.

    Collapse
  5. Bendreyfuss

    Really good episode. I was curious about the thing you said about Ivy League admission officials favoring applicants who have very certain political beliefs. What is the argument for that? It sounds like the most obviously stupid thing I’ve ever heard in my entire life. Those people are terrible when they’re full grown adults! In college or grad school, they’re one of the most insufferable elements of modern society. Seems like the preference should be in the opposite direction to disincentivize such behavior.

    Collapse
  6. Avatar photo
    Michael Berkowitz

    I know that The Dispatch doesn't like to cover the press, but given that you foresee it warping the coverage of this conflict in a way that is ill-informed, morally wrong and likely to sway a significant geopolitical conflict, maybe you can make an exception.

    Collapse
  7. Chris

    To me it seems like there are at least some parallels to the Israel/Palestine conflict with the Irish/British conflicts of the past. Understandably many Irish people never accepted the British occupying, annexing, and settling their territory in the North, and nobody is particularly confused about why the Irish fought the British for generations. Yet when a very similar thing happened to the Palestinians in 1948, lots of people (mainly on the right) just expected them to acquiesce. Even if the proposal at the time was that the Palestinians could keep 70-80% of their territory, who would agree to such a deal? I think a big part of the problem is the unwillingness to recognize that no people would accept what the Palestinians were asked to accept in 1948, which seems to me the definition of settler colonialism. And while I agree that some of the hostility directed towards Israel is simply antisemitic, I also think part of the reason Israel is judged by a different standard is because we all know that what was done to the Palestinians would not be tolerated by the west anywhere else. I was pretty shocked to hear Adaam earlier this week say to Jonah that settlers cant really be called settlers once Israel unilaterally annexes the territory. Really? Thats the kind of logic that contributes to massive skepticism of Israel's foreign policy. With the exception of Russia I cant think of any other country who operates that way in this day and age.

    Collapse
    1. MathewA

      The Jews were there thousands of years before.

      Collapse
      1. Chris

        Yes they were, and for obvious reasons the world can't revert to the borders of 2000 years ago, can we? Then every country would be at war.

        Collapse
    2. R. James

      The Irish never beheaded children or dragged the corpses of raped women through the streets of Dublin. This is a false equivalency. Hamas wants to destroy the state of Israel and kill Jews for the sake of killing Jews, and justifies their conduct based on the Quran. The IRA did not seek the destruction of England or the killing of British people for the sake of killing them, and religion while part of the conflict was more of a tribal marker than a motivating factor for the Troubles.

      Collapse
      1. Chris

        Its not a false equivalency because I'm not talking about Hamas at all. If you read my comments here you'd see that. My point is that the modern state of Israel was founded through settler colonialism and while I totally sympathize with why it happened that way, I can also understand why a normal Palestinian who is not a terrorist sympathizer at all would still harbor deep resentment to the Israeli state. That is a totally normal reaction to being occupied. I hope Hamas is eradicated soon but why is it so difficult to acknowledge that normal Palestinians have been victimized by having their homeland taken from them?

        Collapse
        1. Avatar photo
          Michael Berkowitz

          I'm afraid it's a false equivalency for other reasons. Ireland, I believe, never attacked England to drive the English out. The English didn't come from Ireland. The Irish (again I'm assuming, here) were sovereign in Ireland before the English conquered it.

          I assume there are other pertinent differences, but those will do.

          Collapse
          1. Chris

            The Irish did attack the English- a lot of it ended up being asymmetric fighting because they couldn't win a conventional war but they absolutely treid to take bake their island for centuries. I agree that the Jews lived in Israel thousands of years ago, but if everyone thought they had a right to the land where their ancestors lived 2 millennia ago then most of the globe would be at war. The Palestinians have been living their for centuries now, and there is another distinction you left out. Since the end of World War 2, the world has moved to a general consensus that settler colonialism is no longer acceptable and I think that is part of the reason Israel gets treated differently. Obviously antisemitism plays a role too, but its not the only reason.

            Collapse
    3. Avatar photo
      AA

      I don't see a lot of parallel here.
      I think the false equivalency is that Irish sought for freedom from the British and Hamas seeks freedom from Israel.
      This is not the case here. Hamas inflicts a rule of terror within Gaza and seeks the destruction of Israel and death to all Jewish people. They perform horrific crimes against humanity, the likes of which not even the most hardcore Irish insurgents/terrorist/freedom fighters ever even considered. The only equivalent we have in modern times is ISIS. Hamas is funded by Iran with the goal of destabilizing the middle east and creating a caliphate that would rule all people under Islamic law.
      Hamas also uses Palestinians as human shields, hiding in hospitals and mosques as David so aptly pointed out in the podcast, making those places targets.
      I think we should be careful when we compare Hamas or ISIS to freedom fighters in other regions of the world as their goal is not liberation of occupation but rather oppression and domination

      Collapse
      1. Chris

        I think you are misrepresenting what I said by taking my comments about Palestinians and equating them with Hamas. Obviously I totally disagree with Hamas, but that has nothing to do with the fact that the Palestinian people, as far as I can tell, were expelled from their homeland through a form of settler colonialism similarly to the way catholic population of northern ireland were by the British. I recognize there are massive distinctions, such as how the british already had a homeland of their own before they decided to settle other people's territory, while the israeli settlers really felt they had nowhere else to go. But from the perspective of the Palestinians, those justifications are totally irrelevant. They'd been living in that area for centuries before another group settled there by force. Again I ask- what exactly where the Palestinians supposed to do in 1948 when they were essentially handed an ultimate to pack up and leave?

        Collapse
        1. Avatar photo
          AA

          I'm not sure what does the "given an ultimatum to pack up and leave mean", Israel is home to millions of Arabic muslim people, they are Israeli citizens who lived there before the country got independence from the British empire and live there still today.
          In the war of independence and following wars that threatened the existence of Israel throughout its early years, many of the population living along the border was displaced as a result of the fighting. Some of those people later claimed the entire state of Israel belongs to them. We can dispute what portions are "occupied" and which are not, does the Israeli map of 1948 or 1967 better correlates with your views of non-occupation. But as you already mentioned, an organization like Hamas doesn't want Israel out of the occupied territories, they want the death and destruction of all Jews, Israelis and the idea of a western democracy. It matters not if they live in Tel Aviv or the west bank.

          Collapse
          1. Chris

            Maybe I could have phrased it better. It seems to me the Palestinians were given 3 options in 1948:

            1. Willingly share their land with Millions of Israeli settlers and hope the situation doesn't devolve into chaos and violence, as well as second-class citizenship for the Arabs
            2. Pack up and leave
            3. Reject Israeli settlement altogether and fight back

            What am I missing here? And what would you say to a Palestinian who rejects violence, rejects antisemitism, and also rejects Israeli settlement into their ancestral home? That strikes me as a totally rational position to have.

            Collapse
  8. Kim Schell

    Regarding CFPB: I have been a financial counselor for extremely low income individuals for many years. The CFPB materials are by far the easiest to use, the most trauma-informed, the best graphically designed, and are filled with situation appropriate content. They begin where people are so you can teach the person and not the text. My feelings are that the catalysts for this case was politics, the financial complex's interests, and Elizabeth Warren's involvement.

    Collapse
  9. Avatar photo
    Silvertide

    My question is not based on politics just one I wasn't sure of after this discussion. I understand that if an enemy hides in a building and fires from it then the building loses its "protection". My question is that 100% of the time or is there any calculation of civilian life vs enemy damage? For example, if an enemy was hiding and actively using a hospital to fire rockets would it be reasonable to blow up the entire hospital if it had 500 sick people unable to move from the location?

    May we one day be a species who does not find the need to kill each other.

    Collapse
    1. Pohl

      See my comment below. David unhelpfully left his remarks about banks and hospitals without discussing that Israel must take into account civilian casualties. It’s important to remember that firing a missile is not the only recourse, especially in your hypothetical with 500 patients present. It is definitely not the case that the laws of war allow Israel to flatten neighborhoods because of anything like “spider-webbing.”

      Collapse
      1. Avatar photo
        Michael Berkowitz

        Actually, David said explicitly that flattening a neighborhood because of spiderwebbing is what the US does and legally so.

        Collapse
        1. Pohl

          Yes, and I said David is wrong. Given his reticence on the laws of war until this late date, after almost two years of war in Ukraine, this suggests he’s more familiar with US rules of engagement than IHL.

          Collapse
          1. Avatar photo
            Michael Berkowitz

            Perhaps you're an expert. I certainly am not, but I'm wondering what law would say "You were allowed to bomb the house that those terrorists were in, but now that there are fewer of them and they're in a different house, you can't anymore."

            Collapse
      2. Aaron H Frank

        So Dresden-esque firebombing would be out of the question?

        Collapse
        1. Pohl

          Definitely.

          Collapse
      3. Avatar photo
        Silvertide

        Thanks must have missed your comment when I read through them before posting.

        Collapse
  10. Pohl

    Finally, some law of war talk. Maybe I missed it after Russia invaded Ukraine. They could have easily kept exploring it for the whole episode and beyond, but they touched upon some important topics, especially surrounding non-state actors like Hamas. More, please, as jus in bello is a critical tool in evaluating wars, including ones that are essentially counterinsurgencies, but in a dense, urban environment across a very small area like Gaza. Proportionality regarding collateral damage becomes of paramount importance. Does Israel just level neighborhoods to kill perhaps one commander, does it try long-term occupation, will it know when to stop? Godspeed.

    Collapse
    1. John Matthew IV

      I really would have appreciated some law of war talk when Russia invaded Ukraine. I heard many people refer to it as an "illegal invasion." What's a "legal invasion"? Or the "illegal annexation of Crimea." Same question, what's an "illegal annexation."

      And who will arrest Putin and try him. Russia doesn't recognize the International Criminal Court in The Hague, but neither does the United States.

      Collapse
      1. Pohl

        Good questions. Let me know what you find on legal invasions. Preemptive strikes are not covered much in international law as far as I know. You gotta do what you gotta do sometimes and carry other nations along as best you can. Maybe the UN will issue a sternly worded letter. So, yes, invasions are presumptively illegal.

        Collapse
    2. Avatar photo
      AA

      So here is the method by which Israel had operated in Gaza specifically for bombing purposes.

      First, let's distinguish between a building with terrorist actively engaged in warfare with ground forces. In that case, all bets are off, you can't expect the ground forces to just die because there are 100 civilians in the building. That is unfortunately a common tactic used by Hamas.
      Second, in the event of using a bank or other civilian building as bases of operations/weapon silos/barracks. When Israel identified and strikes these targets they follow a template:
      1. Get eyes on the target
      2. Send helicopters with loud speakers to warn the residents that the building will be destroyed, sometimes there are also fliers dropped down
      3. "Knock on roof" this is the most common tactic when attacking a civilian tactic, the IDF will shot a small rocket to the roof of the building causing minimal damage but making it very clear to all residents that an air strike is on the way - in this way all civilians in the building have ample time to escape before the strike hits
      4. strike the building

      Even with all of the above, there are still going to be civilian casualties. In regards to David's comments on the podcast, this is considered proportional and morale in terms of rules of war since the IDF did more than is reasonable to reduce the chance of civilian casualties.

      Lastly, one must remember that the only tool at Hamas's disposal to stop Israel from destroying it's oppressive rule is to inflict as many civilian casualties on their own people (yes on Palestinians) as they possibly can and as a result cause international pressure on Israel to stop fighting, this will undoubtedly happen in this conflict as well. There are many tactics Hamas uses to achieve this. When attacking from a building, they will usually block the exists so that as many civilians as possible will die from the counter strike. They will launch rockets or keep munitions in the most sensitive civilian targets such as mosques or hospitals, since attacking those and killing the people inside serves as great propaganda. The most important thing to understand is that Hamas treats Palestinians as fodder not as wards.

      Collapse
      1. Pohl

        I don’t disagree with this as a description of tactics. I still disagree that Israel gets a pass simply because Hamas and even civilians might ignore warnings. Also, air strikes aren’t always the best option. Anyway, if people were to line up to be killed, does Israel just get to play Whac-A-Mole? But I’m not asking that their hands be tied.

        All this being said, I’m pro-Israel. All conflicts trigger my peace instinct, though. On larger questions concerning a Palestinian state, for example, I am much more of a skeptic and have no problem with Israel annexing portions of the territories that their bellicose neighbors foolishly lost in decades past.

        Collapse
        1. Avatar photo
          Michael Berkowitz

          I don't understand what you're suggesting. Nobody has spoken of a "free pass", and Mr. French explicitly said that Israel not only observes the laws of armed combat, it's more strict about them than the US. You say that "air strikes aren't always the best option". Best option for what? When are they not best for preserving the lives of Israeli soldiers? In practice, because of Israel's concern about civilian casualties -- whether that's wholly genuine or because it'll be held to an impossible standard or some combination -- many Israeli soldiers are going to die who would be alive if Israel fought like America.

          Collapse
          1. Pohl

            I’m only responding to this commenter here, not David. He’s suggesting Israel’s duty to mitigate damage and civilian casualties may be fulfilled before dropping a building by some simple rules of engagement as listed. He was only talking about missile attacks, though. I just wanted to make the point that combatants have to perform greater calculations than that in a dense, urban setting. Are you going to likely kill two families to get one Hamas foot soldier? I don’t want to belabor the point, though. I’m on the side of Israel.

            Collapse
Load More