Virtual Media Briefing: International Law and the Humanitarian Crisis in Gaza

The Council on Foreign Relations hosts experts to discuss recent developments on the humanitarian crisis and to analyze the laws of war and human rights in Gaza. 

FROMAN: Well, welcome, everybody, to this media briefing on “International Law and the Humanitarian Crisis in Gaza.” My name is Mike Froman. I’m president of the Council on Foreign Relations.

I’m delighted to be joined today by Steven Cook, senior fellow here on Middle East and Africa studies; David Scheffer, also a senior fellow at the Council on Foreign Relations; and Sarah Yager, Washington director of Human Rights Watch.

Let me start with a few questions and then we’ll open it up to all of the—all of the participants. And perhaps, Steven, I’ll start with you for an update on what we know is that—what we know or what we have learned is going on on the ground that relates to the humanitarian element of this crisis.

COOK: Yeah. Thanks very much, Mike. It’s a pleasure to be here with all of you.

There’s a lot that’s going on in the theater right now. I will address some of the issues relating to the north and U.S. military activities, but let me just drill down on what’s happening in Gaza.

Over the weekend and a couple days leading into the weekend, there was lots of discussion about al-Shifa Hospital and other hospitals that the Israelis had surrounded, al-Shifa in particular with armor, and telling people to evacuate from al-Shifa Hospital; the Israelis, obviously, claiming that Hamas has command bunkers within and beneath the hospital. And they have focused a very significant amount of their military attention on this hospital in particular. I’ll note that the U.S. intelligence community has said that Israel’s intelligence on this is credible, which my understanding is, is that there is moderate confidence—medium-level confidence on the part of the U.S. intelligence community that what the Israelis have is good, without necessarily corroborating that evidence themselves.

And so, you know, quite obviously, that has been—we’ve—if you were at all paying attention to the news over the weekend, very significant humanitarian issues within the hospital. Not only are there very sick patients within the hospital, but people are seeking refuge within those hospitals, because either they know or they’ve been told that those hospitals are at least supposed to be out of bounds in terms of military operations, which does not seem to be happening. Just not—about a short time ago, there was reports in the Israeli press that at another hospital in Gaza—al-Quds Hospital in Gaza—Israeli forces came under fire from a terrorist group using RPGs and light arms, and that the Israelis were returning fire on that hospital. So this is, obviously, a very, very significant challenge on the humanitarian front, differing interpretations of international law, which I’ll leave to David and Sarah.

Other things that are happening within the area is this morning a report that an Israeli civilian and a number of Israeli security personnel—the security personnel were injured and there was a civilian killed along the northern border as a result of Hezbollah anti-tank fire across the border. There were—Hezbollah fired deeper into northern Israel than there has been over the course of the last now five weeks. And there is real concern that this tension is going to lead to a full-blown military confrontation between Hezbollah and Israel. Israel’s minister of defense, Yoav Gallant, has said that, quote, “What we’ve done in Gaza we can also do in Beirut,” which was seen as a warning to Hezbollah that its headquarters would come under withering assault.

And then, finally, the last thing we know, the United States understood airstrikes against IRGC facilities in Syria. This is the first time that we have actually directly struck IRGC facilities rather than affiliated forces in Syria.

That’s where we are. There is—there was some discussion of hostages over the weekend, but Israeli Prime Minister Netanyahu and his Security Cabinet clearly believe that the military pressure is the best way to relieve—is the best way to gain some leverage over the hostage situation, although as these Israeli military operations are unfolding it seems clear that the hostages are not the primary objective any longer, if they ever were.

I’ll leave it there. Thanks very much, Mike.

FROMAN: Thanks, Steven.

Sarah, let’s go to you now. I want to talk broadly about the humanitarian crisis in Gaza, but clearly it’s the hospitals that are front of mind at the moment. First, is it—is it consistent with international law for Hamas to site their command structures in or under a hospital? And I understand there actually may be a distinction in international law between whether they’re operating inside a hospital or under a hospital and what rights that gives Israel to attack.

YAGER: Sure. So parsing through all of this in international law is—it’s very contentious, actually, at the moment because there are lots of people on different sides and some of this is still under debate.

So hospitals deserve special protection under international humanitarian law, the laws of war, which is how this conflict should be fought. When an armed group occupies a hospital and is attacking their enemy—so if Hamas was in the hospital attacking the IDF, the—oh, this gets so tricky; I want David to come in on this in a minute—(laughs)—the hospital still maintains its special protections. You still have to be proportionate. So you have to care about all of the civilians that are in there. If Hamas is underneath the hospital—and again, this is a matter of some debate—it is not actually then using the hospital in order to at that moment attack the IDF. So this becomes sort of split-second decisions and is, again, very contentious.

FROMAN: But does Hamas have no obligation to the patients and doctors of the hospital to not be operating there?

YAGER: Absolutely. Hamas should not be located in or near a hospital, heavily populated areas. But the hospitals in particular deserve special protection.

FROMAN: And that protection, is it—it’s from, I imagine, indiscriminate aerial bombing, but is it also from shooting into the hospital if you’re being shot at from a hospital? Or is it from having your electricity cut off, as it’s being cut off for much of Gaza, with implications for the patients there?

YAGER: Sure. In that case, cutting off the fuel, the water, the food, that, Human Rights Watch has found, is a war crime—and especially in the case of the hospitals, which we now see shutting down and patients unable to receive any kind of care. So, again, there are special protections. And you do not want to see, as Jake Sullivan said over the weekend, this fighting in and around the hospitals. That should be verboten.

FROMAN: David, is Hamas subject to the laws of war? Are they subject to following what is considered to be permissible and impermissible rules of war? You’re on mute, David.

SCHEFFER: Yes, I can make a fairly broad statement about that and then get specific if you wish, which is, namely, that Hamas is what we regard in international law technically as a nonstate actor, which may lead some to think, oh, then they don’t really have to comply with laws that apply to states. Wrong. As a nonstate actor, they have to comply with international humanitarian law and the customary international law features of international humanitarian law. They can’t take a pass and say that because they’re not literally the state of Palestine that they don’t have any obligations under law. They have lots of obligations under law as a nonstate actor.

So everything they did in Israel on October 7, illegal. Everything they do in Gaza which violates the law of war, international humanitarian law, illegal. And so using the hospital and the civilians within it as essentially human shields, or using hostages as human shields, illegal.

Now, that being said, the response from the Israeli Defense Force, obviously, has to comply with law as well. Israel is a nation-state. It has an organized military. That military is designed to comply with the law of war. It’s supposed to follow that doctrine. It has its law-of-war manuals.

But when you get down to this particular issue, Mike, of the—of the hospital, then you’re really looking at what the field commander on the site can determine can be done legally with—in response to Hamas firepower coming from the hospital. He clearly cannot order a tank to just blow apart the bottom floor of the hospital because the civilians are all there. You just cannot do that. You have to take a risk. The soldiers will have to take a risk.

FROMAN: Even if you’re being—even if you’re being shot at from the entrance of the hospital or RPGs coming at you.

SCHEFFER: Yes, because—unless your intelligence tells you that there are no civilian patients left in the hospital. Then go for it; hit Hamas if they’re firing at you. But of course, we know that the civilians are in there. There are patients in the hundreds, if not thousands. So you can’t—you know, I would just say as a lawyer you cannot just order your tanks to blow apart the bottom floor or the second floor of the hospital in response to even anti-tank weaponry being used against your tanks. But at the same time, you have to figure out how can you confront that firepower with some kind of ground assault that gets at that Hamas without endangering the civilians or even a different tactic, which is not necessarily to return fire at all but to find some other strategy that can be used to neutralize the Hamas fighters. And you know, I’m not a—I don’t want to be an armchair general. I think everyone has to recognize that whatever those strategies are, the commander at the site hast to be aware of them and be aware at all times of his or her duty to comply with international humanitarian law.

FROMAN: Sarah, did you want to jump in on it?

YAGER: Yeah, just at two-finger on that. So what the strategy is that David is talking about that is not, for example, bombing a hospital—because that would be illegal, disproportionate—it’s transferring the risk from the civilians to the IDF soldiers. So the alternate strategy is that the IDF gets in there, fights with Hamas possibly face to face, but uses other kinds of strategies. And that, of course, is something that we have seen, I think, the IDF not necessarily want to do. But if they are going to abide by IHL, by the letter of the law, that’s something that they’re going to have to consider.

And I would also say, as the non-lawyer to David’s lawyering, that there’s a question of can versus should. So there are some things that are legal that the IDF could be doing, but I think it also has to consider how it is looking to the world and in the headlines when hospitals are being bombed.

SCHEFFER: And, Mike, if I may, just—I actually want to amplify what Sarah has said because it’s kind of a larger point I wanted to make at some point during this hour, which is that as you look at the Israeli Defense Force operations week by—day by day, week by week since October 7, you can clearly reach sort of—you know, sort of de facto legal judgments as to, yes, they have the right of self-defense; and, yes, they can cross the border into Gaza; and, yes, they can bring tanks in and they can attack certain buildings that might pose a threat as they move forward as long as they’re considering issues of distinction, proportionality, et cetera. But now we’re in, I think, Steven, the fifth week—is that right?—of this conflict.

COOK: Correct.

SCHEFFER: And Sarah’s point is one worth emphasizing. At some point, you have to—even on a military basis, you can’t just say every day what I’m doing is legal because at some point what you’re doing can have a much larger reverberation in terms of the future of the state of Israel, the whole region, the political scenario that is unfolding, such that you’d have to make new calculations as each week goes by as to: Well, how many civilians in total are dying? How much of the civilian property in Gaza is being destroyed? I mean, at some point there’s a different calculus that you have to start to take.

COOK: I would suggest, just to get my two fingers in there, Mike—one second—that the Israelis aren’t really at that point yet; that they have not—now five weeks in, they have not yet made that calculation that the destruction that they’ve wrought is something that require—and how they’re adhering or not adhering to international law is not something that they have to recalculate. In part, that’s not just a function of the War Cabinet and their calculations; it is the larger Israeli population and what their demands are. And their demands remain the destruction of Hamas however that is going to be accomplished.

FROMAN: David, are the—are the basic principles that everyone should keep in mind the distinction between combatants and civilians, and proportionality? Are those the two basic principles of the rule—the law of war, or are there others that—

SCHEFFER: There are two other primary—yeah, there are two other primary ones, which is military necessity; that what the IDF is doing on the ground in Gaza and through airpower, that those strikes are actually necessary to achieve a credible military objective, and that they’re not just gratuitous hits, you know, at the Gaza population or its—or its property.

And then, finally, there’s a principle that comes under various guises, but I like to just call it the principle of humanity, which goes all the way back to something called the Martens Clause in the early part of the twentieth century, when we didn’t have all of the complexity of international humanitarian law established yet but there was a particular clause and a particular treaty that said, when you take military action you keep the fate of humanity at the forefront of your mind when you do that. And that’s called the Martens Clause, M-A-R-T-E-N-S, and that is—that is one of those four pillars. And the military often talks about it as we fight with honor, which in their—in their terminology is essentially we fight in the interest of humanity. I mean, that’s theoretically what it should mean. So it’s those four pillars.

FROMAN: As a war, there’s always collateral damage, unfortunately. And we’re now seeing, what is it, ten thousand people killed in Gaza, many of whom are noncombatants. How do we think about the calculations? Stepping back from the hospital for a moment to the broader Gaza operation, how do we think about how it’s being prosecuted and how Israel may be trying to make those assessments along those four lines as it takes action each day?

SCHEFFER: Well, this goes a little bit back to my prior answer in that Israel, like it or not, is responsible for how it made decisions day by day, airstrike by airstrike, ground force movement by ground force movement into Gaza. In other words, I hope Israel is documenting all of this, day by day, because at some point there will be a lot of questions about, well, wait a minute; on day thirty-three, you did the following. And they need to be able to document what was their calculation, what was the justification for it.

Now, it could be that after all of that is tabulated sometime in the future, ten thousand civilian deaths in Gaza can be demonstrated to be within some sort of legal parameter, of legal conduct. For those of us watching all this now, the number ten thousand or eleven thousand is an incredible number to absorb and assume that it’s all been done in accordance with international humanitarian law. So all I’m saying is it’s a little hard to say right now.

And I know that some groups do this. You know, they’re quick to sort of reach judgment on what character of—or that criminal conduct is underway in Gaza. But I would say that—I’m a little more interested as a lawyer to know strike by strike, event by event. However, as I say, after four weeks of this Israel, to be smart about it, actually has to start looking at this from a slightly different perspective in terms of the totality that is being racked up.

FROMAN: Got it.

Is it the case, in fact, that at the end of the day, whatever judgments are made, that Hamas is subject to the International Criminal Court and Israel is not?

SCHEFFER: Yeah. I mean, Sarah, you may want to jump in on this, but I can definitely jump in on this. Hamas is part of the state of Palestine, whether it likes it or not. In fact, it was the—it’s been the de facto governing authority in Gaza since 2007, when it was democratically elected to be such. It simply cannot—there is no basis for it to say that it is not associated with the state to which it is a member, as citizens—as just nationals. The state of Palestine is a state party to the International Criminal Court. Even though the state of Palestine is not recognized by a number of countries, including the United States, et cetera, it does have non-member observer status at the United Nations. It has participation in the International Criminal Court as a state party. The court has full jurisdiction over everything Hamas does both in Israel and in Gaza, and anywhere else in the world it wants to operate, because its nationals are covered.

Israel is also covered in terms of what it does on Gaza territory. It will be subject to the scrutiny of the International Criminal Court. What Israel does on Israeli territory, on its own territory, the prosecutor probably would not seek jurisdiction over that. But he definitely would argue jurisdiction over what the IDF is doing in Gaza at this time, because it’s the territory of a state party of the ICC.

FROMAN: Sarah, did you ever want to come in on that?

YAGER: Yeah. I mean, I’ll say I think everyone is concerned about justice and accountability in this case, no matter which side you’re coming down on. And, of course, Israel has gained a lot from international justice in prior decades, but has also been working against, for example, the ICC and the investigation that it has opened on Palestine. And so I think the question here is, which way does Israel want to play this? And how are they going to go about justice and accountability for what happened on October 7^th, beyond the current military operations that it’s doing? And that’s where David’s point about keeping the evidence, keeping the decision logs, keeping here’s why we made this attack, here’s where our proportionality came down on this calculus, is essential if it actually wants to prove that this was an operation that was conducted under IHL.

And I will say, that in Ukraine and in Sudan over the past year, the United States government has helped set up observatories. So these are basically collections of civil society groups and others who are documenting war crimes, violations of IHL, on both sides in Sudan and in Ukraine. That kind of thing, we haven’t heard a peep about it for this conflict. But that’s the kind of thing you need to seek some sort of justice and accountability afterwards. So I’m hoping to see some of those efforts. Of course, Gaza, in this case, extremely hard to get into. Human Rights Watch is doing a lot of research by satellite, by phone, by video, and images. But that’s the kind of thing we’re going to need.

SCHEFFER: Can I add one thing to that, Mike? Or do you want to move on?

FROMAN: Sure, and then let’s open it up for questions. Go ahead.

SCHEFFER: I was just going to add that a situation similar to what may confront Israel, which I think Israel probably when it’s confronted—when it’s approached by the ICC prosecutor, it may be rather resistant in providing information to the prosecutor. But I would just harken back to 1999 and the Kosovo conflict, when the prosecutor of the Yugoslav War Crimes Tribunal suddenly reported that she was looking into about twenty-eight instances that she felt NATO had crossed the line in its bombing of Serbia, and that she would be look—she was investigating that.

Well, this, you know, sent everyone into trauma in Washington that the Yugoslav Tribunal, which we had had a central role in building, was now investigating our NATO aircraft and those of our European colleagues in the NATO operation in terms of these twenty-eight hits on Serbia. And it was a fascinating exercise, Mike, because it took people—I mean, I got deeply involved with it, in terms of convincing people, look, just demonstrate to the prosecutor your decision tree in making each strike. And if you do that, she will back off. And she did. Now there was some criticism that we didn’t provide enough information, but at the end of the day the prosecutor decided she had enough information to determine that it was not worth pursuing the United States or Denmark or Britain or others who used their aircraft in Kosovo on allegations that we were hitting civilians disproportionately to military objectives.

FROMAN: Got it. Thank you. Emily, let’s open it up for questions, please.

OPERATOR: Perfect.

(Gives queuing instructions.)

Our first question will come from Rachel Oswald.

Q: Hi. Thanks for doing this. I’m a reporter with CQ Roll Call, covering Capitol Hill.

I’d love to get the perspective of the panelists about what you think this all means for lawmakers who are currently contemplating approving over $14 billion in security aid for Israel. What do you want to see attached? Do you think—I mean, do you think there is any potential future where the U.S. continued military support for Israel if it is determined that this is—that strikes are happening disproportionate of IHL requirements? Like, what is the U.S. role in all of this? Thank you.

FROMAN: Steven, you want to start there?

COOK: Sure. And once again, let me say that, you know, international law is not my area of expertise. But having watched Congress and the U.S.-Israel relationship for as long as I have it, I find it hard to imagine, at least in the current crisis, that any supplemental aid to Israel will have any kind of conditions attached to it. Of course, there was a letter that went from a number of members of Congress—senators—Democratic senators—asking the Biden administration to clarify what their ideas and what they’re—what they are talking to the Israelis about their strategy for victory, and what that looks like. But they did not indicate that they would condition any aid to Israel.

Now, down the road, the politics of Israel is certainly changing in the United States. Down the road, one can imagine the conditionality of aid. Two major presidential candidates during the last cycle proposed it. They didn’t win. But, of course, as I said, there is always the possibility, given the changing nature of the politics of Israel and the United States, as well as whatever the outcome is of any investigation into Israel’s conduct during war. Although, going back to David’s answer to Mike’s previous question, I think it’s highly unlikely that the Israelis are going to cooperate with the ICC on any investigation, believing that the ICC has likely come to a conclusion. I’m not saying that I believe this, but I’m saying that the Israelis believe that the ICC has come to a conclusion before it even investigates.

The Israeli psyche right now is that the world is against them and that they have to do what they need to do in order to destroy Hamas so that they can live in security. That doesn’t lend itself to cooperating with any external investigation. And I think that if there’s one thing that Congress agrees on right now, it’s bipartisan support for Israel at this moment. Down the road, I think it’s a very serious and open question about the aid relationship.

YAGER: Can I jump in on this, Mike?

FROMAN: Yeah, please.

YAEGER: Yeah. So, again, I think this is another can versus should situation. And what Steven is talking about is very relevant, of course, in Washington, which is the politics of the situation. There’s also the legislative laws, domestic U.S. laws and policies, that govern arms transfers and security assistance. And many of those laws and policies contain specific conditions that say if a partner, for example, Israel, has violated international law, or risks violating international law, with the weapons, arms, or funding that the U.S. is giving it, then the U.S. should be putting either more conditions on it or suspending it.

And that’s the Conventional Arms Transfer Policy of 2023 in February that the Biden administration just included. There is the Arms Export Control Act. There’s the Foreign Assistance Act. There’s the Leahy laws. All of these things have really not been applied to Israel over the course of decades, and especially since the memorandum of understanding in 2016. And so congressional oversight is really lacking in this way. And I’m hoping that, as Steven was talking about, the politics of this are changing such that there will be more oversight, at the very least.

FROMAN: Got it. Next question.

OPERATOR: Next question will come from Robert Levinson.

Q: Hi. I’m Rob Levinson. I am the brand-new military legislative affairs assistant for Senator Butler of California. Up until the end of September, I was working for Senator Feinstein in the same capacity.

Quick question—and I apologize. I missed the first couple of minutes of discussion, so if you addressed it, I apologize. In terms of international law, what is—what is the view on the siege efforts of Israel in terms of, you know, this is cutting off electricity, water, power, food, those sorts of things? I’ve done some reading to try and figure out where that is, and it’s a little bit iffy. If you could—you know, particularly Sarah or David, sort of clarify what is permissible or not permissible in terms of cutting off and the impact of civilian population of those sorts of things? Thank you.

FROMAN: Sarah, you want to start off and then David?

YAGER: Sure. I’ll just be quick and then we can go to David to use the Latin expressions and phrases of the law. So Human Rights Watch has found that the siege, which is denying the population water, fuel, electricity, is a war crime. There is also the perspective that Israel is occupying Gaza, is an occupier and has been since 1967. Which means that it has special obligations to that population in order to ensure that they have what they need to survive. So that has been our view.

David.

SCHEFFER: Yeah. And there is debate—vigorous debate, as to whether or not Israel, in fact, is an occupier since 2007. If it is an occupying force, remember, it didn’t have any physical assets in Gaza after 2007. But if it were to be determined that it was an occupying force, then it comes under the full weight of the fourth Geneva Convention. And, interestingly, if you’re an occupying force, in some respects you actually carry more obligation to the civilian population then their local government under normal, peaceful conditions would hold towards their civilian population. You become sort of a super provider, if you’re an occupying military power.

It’s something that the United States and the United Kingdom had to confront in 2003 in Iraq, when they designated themselves as the official military occupying forces of Iraq. And the moment they did that, the rest of us said, OK, time to line up now and actually do a lot over the next year for the people of Iraq. So it’s a tough one. I would just say that—back on the issue of siege, international law is a little bit muddled on this in the sense that for a tactical purpose, if you’re acting in self-defense and you’re coming in and you’re confronting the enemy, and it’s a combat situation in an urban area, very short tactics, such as cutting off electricity for, you know, five, ten hours or something, or cutting off a particular food supply that you might think would get to Hamas and sustain them, short-term tactics of that character are not necessarily illegal.

The problem is, if you impose the siege for a long period of time, you’re definitely entering illegal territory. I mean, that’s illegal tactics if you’re—if you’re in this for the long-term on siege and starvation. You just cannot go there. The question is, was Israel smart in using this simply as a very short-term tactic to achieve a military objective? Or did it do otherwise.

FROMAN: Thank you. Next question, Emily.

OPERATOR: Our next question comes from Ori Neer (ph).

Q: Hello. Thank you for calling on me.

My question is the following: It’s been suggested that civilians in the Gaza Strip are not innocent. That there is no such thing as innocent civilians there, because they allegedly support the militant groups, because they voted for Hamas in 2006, and because they’re not acting to depose Hamas. Regardless of the veracity of these assertions, what would international law have to say about these suggestions?

SCHEFFER: I can answer that very quickly. It’s still illegal to go after those civilians. I mean, even if they were sympathetic to Hamas, even if one is a mother of a Hamas fighter, knew that he was a Hamas fighter. You still can’t go after the mother. I mean, they’re all civilians. They’re not combatants. And in war, there is a pretty sharp distinction between the two. Obviously, if you’re a spy—if you’re in civilian garb as a spy, then you come under all the rules relating to, you know, capture and dealing with spies. But aside from that, I would say there’s—because there’s no way you can make that distinction on the battlefield, you know, between those civilians that acted with sympathy and those that did not.

The real problem is, how do you determine on the battlefield? And in this case, it’s the urban neighborhoods. They’re not—Hamas is not wearing uniforms typically. Although, when they attacked Israel on October 7^th, you noticed that there were they were wearing the black head covering, you know, with a little slit for the eyes. But back in Gaza, I don’t think that’s what’s happening. So it’s extremely difficult. But you don’t work from the presumption that the people, simply because they voted for Hamas, are somehow ripe targets for attack.

YAGER: I would say—

FROMAN: Say something about—I’m sorry, go ahead. Go ahead, Sarah.

YAGER: No, I would just also say, I see the word “innocent” a lot in the media. And I understand why we use it. It’s a shorthand. However, innocent seems to indicate that we can see inside of a person’s mind or heart. That has absolutely nothing to do with their status under international law, as David was just saying, You are either a civilian who is not participating in hostilities or you are a fighter who is participating in hostilities, and therefore you fall under different protections and different laws.

FROMAN: Thank you. Is there a notion of collective responsibility or collective punishment here?

SCHEFFER: Well, you know, I earned my spurs under Madeleine Albright in the Clinton administration. And she had very strong views on this, which kind of percolated with me as a close advisor to her. And that is that we’re not in the business of punishing collective bodies of people for these crimes. We’re in the business of identifying individuals who are responsible for orchestrating and executing these crimes of genocide, crimes against humanity, war crimes.

So, no, I don’t think there’s a collective responsibility that is the province of an international law concept. Obviously, the way Israel deals with Gaza and the Palestinian people, that’s a political dynamic that Steven can speak to in terms of, you know, what’s the psyche of the Israeli government in dealing with the Palestinian people. But from a lawyer’s perspective, they’re not supposed to be the target of some sort of collective punishment.

FROMAN: Great. Next question, Emily.

OPERATOR: Our next question is from Rita Feder. Oh, I think we just lost Rita. We’ll go to Rachel Oswald.

Q: OK. Thank you so much for a second question.

Could I have Sarah and David respond to some of these kinds of historical comparisons that are being made about, well, the U.S. and allies bombed Germany during World War Two and a lot of civilians died, and of course, the bombings of Hiroshima and Nagasaki. And so who are we to say we don’t do collective punishment? You know, because the Germans and Japanese public were supporting the war effort.

SCHEFFER: Shall I go first, Sarah? OK. I’ll simply answer that by saying that it’s not an appropriate comparison. On the facts of it, of course, hundreds of thousands of civilians died with the firebombings in Germany, the firebombings in Japan, and finally the atomic explosions. At the time, in the early 1940s, international law was not structured to literally designate such actions as illegal during wartime. Now, that being the case, it was also true that when we built the Nuremberg and Tokyo tribunals, we were very careful not to hold allied defendants in trial to test those theories. And that was victor’s justice in terms of building Nuremberg and Tokyo.

You fast forward seventy years, and the world has changed. Today, if the United States employs tactics that kill thousands and thousands of civilians—and, of course, we’ve seen this in the Iraq situation, the Afghanistan situation and, of course, Vietnam—then the United States should be scrutinized for that conduct. Those who were engaged in orchestrating torture after 9/11 should have been, frankly, brought to justice. And they were not.

So it is a different calculus today, but I think it’s kind of a—I don’t want to be—I don’t want to use this word callously. But it’s kind of a cheap shot to say, oh, well, you did all of this in World War Two, why can’t they do this now? No, that’s not really the calculus anymore. You know, Germany and Japan also committed vast slaughters of civilians, as you know, during that war. And the fact that only some of them were brought to justice but not the allies at that time doesn’t somehow sanction the legitimacy of those kinds of actions today. It’s just not an apt comparison, although it’s historically very, very interesting.

FROMAN: Sarah, did you have any on that, before I turn to Steven?

YAGER: Yeah. I’ll just say that the whole point here is that the horrors that were experienced during the Second World War led to an evolution in how we think about fighting war. And that is the lesson to take from those experiences. And just sticking with the lessons, I’ve heard a lot about counterterrorism, defeat of ISIS, and how that is related to what’s happening in Israel-Gaza. And I think—I think people, including U.S. officials, are maybe taking the wrong lessons from that. And I’ve worked on civilian harm over twenty years in these counterterrorism operations. And the lessons that I take from it is not that ISIS was defeated. It was not. It's not that these military operations that the U.S. and its partners carried out were so precise. They were not.

It’s rather, the missteps and the mistakes that were made, those are the lessons that I take that should be being conveyed to the IDF. Including, when you have an urban battle like this you have to work harder, you have to plan harder, you have to keep that evidence, you have to make your case. And otherwise, you are risking anger and resentment. And, in fact, not just risking it at this point, but quite a lot of the world is extremely upset about what they’re seeing. And so, you know, in terms of the strategy of what Israel is doing here, it might actually be undermining their end goals. And that’s exactly what we saw happen with the U.S. military in Iraq, Afghanistan, and elsewhere.

FROMAN: I should note that Sarah has a recent piece out in Foreign Affairs magazine on what Israel can learn from America’s counterterrorism missteps, if you want to get into that in further detail.

Steven, you had your hand up.

COOK: Yeah. I just wanted to follow up a bit on the—Ori Neer’s (ph) question, and then the piece of it related to Rachel Oswald’s question. Which is this question of civilians. I mean, obviously, we’re focusing on this issue of civilians in the Gaza Strip. And there were statements by Israeli ministers stating that, you know, essentially civilians in the Gaza Strip support Hamas, therefore they’re legitimate targets. And, of course, you know, that deserves all kinds of criticism. But that’s precisely the perspective that Hamas takes with regard to Israeli civilians as well.

Let’s be clear, that Hamas, it’s theoreticians, all believed that Israeli Jews, who served in the IDF, are all legitimate targets, not just those who are eighteen to twenty-one years old who are currently in uniform. That includes all Israeli civilians. And I think it’s important to recognize that this question of civilian deaths is something that is a strategy that is specifically being—that was specifically employed by Hamas on October 7^th. It has now come to the fore as the Israelis, obviously, are pursuing their operations in the Gaza Strip. And there have been 10,000 or more deaths as well. So it strikes me that this kind of international law back and forth over—the parties are clearly engaging in a conflict in which they’re targeting and using collective punishment against civilians.

FROMAN: Emily, next question.

OPERATOR: Our next question is from Rita Feder.

Q: I’m a student at Brown University and one of the organizers with Jews for Ceasefire, which is becoming more prominent on college campuses right now.

I’m curious about our impact on the U.S. government. The government has disproportionate influence over Israel’s attacks on Gaza, clearly. But Congress has kind of made it abundantly clear that they still don’t intend to call for a ceasefire. The Huffington Post recently wrote an article saying a staff person was quoted saying that several officers—several offices told staffers to let calls from constituents about ceasefire to go to voicemail. So I guess my question is, how do we, as American citizens, make our voices heard, when Congress is clearly not listening to their constituents?

COOK: Well, I guess that’s for me, I don’t—I don’t believe that the United States has disproportionate influence over Israel’s military operations. I think the—to the extent that Israel defines their military operations in existential terms, no matter what resources the United States really has to bring to bear, whatever the White House is communicating to the Israelis about how their operations are unfolding, is either half being listened to or not being listened to at all. We’ve seen this over and over again. Let me also point out that the administration is not in support of a ceasefire. I think Secretary Blinken was very clear about that when he said far too many civilians had been killed, but that the United States did not support a ceasefire. What individual members of Congress are doing with regard to their flood of calls from constituents, I think, I really can’t speak to it.

FROMAN: Thank you. Emily.

OPERATOR: Next question is from Nora Boustany.

FROMAN: Go ahead, Nora. I’m afraid we’re not hearing you.

Q: Now—

FROMAN: Oh, go ahead.

Q: Can you hear me now?

FROMAN: Yes.

Q: When the comes to hold Hamas and the IDF accountable in international humanitarian law for equating combatants and civilians, does—or, do the statements that have been put out by either side factor into the way that they are brought to account? You know, Hamas has this, from the river to the sea. And then you have all these comments made by Israeli defense and political leaders about Israel has no choice but to render Gaza into a place that is temporarily or permanently not fit—unfit for the living. That was an advisor to Gallant. Or, Israel needs to create a humanitarian crisis in Gaza, compelling tens of thousands, or even hundreds of thousands, to seek refuge in Egypt, or the Gulf, et cetera. Or, remember what Amalek did to you. Do any of these statements carry any weight? My question is to Mr. Scheffer—yeah.

FROMAN: David. Go ahead, David.

SCHEFFER: I’ll take that first. Yes, they do carry weight. It’ll be a tactic in any trial of any leader in particular, or even if it’s a—let’s say, a national trial of the foot soldier or something. Those kinds of statements will be brought into evidence, and the individual will be asked: Did this statement of your leader influence you? Did this—did this influence your conduct in the field? I’ve strongly criticized a lot of these statements coming out of the Israeli government. They’re just way over the top. They verge on incitement, if not incitement.

And I’ve tried to argue that, could we please stop that, first? And then, secondly, it’s the Israeli Defense Force that should be very professionally speaking to the media every day, which I know it does through its spokesman, as to the tactics being used and the rationale for them. Because so many of these statements are, I’m afraid, incendiary in character. Now, that’s also true for Hamas. Let’s not forget that either. But I just think that Israel has the capacity to tone this down. Otherwise, the intentions of the Israeli government will be identified with these incitement statements.

YAGER: And that—the intention, I think, is a really important point. Because some of these violations of IHL depend on intent. They don’t just depend on actions. And so for example, human shields. Human Rights Watch has not found that Hamas is using human shields. That doesn’t mean that they’re not, it’s simply that actually intentionally using civilians as a shield requires that intention. And so that’s going to be difficult to find in this particular moment. But those kinds of—that kind of rhetoric, those kinds of phrases, the things that have come out can be used afterwards to figure out what the intent was of the commanders.

FROMAN: Emily.

OPERATOR: Next question, back to Robert Levinson.

Q: Hi. Thanks for taking my second question.

In terms of the question—and I think you’ve touched on a little bit, but I wanted to clarify—in terms of question of proportionality, you know, David, you mentioned the accountability for each strike and each decision made for each strike, and the target, and some sort of proportionality calculation being done to military necessity versus the potential for harm to the civilian population. Does the—does the macro goal—in other words, and I think Steven mentioned how if Israel regards the threat from Hamas as existential, and Hamas is—certainly some of their writings and statements indicate that that indeed is their intention. Not just a tactical objective but the destruction of Israel and its Jewish population, et cetera. Does that figure into a proportionality calculation in terms of military necessity? In other words, if I’m trying to defeat an existential threat, does that change it from, you know, some tactical calculation per strike, as such? Or is that really not a factor?

FROMAN: David.

SCHEFFER: Well, I think that’s a very, very good question, because military necessity is one of the pillars of consideration. But I would rather argue that the military necessity weighs in favor of the IDF confronting Hamas and, shall we say, neutralizing or eliminating it to the greatest extent possible, as opposed to those statements by Hamas and military necessity sanctioning some kind of rather disproportionate hit on civilians. I just don’t think that’s the calculus that you arrive at. I think it does help you argue the case that Israel, if it wanted—if you want to argue this case—that Israel should keep at it against Hamas in order to deal with that military necessity of eliminating it. But I don’t think it bleeds over into—if I may use that term—bleeds over into a disproportionate hit on innocent civilians. That’s not where you go with your analysis.

FROMAN: Great. Emily, any other questions?

OPERATOR: Yes. We have a question from Melinda Aarons (sp). And I think we might have just had—we might have just lost that one. Oh, we have—oh. Sorry, they keep popping up. No other questions right now?

YAGER: I can expand on that—on the last question.

FROMAN: Yeah, go ahead.

YAGER: I think it’s—David’s right. It’s a really interesting question. And we’re getting it quite often, is that doesn’t proportionality change when you’re in some sort of existential fight, when the fight, you believe, is more important, or when you’re fighting for self-defense? And I think there’s two different things here that are being conflated. One is the reason to fight. What is the reason to go to war, to have a conflict? And that is the self-defense. That is what Israel is saying. We are going to war because of self-defense. The proportionality is under IHL when you are actually in that conflict, and that is strike by strike. So you’re not looking at the entirety. You’re not saying that your proportionality calculus changes because you have a stronger reason to fight, because you are on a better moral basis. It is still strike by strike. And I would agree with everything that David said about it being weighed towards civilians and their protection.

FROMAN: Great. Thanks very much, everybody. Thank you, Steven, Sarah, David for participating. Thanks to everybody who called in and who asked questions.

The video and transcript of this briefing will be up on CFR.org in the very near future. And we look forward to continuing to bring you programming on the evolving crisis in the Middle East, in Foreign Affairs, on CFR.org, and through these press briefings, as well as our various convenings. And look forward to your feedback along the way. Thanks very much for joining us.

COOK: Thank you.

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