Matt Waxman, Professor of Law at Columbia Law School, discusses the laws of war, proportionality in Israel's response, and the complexities of urban warfare in the ongoing conflict with Hamas. He highlights the challenges of distinguishing between military and civilian targets, the higher standards imposed on Israel, and the need to educate society on the actual meaning of the law to counter violators like Hamas.
Israel is held to a higher standard in terms of legal scrutiny and public opinion due to the challenges posed by urban combat and Hamas's tactics.
Education and awareness about the law of armed conflict can help address misperceptions surrounding Israel's actions and the exploitation of international law by non-state actors like Hamas.
Deep dives
Overview of the laws of war
The laws of war, also known as international humanitarian law, balance military necessity and humanitarian values. The principle of distinction requires military forces to target only military personnel and military targets, not civilians or civilian property. The principle of proportionality states that anticipated civilian harm from military operations must not be excessive compared to the expected military gain. Israel is expected to comply with these principles despite the challenges posed by urban combat and Hamas's tactics of embedding itself in densely populated areas and using human shields. Israel is also held to a higher standard in the international community, which intensifies the scrutiny of its actions.
Israel's dilemma in dealing with Hamas
Israel faces strategic, moral, and legal dilemmas in its conflict with Hamas. The presence of hostages taken by Hamas puts immense pressure on Israel to neutralize Hamas and rescue the hostages, while minimizing civilian harm. Israel's attempts to warn and relocate civilians in targeted areas have generated controversy, with questions regarding military necessity and anticipated civilian harm. The situation is further complex due to Hamas's exploitation and perversion of international law, including the use of civilian infrastructures as bases of operation. Israel faces a significant challenge in navigating these dilemmas while upholding the principles of international humanitarian law.
Comparisons to other conflicts
The dilemmas faced by Israel in its conflict with Hamas bear some resemblance to other conflicts, such as the US operations in Fallujah, Mosul, and Raqqa. The difficulty of distinguishing between military targets and civilians, especially in urban warfare, is a common challenge. However, Israel is often held to a higher standard in terms of legal scrutiny and public opinion. The asymmetric nature of the conflict, where Hamas disregards the laws of war and exploits the law for its own benefit, further complicates the application of international law. Education and awareness about the law of armed conflict can help address misperceptions and misconceptions surrounding Israel's actions.
Addressing the uneven application of the law
The uneven application of the law of armed conflict in asymmetrical conflicts remains a challenge. Hamas strategically exploits the legal dilemmas faced by Israel, benefiting from the higher legal standards imposed on Israel. Educating the public, journalists, diplomats, and civil society organizations about the law and clarifying the responsibilities of non-state actors, such as Hamas, can help alleviate this imbalance. Adapting and interpreting the laws of war to address modern conflicts, including non-state actors, is an ongoing challenge that requires careful consideration and international cooperation.
In President Biden’s address from the Oval Office, we continue to hear calls for Israel to respect the laws of war. In recent days, we have also heard others call for “proportionality” in Israel’s response. What does that actually mean? According to what definition of proportionality? And according to whose rules? Is Israel subjected to different rules of war than other countries? Is Hamas a different kind of enemy? These are some of the issues we get into with Matt Waxman, who is Professor of Law at Columbia Law School, where he chairs the National Security Law Program.
He is also Adjunct Senior Fellow for Law & Foreign Policy at the Council on Foreign Relations, and he is affiliated with the Lieber Institute for Law & Warfare at West Point.
Among his many areas of expertise, Matt is a scholar of the laws of war, including their history and their application to new technologies of warfare.
During the Bush administration, Matt served in senior positions at the U.S. State Department, Defense Department, and National Security Council.
Earlier in his career, he was a defense analyst at RAND, where among other things he worked on the law and strategy of urban warfare.
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