Tom Dannenbaum is interviewed in the NPR – A look at the laws that govern urban warfare in Gaza and beyond

A look at the laws that govern urban warfare in Gaza and beyond

November 1, 2023 4:25 PM ET

Heard on All Things Considered

By Linah Mohammad, Kathryn Fox, Mary Louise Kelly

Transcript

NPR’s Mary Louise Kelly speaks with Tom Dannenbaum, who teaches international law at Tufts University’s Fletcher School of Law and Diplomacy, about the law of armed conflict in the Israel-Hamas war.

MARY LOUISE KELLY, HOST:

In its war against Hamas, Israel continues conducting airstrikes in Gaza. And we’re going to focus now on questions raised by one – a strike yesterday that caused significant damage to the Jabalia refugee camp just north of Gaza City. The Israeli military has confirmed it was responsible, saying the area was a Hamas stronghold that included underground tunnels and a command center and saying they were targeting a Hamas commander there. The health ministry in Gaza says the strike caused a large number of civilian casualties. So what are the rules of war that might apply here? Tom Dannenbaum is associate professor of international law at the Fletcher School of Law and Diplomacy. Welcome.

TOM DANNENBAUM: Thank you very much, Mary Louise.

KELLY: So I know there are entire tomes and law school classes designed for this, but just – can you briefly walk us through, what are the key laws that might apply to an incident like this in a densely populated urban area?

DANNENBAUM: Yeah, there are a set of rules that one has to comply with in this kind of situation. The first is the rule of distinction, which means targeting military objectives and not civilians or civilian objects; second, the prohibition on indiscriminate attacks, which is to say that one has to have a discrete military target, not target an area in which there are military objectives but also civilian populations and civilian objects; third, that one has to take adequate precautions, which is to say do everything feasible to minimize the expected civilian loss of life, injury and damage to civilian objects; and finally, not to engage in the attack at all if the civilian loss of life, injury or damage to civilian objects that would be expected from the attack would be excessive in relation to the military advantage that the commander authorizing the attack anticipates from that attack.

KELLY: Who makes these laws?

DANNENBAUM: These laws are codified in various treaties going back to the Geneva Conventions and updated in the additional protocols to those conventions in 1977. But also they are embedded in what’s called customary international law, which is the practice of states understood by those states to be legally determined, which is reflected in how states articulate these rules in their military handbooks and in other expressions of their understanding of the law.

KELLY: And then the follow-up question – who enforces these laws?

DANNENBAUM: Well, there are various ways they can be enforced. They can be enforced by domestic courts, either within the state that is engaged in a particular action or, indeed, in any other state. And additionally, in this particular context, the International Criminal Court has jurisdiction over any war crimes occurring on the territory of Gaza. And that includes, in this particular context, the crime of engaging in a disproportionate attack, an attack where the expected civilian loss of life or injury or damage to civilian objects would be clearly excessive in relation to the military advantage anticipated.

KELLY: There are a whole lot of details about this incident yesterday that we don’t yet know, that – we’re trying to pin down exactly what happened, where, how many people were injured or killed by this. But we do know Israel says, look, we have been warning civilians to leave this area, Northern Gaza, and Israel also says, we have the right to defend ourselves. From a legal perspective, how much weight do those defenses have?

DANNENBAUM: The first thing to say is that acting in self-defense doesn’t justify acting without constraint. The law of armed conflict, including all of the rules that I mentioned earlier, apply as much to the actor engaged in self-defense as any actor engaged in aggression. Both are restrained by the same set of – the rules on the conduct of hostilities. The second thing to say is, with respect to warnings, issuing warnings can be part of the required precautions that I mentioned – taking all feasible measures to minimize civilian harm that would be expected from an attack. But complying with the rule on precautions does not itself relieve the duty to comply with the other rules.

KELLY: And again, with the caveat that there’s a lot we don’t know about what happened yesterday, I’m curious, for someone with your background, as you followed news of this incident, what are the questions that spring to mind?

DANNENBAUM: Well, the biggest question that springs to mind is, what exactly did they expect in terms of the civilian casualties? They seem to be very high for the targeting of a single commander. The second question is, who was that specific commander? What was the specific military advantage anticipated from taking that individual out? And the third question that I think is worth bearing in mind when making the proportionality calculation or performing an analysis of proportionality is, would the same decision have been made were the civilians that were harmed in this particular context Israeli civilians? Civilians are protected as civilians, regardless of nationality, regardless of the party with which they are associated. Would the commander justify this attack regardless of the identity of the civilians and instead recognizing them as having value inherent to their humanity?

KELLY: Tom Dannenbaum, associate professor of international law at the Fletcher School of Law and Diplomacy, thank you so much for your time.

DANNENBAUM: Thank you very much.

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