Already a member? Log In

The Israel War Crime Complexifier

Photo: Ashraf Amra/Getty Images
Julia Ioffe
October 31, 2023

For eight years, David Scheffer had the incredibly enviable job of working closely with trailblazer and, to women of a certain age in foreign policy (like myself), idol Madeleine Albright. Trained as a lawyer, Scheffer did a brief stint as a foreign policy staffer in Congress before going to work for Albright, first at the U.N. and then at the State Department—and then becoming a pioneer in his own right. As the Clinton administration dealt with the genocides unfolding in Bosnia and Rwanda, Scheffer became the point man in helping the U.S.—and the world—create a global legal framework for how to manage and prosecute war crimes. 

Scheffer was a founding father of the International Criminal Court: he helped create the Rome Statute, which established the court and four core legal ideas, including genocide and war crimes. Schaffer signed the statute on behalf of the United States. He was also the inaugural U.S. Ambassador at Large for war crimes and helped set up the I.C.C.’s war crimes tribunals for Rwanda, the former Yugoslavia, Sierra Leone, and Cambodia. He is now a law professor and a member of the Council of Foreign Relations. 

When I met David the other day and learned about his professional past, I had the same question that I’m sure everyone does, given the allegations in the news: Has Israel committed war crimes in Gaza? His response surprised me, so I asked him if I could interview him for TBTB. We ended up speaking for almost two hours, so this conversation is condensed for clarity and length—though it was really hard to find what to cut. In any case, I hope you find it as riveting and informative as I did.




The Four Requirements

Julia Ioffe: On Sunday, National Security Advisor Jake Sullivan said that it’s incumbent upon Israel to obey the laws of war. Yesterday, President Biden said much the same to Netanyahu. Do you think laws have been violated? 

David Scheffer: There are actions which speak to fairly obvious violations of law. The Hamas attack on October 7 was directed almost strictly against civilians, with the deaths of at least 1,400 of them and over 200 hostages—it’s fairly simple to recognize those as war crimes, or crimes against humanity, because of the nature of the attack, the fact that it was a clearly unprovoked aggression by Hamas militants, and the nature of the victim population, which was almost strictly a civilian population. And they were targeted as civilians for execution and injury and hostage taking by Hamas. 

I have gotten used to thinking that terrorist groups aren’t like governments and, well, that’s their whole thing. They operate outside the law. 

But that’s not a tolerable situation anymore to make that argument, to somehow say that there’s a black hole in international law where terrorists can roam free without any liability. That doesn’t make sense. And it doesn’t make sense, particularly with respect to Hamas and its militia, because Hamas has a somewhat unique characterization as the de facto governing authority in Gaza since at least 2006. It also has its own militia force and it operates as if it were a de jure government and a de jure military force. 



This is an interesting area of inquiry for international law, because when you shade terrorism with governing authority, you get into some sticky analysis. In international law, there’s a whole field that deals with non-state actors, and this was often cited with respect to ISIS. But ISIS was a de facto governing authority over a wide swath of territory and it simply is not plausible to then argue that these forces somehow do not have to comply with the law of war or international humanitarian law because they are “terrorists.” It doesn’t mean that you are legitimizing Hamas. It just means that it’s very important that these types of non-state actors cannot avoid the sweep of the law. They do fall within the sweep of the law. 

One of the arguments you hear, especially from the left, is that the Hamas attacks on October 7 were provoked by Israel’s occupation of the Palestinian territories. 

That is a totally non-credible argument. It lacks any legitimacy whatsoever. It also lacks any logic because if you were to argue that, then you are saying that Hamas was legitimately provoked to commit murder, rape, butchery and hostage-taking. That’s not a plausible argument. One can say, why did Hamas do this? Well, they did this because they’re opposed to the Israeli policy that has been inflicted upon them. But that’s a different argument from a legal argument. 

What about the argument that, in fact, Israeli civilians are not civilians because a lot of them serve in the army and that Israelis are occupiers and therefore not civilians? 



That argument doesn’t hold water either. You can be a fully credentialed individual of the Israeli armed forces. But if you’re sitting in your kibbutz home, out of uniform, not on active duty in a military sense, you’re a noncombatant at that moment. You cannot be attacked at that moment. I can understand why those arguments are being made with respect to Hamas, but they have no place within any calculus of international law. 

What about the Israeli response? What does international law have to say about Israel’s military actions?

It would be incorrect to conclude immediately, right now, that all of the Israeli actions of the last three weeks are totally legal and totally comply with the law of war and with international humanitarian law. No one can make that statement yet. Visually, with the bombardment of Gaza and the death count among the Palestinians, the natural instinct is to say, well, surely there must have been some criminal activity that resulted in that kind of destruction and that kind of death count. But I would also caution there. Israel, first and foremost, has the right of self-defense… 

Under international law? 



Yes. Israel is not rendered defenseless because it’s been attacked by Hamas. It is actually rendered entitled to the act of self-defense because it was attacked by Hamas. And under the U.N. charter, it has the right, under Article 51, to undertake the inherent right of self-defense. That’s in the charter unless and until the U.N. Security Council directs otherwise. That has not happened yet. And therefore, Israel has a clear right to exercise the inherent right of self-defense. 

Israel and the Israeli Defense Forces will be held to account for how they’re using their firepower in a combat situation, in an urban environment of great complexity with hundreds of miles of tunnels and with a combatant enemy that is resisting them with firepower. It’s firepower against firepower right now. I think the best that one can do right now is make it clear—and the Israeli Defense Force knows this—that there are rules that have to be abided by in the law of war and international humanitarian law as to how to conduct warfare first and how to protect civilians. 

In protecting the lives of civilians, there are four basic requirements: humanity, which is your moral obligation, regardless of any circumstances whatsoever. You still have to be a moral force. The military often calls that “fighting with honor.” Second necessity: Is what you are doing actually necessary? Is eliminating Hamas necessary for the state of Israel? Three, distinction. You have to, at all times, try to distinguish between civilians and your military enemy target. You can imagine how complicated that is in an urban environment. And we saw that in Iraq with Mosul and with Fallujah. It’s extremely difficult. 

And then finally, proportion. And I think this is where probably the most debate will be about what Israel is doing, because Israel is using a tremendous amount of air power and artillery power against a densely urban environment. 



There are tactical strategies one reads about regarding why they’re doing that. One, they need to carve out some corridors so that Israeli Defense Forces are more secure as they move through the urban environment, as opposed to tightly knit buildings where they can be subject to firepower. But then secondly, you have this unique situation in Gaza of the tunnels. How do you hit those tunnels so that the enemy doesn’t have the advantage on you because of all of the tunnels? It’s extremely difficult. This was not the situation in Fallujah or Mosul in Iraq. This is a situation quite unique to Gaza. 


Precision

What do you make of the claims that the Israeli airstrikes violate international law? 

We can’t just immediately second guess them and say, Well, wait a minute, we just saw a huge cloud of dust come up out of Gaza. Why did you hit it so strongly? There could be a reason for that, that you have to hit that tunnel in a particular spot, in order to collapse it. 

Israel will have to answer for this on a day-by-day analysis of how they attacked Gaza. And I would also just say that, with respect to airstrikes and artillery, those decisions of how to target artillery and airstrikes, they are most likely made in the headquarters or field headquarters of the IDF, which means that you do have a pretty coherent decision-making body. You have your lawyers there, your military lawyers, your commanders and those who understand the actual impact of the munitions being used. It should be a pretty rigorous process. Now, if it’s found that it was not, that it was sloppy, that’ll be a problem for Israel. But if it was very precise, then they may be able to argue that those four principles of the use of armed force were actually met day by day, hour by hour. That’s a huge challenge ahead for Israel. 



There have been hundreds and hundreds of Israeli air strikes by now. How would you investigate them? How do you reasonably do that?

Well, you have to have the cooperation of the I.D.F. For example, one of the problems that will arise, I’m sure, is that, because Israel does not acknowledge the jurisdiction of the International Criminal Court, it will be extremely precarious as to whether or not the I.C.C. investigators will have the cooperation of the I.D.F. to make that daily calculation of decision making. 

Now, given the enormous amount of media attention and overhead commercial satellite operation, they’ll have some ability to figure this out without the cooperation of the I.D.F. But if the I.D.F. does not cooperate with investigators, the investigators may draw very erroneous conclusions not to the advantage of the I.D.F. In the past, there have been investigations of Israeli actions in prior Gaza conflicts and Israel has been very vocal and focused in how it’s responded to the investigations about them. And I expect we might see that again. 

It sometimes is very convenient when you’re trying to discern compliance with the law of war and with international humanitarian law to forget or overlook that there’s still an intensive combat situation on the ground. It’s not as if everyone is trying to figure out how not to fire their guns. They’re trying to figure out how to fire their guns, how to defeat the enemy. That’s combat, and combatants are privileged. They can kill each other without legal liability. So if Israel kills Hamas—no legal liability. If Hamas kills the I.D.F., well, that’s a more interesting question in my mind. 



How come?

It’s the old mantra in international law: jus in bello and jus ad bello, which is, who is justified to actually launch attacks? Well, Israel’s justified because it’s in self-defense. Hamas is not justified at all. It’s the aggressor. It’s like saying Russia was justified to invade Ukraine. No, it wasn’t, actually. Ukraine is totally justified in self-defense to fight back. But technically, is Russia justified to fire a single tank shell on Ukrainian territory? Actually, it’s not. 

Even if Ukrainians are shooting at them? 

Absolutely. Because they’re the aggressor force. Why are they suddenly entitled to engage in any warfare on Ukrainian territory? It makes no sense. 



But of course, once two armies are in conflict with each other, international law sort of puts that righteous argument aside and says, Okay, now they’re engaged in combat. What rights exist for each combatant force in combat? What’s going on on the battlefield? And that’s where the protection of civilians is the paramount consideration. Combatants on the battlefield are entitled to kill each other, but they’re not entitled to kill civilians—unless there’s a distinction issue. That means some civilians are going to get trapped within the cone of fighting. And of course, unfortunately, that always happens. 

Okay, so I have a few questions stemming from that. The first is you mentioned, there’s still outgoing fire from Gaza, right? How does international law look at those missiles specifically, including given the fact that most of them are intercepted? 

Well, technically, it doesn’t matter that they’re being intercepted. What’s important is that they’re being fired and they’re being fired rather indiscriminately. Most of those missiles from Hamas are indiscriminately fired, and thus all are almost certain to fall on civilian targets in Israel. It’s illegal for them to be firing those missiles onto Israeli territory. Hamas firing those missiles is certainly not an act of self-defense because they started this conflict as an aggressor force, so they forfeited the self-defense argument, let’s put it that way. Whether Hamas is targeting them purposely or they’re just indiscriminately firing these missiles because the missiles may not even have guidance systems to point towards a particular civilian target—the fact is they hit civilian targets. And that, of course, is all absolutely illegal. 

Does the fact of whether a particular munition has guidance capabilities matter under international law?



It’s one of the paradoxes of international law, which is, if you’re a country with sophisticated precision munitions like Israel, the United States, the United Kingdom, the Russians, the Chinese, you actually have a very high duty. Because if they’re precise munitions, then you need to fire them with precision to hit military objectives. If you are a less developed military, a lot of your weaponry will not be of such precision. That doesn’t give you the right to just say, Oh, I have imprecise weaponry, so I’m just going to fire it off. You still have a duty not to do that. Obviously, if you’re acting in self-defense and you have non-precision munitions, there’s going to be much wider latitude for you to fire those non-precision munitions at the enemy because you’re in self-defense, survival mode. 

Hamas has brought on its fate, itself. I know this is a very tough thing to say, but technically, Hamas at this moment, in this conflict, in this war that began on October 7th, in my view, does not have the right of self-defense. That doesn’t mean there aren’t grievances there. There are tons of grievances that the Palestinians have. And I recognize that completely. I’m extremely supportive of the two state solution. But it doesn’t mean that Hamas is entitled to the right of self-defense after executing the actions that are aggressive and create the war, the immediate war. 


Objectives

You mentioned the responsibility of a military to conduct due diligence. What does that look like in practice? How does that have to be exercised under international law? 

There are three levels of due diligence. One is at the highest policy level. For example, in the United States, it would be in the Situation Room of the White House, where the larger decisions are made about initiating the use of military force on a large scale. The next level is the military decision-making. This is not where the politicians are. This is where the military is. And because of the precision of the weaponry, it’s actually a very sophisticated process. 



I can use my own example from the Kosovo conflict in 1999. NATO was using air power in Serbia and the United States was engaged as NATO’s partner in this decision-making. That bombing was initiated because Serbian forces were swarming into Kosovo, committing atrocities and we were determined to stop them from doing that. Those decisions on how to strike targets in Serbia were made in headquarters, strike by strike. 

How? What does that look like? 

Well, you know what the target is. You know what the military objective is. You have maps and everything in front of you. And you have the right people in the room who know how the aircraft are going to enter that space in order to hit that target. So first of all, they want to make sure that the aircraft is not going to be subject to really threatening anti-aircraft fire. But then, munitions hit targets and there’s a blast zone when they do that. Now, what is the blast zone? Because the blast zone is where civilians can be at high risk, even if the military target is precisely hit. You have to determine with the experts in the room, what is that blast zone going to look like? How damaging will it be? How many civilians might die? And is it worth it? 

You have military lawyers in the room. And their job is to minimize civilian casualties. And they would say, Wait a minute, this blast radius could take out 40 people here. The military objective does not justify taking out 40 civilians. Can we redirect the aircraft from a different direction to come in so the blast zone is on the agricultural field next to that building as opposed to the civilian settlement on the other side of that building, recognizing that if aircraft comes in from another direction, it might actually be at much higher risk because of anti-aircraft defenses. Do we take that risk? So all of those risks are weighed in the decision making process. I think the important thing is to have a record that all of those considerations were made. It makes modern warfare a highly documented exercise. 



Let’s say, in that situation, the military lawyer says, Hey, this blast radius is going to kill 40 people. Let’s try a different route. If the military commanders are like, Nah, we hear you but we’re not going to follow your advice—is the mere fact of having had that discussion and documenting it absolution? 

Oh, no. No. But it’s helpful. It can be very mitigating in terms of how the judgment comes out. 

Is Israel doing its job properly as a self-defense force or is it making mistakes? Or is it intentionally not complying with the law of war or international humanitarian law? We don’t know that unless we know what has happened in the headquarters back in Tel Aviv or Jerusalem and then in the field headquarters where decisions are being made literally by the moment. Someday we may be able to determine that illegal conduct has occurred in Gaza by the I.D.F. And it may be strange to say that because the damage is so apparent in what we see on the TV and through journalists’ reports. And I would be the first to say that if it in fact is happening without compliance with these principles of international law, then the I.D.F. has a problem. 

So a few questions about that. First, the siege, the full-scale blockade of Gaza. Cutting off fuel, water, food, and then over the weekend, communications. What does international law have to say about that? Is that legal? 

A temporary use of siege is not illegal—if it’s temporary. But how do you define that? It depends on how it’s calculated in terms of the combat that is imminent so that the combatant force, which is acting in self-defense, can do so in an effort to try to minimize civilian casualties. The problem that I see arising in Gaza is you cannot sustain that tactic because civilians ultimately will perish because of that action. There is simply no way that that can be sustained for the long term. Yes, you want to cut the electricity because over the next 24 hours you’re going in right now and you want to deprive Hamas of the benefit of electricity and the tunnels and all of that stuff. But to deprive the entire civilian population of food, water and electricity for a sustained period of time? That’s a problem.

The initial evacuation order demanding that a million people move in 24 hours—there were claims that it was a violation of international law. Was it? 

It is not illegal for an invading force to request an evacuation if there’s going to be a combat situation, because that evacuation is intended to preserve the lives of the civilians. But one of the questions I have in my mind is, when you issue a 24-hour deadline, there’s a tremendous amount of chaos that you’re introducing into the equation. I’m not so sure that was legitimate to do that as opposed to a more orderly withdrawal, recognizing that, as we’ve read, Hamas was taking action to prevent Palestinians from moving south, that they wanted the human shields to remain in Gaza to act as a deterrent for the use of armed force against them. Also, we also all know the history of Israel and the Nakba of 1948 is influencing Palestinian thinking. And Israel needs to understand that. There’s a lot of dynamics going on there and it cannot be resolved in 24 hours. It just cannot be resolved in that period of time.

The al-Shifa hospital in Gaza. Israel is saying that Hamas had some kind of command center in the hospital, which has been reported for years.  Does Hamas having an H.Q. in the hospital makes it a legitimate target?

I cannot conceive of any justification for hitting a hospital with thousands of patients and civilians in it in order to get to a Hamas cell of command within that hospital, even though it’s a military objective. Again, there’s the principle of distinction. And if you’re contrasting thousands of patients and civilians with a cell of Hamas, that principle of distinction should prevail. Forget about air power if you want to get to that Hamas cell. And of course, I’m being an armchair general but what you would want to do is have an on-the-ground, precise attack by soldiers going in, in a kind of SEALs-like operation, to get to those people. This is not an airstrike concept that should be applied. Hospitals on their face cannot be attacked. 

Of course, there’s always an exception. If, for example, the hospital has ten civilians left in it and 300 Hamas fighters are hiding in that building. You can attack it because you’ve made the distinction. You’ve looked at proportionality and you know that those ten civilians are likely there as human shields. But in this case, with this hospital, as far as I’ve seen on video, this thing is packed with civilians. So I would say, no, you cannot attack that. 

To play devil’s advocate for a minute, can’t you just extrapolate that to all of Gaza where Hamas has purposely embedded itself in this way, in schools and hospitals and U.N.-run facilities? If this is purposely done so that in hitting these targets, Israel is either in violation of international law or politically, it just looks terrible and it brings down the wrath of the international community—what do you do with that, if you’re Israel? 

Your question is, of course, the key one, which is, well, isn’t the hospital situation multiplied throughout Gaza? And probably in many respects it is. This is going to be such a judgmental exercise day by day, because first of all, if you have precision weapons, which Israel does, it may be that, in many of these cases, the use of that particular weapon targeted at a particular military objective, if it can be identified as such, would be justifiable. But there will be other situations that might be examined, in retrospect, where the decision to use that weapon was made even though there were 300 civilians in the vicinity of that weapon being used. Now, was that the right judgment call? Did you know that there were 300 civilians there or did you not know that? What was your knowledge at the time? And that’s why it gets messy. 

You know, the cleanest calculus would be let’s not have any warfare going on so that we don’t have to make these decisions. But there is warfare going on and so the decisions have to be made. But every time I think of a tough question like that, my mind always goes back to the start, from October 7 and what happened on October 7. I’m going to work my way forward to what is Israel’s right to act on day 24 because of October 7? What is that right on October 31?