The Lawfare Podcast: Israel, Gaza, and the Law of War

[Introduction]

Gabor Rona: A party to an armed conflict not only has the obligation to distinguish between combatants and civilians, between military objectives and civilian objects, not only has an obligation to refrain from attacks even against military objectives, if the anticipated civilian harm would be disproportionate to the military advantage gained, but even if an attack is being directed against a military objective, even if the anticipated civilian harm is not disproportionate, there is an additional obligation to minimize civilian harm through the concept of precautions.

In its attacks in Gaza, Israel has an obligation to conduct attacks in such a way that minimize civilian harm.

Natalie Orpett: I'm Natalie Orpett, Executive Editor of Lawfare, and this is the Lawfare Podcast, January 4th, 2024. The conflict between Israel and Hamas is provoking heated debates about which side is in the right.

Each accuses the other of things like war crimes. Oftentimes they're expressing a political or moral judgment. But the fact is, these are also legal terms. So for this discussion, we're going to take a step back from the debates and try to take a dispassionate look at the law that applies here, international humanitarian law, or IHL.

To do that, I sat down with Gabor Rona, who previously served as the legal advisor for the International Committee for the Red Cross. We talked about what IHL has to say about the most heated debates of this conflict, including the high number of civilian casualties in Gaza and Hamas’s use of human shields.

We talked about the gaps in the law. And we talked about whether the law even matters here. It's the Lawfare Podcast, January 4th, 2024: Israel, Gaza, and the Law of War.

[Main Podcast]

We are in a moment in time when everyone likes to become an armchair law of war expert, and I wanted to invite you on because you are in fact a law of war expert.

I'm going to be referring to it as IHL, which for those who are not super familiar with this, area of law is international humanitarian law. It's equivalent with law of war. So I wanted to talk with you about what the law actually is surrounding a lot of the questions and major points of contention and debate that are coming out of the current conflict between Israel and Hamas.

So to just get us started with some of the real basics here, can you talk a little bit about what the distinction is in IHL between jus ad bellum and jus in bello and where we stand right now and how that matters?

Gabor Rona: Well, first, Natalie, thank you so much for giving me this opportunity to have this conversation with you.

As far as the ad bellum and in bello distinction is concerned, and listeners may be familiar with those two terms, maybe not, simply put the law of jus ad bellum is a bunch of legal requirements. more or less centered in the UN Charter, that describe the circumstances under which states are or are not allowed to use force in their international relations with other states. In other words, that's the ‘whether or not you can go to war’ provision. On the other hand, jus in bello, law in war is about the rules pertaining to the actual conduct of hostilities. That is what rules apply to when force is used in international relations.

These two are separate areas of international law. Technically, jus ad bellum, that's the UN charter stuff, is not considered to be part of the law of armed conflict or IHL, or, or the law of, of war. Jus in bello, rather, the rules pertaining to the conduct of the hostilities themselves, are what are equivalent to IHL or the law of war or the law of armed conflict.

Natalie Orpett: Right. And so I think an important clarification which you sort of gestured at is because these are two separate bodies of law, one actually doesn't affect the other for legal purposes. So, whether or not a state's resort to the use of force was legal in the first instance, that does not change the obligations of each of the parties once the conflict has begun.

Is that fair?

Gabor Rona: Right, and it creates the somewhat anomalous situation in law that we have a body of law that is IHL, jus in bello, law of war, that is meant to regulate conduct that in the larger scheme may very well be totally unlawful. In other words, it may be unlawful to go to war, but that unlawfulness does not affect the applicability and the number or type or nature of the rules that apply once war begins. The law of war doesn't care whether you're a good guy or a bad guy. It applies the rules and applies the same rules to you either way.

Natalie Orpett: Great. So I want to focus our discussion on the in bello body of law, the IHL, because for better or worse, I think everyone would agree, for worse, no matter which side you take, we are in the midst of a conflict between Israel and Hamas, and hostilities are underway in full force.

So I want to talk about some of the specific features of this conflict that are, you know, rightly, in my mind, provoking some of the most heated debates. And I want to just explore the law around those things. So to get us started, you know, as October 7th, as Hamas's incursion into Israel, and murder of civilians moves further and further into the past, much of the focus is on critiquing Israel's response, particularly due to the high number of casualties.

So right now, current estimates are that there have been over 22,000 Palestinians in Gaza who have been killed. I first want to just pause again on a real basic of IHL, which is a layman's understanding of the concept of proportionality would say, okay, Hamas killed 1,200 Israeli civilians on October 7th, and since then Israel has killed 22,000 Palestinians in Gaza.

That's completely disproportionate. It has to be a war crime. So can you explain how the IHL principle of proportionality is different than that use of proportionality?

Gabor Rona: Sure, the IHL principle of proportionality is meant to create a balance between the military necessities of engaging the enemy, and on the other hand, the interests of humanity.

And that is in particular in relation to protection of civilian populations. So, we have a rule of proportionality. It says that in any particular military attack, there has to be a balance struck between the military advantage to be gained by that particular attack, and the consequent civilian casualties that might be caused.

In other words, the principle of proportionality has nothing to do with comparing my side's civilian harm to your side's civilian harm. It has to do with comparing the anticipated benefit of a particular military attack, in other words, will it create a military advantage as against the civilian harm that might be caused by what's called collateral damage.

Collateral damage meaning, of course, we're not targeting civilians. But there is under IHL an acceptable degree of civilian harm, but the acceptable degree of civilian harm is only that which is justifiable by the anticipated military advantage to be gained in an attack.

Natalie Orpett: Right. So I think that raises the question, though, the value of the attack is not sort of an objective measure, right?

Because the value of an attack goes to the overarching goal, presumably, of the conflict. So how do you, given that this is not really a mathematical equation. How do you think about the analysis of the military advantage and how appropriate it is in the broader context of a party's goal in conducting its military campaign?

Gabor Rona: Well, that question, Natalie, I think goes to the heart of an imperfection in the nature of IHL. The imperfection is that we are, in fact, engaging in something of an apples to oranges comparison. It may be easy to say that 1,500 civilian casualties can be compared to 20,000 civilian casualties. There you're comparing apples to apples.

But that's not what IHL is about. And you're absolutely right that there is something anomalous, I guess, in trying to compare military advantage of a particular military strike against civilian casualties that may be caused. How do you determine what is or isn't proportionate? There is no mathematical metric for this.

And perhaps that's why in the explication of war crimes in the International Criminal Court statute, there is no war crime of disproportionate attack. There is a war crime of clearly disproportionate attack. So there's this, a sense that is built in to international humanitarian law that there may well be a difference between, on the one hand, violations of IHL, compliance with IHL, and criminal violations of IHL.

An attack may be proportionate, it may be disproportionate but not criminal, it may be so disproportionate that it is criminal. And these are all somewhat moving target calculations. There is no way to apply precision to the determination. That said, under IHL, we talk about the concept of military necessity.

We talk about the concept of military advantage. And it's important to distinguish between these two things for purposes of dealing with the proportionality question. Military necessity is a foundational principle of IHL, along with the principles of distinction, proportion, precaution and humanity. And it refers to the right of states to use force to achieve a legitimate military objective, namely the submission of enemy forces.

On the other hand, military advantage is not a foundational IHL principle, but rather refers to the requirement of a specific military benefit resulting from targeting specific military objectives. And military objectives are those things which by their nature, location, purpose, or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization in the circumstances ruling at the time offers a definite military advantage.

Now, when we think about application of the principle of proportionality, it's with reference to specific military targets in connection with the concept of military advantage. We do not apply the concept of proportionality in connection with the principle of military necessity. In other words, although there may be military necessity to engage in force against an enemy, we don't calculate the potential civilian harm in relation to the larger strategic purpose of going to war.

Rather, we calculate proportionality, and the acceptable degree of civilian harm, in connection with each specific engagement relating to military objectives in a very specific way. Is this particular attack today or tonight calculated to create a military advantage that is proportionate to the amount of civilian harm that will be created?

These are the only realistic metrics by which the principle of proportionality is realistically applied.

Natalie Orpett: Okay, great. I want to take apart a bunch of different factors there as it pertains to this conflict, one of the factors that comes up very frequently when talking about what's unique about this conflict and how that leads to such high numbers of casualties is the fact that in Gaza, there is some of the highest population density in the world.

So how does that affect the proportionality analysis?

Gabor Rona: First and foremost, I, I think it's important to recognize that urban warfare creates pressures on the application of principles of distinction, proportionality, and precaution in armed conflict that are extreme. What may be excusable in attacks in a, in an urban situation may not be excusable in attacks in other situations.

And that's because of the difficulty that parties to armed conflict have that are inherent in the proximity between military activities and civilian activities in, in urban settings. That said, parties to an armed conflict, even though they, they may be engaged in battles in an urban setting, have an obligation to distinguish and separate their military activities from civilians and civilian objects.

That's an obligation that Hamas has. If Hamas fails to meet that obligation, and every indication is that Hamas has failed to meet that obligation, and in fact is using protected civilian functions, structures, civilian population as shields for their military activities, that's a war crime. But in spite of the fact that these are violations of the laws of war by Hamas, it does not excuse Israel from its obligations under the laws of distinction, proportionality, and precaution.

It may mean that Israel has to apply a lesser standard for compliance because of Hamas's violations, but Israel is still obligated to comply to the extent that it is possible to do so, to distinguish between military objectives and civilian objects, to distinguish between combatants and civilians, and also to the extent possible, refrain from attacks that result in disproportionate civilian harm.

The fact that Hamas is using human shields has established military objects underground and under the cover of civilian uses does not excuse Israel from its obligations under the principle of proportionality. It may make compliance more difficult. It may excuse more civilian harm than would otherwise be the case, but Israel still has an absolute obligation to minimize civilian harm in connection with its attacks.

Natalie Orpett: So I want to dig in on both sides of that. I'm glad you brought those up because I was going to ask about each in turn. So Hamas, as you mentioned, is committing its own war crimes by violating its own obligations to its own population with respect to making a distinction between civilian objects and where legitimate military operations can be launched from, for example.

Can you just spell out what those obligations are and what the deviations are and what, what it means, you know, to what extent is there the same space that you were describing before between violations of the obligations, but not war crimes, and then to the other end of the, of the spectrum to war crimes?

Gabor Rona: The implementation of the principle of distinction, that is the obligation to distinguish in your attacks between combatants and civilians, and to attack only combatants, to not attack civilians, and to attack only military objectives, and not civilian objectives. In the case of Hamas, and well prior to October 7th, Hamas was engaged in rocket attacks on Israeli soil, and I think these could fairly be characterized as indiscriminate attacks.

In other words, failing to comply with the principle of distinction. A lot of the attacks that were being made on Israeli soil, by rockets in particular, were being targeted, as I said, indiscriminately, without any focus on any particular military objective. That's a violation of the law of armed conflict.

It is also a war crime in international armed conflict and is recognized as a war crime under the, the Rome statute that is the International Criminal Court statute. Likewise on October 7th itself, the Hamas attacks on the ground in Israel were against a combination of civilians and combatants, and to the extent that Hamas was attacking Israeli Defense Force personnel on that day, that is permissible under IHL.

IHL permits the targeting of enemy combatants. Now, it does regulate the way in which those attacks may take place. There are standards for, even when killing is permitted that limit, for example, you can't use biological weapons or you can't use chemical weapons, or you can't use weapons that create what's called superfluous injury more than is necessary to disable your enemy.

But by and large, the Hamas attacks on October 7th, to the extent that they targeted Israel Defense Force personnel are not a violation of IHL. Of course, what else Hamas was doing that day, the outrageous attacks against Israeli civilians and what has come to light in connection with those attacks involving the brutality exercised against civilians, the acts of sexual violence, the acts of torture, those are quite obviously gross violations of IHL.

So as to October 7th, some distinctions need to be drawn between what aspects of Hamas conduct on that day do or do not violate IHL. As to events subsequent to October 7th in connection with the Israeli attacks into Gaza, questions then arise about Hamas's rightfulness or wrongfulness in the intermingling of its military functions, its military hardware, and the civilian population. And this is what we talked about just a little bit earlier that is extremely complicated in urban settings. But despite the fact that Gaza is an extremely densely populated place, there is the capacity, and therefore Hamas does have the obligation, to separate its military functions from the civilian population.

Its failure to do so, and in fact its deliberate failure to do so for the purpose of making its civilian population in effect a human shield, is also a war crime.

Natalie Orpett: Okay, so moving then to Israel's side of this, responding to an opponent who, as you have mentioned, is intentionally using human shields and is using civilian infrastructure for military operations.

I, you know, as you mentioned, the obligation remains to conduct the proper proportionality analysis before any given strike. But for practical purposes or operational purposes, you know, you mentioned it would certainly be more complicated, but does the legal analysis itself change at all, given the circumstances?

Gabor Rona: Well, the results of the legal analysis may change, but the legal criteria don't change.

The Israeli Defense Forces, in recognition of the fact that Hamas is violating its IHL obligations by intermingling its military hardware and functions with the civilian population, as I said, does not excuse Israel from applying principles of distinction and, and proportionality. The, the result of the proportionality analysis may be different if Hamas is not intermingling the military and civilian functions than if it is.

But Israel still has the obligation to the extent reasonably possible to avoid and to minimize civilian harm in its attacks. And the fact that Hamas is making that not only difficult, but making it illegally difficult, does not absolve Israel of the responsibility to conduct a proportionality analysis, to take precautions, which may include warnings to the civilian population that an attack is, is impending.

Those obligations still exist on the part of the Israeli Defense Forces. And to the extent that Israel is not making those calculations, is not doing essentially its required homework to minimize civilian harm, is not taking precautionary measures for example, warning the civilian population. If, if, if Israel is not doing that, then the Israeli Defense Forces are also in violation of IHL and committing war crimes.

The specific examples that raise, I think the most cogent questions about whether or not Israel is complying with its IHL obligations have to do, I think, with the overwhelming firepower that Israel is using. For example, is it justifiable to drop a 2,000 pound bomb in an area that is known to have significant civilian infrastructure and civilians present?

Even though the, the ostensible purpose is to strike at, say, a, a leader of the Hamas military effort, the fact that Israel is using such overwhelming firepower, I think raises legitimate questions about whether or not the attacks that the IDF are conducting are in fact proportionate to in relationship to whatever military advantage can be gained by striking the military aspects in that target.

Also, questions I think have to be asked about what exactly is the nature of the targets of the IDF. Now, in fact, a party to armed conflict is, is under no obligation to publicly state what its targets are or to publicly disclose how it conducts its proportionality analysis. But I think in this case, given the overwhelming amount of civilian harm, if for no reason other than public relations purposes, it should be incumbent on Israel to explain exactly what is the military benefit being gained by say targeting a specific Hamas leader in a context in which it is dropping a 2,000 pound bomb that is also destroying, you know, massive amounts of civilian infrastructure and killing and injuring massive numbers of civilians?

Natalie Orpett: Yeah, I'm glad you brought up the, the issue of bombs.

That's been something that I think has, has been a focus among a lot of people. And, and there was actually a statement a day or two ago from the chief of staff of the Israeli Air Force defending Israel's choice of, of weaponeering and giving some explanation as to exactly the points that you're making.

But, you know, one thing that does occur to me, particularly given the context we've talked about, including the density of the population and the resources available to Israel, as we understand it, at least, what are the obligations given, you know, improvements in technology, for example, that there are, there are in existence and from what we understand in Israel's arsenal, the availability of guided weapons that would not be would not have such wide perimeter and would not necessarily create the same kind of damage to civilian infrastructure.

What, what become the obligations in light of those resources, in light of the different effect that weapons might have?

Gabor Rona: You know, I, I wish I could say that a party to armed conflict can only use smart bombs and can't use dumb bombs, can only use guided weapons and can't use unguided weapons. I can't say that.

The fact though, that Israel has at its disposal weaponry that is capable of greater precision as opposed to lesser precision, precision, I think does create an obligation on the part of Israel to maximize the precision of its attacks through the, the use of precision weapons. Again, I can't say as a matter of law that if Israel has guided weapons, it may not use unguided weapons, but I think the principle of proportionality requires that a party to an armed conflict that has the benefit of advanced technology is under an obligation to make use of that advanced technology to the extent feasible.

Now, it's conceivable that Israel may run out of guided bombs and then can only use unguided weapons, and there would be nothing unlawful about that. But as long as a party to an armed conflict has the capacity to minimize civilian harm, I believe that under IHL, it has the obligation to minimize civilian harm.

Natalie Orpett: So another issue that is coming up a lot in discussions about this conflict is the fact that historically Gaza was under Israeli occupation. So I'll note there is, it is a matter of serious contention as to whether Israel was still occupying Gaza at the time this conflict began. Israel takes the position that the occupation ended in 2005 when it withdrew from Gaza.

There are others in the international community who argue that it effectively was occupying. I'm actually going to leave all of that aside, the merits of that discussion aside, because there is, in fact, a formal legal definition of occupation under the Hague Convention and customary international law. And I don't think we need to get into that here.

But zooming out a little bit, whatever the legal status of occupation or not was at the time, let's talk about what Israel's obligation is now to Gaza with respect to humanitarian needs. So we know there are basic obligations that any party has to respect humanitarian needs during an armed conflict of the other side.

Is there anything additional on Israel given the historical context, given the geography, given the degree of dependence that Gaza has on Israel for things like utilities, et cetera?

Gabor Rona: Well, first, let me commend you for putting aside the question of whether or not Israel remains in occupation of Gaza. It's a contested issue. We can’t solve it here. There are kind of a variety of tests that have been proposed by international lawyers as to what constitutes occupation. I think you identified that fact, but the wisdom of setting the question aside is simply that regardless of whether or not Israel presently is in occupation or was in occupation, post 2005 when it withdrew its troops, but essentially maintained a strangleholder around the enclave.

Israel does have obligations to the civilian population, not only the obligations we've already discussed concerning how attacks are or are not conducted, but in light of the fact that Israel controls, has effective control, of ingress and egress to Gaza, in light of the fact that Israel is wreaking havoc on the ability of the civilian population to survive.

It has an obligation to either provide humanitarian needs for survival to the civilian population or to permit the provision of goods and services that enable the sustenance of life in Gaza. In other words, if Israel wants to provide the necessities of sustenance, it certainly may do so. If it doesn't want to do so, it at least has the obligation to permit neutral and independent intermediaries such as the ICRC and other humanitarian organizations to supply Gazans with those needs.

One thing that comes into question in relationship to the humanitarian needs of, of a population that's either under attack or, or under occupation is the question of siege warfare. The application of a siege to a particular area is not prohibited by IHL, but it has to be focused, like all of other attacks under IHL, against military objectives.

And to the extent that a siege causes civilian harm, it necessitates the application of the principle of proportionality factors that we were talking about earlier. If a siege results in greater civilian harm than the anticipated military benefit, then it is a violation of IHL. And even if a siege is permissible under a proportionality analysis, parties to an armed conflict that are responsible for the siege have to, and as I mentioned before, make provision for humanitarian assistance and protection to the civilian population, either by providing it themselves or by providing a neutral and independent humanitarian intermediary to do so.

Natalie Orpett: So I want to take a minute to just discuss another principle of IHL that you've mentioned a couple of times that I just want to give you the opportunity to address squarely is the principle of precaution. So what does that look like here? What do you think are the most salient questions?

Gabor Rona: A party to an armed conflict not only has the obligation to distinguish between combatants and civilians, between military objectives and civilian objects, not only has an obligation to refrain from attacks even against military objectives if the anticipated civilian harm would be disproportionate to the military advantage gained, but even if an attack is being directed against a military objective, even if the anticipated civilian harm is not disproportionate, there is an additional obligation to minimize civilian harm through the concept of precautions. In its attacks in Gaza, Israel has an obligation to conduct attacks in such a way that minimize civilian harm. And again, important to note, this is in addition to its responsibility to refrain from disproportionate attacks.

A lot of questions have been raised about whether or not Israel is in fact complying with this principle of precaution, whether or not the measures that Israel says it is taking and the measures that it is taking are in fact good faith efforts to warn the civilian population of impending attacks. One particular item that came up was in connection, and is in connection, with the general admonition that the IDF made to residents of northern Gaza to evacuate.

Now, on the one hand, Israel is taking the position that it is making this admonition for the purpose of complying with its purpose, principle of precaution obligations, and for the purpose of minimizing Gazan civilian casualties. On the other hand, and I think, however, the, the better vision of, of this is that you cannot declare an entire swath of territory to be a military objective.

And by telling the residents of northern Gaza to evacuate to the south, Israel is essentially stating that all of northern Gaza is a free fire zone. This is not compatible with obligations under the principles of distinction. It cannot be that the entire half, upper half of Gaza is a legitimate military objective.

And so, the warnings to Gazans to evacuate the entire half of their territory I think at least it is a questionable act, I would hesitate to be able to conclude that it is a good faith application of Israel's principle of precaution obligations. What Israel has done in the past, which is more in compliance with principle of precaution obligations, is in connection with individual impending attacks to drop leaflets or drop a small bomblet on top of an apartment building that is understood to constitute a warning to the residents to get out because a larger explosion, a larger munition is about to be used.

These are the types of precautionary measures that are reasonably calculated to minimize civilian harm and perhaps more importantly are focused, focused on specific military objectives, as distinct from a general instruction, I can't call it an order, but an instruction to Gazans to evacuate an entire half of their territory. That kind of warning, I think, simply does not comply with Israel's obligations to take precautions because it does not sufficiently individual military targets that are about to be attacked.

Natalie Orpett: And on this question of evacuation warnings, understood entirely with respect to a warning of generality of the entire northern part of Gaza. But as a legal matter, I'm curious if you are looking, for example, at an evacuation warning of the type that you mentioned, that's with respect to a certain area that could be the target of a, an individual strike.

Does a state have the responsibility to assess how civilians have responded to a warning in order to, because presumably civilians have no, have no obligation to actually evacuate just because they are warned and that they should. So does the party that has issued the warning have an obligation to assess what the response to its warning has been?

Gabor Rona: I think the simple answer to that is yes. The more complicated question is whether the attacking party has an obligation to alter their plans if it knows that civilians are, are not going to obey or comply with, with an evacuation instruction. That then brings us back to a principle of proportionality question.

I'm assuming that the attack is directed at a legitimate military objective. Now, if civilians are warned but refuse to leave, then the question arises as to whether they have shifted in nature from protected civilians to targetable civilians. And the reason for that is simply that in the kind of expert discussions on human shields, there is a distinction drawn between voluntary and involuntary human shields.

There's no resolution of this discussion, but the fact remains that that in the realm of considering what is and isn't permissible under IHL there at least is a, you know, colorable claim that if a civilian refuses to comply with an evacuation order, then they are in effect becoming a voluntary human shield.

This then calls into question whether or not the civilian continues to be protected by civilian status, or on the other hand, could be understood to be directly participating in hostilities by becoming a voluntary human shield and therefore losing civilian protection. Now, I can't, in abstract, resolve the dispute about whether or not there is or should or shouldn't be a concept of voluntariness to human shielding, but I can only tell you that when it comes to the failure to comply with, say, an evacuation order, it does raise questions as to whether or not that failure to comply changes the status of the civilians who are failing to comply from protected to on the other hand, having lost their protection. And, and having lost their protection because they may then be deemed to be willfully and directly participating in hostilities by becoming voluntary human shields.

That's to my mind, it is a very severe reading of IHL. I would prefer to see IHL construed in a way that does not require an analysis of whether or not civilians are voluntarily or involuntarily refusing to obey an evacuation instruction, but the status of kind of conversation among experts maintains this distinction.

And so it, it is difficult to say, and impossible, I think, to say as a general matter, what the consequences are under IHL for failure to comply with an evacuation instruction.

Natalie Orpett: Okay, so I want to zoom way, way out and say, let us give you the opportunity to tell the doubters out there why any of this matters.

We've just gone through a long discussion of some of the really complicated analyses here. You've mentioned several areas where IHL is not settled law, a lot of places where there's clearly not going to be an objective, clear answer to some of the difficult analytical questions, balancing acts, etc. Such that it seems like, okay, we're, we're just in a place that we would be even in the absence of law, where people take a side, they evaluate what has happened in accordance with what fits with their existing narrative, and that's the end of it.

So why do we even bother with all of this law? What is, what is your case that that is not the right way of thinking of this?

Gabor Rona: Well, I'm a firm believer in the value of international law and IHL in particular. By no means am I kind of blind to the limitations of the ability of IHL to accomplish the protections that it seeks to accomplish.

And in fact, you know, you, you mentioned Natalie, the, the kind of vanishing points in the law of war, the places in which the hard questions simply aren't answered by the law and therefore gaps in protection remain. Well, first of all, law is created by states, and to the extent that states have made their pronouncement over the course of, you know, human history and the history of international law as to what IHL should and shouldn't protect, it is the responsibility of states to articulate how much law there will be for the protection of civilians, for example and how much leeway parties to armed conflict have to conduct hostilities.

And if things are left vague in the law, sometimes it's by omission, sometimes it is purposeful, in recognition of the fact that states are not about to outlaw the, in an, in any absolute sense, the use of force. There have been measures taken in the Charter of the United Nations and the Kellogg-Briand Pact prior to that in, in the early 2000s, to outlaw war.

And there have been some successes in the application of, of this notion in international law that aggressive war is, is not to be permitted. Nuremberg is an example of enforcement there. But we still live in a situation in which states having declared what the law should be, again, for whatever reason, whether it's purposeful or by omission, have left gaps in, in the law.

In addition, even in those aspects of the law that have been well defined, one of the great challenges is simply that mechanisms for accountability for violations have not kept up with the extent to which the law itself has defined what is and isn't permissible. So it's, it's not only that there are problems in the law itself, there are even larger problems with the implementation and enforcement of the law.

Again, that said, I'm a huge believer in, in IHL. And while it's true that, you know, we have seen an uptick in wars, including wars of aggression instituted by dictators in the last generation. That said, taking that longer view, you know, war has existed since time immemorial, but even when, you know, humans were all, you know, semi-nomadic hunter gatherers, wars had its limits because parties to armed conflict understood that total destruction was not in the interest of either party to the armed conflict.

And we know this because such limits remain today among such people in, in the Amazon and Papua New Guinea, et cetera. But until about 200 years ago there was no international law limiting when you could go to war and how to conduct that war. 150 years ago, we had the first Hague Conventions that limited the means and methods of war, that attempted to bring some humanitarian limitations to how war was conducted.

And then we had the first Geneva Conventions that recognized the concept that those who are outside of combat, that is, civilians and fallen, sick soldiers and sailors, should be exempt from hostilities. And then it was only a hundred years ago that the first Geneva Convention was promulgated creating the protections for prisoners of war.

And only 75 years ago, that we had the first Geneva Convention following the Second World War that specifically spoke to the protection of civilians in armed conflict. And it was only 25 years ago that the first standing international mechanism to hold violators of these, these prohibitions criminally accountable was created, the International Criminal Court.

And we also had the, the various ad hoc tribunals created by the Security Council for the Rwanda genocide and the armed conflict in former Yugoslavia. So looking at a larger timeline, I think you have to come to the conclusion that the kind of human influence on armed conflict has been increasingly toward providing protections and limitations to how wars are fought and also providing increasing mechanisms for the implementation of those rules and for accountability for violators.

The fact that wars are, I have to say, an example of the failure of human communities does not take away from the fact that humans through international law over a long period of time have made very significant advances toward limiting the availability of war and even where they haven't limited the availability of war have limited the inhumanity that is inherent in how war is conducted.

These are some very substantial improvements in how wars have been conducted over the course of human history. And while we can't predict whether that trend will continue, and we have seen how in the last generation or so some of the restrictions that have been created have been breaking down. I still remain optimistic that because of this long view showing humanitarian progress, that these trends should continue.

Natalie Orpett: All right. I think we're going to leave it there. Gabor Rona, thank you so much for joining us.

Gabor Rona: Thank you very much, Natalie.

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