Gaza

Episode 39 – Dill & Haque on IHL and the IDF Conduct of Hostilities in Gaza

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In this episode Janina Dill of the University of Oxford and Adil Haque of Rutgers Law School return to the podcast to address the question of whether it is possible now, while hostilities are still ongoing, to assess whether some aspects of the IDF’s conduct of hostilities may be in violation of IHL. The question is germane because many argue that one cannot assess such violations until all of the evidence is available and has been analyzed, and we discuss why this may not be so. And the focus on the IDF, without delving into the violations of Hamas and Islamic Jihad, is justified because there is really no debate over the violations and war crimes committed by either of these – but there remains quite robust debate over whether the IDF is acting in compliance with IHL, and the issue is highly relevant now for countries that are supplying Israel with weapons. In the discussion we begin with explanations of the core principles of IHL, namely distinction, proportionality, and precautions in attack, as well as the treaty provisions that codify them, and how these are subject to interpretation. We also explore how the concept of intent, as well as the standards of evidence, should be understood differently depending on whether one is assessing collective violations of IHL or trying to prosecute individuals for war crimes, and whether one is considering the operation of law as an ex ante modifier of behavior, or as ex post mechanism for imposing accountability. We then dive into a discussion of some of the specific aspects of IDF conduct of hostilities, with a focus on strikes on civilian targets, and the use of indiscriminate weapons (or use of inappropriate weapons causing indiscriminate harm) in civilian areas, as well as how one should best understand the IDF’s use of warnings, the use of AI in targeting decisions, and the claims that Hamas is employing human shields. There is much to unpack, and there is much that we could not get to, but it is fascinating if sobering analysis.

Materials:

– Tom Dannenbaum and Janina Dill, “International Law in Gaza: Belligerent Intent and Provisional Measures,” American Journal of International Law, (forthcoming, 2024)(link to SSRN version).

– United Nations Human Rights Council, Human Rights Situation in the Occupied Palestinian Territory, Including East Jerusalem, and the Obligation to Ensure Accountability and Justice – Report of the High Commissioner for Human Rights, Feb. 23, 2024, U.N. Doc.No. A/HRC/55/28.

– United Nations Human Rights Council, Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, Including East Jerusalem, and Israel, May 27, 2024, U.N. Doc.No. A/HRC/56/26.

– Human Rights Watch, Gaza: Israelis Attacking Known Aid Worker Locations: End Unlawful Attack, Ensure Accountability, May 14, 2024.

– Amnesty International, Israel/OPT: Israeli Air Strikes that Killed 44 Civilians Further Evidence of War Crimes – New Investigation, May 27, 2024.

– Yuval Abraham, “‘Lavender’: The AI Machine Directing Israel’s Bombing Spree in Gaza,” +972 Magazine, Apr. 3, 2024.

– “Israel Defence Forces’ Response to Claims About Use of ‘Lavender’ AI Database in Gaza,” The Guardian, Apr. 3, 2024.

– Israel Ministry of Foreign Affairs, Hamas-Israel Conflict 2023: Key Legal Aspects, Nov. 2, 2023.

– John Ramming Chappell, “Key Takeaways from Biden Administration Report on Israeli Use of US Weapons,” Just Security, May 11, 2024.

Reading Recommendations:

– Yousuf Syed Khan, “The Directive to Evacuate Northern Gaza: Advance Warning or Force Displacement?,” Just Security, Oct. 19, 2023.

– Eliav Lieblich, “On Civilians’ Return to North Gaza: What International Humanitarian Law Requires,” Just Security, Feb. 12, 2024.

– Brianna Rosen, “Unhuman Killings: AI and Civilian Harm in Gaza,” Just Security, Dec. 15, 2023.

– Tom Dannenbaum, “The Siege of Gaza and the Starvation War Crime,” Just Security, Oct. 11, 2023.

– Mark Schack, “In Defence of Preliminary Assessments: Proportionality and the 31 October Attack on the Jabalia Refugee Camp,” EJILTalk!, Nov. 8, 2023.

– Janina Dill, “Our Shared Moral Horror,” EJILTalk!, Oct. 13, 2023.

Episode 35 – Tom Dannenbaum on Sieges, the War Crime of Starvation, and Gaza

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In this episode Tom Dannenbaum, a professor of international law and Co-Director of the International Law and Governance Center at The Fletcher School of Law & Diplomacy at Tufts University, discusses his work on the war crime of intentional starvation of civilians as a method of warfare. We begin with an analysis of the proper interpretation and operation of the prohibition on starvation as a method of warfare in International Humanitarian Law, as provided for in the Additional Protocols to the Geneva Conventions and customary international law, and how this prohibition applies in the context of an encirclement siege, and how it relates to military necessity and the principle of distinction. We then turn to his contribution to the discourse on the best interpretation of the criminal prohibition in the Rome Statute. This involves a discussion of how best to understand the term “method of warfare,” what precisely constitutes the actus res of the crime, what is the nature of the intent that is required, and what the underlying wrong is said to be – and Tom’s claim that the incremental and drawn-out process of starvation and deprivation, far from being a mitigating factor, is precisely what makes the crime distinct, and informs how we should think about the actions that are prohibited. Finally, we turn to discuss the issue of the current siege of Gaza, informed by this theoretical analysis of how the relevant IHL and ICL prohibitions operate.

Materials:

– “Siege Starvation: A War Crime of Societal Torture,” 22 Chicago Journal of International Law (2022).

– “Criminalizing Starvation in an Age of Mass Deprivation in War: Intent, Method, Form, and Consequence,” 55 Vanderbilt Journal of International Law 681 (2022).

– “The Siege of Gaza and the Starvation War Crime,” Just Security, Oct. 11, 2023.

Reading Recommendations:

– Naz Modirzadeh, “Cut These Words: Passion and International Law of War Scholarship,” 61 Harvard International Law Journal 1 (2020).

– Bridget Conley, Alex de Waal, Catriona Murcdoch, and Wayne Jordash, eds., Accountability for Mass Starvation: Testing the Limits of the Law (2022).

– Carsten Stahn, Justice as Message (2020).

 

Episode 23 – The Gaza Conflict

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In this episode I discuss the legal issues raised in the Gaza conflict of May 2021, with Professors Janina Dill of the University of Oxford, Adil Haque of Rutgers University Law School, and Aurel Sari of Exeter University Law School. The discussion begins by placing the legal issues in context, and addressing the question of whether the narrow focus on technical legal aspects may serve to obscure the broader ethical issues, or even facilitate and legitimate injustice. The analysis turns to the the questions regarding the legal authority or justification for Israel’s use of force, and whether its use of force complies with the limiting principles of whichever legal regime may govern. Turning to the conduct of hostilities, and using the attack on the Al Jalaa Tower (which housed Al Jazeera and AP) as a case study, we discuss the extent to which IDF actions complied with the principles of distinction, proportionality, and precautions in attack, debate the legal effect of warnings, and what burden there may be on belligerents to disclose evidence in support of their claims of lawfulness. A deep and sophisticated analysis of the issues.

Materials:

– Adil Haque, “The IDF’s Unlawful Attack on Al Jalaa Tower,” Just Security, May 27, 2021.

– Aurel Sari, “Israeli Attacks on Gaza’s Tower Blocks,” Articles of War, May 17, 2021.

Recommended Reading:

– Ayel Gross, “The 2021 Gaza War and the Limits of International Humanitarian Law,” Just Security, Jun. 1, 2021.

– Eliav Lieblich, “Dispatch from Israel on Human Shields: What I Should’ve Said to a Dad on the Playground,” Just Security, May 18, 2021.

– Noam Lubell and Amichai Cohen, “Strategic Proportionality: Limitations on the Use of Force in Modern Armed Conflicts,” 96 International Law Studies 160 (2020).