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What the rules of war say about Israel's attacks in Gaza

SCOTT SIMON, HOST:

The war between Hamas and Israel will soon enter its fourth month, and the destruction in Gaza is staggering. The war began when Hamas attacked Israel on October 7. There are calls around the world for a permanent cease-fire, including the United Nations, and pleas for a way to get more humanitarian aid into Gaza. About 1,200 people were killed in that Hamas attack on Israel. Two hundred forty hostages were taken. As we speak this week, Gaza health officials say that 22,000 people have died there.

We're joined now by David Scheffer. He is a former U.S. ambassador-at-large for war crimes issues in the Clinton administration, and he helped create the International Criminal Court. He's also a professor of practice at Arizona State University and a senior fellow of the Council on Foreign Relations. He's here in our studios. Ambassador Scheffer, thanks so much for being with us.

DAVID SCHEFFER: It's a pleasure to be with you, Scott.

SIMON: Are there any international laws that sort of draw a line and say, you can inflict as many casualties as you lost, or twice as many, but then no more?

SCHEFFER: No. International law has no such precise delineations within it. And it's one of the paradoxes of what we see unfolding right now in both Israel and the Gaza Strip in that international law can give you some fairly precise guidelines when you're using military force legitimately, such as in self-defense, as to how far you can go, target by target, with the use of that force, but not to the extent of giving you metrics. It gives you principles to work with, such as your use of force must be proportional to the military advantage that you're trying to seek, so that you don't kill an unnecessary number of civilians. It must be used against targets that are of necessity in a military campaign.

You have to distinguish between civilians and the combatants, and you have to work that out in terms of a really subjective judgment. Does international law instruct us - how far can you go in Gaza in terms of destruction of property and civilian casualties? Doesn't international law give us some guidance that should be informing how Israeli Defense Forces are strategizing this attack? We don't really have that guidance. And that, I think, is a weakness in international law that we don't sort of have those guardrails.

SIMON: I feel the need, I'm afraid, to put you on the spot. There are rules that apply to individual targets when, say, a hospital is struck, a school, a convoy, even if there are military assets inside the hospital or inside the school or hidden among - in the aid convoys. Is such a strike justified under international law?

SCHEFFER: Not necessarily. Again, it's a judgment call. For example, I think it was the Al-Shifa Hospital in Gaza where the intelligence seemed to be indicating that Hamas had some kind of command structure there, there might be some tunnels under the hospital. That would not justify an all-out attack on that hospital because hospitals are explicitly protected under international humanitarian law. But, of course, there's an exception. If the hospital, as a building, is predominantly used for military purposes and may have a very small amount of medical work going on inside the hospital and that military presence is a very important problem in terms of the combat that has to be engaged in with the enemy, then there can be a strike against such a facility because it's no longer really operating as a hospital. It's, rather, operating as a military command center. But even when you reach that decision, you have to be sure that you're qualifying it with a further judgment, which is, wait a minute, at the end of the war, if this building does not stand, this population has no hospital in that area at all.

SIMON: What about Israel's contention that it's up to Hamas not to put soldiers and military resources - not to mix them up with the civilian population?

SCHEFFER: Exactly. And Hamas acted utterly illegally on October 7. There's no question about that. They have - actually, in my view, Hamas has no right to self-defense. The only option for Hamas under international law is surrender. Otherwise, Hamas is in violation of international law.

SIMON: I have to ask you, what about Hamas' contention that their strike and their continued resistance is an act of liberation? To free themselves...

SCHEFFER: No. International law doesn't validate acts of liberation of that character. International law has a very fundamental principle called self-determination, which is an immutable, peremptory norm of international law. You can't say, oh, there's no self-determination. But the manner in which you seek self-determination for your people matters. You can't use any instrument, any tactic, any act of aggression to achieve that.

SIMON: Prime Minister Netanyahu says that Israel's goal is the elimination of Hamas. Is that the kind of goal that is practical?

SCHEFFER: Well, it's not practical to say that one is going to eliminate the ideology of Hamas. I don't think the Israelis literally mean that every Hamas militant needs to perish, but rather it's - has to be a far more sophisticated campaign of denying the legitimacy of the leadership of Hamas and scaling back Hamas' capability to actually launch military operations.

SIMON: Has this war revealed some of the limits of international law?

SCHEFFER: Yes, definitely. International law does not provide the metrics of how you reach judgments on the use of force. The other issue about international law that I think is lacking right now is we don't have a clear understanding of when you reach a breaking point on humanitarian suffering and a humanitarian catastrophe on the ground. In other words, when should you have some guideline as to where you reach that breaking point? I do think there needs to be a hard think on some revisions in international law, as well as essentially modernizing international law far more than we have.

SIMON: Ambassador David Scheffer, thank you very much.

SCHEFFER: Thank you.

SIMON: And for more news and analysis and for differing views on the conflict, you can go to npr.org/mideastupdates. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Scott Simon is one of America's most admired writers and broadcasters. He is the host of Weekend Edition Saturday and is one of the hosts of NPR's morning news podcast Up First. He has reported from all fifty states, five continents, and ten wars, from El Salvador to Sarajevo to Afghanistan and Iraq. His books have chronicled character and characters, in war and peace, sports and art, tragedy and comedy.