Ep 98: Matthew Waxman on the Israel, Hamas, and the Law of Armed Conflict
Nov 14, 2023
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Matthew Waxman, Liviu Librescu Professor of Law at Columbia Law School, discusses the law of war, its importance, and its application in the conflict between Israel and Hamas. They explore topics such as military necessity vs humanitarian interest, bright line rules, reasonableness, sieges, weaponizing the law, perverse incentives, and the evolution of the law.
The laws of war aim to balance military necessity and humanitarian considerations, distinguishing between military targets and civilians, with compliance enforced through training, doctrine, and international pressure.
The conflict between Israel and Hamas involves complex legal considerations, with Israel's right to self-defense requiring adherence to principles of distinction and proportionality, while Hamas' violations of these principles highlight the suffering of innocent civilians in Gaza.
Deep dives
The Importance and Challenges of the Laws of War
The laws of war have evolved over centuries and are based on a balance between military necessity and humanitarian considerations. The laws aim to differentiate between military targets and civilians, and to ensure that military actions are proportionate to the anticipated military gain while minimizing civilian harm. Compliance with the laws of war is primarily enforced through training and doctrine in armed forces, and international pressure and sanctions imposed on non-compliant states. However, the laws of war are not perfect, and their application requires judgment and can be influenced by shifting facts and context.
Nuremberg Trials and the Debate on International Justice
The Nuremberg Trials after World War II played an important role in advancing international legal boundaries. The trials showcased the firm commitment to legal process and due evidence, even for individuals accused of heinous crimes. However, a valid critique of international justice is that it often represents victors' justice, where leaders of losing states are held accountable while those of winning states are not. Despite this limitation, the trials at Nuremberg served the purpose of upholding the rule of law and pushing for further codification of legal boundaries.
The Ongoing Conflict in Israel and Evaluating Conduct
The conflict between Israel and Hamas involves complex legal considerations. Israel has the right to self-defense, but it must also adhere to the principles of distinction and proportionality. Distinction requires targeting only military personnel and assets, while proportionality requires balancing the anticipated military gain with the potential civilian harm. Hamas has consistently violated these principles by using human shields and firing rockets indiscriminately at populated areas. However, it is important to express empathy for the innocent civilians in Gaza who are suffering as a result of the conflict.
Situations of Siege and the Legal Challenges
The issue of sieges, particularly in relation to Gaza, presents complex legal dilemmas. The legality of a siege depends on military necessity and intent, with the primary goal being to weaken enemy forces rather than collectively punish civilians. The intentions and the manner in which a siege is enforced can vary, and the legal evaluation can be influenced by shifting facts, such as the provision of humanitarian aid and negotiating humanitarian corridors. The use of sieges by Hamas and the responsibility for civilian deprivation remain contentious issues with significant implications for international law.
Matthew Waxman, Liviu Librescu Professor of Law at Columbia Law School, joins the show to talk about what’s lawful on the battlefield, what’s not, and how the laws of war apply to Israel and Hamas.
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Times
• 01:49 Introduction
• 02:25 What is the law of war?
• 05:05 How does it all work?
• 08:15 What does it matter?
• 11:06 A rule of law society
• 12:16 10/7
• 15:14 Military necessity vs humanitarian interest