Gaza Conflict: Governance, Rebuilding, and Legal Challenges

Allen Weiner: There are parts of Gaza in the north where the percentage of buildings that are damaged or destroyed is 70 percent, and this is really a staggeringly high level of destruction. We don’t know from a jus in bello proportionality test what was Israel’s target with each of these attacks, what was the anticipated military advantage, what did they foresee as the incidental civilian harm, but when you look at the broad picture, it suggests a level of destruction which is almost apocalyptic.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all our new episodes as soon as they’re available. Today’s episode, I have my colleague Allen Weiner on, who is a professor at the law school who teaches a wide range of international law-related subjects.

Allen is also the director of the Stanford Program in International and Comparative Law. He’s the director of the Stanford Humanitarian Program. He’s a director of the Stanford [Center] on International Conflict and Negotiation. And before he came back to Stanford, he’s an alum, class of 1989, of the law school.

He worked for the Department of State practicing international law, advising government policy makers, and representing the United States in litigation before the International Criminal Tribunal for the former Yugoslavia, the International Court of Justice and other entities like that. So, thank you so much, Allen, for coming on to the show.

Allen Weiner: It’s a pleasure to be with you, Pam.

Pam Karlan: Great. So today we’re going to be talking about Gaza and what’s been going on in Gaza. And you’ve been following this very closely really from the outset when on October 7th of 2023, Hamas began an attack in southern Israel. They killed about 1,200 people, they captured 250 more, some of whom are now being released. And Israel responded with year of intensive warfare in Gaza. Maybe start by telling us where we find ourselves today.

Allen Weiner: We currently are experiencing a ceasefire that’s been negotiated. There are still about 70 hostages left in Gaza, although Israeli intelligence estimates that probably half of those people are actually no longer alive. So, it’s the bodies of hostages. We’re concluding phase one of a hostage release agreement, prisoner exchange of Palestinian detainees for the hostages that Hamas is holding in Gaza. And we’re supposed to be heading into negotiations for phase two of the ceasefire, which is ideally aimed at bringing about a long term, or a permanent solution, to the conflict. I think a lot of observers are doubtful that phase two will be successful. The release of the remaining hostages and the conclusion of phase two of the negotiation are interlinked. And I think there are a lot of Israeli observers who think that the phase two talks will collapse and that some of those hostages will not be set free.

Pam Karlan: Yeah, and you’ve written a paper recently called “There’s Nothing Left: Jus ad Bellum Proportionality and Israel’s War Against Hamas in Gaza.” Could you tell us what jus ad bellum proportionality is and how international law works …

Allen Weiner: So you know, the law of war is designed to kind of regulate the conduct of warfare and the concept of proportionality is one that we hear about a lot, but there are two halves of the law of armed conflict. One is jus ad bellum, which is the law governing your recourse to force and what war aims you can set when you launch a war. And then the other is jus in bello, which is basically the law governing the conduct of operations. And when we talk about proportionality, usually we think about jus in bello proportionality, and that requires the attacking force to balance or weigh the military advantage of any particular attack: I’m going to drop a bomb on this building in order to kill a particular target there or destroy a command center versus the unintended, but foreseeable civilian casualties.

Pam Karlan: Let me try and make that concrete for our listeners. So, for example, you know that a high-level military commander is in a particular building that doesn’t allow you to bomb the entire city. The theory that that would kill him.

Allen Weiner: Right, that would be an indiscriminate attack. Let’s say he’s in a school, normally a school is a civilian object and that can’t be attacked. The minute the commander places himself inside the school, it does become permissible to target him, but now we have to comply with this test of proportionality. We have to make sure that the military advantage of killing that commander substantially outweighs what we expect to be the civilian harm. Now, what I’ve written about is something else, which is jus ad bellum proportionality, which looks at the overall harm of the conflict. Again, jus in bello proportionality engages in this attack-by-attack calculation: Today we’re dropping our bombs on this target to destroy this thing. The jus ad bellum proportionality test goes back to old Christian “just war” theory, and it basically asks: Is the good of this war, does that outweigh the evil that we believe will result from waging warfare? And we have argued in our paper that given what the Israelis knew about Gaza, that it’s this incredibly densely populated area, that Hamas does embed its military forces among civilian objects and also that Hamas had basically created very hard targets. It had built this network of 400 miles of tunnels. Destroying those would require very intense kinetic weapons– 2,000-pound bombs. So, we argue that it was foreseeable that Israel could not achieve the objectives that it declared, which was to basically eradicate Hamas without doing more harm than good.

The good that Israel is pursuing is the right to basically secure itself from future attacks. And we argue in our paper that there were other options available to Israel that could have brought about that enhanced security, that could have safeguarded it from future attacks. It could have….

Pam Karlan: So, what are some of those examples of things that you think Israel should have done rather than the kind of wholesale bombing and warfare in Gaza?

Allen Weiner: Yeah, I think it’s the kind of things actually that Israel has been doing in Gaza, had been doing in Gaza for a long time. And this includes targeted attacks against leadership targets, targeted attacks against particular weapons systems that were threatening to Israel, counter and small-scale counterinsurgency operations, more like what the United States actually did in in the struggle against the Taliban in Afghanistan. And the most important thing that the Israelis could have done was to enhance their defensive capabilities. I think, we still have not seen any detailed reports, there’s not been a national commission, a state commission, but I think everybody agrees who has watched this that there was a massive failure on the part of the Israelis, that what happened on October 7th was not inevitable, that the Israelis had become cavalier in their intelligence and had become lackadaisical in safeguarding the border. And that October 7th could have been prevented if the Israelis had been more robust in applying the technologies and tools and capabilities that they have.

Pam Karlan: In thinking about kind of international law, I take it Hamas violated international law in a number of ways, ranging from the October 7th attacks, which violate international law, right?

Allen Weiner: They do. There’s a debate about whether or not there’s a right of self-determination of peoples under international law. Peoples like the Palestinian people have a right to struggle for self-determination. There’s a debate among international legal scholars about whether that right of self-determination includes the right to pursue armed struggle.

Some observers say yes, some say no. But…

Pam Karlan: Even if they were allowed to pursue an armed struggle, does pursuing an armed struggle mean you also have the right to kidnap people?

Allen Weiner: And that’s where we separate again, the jus ad bellum, the law governing whether you have a right to wage war in a particular circumstance from how you wage war.  And even if Hamas had a right of arms struggle, it certainly did not have the right to number one, intentionally target civilians, which it did on October 7th. Civilians killed on October 7th were not killed incidentally to the conduct of military operations against Israeli military targets. They were intentionally targeted. The goal was to kill as many civilians as possible. And obviously taking up hostages and holding them as bargaining chips is expressly prohibited by international humanitarian law. Hamas is also, long used these kinds of very indiscriminate rockets, these Kassam rockets that it launches into Israel. And these are weapons that are basically so imprecise that they can’t be directed against a military objective. You’re just basically throwing the rocket up in the air.

Pam Karlan: It’s sort of “Wernher von Braun, the rocket goes up who cares where it comes down? That’s not my department, said Wernher von Braun…”

Allen Weiner: Yeah. So Hamas clearly has committed violations.

Pam Karlan: And was, is the way that Hamas operated within Gaza, a violation of international war? That is, at least there are some reports that suggest that what they do is they deliberately put their military forces inside of civilian buildings, which virtually guarantees that if you go after them with anything other than hand to hand combat, you’re going to end up with civilians dying.

Allen Weiner: You’re absolutely right, Pam. It is … the use of human shields is prohibited, to basically to try to use civilians or civilian objects as a way of immunizing your your military objects….

Pam Karlan: Yeah. I don’t know if you’ve ever seen the Burt Lancaster movie, “The Train.” It’s a movie about World War II where the Germans put French civilians on the front of trains that are carrying military personnel so that the saboteurs won’t blow up the tracks because they’ll end up killing their own country…

Allen Weiner: Their own countrymen. Yeah. So yeah, absolutely. The use of human shields like that is a violation of international law. This could cut both ways. There have been reports that in some ways Israelis have done similar things by taking Palestinians and making them run point on operations and clearing operations, but Hamas engages in this strategy as a fundamental element of its strategy. We know this from reports that have been done in previous conflicts. This is only the third or fourth in a series of wars between Israel and Hamas. This is, of course, the most extensive, the most intense, the most destructive.

But it is a war crime to use human shields. What’s tricky is it puts the attacking force in a terrible position, right? Cheaters do prosper. If you use civilians as human shields, the question is what is then the attacking force to do? The attacking force still is supposed to comply with this rule of proportionality. The civilians don’t suddenly become fair targets because they’ve been used as human shields. And so this creates a tremendous challenge because the military is still supposed to ensure that it only carries out attacks under the jus in bello proportionality test, where the military advantage outweighs the civilian harm. So this is a…

Pam Karlan: Yeah, this is a, this is a really … it does put the attacking force in this untenable position in some ways.

Allen Weiner: It does. It’s interesting. Pam, this is actually my next project because I think I’m really fascinated by this. If you look at what the DOD Law of War manual says, or what the Israelis have said, they argue that when a defending force like Hamas embeds its military tools among the civilian population that it is responsible. That’s the phrase that’s used that they are responsible for civilian harm. I think that’s not really a legal standard. I think that’s more of a moral or a political notion of responsibility.

Pam Karlan: In domestic law, there are examples of this that involve felony murders, where there’s a bank robber who’s robbing a bank, and the police go after him and they shoot him, but the bullets hit the teller, the bank robber is liable for that murder, even though the shooter was the police. So, it’s interesting that doesn’t seem to be the same rule in international law.

Allen Weiner: We don’t use quite the same rule in international law. And I think the notion is it’s focused on the concern about the protection of the civilians. The basic idea is the civilian should not be subject to attack because somebody else has violated these rules–that should not they have not engaged in a morally wrongful act. Again I’m talking about involuntary shields here they’re separate questions about what happens when the civilians intentionally you know surrounding the missile launcher and those there’s a different there’s a different treatment of those many people argue no, at that point, those civilians are basically directly participating in hostilities.

It’s not so different from if they picked up a shotgun and started shooting at the attacking force. But the question about involuntary human shields is, I think, very tricky and how we balance the commendable interest in trying to minimize suffering of civilians who are not responsible for what’s happening around them with the ability of a military force to carry out military operations.

Pam Karlan: Yeah, so I want to turn to the law part of international law, which is, in my bank robber example we have a DA and the DA prosecutes and there’s a government that if the person’s found guilty after a trial, can put them in jail and what … how does international law get enforced?

Allen Weiner: Yeah, I remember once giving a talk at the Stanford Law School faculty on some other issue about international law and somebody came up to me afterwards, and this was concerning like U.S ability to use force, and they said, “Hey, how does international law get enforced?” I said there’s no world government to enforce the rules. There may or may not be courts that have jurisdiction. This is all done on an ad hoc consent basis. And he looked at me and said, “If there’s no enforcement, this isn’t law at all.” It struck me as an unusually Benthamite kind of a version of the law, one that I don’t necessarily embrace, but it is true that adjudication of disputes, enforcement of law, and international law, this is much more of a haphazard kind of regime.

I often describe international law as an incomplete, or an immature, or an under-developed legal sense. So, in terms of enforcement, you would expect an international organization like the Security Council, which is empowered to issue binding decisions and even impose sanctions for people who violate the law. But of course, the Security Council requires the consent of the permanent members of the United States has been unwilling in this case to allow the Security Council to adopt any sanctions of any kind against Israel. It did allow a resolution to pass that called for a ceasefire. So, enforcement is limited.

Pam Karlan: So, in November, the ICC, the International Criminal Court, issued some arrest warrants involving the current war in Gaza. Can you tell us a little bit about that?

Allen Weiner: Sure. Also consent-based. States have to consent to the jurisdiction of the International Criminal Court.

Pam Karlan: And we don’t, right?

Allen Weiner: The United States does not. And we’ve, in fact, now the President has just issued an executive order imposing sanctions on the chief prosecutor of the International Criminal Court because we believe that it should not be acting against Israel, which is also not a state party. Now, Palestine is treated as a state party to the International Criminal Court. It’s recognized as a non-member observer state of the United Nations. It’s ratified the International Criminal Court, and the theory is that if crimes take place on your territory, like Gaza, even if the the persons who perpetrated those crimes are citizens of a country that is not party to the court, that the court has jurisdiction.

But this is controversial. The court did issue indictments against three Palestinian leaders, all of whom, by the way, are dead now, have been killed by Israel during the course of combat operations, or an assassination in Iran, in the case of one of them. And two Israelis, the Prime Minister Netanyahu and the former Defense Minister, have been indicted for various kind of jus in bello crimes. The taking of hostages by Hamas and the killing of civilians that you mentioned is the basis of the indictments against Hamas. In the case of Israel, it has been mainly the prohibition, the lockdown of Gaza and the cutoff of humanitarian relief and humanitarian assistance.

Pam Karlan: And in the paper that you did with Bailey Ulbricht, you also did something really innovative in kind of using satellite imagery. And could you say just a little bit about that part of the paper?

Allen Weiner: Yeah, we were very lucky to have a chance to partner with some geographers who have access to a very innovative satellite feed. It’s based on radiography. It’s not visual images, but they are able to detect damage and destruction. And so on this question of jus ad bellum proportionality that we talked about trying to argue that it was foreseeable that the harm that Israel would have to inflict to carry out its goal of eradicating Hamas would be excessive.

We try to demonstrate that, in practice, this has been the case, and it appears that about 60 percent of all structures in Gaza have either been destroyed or damaged. There are parts of Gaza in the north where the percentage of buildings that are damaged or destroyed is 70%, and this is really a staggeringly high level of destruction. We don’t know from a jus in bello proportionality test what was Israel’s target with each of these attacks? What was the anticipated military advantage? What did they foresee as the incidental civilian harm? But when you look at the broad picture, again it suggests a level. of destruction, it’s a kind of almost it’s almost apocalyptic.

Pam Karlan: Gaza really is at this point a, a mess on the scale of the places that were bombed during World War II.

Allen Weiner: What we actually have data, by the way, showing that the level of destruction in Gaza is greater than Dresden for. …

Pam Karlan: Yeah, I was going to ask about that. And Dresden was, of course, subject to…

Allen Weiner: The massive fire. It is the poster child case for destruction of cities.

Pam Karlan: So, the question is, what’s going to come? What’s going to come next in Gaza? And you had mentioned right at the beginning that there’s this question about whether the ceasefire is going to hold after this phase one.

Allen Weiner: This is when we start to think about the “day after” phenomenon.  I think what Israel has discovered much to his dismay, even though its goal was again to basically destroy Hamas’s military capability and remove it from remove it as a governing entity, it’s failed in that regard, right? So Hamas continues to be the dominant security force. They appear to be able to continue to carry out military operations. The images, the hostages being released, surrounded by Hamas fighters, I think for the Israelis, along with the emaciated images of people looking like Holocaust survivors, I think this was shocking for the Israelis to say after 500 days, what have we done? What have we accomplished? So, the question has been focused on the “day after” problem.

And really the key question there would be to figure out who’s going to govern Hamas and who’s going to secure Hamas. And that would … the first question would be, is Hamas prepared to cede that role? They have not been forcibly removed. And now the question is, are they prepared to negotiate a stand down from power?

Pam Karlan: Yeah. And when I think about this a little bit, I think about, in Cicero’s oration against Catiline, there’s this famous line, “Carthago delenda est,” which is Carthage has to be destroyed. And the  the kind of historical myth of that is that the Romans poured salt all over it so nothing would ever grow there again. And there’s this question of, how do you rebuild a place like Gaza? And President Trump has come up with a typically Trumpian proposal for this.

Allen Weiner: Yeah, it’s honestly, it’s, I think, mind boggling, the Trump proposal and I think it was even a surprise to people in his own administration when he announced it during his press conference.

Pam Karlan: And, as I understand the details of the proposal, it’s you remove all the people from Gaza. You take away all the buildings of Gaza, and you build a resort.

Allen Weiner: Yeah, you give it to us. So we will own Gaza. So you give it to …

Pam Karlan: What, in international law, what would it mean for us to own Gaza? Is this like when we owned the Philippines?

Allen Weiner: I think, so the first thing is…

Pam Karlan: What does he mean when he says we will own it? That the Trump family really…

Allen Weiner: It could be, it might be, it could be the Trump family. If the idea is to get the property somehow from …. states can trade, territory, right? But who’s the state that Gaza belongs to? It is Palestine. Palestine has no interest in giving Gaza to the United States. If we were to try to take it, it would be a forcible annexation, right?

Pam Karlan: That would be our own war.

Allen Weiner: It would be our own war, right? And this is one of the bedrock rules of the international system, is that forcible annexation is prohibited. It actually is one of the…

Pam Karlan: Is that what Germany did in the Sudetenland?

Allen Weiner: It’s what Germany did in the Sudetenland. It’s what Russia is doing in Crimea, has done in Crimea and eastern Ukraine. And actually for most of the pos- 45 period, for most of the U. N. Charter period, this basic rule that you don’t invade your neighbors and annex their territory by force, has actually been a rule that’s been stable and has held, right.

This is why what’s happening in Ukraine is so shocking, right? Saddam tried it in Kuwait was unsuccessful. So either we take it forcibly from the Palestinians, or we ask the Israelis to do so as a middleman for us, since they have physical control. So, this is clearly illegal. We would also … there’s talk about, again, there’s two million…

Pam Karlan: Yeah, I was gonna then turn to, once you get the land, he has a proposal for the people, which also seems bizarre.

Allen Weiner: It’s a proposal that they leave. And deportation of civilians is another one of these black letter law rules when you’re teaching the law of armed conflict. You don’t have to be a very sophisticated international lawyer to know that you’re not allowed to forcibly deport a civilian population. So this idea is, has been described as absurd. Blatantly illegal. It’s, it is to me, Pam, shocking that an American president, the leader of a country that has historically been a proponent of international law, would articulate such a plan.

Pam Karlan: And he’s trying to force the Jordanians and the Egyptians to take these folks, right?

Allen Weiner: This is, the question is: Where do the Palestinians go? He suggested that they would go to someplace beautiful.

Pam Karlan: And then they wouldn’t want their country back.

Allen Weiner: And then their place would be so beautiful that they wouldn’t really want to come back to Gaza, so that we could then continue operating the new Riviera on the Mediterranean. Of course, the Jordanians and the Egyptians want nothing to do with the incorporation of a large minority population, particularly in Jordan, which has already a mix of Palestinian Hashemite population. I think this would be seen as very destabilizing. What’s ironic is that the Israelis also, the ones who are, thinking about this in a serious way, don’t want 2 million Gazans in either Egypt or Jordan.

I think the Israelis feel in a perfect world, they have more ability to exercise control over Hamas in Gaza, right? Where they are able to conduct military operations, than they would if they were located in Jordan or Egypt. So now, we hear talk about them going someplace a little further away, maybe Saudi Arabia.

Pam Karlan: It’s starting to sound like the proposal in the 19th century that the Jews in Eastern Europe should all move to Uganda.

Allen Weiner: Yeah. Did they ended up in a, in some ways an equally exotic place. Given that they had broken…

Pam Karlan: At least that they had a historical connection….

Allen Weiner: When I think about the Trump plan, I just I just ask people to imagine that they’re reading a newspaper story in which Xi Jinping, president of China is saying, wow, that fire devastation in the Palisades looks really bad. So we’re going to own the Palisades. We’re going to take over a big chunk of Los Angeles County. We’re going to remove the people there and send them off to someplace nice, like Mexico or Guatemala. And then we China are going to rebuild the Palisades and it’s going to be an amazing resort property, the…

Pam Karlan: Riviera of the Pacific.

Allen Weiner: The Riviera on the Pacific, the Malibu of Southern California, you might say, and just to describe this when we start thinking about somebody else, articulating this kind of plan, highlights, how unacceptable and absurd and intolerable it is.

Pam Karlan: Yeah. So, given that plan is obviously a nonstarter along almost an infinite number of dimensions, what is going to happen? How is Gaza at some point going to be rebuilt? Because there are 2 million people who have to have housing and education and health care and a functioning society.

Allen Weiner: It’s going to be a huge challenge. This is, in fairness, rebuilding Gaza will be a huge challenge. The one thing that’s interesting about the Trump move, as with some of his other, kind of intimidation tactics, is it has now forced Arab countries to start saying, wait a minute: What are we going to do to rebuild Gaza?

So, we’re now going to see next month there’s supposed to be a big Arab summit. That’s going to be focused on this. I think this will put pressure on the on Arab states to come up including, Gulf states which have resources to contribute to reconstruction to really focus on rebuilding Gaza.

The bigger challenge I think that remains very hard to solve is the question about governance and security of Gaza. There is a solution there. I think there’s a solution that’s not so far-fetched, which is that the Palestinian Authority, the entity which is the self-governing entity for the Palestinian people in the West Bank, which used to govern Gaza before they lost an election and then lost a civil war to Hamas, comes back and serves as the kind of indigenous governing entity in Gaza, again, with the money from Gulf states to contribute to rebuilding. That seems to me to be the way forward. Israel has declared that it won’t accept a PA, a Palestinian Authority governance in Gaza. So I don’t really know what the Israeli vision is.

Pam Karlan: This has been a fascinating discussion. Thanks so much, Allen, for coming on to the show. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show, and it also helps new listeners to discover us.

I’m Pam Karlan. See you next time.