What Constitutes A War Crime?

>> Tom Church: This is The Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined by The Libertarian, Professor Richard Epstein. Here at Hoover, Richard is the Peter and Kirsten Bedford Senior Fellow. He's also the Laurence A Tisch Professor of Law at NYU, and he's a senior lecturer at the University of Chicago.

Richard, we're just over a month out from the attacks on Israel from Hamas, with Israel going into Gaza, cutting off Gaza City, conducting not just airstrikes, but ground operations. I think the recent news today is that we've got humanitarian pauses in the fighting and the operations in order to try and get more civilians out of the northern part of Gaza.

But no one expects this to be done quite soon, I believe today as well, President Biden was asked about the likelihood of a ceasefire, and his answer was none, not going to happen. And I think we've talked on this program why that seems to make sense, because Israel isn't going to stop until Hamas is rooted out, done and no longer able to conduct any operations.

So there's a lot to talk about here. Obviously, it's a terrible situation. However, this is The Libertarian, this is, I've got a law professor here. I kind of want to step back for a moment, because, again, I'm reading commentary, I can't look away from this. And there are still just constant, what do I say, complaints or allegations against Israel for conducting either war crimes or the way that it's prosecuting this war.

Mainly because the number of people that Israel has killed is significantly more than what Hamas was able to or is still continuingly able to do. So I guess I want to start, Richard, by talking about how Israel is prosecuting this war. And what it actually means for a country, or, I guess, in Hamas's case, a terrorist organization within a territory to actually conduct war crime?

What makes something a war crime? What makes something a crime against humanity? And I suppose, why aren't we hearing more about allegations of Hamas doing the same thing?

>> Richard A. Epstein: Well, I mean, that's one of the most troublesome things. I mean, there was a recent announcement by one of the major leaders, Hamas, who said, we conducted this mass assault on Israel on October 7 because we wanted the world to pay attention to the fact that the palestinian problem had been put into the rearview mirror.

And the reason why that was the case. The Abraham Accords and most of the other initiatives were designed to control Iran, designed to solidify the Israeli-Saudi Arabian alliance, designed to normalize relationships with other Arab countries. And so the great achievement of the Trump administration was to say that the settlement of the Palestinian dispute was not a precondition for the settlement of any other kind of dispute.

And that, of course, radically changed the balance. So that's the first point that we know. The second point is they succeeded beyond their wildest expectations. Israeli defense and security, which has normally been a hallmark of their success, completely broke down. After the war, there will be a massive investigation as to who is responsible and why.

My prediction is that, for a whole variety of reasons, Mr Netanyahu will decide he can no longer remain in office. And he will be known as the war prime minister who either saved or didn't quite save Israel during this situation. And so what happens is, those things should have been absolutely condemned right out of the box.

But what happened was there was the most amazing response throughout large part of the world, including the situation in Gaza, where people just cheered this particular outcome as though it had been a heroic blow for freedom. I have to say it got me absolutely flummoxed to see how many ostensibly intelligent people could forgive the beheading of innocent children, putting people in oven.

Tying families up together and murdering them, all on the grounds that this was going to favor some sort of liberation. So what's happened is, the way Hamas has played it, and it seems to have worked all too well, is whatever they did at the beginning is to be forgotten.

And if you forgot that, then what happens is, you just simply have this random, naked, aggressive war by Israel against these other people who have done, quote, unquote, nothing wrong. And now, when you're doing all these things according to traditional international law, pretty solid precedent is, unexcused attack on civilians is, of course, the ultimate wrong.

Hamas says everybody in Israel is occupying our territory, so none of them are civilians, which is just bizarre, it's a change in language. And at that point, when you start having retaliation, there is very clearly two rules that are in place. One is if you're trying to use people as human shields, or to build hospitals above command centers and so forth.

All the deaths that result from those things are charged to Hamas, they're not charged to Israel. That doesn't seem to be the case in this situation. And then, in effect, with respect to collateral damages, this endless discussion about how do you figure out what proportionality is? How many people are you allowed to kill who are innocent civilians, or at least civilian?

And how many people do you have to take out? This was never a calculation during traditional wars, if you go back to the Second World War and take places like Dresden and so forth. You just flatten the place and you manage to kill as many as 80,000 people in one day, a very large fraction of which were, in fact, civilians.

And nobody blinked an eye about this. And the same thing was true in a strange way about the situation in Hiroshima. There was a lot of heart wringing, but Truman never backed down. And the whole question was whether this was a smart or not smart move, it wasn't whether it's a war crime.

Well, Israel is now facing this kind of pressure. And the reason it is, is there's a huge amount of latent anti-Semitism which has bubbled up around the war. It has been disgraceful on many American campuses. And so what happens is the proportionality thing is being pushed very hard, and it's being pushed by Joe Biden, who understands that he has many complications at home and some real concern about the human situation.

The correct way to have done this was what, in fact, Netanyahu suggested. You've got no legitimate case for keeping the hostages. You let them all out, many of whom are not Israeli, many of whom are not even dual citizens. And then we can start talking about some kind of an accommodation with letting the civilians out, that didn't seem to pan.

And as best I could tell today, the new proposal is we're going to have a four hour reprieve in which people could start to move south. This is unambiguously good for Israel to get these people out of the way. There were some very nice and touching photographs of Israeli military personnel using a white flag and ferrying some Palestinian children and women to the south so as to try to hasten this.

And the more people you get out, the better. What is not at all clear is exactly how this relates to all the military action. So it could be you stop the aerial bombardment, but at the same time you continue the work in the tunnels, which is far away from civilians.

I don't know if that's happening or not. It's short enough that they can kind of regroup in a major fashion. And my view about this is, looking at it from the point of view of Israelis, where my sympathies lie, is these are very hard calls that they have to make.

There's nothing about this call which strikes me as rash or stupid in the way in which it's done. And so what you do is you back the government that makes them, knowing that they're subject to really very heavy policies. But the thing that Vietnam has made clear, and he should have made this clear much sooner, in some sense, that is years ago, is that the destruction of Hamas is the only solution to this problem.

He's gonna have to deal with massive increases in unhappiness in the West Bank, that's certainly taking place, and he's gonna have to deal with the protective threats of Hezbollah. The United States, I think, has done a very effective job for which we all should be grateful in having enough firepower stationed off the coast of the Mediterranean so that Hezbollah and Iran are not going to move.

The West Bank may be a powder keg, but there's not gonna be a military powder keg, it's going to be a police action. And so then what you do is you continue to grind down. And so let's just hope that this thing kind of ends on a happy note, if you could use that kind of word, but Hamas must go.

If you let this thing stay, it will simply fester again. There was a suggestion I gather from the president, but the Palestinian Authority have some control in dealing with Gaza. Won't work, they're completely corrupt. Abbas is totally depraved, he's 87 years old. And the moment you do that, you'll get the same kind of forces taking place.

That took place in 2006 when Fatah lost the election. Hamas came in and then the next year started throwing its opponents off of roofs in order to solidify power. This is an organization that doesn't have a parliament. Its major leaders are worth billions of dollars and they're living in Qatar.

I mean, this is all quite crazy. So let's just hope that Biden is consistent with the long-term end. It may take a day or two longer. That may be good or bad. If you could save more Palestinian citizens and provide some assistance to them, that's fine. It's an open question of what Hamas will do.

If it tries to obstruct this in any way, shape or form, then some of the guilt is going to start the shift. Indeed, I believe that the announcement that they made, that they did this in order to provoke world attention, is a sign of incredible brutality. And we'll hope to set at least some of world opinion against Hamas which enjoys, in my view, all too much support.

>> Tom Church: I'm with you on that, Richard. This is a very online war. It's an interesting experience to have so much of it reported, not just reported on, but posted from each side on social media. The IDF is constantly posting updates of its operations in Gaza. The tunnel systems that they found, images, videos of weapons of launch sites, and unsurprisingly, underneath hospitals, in schools and mosques.

And so this was my earlier question. I want to get at the IDF is clearly going through these operations, has enormous amounts of munitions, and can do quite a lot of damage. And so it is destroying and fighting and sending bombs and missiles to schools, mosques, hospitals, other places in order to get at the tunnel systems, in order to get at where they are actually firing.

And I think many people see that and just think that has to be. When I say illegal, I mean, there's no real global law or anything, but there is kind of this expectation of what a war crime is, what a crime against humanity is, what, you know, even genocide, which is what another claim that that's happening.

We haven't even talked about the censure in Congress. So what is the idea of actually allowed to do in response to Hamas firing from schools, mosques?

>> Richard A. Epstein: Well, I think that the answer is unambiguous. If you embed yourself in a civilian population, you make them a target that's legitimate for the other side, and you have committed a war crime.

That's the way it has always been understood. And you start to think about it, how many times has Israel done anything that remotely looks like that? And the answer is they've never done anything. But Hamas essentially plays by its own rules. And so what happens is the long term grievances and resentments overcome the short term kinds of issues.

And on the American campuses, where this thing is constantly done, it is amazing to me. You go around now and lots of students are wearing keffiyehs, or however you pronounce it, to sort of show their solidarity on this thing. University presidents are utterly unwilling to do anything. And it turns out that the conference that you have are not speech, but the implicit physical threats, jostling, pushing.

If you read the column in the Wall Street Journal by two Yale college students yesterday, you realize that there's an undercurrent of fear that virtually every Jewish student feels on every campus. And I sit there and I cannot understand why it is that people cannot affirm the view that murdering children is bad, even if they want to bracket the question of do we or do we not believe in a two state solution?

There will now be no two state solution. Because if you're talking about states as opposed to enclaves or territories of one kind or another, states are entitled to maintain military operations. And it's simply not viable to have a situation where guys in the West bank becomes some kind of a Palestinian nature, and then invite in several hundred thousand Iranians to camp there until it's ideal for them to attack.

Israel knows, and everybody should know this, if they lose once it's curtains. They have to win every time. And the only way that this makes sense is every time you see massive aggression on the other side, it has to result in some tangible loss for them. It can't be that they play a game where if they succeed, they win everything, and if they lose, nothing happens to them.

And the Israelis understand that. And so the strategy that you have to adopt in all these cases when you deal with them is assume that they're going to act in bad faith, that is, breach any promise at any time if it's in their interest. And you have to conclude yourself that even if they breach the deal that you make, it's better off that you made the deal and have it breached and have made no deal at all.

And I think that's what's behind the four hour situation. The Israelis see an unambiguous upside from this, and they don't see any terrifying downside to what's going on here. But again, a lot of this depends upon exactly what's happening off the center stage when you're talking about the four hour periods.

How many days you do it, how long it's going to last, I don't think, I know, but I do think, in effect, that the Israelis have enough backing from their own civilian population and there is enough realism on the part of the rest of the world, including many Arab nations.

If you want to destabilize things, make sure that Hamas lives. And then the rest of the Middle East is gonna become much closer to a powder keg than it would otherwise do. So there's, I think, a lot of public support, but there's a lot of government support inquire, which essentially goes the other way.

Diplomacy under these circumstances has an open and a closed aspect. And trying as an outsider to figure out what's going on, nobody knows. So, for example, we know that the Israelis and the Saudis have been talking. What we don't know is whether or not there's already some kind of an informal alliance which says that if Iran wants to move in force to the Middle East, Israeli and Saudi fighter pilots and bombers will cooperate in an attack either on Hezbollah or even perhaps even on Iran itself.

We don't know that. My guess is there is such an agreement. It's fragmentary, it's indefinable, it's obviously not enforceable and so forth. These are marriages of convenience, and marriages of convenience could last an hour or they could ask a lifetime, depending what the circumstances are. So that's why it's so difficult for all of us from the outside to do things.

We know things that have to be going on behind the scenes. We have some rational sense of what people want to do, but frankly, we don't know actually whether they've done it or not. Look, the Israelis made a terrible mistake some years ago when they basically traded 1,000 members of Hamas for one Israeli soldier.

One of the guys they gave back is now the leader of their military operations. I mean, they can't do that. They have to understand that if hostages are taken, they simply have to treat it as a sunk cost. Because if you want to save one hostage, in the end what you're gonna cost yourself is 1,400 of a lot.

And it's extremely difficult not to take care of the individual who's in the crosshairs. But in the end, I hope they've learned the lesson and that you have to be extremely tough with respect to those issues, keep pushing. And then once you wipe everybody out from the Hamas situation, try to establish, and only Israel can do this, a situation in which there's an internal enclave which is run by some Palestinians who have no military authority, some police authority.

And that the external borders and the relationship with other nations are going to be controlled by the Israelis. I don't like this situation, but I see no alternative to it. The UN is utterly worthless when it comes to these kinds of things, and no other nation will have the ability and the tenacity to make sure that it operates correctly.

>> Tom Church: I think, last one here for you, Richard. Some of the news coming out today, Reuters, CNN, Associated Press, New York Times taking a lot of flack because some of the on ground reporting as the attack was happening was from freelancers who work with those organizations. There was a photographer for.

Well, when I say for CNN, I mean clearly a photographer that CNN has used, who had also filmed himself riding in with a grenade in hand. New York Times issued a stern, we didn't know about this. This person wasn't working for us at the time, but has worked for us in the past and has passed and has done good work.

It's not like we knew that this was going to happen and we're sitting on it, which is what, of course, some allegations were. But it does seem like press coverage within Gaza, again, has never really been allowed by Hamas, obviously. But it seems to be, I guess, no surprise why coverage has tended to go certain ways, right?

The hospital situation that happened, where it was blamed on Israel and immediately. Well, I think many people now are waking up to being suspect to any information that's coming out of there. I guess I'm trying to ask you, how do we really wrap our heads around not what's true and what's going on in Gaza, but how do we know, again, how many people are truly being killed who are militants versus civilians?

How are we able to actually gauge if Israel's reaction, if its operations are happening in an above board way that you and I are both hoping that it does?

>> Richard A. Epstein: Look, I mean, I think the truth is the New York Times as a reporting agency is completely compromised.

And it may well be that there are other publications which have the same left side doing Al Jazeera and so forth you can't trust at all. And so you don't trust them. The New York Times, essentially everything that comes out from Hamas they take at face value. The announcement that there was an Israeli rocket that killed 500 people in or near a hospital was completely false at the time.

And the Times reported, and then later they said, we've done a real detailed study, and we don't think it was a Palestinian rocket that misfire, that did this, but we don't know what it was. And even that was completely phony. So you just have to cut them off.

And what they have to do is they have to announce publicly that they've changed their entire system of the way in which they collect information. They do not rely on any of their past contexts to deal with this situation, and that they try to make sure that the people who go in are either neutral in the genuine sense, hard to be, or have some pro israeli people along there with the pro Palestinians to do it.

This has been a national disgrace. As far as I can see. The best newspaper coverage you get from this is, I think on average, it's a combination of the Wall Street Journal editorial page but not its front page. I think the New York sun, which is obviously a jewish operation, has done a very good job uncovering this thing, but you just have to keep on pushing that thing.

You have to have instant correction from the other side. My view is that the Washington Post, with many of its shenanigans, is already in serious circulation trouble, and it deserves it. And I think that's going to happen the same way to the New York Times if this stuff is exposed.

But remember, in the fog of war, distortions are part of the game. And so what you're saying is if we knew the truth about the situation on the ground, we have a lot of very difficult questions to ask. And when we don't know that, the questions are even more difficult.

And so I think that one hopes that this war will end as quickly as possible. But again, I think the Israelis are correct. Hamas must go. And that means that that whole tunnel situation has to be shut down. And I believe that it will be. It may take a month or two, but I think it's going to be done last little bit.

>> Tom Church: One, Richard, Netanyahu was reported as saying he believes Israel probably will have to have overall security over Gaza for an indefinite period. What do you think about that as a solution going forward?

>> Richard A. Epstein: I think it's, a, true and, b, unhappy. I mean, the trick in all of this stuff is to figure out how it is.

You get local commerce to work, increase exchanges with respect to the Israeli on the business front. If you remember, before this thing happened, there was an arrangement whereby about 25,000 people from Gaza went to work in Israel for Israeli wages. And that turned out to be a subterfuge that Hamas put into place to divert it.

But that's what you have to encourage. There's a long history of tying that, and there's also a long history of extremists on the Arab side trying to kill all the people involved in these things so as to make trade impossible. But the only strategy that worked is relentless suppression of aggression and very strong subsidies, even cash subsidy, to encourage commerce between the two sides.

The commercial people have something to lose when there's a war. The firebrands do not.

>> Tom Church: You've been listening to the Libertarian Podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, the Libertarian, which we publish on definingideas@hoover.org. If you found this conversation thought provoking, please share it with your friends and rate the show on Apple podcasts or wherever you're tuning in.

For Richard Epstein, I'm Tom Church. We'll talk to you next time.

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