Rescuing Reason - E15 - Iran Pt 4 - War Crimes - Rescuing Reason

Episode Transcript
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SPEAKER_13 (00:25):
Hello and welcome to Rescuing Reason.
This episode is the last of ourfour-part series on Iran.
In today's episode of RescuingReason, we are considering
whether the conduct of theUS-Israeli war with Iran is in
accordance with the laws of war.
I'm your host, Bill Karolakis.

(00:46):
I'm a retired senior Air Forceofficer.
I use history and research tobaseline the topics on rescuing
reason, and I'll be offering youa Spartan perspective in each
episode, in other words, takinga pragmatic view that values the
nation and broader Westernsociety over individual
interests.
So far in this series, we lookedat how Persia became modern day

(01:08):
Iran, and then we consideredwhether the Iranian nuclear
weapons program and Iran'ssupport for proxy wars and
state-sponsored terrorism alljustify preemptive strikes on
Iran.
I concluded that they did.
And if you want to hear how Ireached that conclusion, please
listen to episodes twelve,thirteen, and fourteen of
Rescuing Reason.

(01:28):
Today we're looking not atwhether war is justified or
ethical, but rather how this waris being fought.
And by this war I mean theconflict that started in
mid-2025 with the twelve-day warbetween Israel and the US on one
side and Iran on the other, andwhich recommenced on the

(01:49):
twenty-eighth of February twentytwenty-six.
And as of this recording, thatwar is in some kind of
ceasefire, sort of, maybe not.
At the end of the day, they'restill shooting at each other.
Something we need to bear inmind when we're talking about
Iran, nuclear power, war, andwar crimes is that the media is

(02:09):
rife with misinformation aboutall of those things.
Mostly because people are verybiased on these topics, but
sometimes because of deliberatemisinformation or
disinformation.
I'll call out that bias as we gothrough the contentious issues
related to Iran.
The reason we're talking aboutthe conduct of war and the laws

(02:30):
of war is that it caught myinterest largely because I'm
particularly amazed at how oftenreporters and commenters and our
politicians will accuse someoneor some nation of war crimes
without actually understandingthe international laws and
international customary law thatunderpins the concept of war

(02:51):
crimes and just wars, which Idetailed partly in episode 13.
And in today's episode, we'lltake a deep dive into the laws
that underpin conduct in war.
In modern language, this iscalled international
humanitarian law, and you'llhear a lot of people call it
IHL.
But its older name was the lawsof war or the laws of armed

(03:15):
conflict.
We need to quickly spell out thedifference between legality of
wars and legal conduct in war,and how talk of war crimes can
be misguided in those contexts.
And here we have ex-U.S.
Army lawyer Cody Harnish with anexcellent explanation.

SPEAKER_04 (03:34):
Let's discuss the difference between Juicebellum
and Juice in Bellow.
Everyone is arguing aboutwhether this war is legal, and
they are mixing up twocompletely different bodies of
law.
This confusion is everywhereright now.
There are two completelyseparate legal frameworks at
play in any war, including thisone in Iran.

(03:54):
First, juice at Bellum.
That governs whether a state canstart a war in the first place.
Think, did the US have a legalright to use force under the UN
Charter?
Was it self-defense?
Was there a UN Security Councilauthorization?
That's Juice at Bellum.
Second, Juice and Bellum, alsocalled the law of armed
conflict, and that governs howwars are fought after it already

(04:16):
starts.
Think, can I target this person?
Is this strike proportional?
Did we protect civilians?
These two bodies of law areindependent from one another.
One does not fix the othereither.
A war can be illegal at thestart, but the individual
strikes during the war can stillcompletely follow the law of
armed conflict.

(04:38):
And the reverse is also true.
A war can be perfectly legal atthe start and still be fought in
a way that involves war crimes.
Here's the key principle.
The moment there is an armedconflict, the law of armed
conflict applies, period.
The legality of the war itselfdoes not change how legally one
can wage war on the battlefield.

(04:59):
Law of armed conflict asks,given that there is already
fighting, are we following therules when we fight?
So when you hear someone say,this war is illegal, so every
strike is illegal, that's wrong.
And when someone says the strikewas precise, so the war must be
legal, that's also wrong.
Two different legal questions,two different rule books, and

(05:20):
one does not excuse the other.

SPEAKER_13 (05:23):
As Cody said, conduct is covered by the laws
of armed conflict, or IHL.
And once we've reviewed thoselaws, we'll look at four aspects
of the conflict with Iran.
Firstly, Israel's initialresponse in Gaza and Lebanon
after the 7 October 2023attacks.
And while I'd like to think ofthe Gaza conflict as separate

(05:45):
from the Iran war, they arelinked in some ways.
Then we'll consider the targetsselected by both sides in the
mid-2025 or the 12-day war.
And finally, we'll look attargeting in the 2026 phase of
the war, along with the rhetoricthat has been rife in the media
from both sides and frompoliticians on both sides.

(06:05):
Throughout these examples, we'lllook to assess whether the laws
of war have been broken and bywhom and to what degree.
And we'll finish by consideringwhat all of this means for the
laws of war themselves.
Let's start off with the law.

(06:27):
Now, this is a quick lesson onthe history of where the laws of
war came from in terms ofconduct of war, or juice and
bello is the Latin term.
For more detailed accounts,check out episode two of
Rescueing Reason, where I coverJuice and Bello and Juice at
Bellum in great detail.
The history of the laws of wargo way back, but for our quick

(06:48):
lesson, suffice to say we canname Henry Dunon as the key
founder.
He witnessed the horrors of theBattle of Solferino in eighteen
fifty nine, and after that hepushed for the establishment of
the International Red Cross ineighteen sixty three, and in
eighteen sixty four the GenevaConvention for the amelioration
of the condition of wounded inarmies in the field, which was

(07:08):
signed by most of the Europeanpowers.
This was amended in 1906, 1929,and then again in 1949, and it's
now known as the first GenevaConvention.
Three more conventions wereadded or revised by 1949, all to
do with how to treat soldiersand civilians during war.
Notably, the fourth GenevaConvention is about the

(07:30):
protection of civilian personsin time of war.
There are additional amendmentsto these conventions called
protocols, and they were adoptedin 1977 and 2005.
In addition to the GenevaConventions and Protocols, which
are primarily concerned withprinciples of humanity, the law
of The Hague was developedthrough conferences in 1899 and

(07:53):
1907 to codify the conduct ofwar.
Its aim was to quote determinethe rights and duties of
belligerents in the conduct ofoperations and limit the choice
of means in doing harm.
End quote.
So it concerns itself with thedefinition of combatants, in
other words, who you can targetand who shouldn't be targeted.

(08:15):
It establishes rules relating tothe means and methods of warfare
and examines the issue of whatis a legitimate military
objective.
In addition to all that, thereis the Nuremberg principle,
which says that you shouldn'tfollow illegal orders.
And I'm going to replay a clipthat I had in the last episode
because it's a good explanationfrom Colonel Robert Hamilton.

SPEAKER_07 (08:37):
And illegal order is clear.
It's either an order that'sillegal under U.S.
law, is illegal under militarylaw, or is illegal under key
components of international law,like the law of armed conflict
or international humanitarianlaw, the Geneva Convention.
So it's incumbent upon anyservice member to understand
what is illegal and what isillegal, and to refuse to carry

(09:01):
out orders that are illegal,meaning orders that violate
either U.S.
law, U.S.
military law, or internationalhumanitarian law.
There aren't gray areas so muchas there are, there's a large
body of law that I justreferenced here, right?
U.S.
domestic law, the UCMJ, andinternational law.
So uh the way we train servicemembers to understand what's an
illegal order and what's not isso there's extensive training at

(09:24):
every level of the training andeducation system in all branches
of the U.S.
military, from basic training tothe war colleges, which is the
are the senior educationinstitutions that educate
lieutenant colonels andcolonels.
So at every level, there'sextensive training.
This comes from the NurembergTribunal after the Second World
War when uh many of the Nazimilitary and government

(09:46):
officials on trial, theirdefense was I was following
orders.
In other words, I committed warcrimes or crimes against
humanity, but I was told to dothat by my superior commander.
The U.S.
military from that point forwarduh has made it explicit that
military members have a duty tonot carry out illegal orders.
They have a duty to refuseillegal orders.

SPEAKER_13 (10:08):
The final pieces of the puzzle that form the laws of
war are some modern conventionsand protocols that outlaw
specific weapons, mostly becausethese weapons cause death and
injury long after the conflictshave ended.
For example, the banning ofmines, cluster munitions, booby
traps, anti-personnel mines,blinding lasers, and attacking
civilians with incendiaryweapons.

(10:30):
All very nasty stuff.
The law of The Hague, the GenevaConventions and those protocols,
and the other specific treatieshave varying degrees of
concurrence around the world,with most countries agreeing to
them.
As they should, because theyencapsulate basic human values
and our intrinsic distaste ofhuman suffering.

(10:52):
In total, these form the basisfor what is called the law of
arms conflict or laws of war,and now more commonly referred
to as the internationalhumanitarian law, which I'd say,
as I've said before, is a titlethat smacks of political
correctness, and I like usingthe term laws of war instead.

(11:12):
Regardless, those laws andcustomary laws were parts of the
post-World War II establishmentof the global rules-based order,
which was led by the US and theUK as a means of ensuring a few
key outcomes.
Those outcomes were havingmultilateral institutions like
the United Nations or the WorldTrade Organization or the

(11:33):
International Monetary Fund.
It also set out human rights andequality, economic cooperation,
and security cooperation.
The one big difference betweenpre-World War II and today for
our purposes in considering thelaws of war is how the globe,
through the United Nations, hasgenerally said we don't want any

(11:57):
more total war, meaning win atall costs, or meaning that we
don't want wars to be fought toohorrifically.
So what is total war, you mightask?
Well, there are three generalconcepts that we can think of
when we talk about generalapproaches to war at one extreme

(12:21):
end, which is the total war end,is the General Sherman War is
hell doctrine.
Sherman was renowned for routingthe Confederates in the U.S.
Civil War, leading the campaignin the Indian Wars, and then
becoming the US Army commandinggeneral.
He said that soldiers fighting awar, quote, can do anything at

(12:43):
all that is useful in fightingany blame their actions entails
falls upon the leaders of theother side.
Put another way, Sherman wassaying victory is all that
matters, and the ends justifythe means.
So you might imagine that ifSherman was judging Israel, he

(13:04):
would not find them guilty ofbreaking the laws of war in
their attacks on Gaza, Lebanon,or Iran.
The opposite of Sherman's viewis moral absolutism, which says
that the rules of war are aseries of categorical and
unqualified prohibitions, andthat they can never rightly be
violated even in order to defeataggression.

(13:28):
So it's a very pacifist view.
In other words, be prepared tolose for the sake of the moral
high ground and for the sake offollowing the modern
interpretation of the laws ofwar.
Those backing this perspectivewould convict most Israeli
leaders of war crimes for theiractions in Gaza.
And of course there is themiddle ground, in which the laws

(13:49):
of war are applied, but onlywhen able or in line with the
state's strategic aims.
This tends to mean that theconcept of necessity, which
we're going to talk about later,becomes paramount for the
attacker.
In other words, when it'snecessary to win a battle or a
war, a state will looselyinterpret discrimination and

(14:10):
proportionality, which are otherconcepts that we're going to
cover in a minute, as Israel isdoing in Gaza.
If you take the advice of legalexperts, they would say that
through the provisions ofcustomary law and the UN Charter
and those conventions andprotocols I mentioned earlier,
the modern interpretation leansmore towards having to justify

(14:33):
every single action in warrather than taking Sherman's
approach, which of course was toput all the blame on the other
side for anything and everythingthat happens in the war.
And here we have ProfessorRachel Van Landingham, who is a
retired U.S.
military judge advocate general,and now a professor at
Southwestern Law School.

(14:54):
And she's using Donald Trump'sthreats against Iran as an
example of how the modern lawsof war no longer support total
war.

SPEAKER_20 (15:13):
Why?
Because the love of war says wedon't engage in total warfare
anymore.
We don't believe that childrenare the enemy and that civilians
are the enemy.
The love of war says, look,we're going to divide the middle
field, which in the modern daysis love in the city to run into
civilian objects and they'reprotected and civilian people
that are protected.
And then there's militarytargets, love and military

(15:34):
objectives that make aneffective contribution to
military action and whosedisruption provides a definite
military advantage.
We divide the world into thosetwo camps by saying we're just
going to bomb everything, bombevery single bridge, every
single power plant that servescivilians that is threatening
indiscriminate attack, and it isone of the most horrible war

(15:56):
crimes there are.

SPEAKER_13 (15:57):
And we're going to come back to Trump and other
conduct in these wars in a fewminutes.
But first we need to discussenforcement of those laws.
Because without enforcement, ofcourse, laws lose some of their
meaning.
In our world, that enforcementcomes from international
agreements that establishedbodies to do that enforcement
and to clarify all those roles.

(16:19):
For the laws of war, they'reenforced through the provisions
of the United Nations, theInternational Court of Justice,
which is an arm of the UnitedNations, and the International
Criminal Court, which was set upunder the Rome Treaty.
It's important to note that theInternational Court of Justice
deals with state level issues,and the International Criminal

(16:40):
Courts deals with mattersagainst individuals.
So in the case of Israel andGaza, the International Court of
Justice is hearing the genocidecase brought by South Africa
against Israel, and they'reexpecting a judgment somewhere
around 2027.
And the International CriminalCourt has issued a warrant for
the arrest of Benjamin Netanyahuon war crime charges related to

(17:03):
the prosecution of the war inGaza.
Interestingly, there isn't awarrant for Trump's arrest yet.
Before we can jump into the USIsraeli-Iranian war to consider
whether their conduct violatesthe laws of war, we need to

(17:24):
review those three keyprinciples I mentioned a minute
ago because they underpin thelaws of war and how they're
interpreted by those legalbodies.
And those terms arediscrimination, proportionality,
and necessity.
And here's Professor MaxMarguiles of West Point covering
those principles.

SPEAKER_12 (17:42):
As we've seen in recent conflicts around the
world, by their very nature,legitimate military targets are
often located in or aroundpopulation centers.
What's more, the rise of proxygroups and non-state actors who
may not wear uniforms but arenonetheless legitimate targets
if you can identify them,further complicate efforts to
protect civilians.
While it may be relatively easywith today's technology to

(18:03):
identify something as alegitimate target, the state's
obligations under internationalhumanitarian law do not stop
there.
The principle of proportionalitydictates that militaries try to
minimize collateral civiliancasualties, keeping them
proportional to the directmilitary advantage gained.
In other words, killing a singleprivate far from the battlefield
is unjust and illegal if you hadto raise a village to do so,

(18:25):
even though they would be alegitimate target.
But comparing the value of humanlives is always more complicated
than that.
Especially in a war of attritionwhere the goal is to wear down
the enemy and deplete theirresources, it can be nearly
impossible to separate theimmediate tactical or
operational consequences fromtheir broader strategic purpose.
Every munitions factorydestroyed creates incalculable

(18:46):
advantages over the enemy'smorale and capabilities in the
long run.
And that's to say nothing ofvital dual-use infrastructure
like electric grids and theinternet.
As the world becomes moreurbanized and interconnected and
war turns more towards citycenters, it will become ever
harder to keep civilians out ofharm's way.
Proportionality is not the onlyprinciple to uphold.
The principles of distinction,which prohibit indiscriminate

(19:08):
force that cannot distinguishbetween combatants and
civilians, and the principle ofmilitary necessity, which
requires states to choosetargets only with legitimate
military purposes, may seem likethey should be easier to uphold
with modern technology, but alltoo often states may try to blur
the lines.
Today it's almost standard tocount all men of fighting age as
combatants, which seemingly bydefinition violates the

(19:29):
principle of distinction.
In a world where significantfighting happens away from or
totally without front lines, andwhere combatants may go without
uniform as often as civilians,distinction will be even harder.

SPEAKER_13 (19:40):
So basically, we humans have sought to put bounds
on what is permissible duringthe conduct of war.
Those bounds are abouthumanizing war, and the goal is
to balance the aims of defeatingor weakening the enemy with
minimizing civilian and humansuffering.
Those principles that boundconduct in war are variable, and

(20:03):
some say that one principlecannot be discarded, such as
humanity, in favor of others,such as military necessity,
which, by the way, happens alot.
Here's Professor VincentChattel, a professor of
international law in Switzerlandspeaking on what matters, where
he succinctly captured the aimof the laws of war, which he

(20:23):
refers to as internationalhumanitarian law.

SPEAKER_17 (20:27):
Humanitarian law is resilient.
It is not a naive or idealisticlaw.
The very content ofinternational humanitarian law
is to establish a balancing actbetween military necessity and
humanitarian considerations.
So it is not absolute, it doesallow exceptions in particular
instances.

(20:47):
And Kaly, the term law of war isperhaps a better label than
humanitarian law.

SPEAKER_13 (20:53):
So Vince had quite the thick accent there.
I hope you caught it all, buthis point about balancing
humanity with the military aimssums it up rather well.
Now what we'll do is we'llconsider a few examples of
what's been happening over thepast year in the conflicts with
Iran, and we'll see if we canmake sense of the laws of war
and their applicability to theconduct of the belligerents.

(21:14):
Let's start with a tangentialsituation, that of Israel's
response to the 7 October 2023attacks by Hamas.
I say tangential, but I thinkthat the lack of a global
response to Israeli action hasemboldened Israel.
And so the Gaza campaign is abit of a precursor of things
that came afterwards.
In other words, do you thinkIsrael would have attacked Iran

(21:37):
if the world had stepped in tocontrol Israel's actions in Gaza
and then Lebanon?
Perhaps, perhaps not.
We'll never know.
I did cover this topic inepisode two of Rescuing Reasons,
so you can go ahead back andlisten to that if you feel like
it.
But here's a quick recap.
In case you're unfamiliar withthe situation, on the 7th of
October 2023, Hamas attacked.

(22:00):
Attacked Israel from Gaza,killing about twelve hundred
people in southern Israel andtaking over two hundred
hostages.
Israel responded with a seriesof overwhelming military
attacks.
Those Israeli attackstheoretically targeted Hamas,
which is the militant terroristgroup that was running Gaza, and
those initial attacks were, ofcourse, in self-defense.

(22:21):
If someone hits you, you get tohit them back.
But those Israeli attacks havecaused a lot of collateral
damage to infrastructure anddeath and injury to civilians.
Estimates of civilian casualtiesare in the tens of thousands,
with some estimates going over ahundred thousand, and about
seventy to eighty percent ofGaza has been damaged.

(22:42):
Just focusing on what Max saidabout proportionality, you have
to wonder if the devastation andslaughter in Gaza is compliance
with the laws of war.
Never mind how you can assertthat seventy percent of Gaza was
a necessary military target thatgave military advantage.
And with that many civiliancasualties, one wonders just how
diligent the Israelis have beenwhen it comes to discrimination.

(23:05):
All of which points to potentialwar crimes coming out of
Israel's conduct of war in Gaza.
However, there are counterviews.
Israel says it is complying withthe laws of war.
But I'd say that the death tolland the seventy percent
destruction of Gaza indicatesthat Israel is using a broad
interpretation of those lawswhen they say they're complying.

(23:26):
Here is what Israeli lawyerssaid to the International Court
of Justice when defendingIsraeli actions, and this is a
quote.
Israel restricts its targetingpractices to attack military
personnel or objectives inaccordance with international
humanitarian law in aproportionate manner in each
case.
Every civilian casualty in thisconflict is a human tragedy that

(23:48):
demands our compassion.
But the court is not told howmany thousands of casualties are
in fact militants, how many werekilled by Hamas fire, how many
were civilians taking directpart in hostilities, and just
how many are the result oflegitimate and proportionate use
of force against militarytargets, even if tragic.

(24:09):
Of course, Israel does haveevery right to act to defend
itself in accordance with therules and principles of
international law, and so it hasdone.
The accusations against Israelare about the conduct of the

(24:32):
war, not whether the war wasjustified.
As I discussed in episodes twoand thirteen, Israel does indeed
have the right to defend itself.
The question is how it isdefending itself and whether
their conduct in war constituteswar crimes.
Israel also responded to a June2024 report from the Office of
the United Nations HighCommissioner for Human Rights,

(24:53):
which found Israel responsiblefor violating fundamental
principles of internationalhumanitarian law on the conduct
of hostilities in itsindiscriminate and
disproportionate attacks inGaza.
Regarding indiscriminate aerialbombing, Israel said, and here's
another quote In many instances,aerial munitions, including
those with a wide area ofeffect, are the only type of

(25:15):
weapon that can accomplish themilitary objective.
In other words, Israel is sayingthat the principle of necessity
overrides the principles ofproportionality and
discrimination.
Israel went on to criticize theUN for a legal analysis based on
the final outcome of the attacksrather than the internal Israeli
decision-making process, whichof course they're not going to

(25:36):
tell us about, and for theassumption that, quote,
attacking a large number oftargets or using certain
munitions implies a problem withthe application of the rules of
distinction.
End quotes.
Put another way, Israel issuggesting that large-scale
indiscriminate assaults can bemilitarily justified and are
thus legally permissible.

(25:59):
There are many lawyers who don'tagree with that, and we'll hear
from them soon enough.
Indeed, Israel's stancecontradicts what we just heard
from Professor Van Laningham afew minutes ago.
So we have the law of warlawyers saying one thing and
Israel saying another.

(26:19):
We're talking about constrainedwar versus close to but not
quite total war.
And the fact that Israelcontinues to act in the same way
begs the question about whetherthose laws have much meaning
anymore.
And we're going to come back tothat topic towards the end of
this podcast.
My view on this is that wesimply can't look at seven
October and the ensuing Israeliresponse.

(26:42):
We should be considering thetotality of the history between
Gaza and Israel.
Even though immincy of thethreat or timeliness of
self-defense responses might bedebated here, I think that most
people understand that Israel issick and tired of attacks coming
from Gaza and basically decidedto remove that threat once and
for all.
Indeed, there was plenty ofinternational support or at

(27:05):
least quiet acceptance forIsrael's initial responses in
those first few weeks after the7th of October, 2023.
And given that modern threatsare unpredictable, as I
discussed two episodes ago,there is a legal view that we no
longer have to wait until justbefore an attack to preemptively
strike in self-defense.
And we can thank George BushJunior for that interpretation.

(27:28):
And I think it's the right viewin modern times.
Based on that interpretation,you can see why Israel is still
attacking Gaza and of course nowLebanon.
And if you take Israel'sperspective, well, they see a
threat and they are going toremove it because from their
perspective, that is a militarynecessity.
Remember, the law ofproportionality permits civilian

(27:50):
casualties and collateral damagein conflict when the law of
proportionality is followed.
The question is, to what degree?
And here we have Professor MarcoSassoli of the University of
Geneva explaining why it mightbe okay to blow up a school or a
refugee camp or a hospital, asIsrael has done.

SPEAKER_06 (28:11):
When it comes to conduct of hostilities, which
means bombing, then it is notthe result that counts.
You see a destroyed school.
But in law, you don't yet knowwhether this was a violation of
humanitarian law because youshould know first whether this

(28:32):
was the target.
And what was it at the school orunder the school at the moment
when it was attacked?
And perhaps the school was notthe target, but something
nearby, a rocket launcher.
Then the proportionality comesin.
But to evaluate whether theproportionality, and I give you

(28:53):
an example from recently fromthe Gaza Strip, Israel attacked
a target in the refugee camp ofJabalia.
And Israel says, yes, in theturnover, there was an important
leader of Hamas.
And then to evaluate theproportionality, we would need
to know how important was it,what was the military advantage

(29:17):
to kill this leader?
Because, let us be clear,although it is not seen so often
in public opinion, bombingcannot be justified by
punishing.
I mean, even if he has committedthe worst crimes, that's not the
issue.
And revenge is not the issue.
The issue is he is a legitimatetarget because he commits acts

(29:43):
of violence whether lawful orunlawful.
I always give my son who is inthe Swiss Army as an example, or
was in the Swiss Army as an oldSwiss man at a certain age.
I mean, he is a totally harmlessperson, but he was a member of
the armed forces, therefore itwas a legitimate target.
But obviously, if uh the Frenchattacked Switzerland, they

(30:06):
couldn't kill many civiliansjust to get my son, because this
would be disproportionate,because my son is not very
dangerous.
So we would need to know allkinds of things which the
parties will not tell us.

SPEAKER_13 (30:21):
Well, that perspective from Professor
Sassoli didn't quite coverIsrael's conduct.
The Israelis are weightingmilitary necessity far more than
discrimination andproportionality, and far more
than most legal scholars thinkthey should, but not all legal
scholars.
Here's Natasha Hausdorff, who'sa British international lawyer,

(30:43):
putting a pro-Israeli spin on itin an interview.

SPEAKER_19 (30:47):
Taking out a rocket before it's fired is a perfectly
legitimate, necessary militaryaim.
That strike would also have todistinguish between military
targets which are lawful tostrike, civilian buildings which
wouldn't be.

SPEAKER_21 (31:00):
What about a rocket launcher inside a refugee tent?

SPEAKER_19 (31:03):
Unless they are being used for military
purposes.
So it's not the case thatcivilian buildings or schools,
hospitals, even refugeeencampments maintain a civilian
status if they are in fact beingused directly for hostilities by
combatants, by terrorists inthis case, terrorist armies of
Hamas in also PalestinianIslamic Jihad, or indeed

(31:25):
Khezbalah to the north ofIsrael.

SPEAKER_13 (31:28):
I'm curious, did you pick up on Natasha's bias?
She regularly speaks on behalfof Israeli interests.
Regardless, the points you canpull from Natasha is that the
Israelis don't believe theyshould constrain their conduct
in war because of discriminationor proportionality.
Although I will say, by talkingabout those requirements in

(31:48):
court, as I mentioned a coupleof minutes ago, Israel is at
least recognizing the existenceof the laws of war.
I myself am torn on the issue ofIsrael's mass destruction in
Gaza.
The reasoning to be rescued hereis highly dependent on your
perspective.
Humanists simply point to allthe civilian deaths, including

(32:08):
the many dead children, theblown-up hospitals and schools,
and they side with the moderninterpretation of the laws of
war.
In other words, it sure lookslike Israel is conducting total
war, which is something, as wesaid earlier, through the United
Nations, the world agreed tostop doing after World War II.
Now the people in southernIsrael and its leaders have a

(32:29):
different view because they'retired of abiding by those laws,
particularly since neither thoselaws nor eighty years of the UN,
and we're talking aboutpeacekeeping and aid, have
helped Israel achieve security.
So the Israelis have steppedtowards total warfare to get the
job done.
They blow up schools and blow uphospitals if they think there's

(32:52):
a connection to their futuresecurity, or if they think
there's some future militarydisadvantage inherent in those
buildings.
Yes, it's horrific.
But if you're an advocate oftotal war or Sherman's doctrine
of war is hell, then youprobably believe in fighting to
win, not fighting with a handtied behind your back, which is

(33:15):
what the modern laws of war doin this situation.
So I can see both sides here.
The question of Israel'soverwhelming assault on Gaza
will ultimately go to theInternational Criminal Courts or
the International Court ofJustice for a ruling.
And I have no idea how it'sgoing to turn out.
It'll depend on whether the lawsthemselves survive the current

(33:36):
trends.
Again, more on that shortly.
Let's get back to Iran.
The US and Israel struck Iran inmid-2025 as a measure of
self-defense in that theytargeted Iran's nuclear weapons
program.
It was a limited set of strikes,only lasting twelve days.

(33:58):
We discussed that attack twoepisodes ago in terms of whether
it was justified.
As for the conduct in that war,the targets were generally in
line with the stated aims of thewar, which was to eliminate the
Iranian nuclear program.
But there were a few anomaliesin the target set which may have
breached the laws of war.
And here's a summary of theattacks conducted in the
twelve-day war.

(34:19):
Eight infrastructure sites,mostly components of Iran's
nuclear program, were hit, butthat included Imam Hussein
University's physics department,which Israel said was involved
with experiments related to thenuclear weapons program.
And remember, schools aresupposedly not legitimate
targets.
But you can see why it mightmake sense to target the school
in this case.

(34:40):
About thirty-five targetedassassinations were made.
Many were Revolutionary Guardcommanders and quite a few were
nuclear scientists.
So here we have the purposefultargeting of civilians.
But in my view, if you're intenton removing a military threat,
the production capability shouldbe targetable, including the
brain power behind thatcapability, civilian or not.

(35:01):
You'll hear a legal counterviewshortly.
About ten government facilitiesacross various departments were
struck.
We have no idea what themilitary necessity was for
targeting buildings that wouldclearly have had civilians in
them.
About fifty military targetswere struck, ranging from
missile bases to air defense,etc.
I don't think these would beoutside the realms of the laws
of war.

(35:22):
There might be corner caseswhere such strikes were illegal.
Four civilian targets were hitwithout explanation from Israel,
except that one was a hospital,which was adjacent to a
legitimate target, and Israelsaid the hospital strike was an
error.
And we'll hear about errors in afew minutes.
And about half a dozenrefineries and energy production

(35:42):
sites were hit.
These were civilian-run targets,and in the context of removing
Iran's nuclear capability, youhave to question the legitimacy
of those targets.
But if you are trying to fomentregime change or damage the
overall economy, both of whichare elements of total war, then
you can see why they might belegitimate targets.

(36:04):
So to reiterate, that would be atotal war scenario, which, as
we've heard, is no longerconsidered legal under the
modern interpretation of thelaws of war.
Now what do you think?
Should total war be an agreedway of getting rid of a nuclear
threat?
I have to say the Hawk in mesays, yeah, hit them and keep
hitting them until the nuclearthreat is gone.

(36:26):
But that's my subjective view,not the view of the law.
Let's look at an example of howthis targeting is supposed to
work under the laws of war.
And here's Professor VanLaningham again with an example
about a bridge.

SPEAKER_20 (36:38):
You have to make an individual case-by-case analysis
of each bridge and every powerplant that is being considered
to be a lawful militaryobjective.
Its use or intended use has tomake an effective contribution
to the military, to militaryaction, not the regime in
general, but to military action.
And so a bridge, therefore, likethe bridge that was destroyed

(36:59):
last week, a bridge could makean effective contribution to
military action because it'sbeing used as a resupply line.
Logistical lines are often alegitimate lawful military
objectives in the war, despitethe fact that they also have a
civilian use.
Their destruction at the timehas to provide a definite
military advantage.
But that's not the end of theanalysis.
The law of war goes even furtherto say, okay, once you've

(37:22):
determined that there's somekind of military connection
here, there's a connection tomilitary action, and its
destruction or disablement willproduce a military advantage.
Then we have to look at willcivilians be harmed?
And of course, by taking uppower plants, civilian that are
civilian in nature, civilianswill be harmed because civilian
power plants provide civilians'electricity to their homes, to

(37:44):
water purification plants, tohospitals, you name it, right?
This is why the United Statesstrongly condemned Russia.
And our State Departmentconcluded that Russia was
engaged in war crimes ofindiscriminate attacks because
it was taking out power plants,electrical infrastructure in
Ukraine during the dead ofwinter, in which Ukrainians were
plunged into life-threateningcold without the definite

(38:08):
military advantage.

SPEAKER_13 (38:10):
Of course, Professor Van Lanningham has some bias
here.
So let's get the view fromOxford University.
Here's Professor Janina Dilltalking about the principles of
targeting.

SPEAKER_16 (38:20):
So I think the first question we need to address is
to what extent it's actuallypossible to legally assess US
and Israeli targeting or conductin this war.
The information in the publicrealm regarding the objects and
persons that the United Statesand Israel have targeted is
obviously limited.
That just means that anyanalysis must be seen as
preliminary and subject to thecabinet, that it would change if

(38:43):
new facts came to light.
But there is also a deeperchallenge here that really
befalls any legal analysis ofconduct and war, which is that
in many cases, when you look atconduct and war, even if you
literally can see what ishappening, you cannot
definitively establishcriminality, sometimes not even
illegality.
That is chiefly the case whenthe legal assessment depends on

(39:04):
what the attacker reasonablyknew at the time of attack or
intended to do.
Now that is not always the case.
Sometimes illegality, evencriminality, is actually visible
to the naked eye.
And allow me, just by contrast,to give you some examples from
beyond the war in Iran.
For instance, a sniper directlyfiring a child, a small child

(39:25):
walking on the hands of aparent, sexual assault against
persons in detention, a soldierplaying with the head of a war
dead and posting a picture of itonline, a unit entering a
village and then leveling everybuilding in it.
These are the contexts in whichthe conduct is without a
plausible set of contextualfacts that would make it

(39:45):
anything but a war crime.
So here the war crime and theillegality itself is visible to
the naked eye.
But air warfare is fundamentallydifferent because even if you
hit a hospital or a school, so apresumptively civilian object or
a specially protected object,there is a set of circumstances,
however unlikely thosecircumstances may be, in which
this would not be illegal.

(40:07):
That doesn't mean, however, wecan hide behind this difficulty
of a preliminary analysis andwait for the type of kind of
behind-the-scenes investigationor even a court case that would
be necessary to definitivelyestablish illegality and
certainly criminality.
Why can't we hide behind that orcan't wait for that?
Well, first, practically, in thevast majority of cases of sort

(40:30):
of sketchy immense strikes, nosuch investigation is ever
forthcoming, no court case everhappens.
But conceptually and moreimportantly, we can't wait for
the courts.
Wait for the courts is oftenwhat we're sort of called upon
to do, right?
Because law is more than a toolfor ex post facto
accountability.
Law is meant to guide thesoldier in action in that

(40:51):
moment, and then obviouslyrequires that soldiers learn
from past attacks.
And in addition, critically, lawis also meant to guide third
parties' evaluation of what isgoing on in the moment.
So law is meant to help us, oractually chiefly third states,
to appropriately react to howwars are conducted.
And if a conduct in war fails toinstantiate legal demands, then

(41:13):
third states must react.
They must withdraw theirsupport, their cooperation now,
not in 10 years.
For that reason, so law is meantto be a tool of concurrent
evaluation, and evaluate wemust, even if it is difficult,
tentative, and preliminary.

SPEAKER_13 (41:29):
In addition to targeting, Professor Dill
covered an important point thereabout the laws of war and how it
doesn't matter if we prosecutewar crimes or not.
Having those laws in place has aconstraining effect on many
nations and on many militarypersonnel as well.
And here she is again, this timetalking about how the law looks
at military targets, includingthose where civilians are

(41:52):
killed.

SPEAKER_16 (41:53):
Let's start by reviewing what has been attacked
by the United States and Israelin Iran.
I like to think about it as sortof four buckets of targets that
raise distinct legal questions.
First, military objectives bynature.
Second, political targets.
Third, presumptively civilianand specially protected objects.
And fourth, I'll talk about twocases of so-called dual-use

(42:17):
targeting.
So, first, there are strikesagainst nuclear facilities,
ballistic missileinfrastructure, net defense
systems, military productionscience.
These are military objectives bynature.
They're extremely likely to makean effective contribution to
Iran's military action.
It is extremely likely thattheir destruction offers a
definite military advantage toIsrael or the United States.

(42:39):
That means it is extremelylikely that these objects
fulfill the customary definitionof a military objective
enshrined in the FalasAdditional Protocol to the
Geneva Conventions.
The legality of each attack inthis category then depends on
proportionality and precautions.
The cumulative civilian casualtycount of this war is certainly
alarming.
In less than six weeks, thereare between 1,700 and 3,400

(43:04):
civilians have been killed byM-Strike.
These are different accountsthat you can find in open source
literature online.
But it is worth remembering thatevery individual killed in an
illegal aggression wasarbitrarily deprived of their
right to live, according tohuman rights law.
But from an unhm or loss of warperspective, our analysis must
kind of end here becauseproportionality and precautions

(43:26):
must be evaluated attack byattack.
So these principles attach to anindividual's strike.
So since we don't know much moreabout the kind of individual
numbers attaching to strikes andthe specific military advantage,
there's not much more we can sayabout these types of attacks.

SPEAKER_13 (43:41):
Professor Dill made the point that each strike has
to be assessed individually.
What did the targeteers know?
What kind of proportionality wasinvolved?
What was the necessity?
Did they apply discriminationlaws for what they knew?
We can look at the 140 ishschool children that were killed
on 2018.
February as an example.

(44:01):
Yes, horrific to think of somany young, innocent lives that
were lost.
But unless you are inside thetargeting cycle, you have no
idea what the basis was for thatattack.
And although it was a hugemistake, clearly a mistake,
mistakes happen in war.
If the US thought it was alegitimate target, and I'd say
with two tomahawks hitting it,I'm guessing it was not a weapon

(44:24):
error.
It was indeed an intendedtarget.
But perhaps they were workingwith old information about what
was in that building.
Or maybe some targeteer mixed uphis or her coordinates.
That's happened before.
The question then becomes, is itstill a war crime?
Even if the attacking nationthought it was a military
target.

(44:44):
The answer in my mind is no, weshouldn't be punishing them for
that.
Because to expect our people toget it right 100% of the time is
nonsense.
The lawyers have a differentview.
Here's Professor Gabor Rona, whois a professor of law at the
Cardazo Law School, discussingthis very point.

SPEAKER_11 (45:04):
The Manab School bombing illustrates the problem
of over-reliance on artificialintelligence.
You know, many facts about thisbombing are still unknown, but I
think there's enough to developsome preliminary thoughts.
Hundreds of targets beingidentified in just a matter of
minutes by artificialintelligence.
And this, you know, the vauntedhuman in the loop that's

(45:27):
supposed to make everything okayis given only minutes, maybe
even only seconds at best, youknow, insufficient time or
resources to actually vet thevalidity of the targets that AI
is producing.
It is important, as youmentioned, that this tragedy
occurred on the first day ofhostilities, where there was

(45:47):
just a bottleneck of so manytargets being identified that
the humans simply cannotproperly vet.
And in addition, the the resultscoming out of AI are only as
good as the data submitted.
There's nothing special about AIthat changes the fact that when

(46:07):
there's garbage going in,there's garbage coming out.
Now, if this were a case oftraditional vetting or even
traditional vetting with an AIcomplement, there would have
been reliance on intel on theground, satellite imagery.
All of this would have shownthat there was a playground,
there were brightly coloredmurals on the exterior walls of

(46:30):
the school, there were childrenwith backpacks and parents going
in, in and out.
Obviously not a militaryobjective.
The larger problem with relianceon AI is the diffusion of
accountability.
Who's responsible when badthings happen?
Is it the designer of thealgorithm?

(46:50):
Is it the gatherer of the data?
Uh, the person who submits thedata?
Is it that human in the loop?
Not only does this dilute thepossibility of accountability,
but but given that dilution,parties are then encouraged to
stray even further fromcompliance with the principles
of distinction, proportionality,and precaution, thus undermining

(47:14):
the protective purposes of IHL.
I also want to say concerningMINA, there has appeared to
develop a conventional wisdom,at least in the popular press,
that since the attack was notintentionally against civilians,
and I don't believe that theUnited States intentionally
targeted a school, but that itwas rather a mistake, and

(47:34):
therefore it cannot be criminal.
It can't be a war crime.
That's not correct.
The U.S.
War Crimes Act incorporatesspecific provisions of the 1907
Hague Convention IV, whichobligates parties to take all
necessary steps to avoidcivilian harm.
In other words, it is codifyingthe principle of precaution into

(47:58):
a war crime.
So certainly the degree ofculpability or punishment is not
as great as it would be if therewere an intentional attack
against civilians.
It is simply not the case thatthere is no criminal
accountability for mistakes.

SPEAKER_13 (48:25):
But his talk about it being a war crime, even if it
is a mistake, is a point tonote.
He said it's still a war crimebecause insufficient precautions
were taken to discriminate thetargets.
Now I have to say, knowing whatI know about the targeting
cycle, I doubt very much thatthe US military left it up to AI
to select targets.

(48:45):
I find it much more likely thatoutdated intelligence was used
to select that school as atarget.
But it still begs the questionif you weren't doing much about
discriminating the targets, areyou breaching the laws of war?
Well, I kind of get how thatwould be a breach of the laws of
war.
Especially in the case of theschool, because it had been a
school for quite some time, andthe US has the technical ability

(49:08):
to check these things out.
Yet I'll give you anotherperspective to chew on here.
In a large-scale war, who's gottime for all that checking?
Is it reasonable to say, look,in a big war, we can't expect
the belligerents to check everytarget that closely?
What do you think?
Do you think we should take thetime to check targets closely?

(49:30):
Or do you think we should justget on them with a job and get
that war over with as fast as wecan?
Should our militaries have anonus on them to get it right
100% of the time, even if itslows up the process of
conducting the war?
Apparently, that's how themodern laws of war are being
interpreted by these legalscholars.
Given how much targeting happensin war, I think that rule is

(49:53):
nuts and we need something else.
I'll come back to that.
And we aren't through withtargeting yet.
Here's Professor Dill againtalking about targeting
requirements.

SPEAKER_16 (50:03):
So let's turn to the third bucket, the kind of attack
that is particularly dangerousfor civilians.
According to the Iranian RedCrescent, 498 schools and 236
health facilities have beenattacked in this war.
This is obviously notnecessarily all verified, but 20
of attacks of these attacks onhealthcare facilities have also

(50:24):
been mentioned by the WHO inreporting.
Schools are presumptivelycivilian objects.
Hospitals are even speciallyprotected.
Obviously, not everything thatis attacked was targeted, and
not everything that was targetedwas identified as that what it
truly is.
For instance, the horrificattack against a complex of

(50:45):
schools in MENAP may have been acase of misidentification, where
the United States meant totarget the building it targeted,
but mistook it for somethingelse.
If that is the case, I'vepublicly argued this already, it
likely still violatesprecautionary principles, since
it was feasible to establishthis as a school, but it is not
implausible that the UnitedStates here did not know it was

(51:08):
targeting a school.
But if we generally assume thatthe United States and Israel
often target what they hit andthey often know what they are
targeting, these attacks againstschools and hospitals or attacks
that destroy schools andhospitals should raise serious
alarms, as potentiallyinstantiating what it looks like
when the United States rejectstepid legality and fights

(51:29):
without stupid rules ofengagement.
These are quotes from theSecretary of War.
Now, any object, really anyobject, even a specially
protected object orpresumptively civilian object,
can in principle become amilitary objective, but only in
very narrow circumstances.
In Gaza and Lebanon, every timeIsrael destroyed or attacked a
hospital or school, it attachedthe perfunctory of an

(51:51):
unsubstantiated claim that Hamashad used the object for military
purposes.
That alone does not guaranteethat these attacks are legal,
but of course it is the firstnecessary step to make any
attack against a hospital orschool anything but manifestly
illegal.
In the case of a hospital, therewould also have to be acts
harmful to the enemy, the youthwould have to include that.

(52:13):
Now it is remarkable then thatother than the kind of vague
allegation of co-mingling, thatIranians commingle by Ambassador
Waltz, we have not actuallyheard detailed claims by the
United States or Israelregarding the status of the
hospitals and schools anduniversities that were destroyed
in Iran.

SPEAKER_13 (52:30):
Now Dill discussed protected items such as schools
and hospitals and made thepoints that the US and Israel
are pretty good at knowing whatthey're hitting, and I agree
with her on that.
Yet they have hit a lot ofschools and a lot of hospitals.
One assumes they knew some ofthem were schools and hospitals,
which means they weren'tinnocent mistakes.
And she covered the point thatinnocent mistakes are indeed

(52:53):
possible.
She went on to say that schoolsand hospitals can still be
legitimate military targets, butunder the modern laws of war,
you have to prove the militarynecessity of striking those
targets.
In other words, the militarybenefits gained from those
strikes.
Of course, we're never going toget the US or Israel to cough up
those arguments, but one assumesthey went through the process of

(53:14):
making those assessments.
She went on to discuss bridgesand the energy sector as a whole
and whether they are targetableen masse.

SPEAKER_16 (53:23):
So finally, let me briefly turn to the fourth
bucket, bridges and energyinfrastructure.
These are structures that areoften used simultaneously by
both the civilian population andthe military.
Human Rights Watch, forinstance, has documented attacks
against gas fields, powerplants, oil storage facilities,
fuel depots, which has causedtoxic acidic rain.

(53:43):
So these are attacks that aredangerous for civilians and also
dangerous for the environment.
As before, the first legalquestion is whether a particular
bridge or a piece of energyinfrastructure made an effective
contribution to Iran's militaryaction by location for bridges
or by purpose or use for bridgesand energy infrastructure.
The United States has longclaimed that energy

(54:06):
infrastructure and oil can beattacked just when it sustains
the adversary's capacity to wagewar, even if it does not also
make an effective contributionto military action.
But this argument is contrary tothe legal text and has never
gained much traction outside theUnited States and Israel.
It is contested even inside theUnited States.
Ukraine has recently attackedRussian oil-related targets that

(54:28):
sustain the Russian economy.
And the argument has beenfloated that since states have
been largely silent about that,maybe here the customary law is
shifting.
But I think to shift customarylaw, um, where really a vast
majority of states um attachesto the kind of old definition,
which is also enshrined in thetext, I think we would require
more affirmative practice andmore explicit opinion yours.

SPEAKER_13 (54:50):
Now Professor Dill covered the point that under
modern interpretations, thosetypes of civilian targets must
be contributing to the militarycampaign if you're going to hit
them.
You can't just say, well, allthe energy is part of the
military campaign and then goknock out all the energy because
the civilians are using it.
However, as Professor Dillpointed out, that's exactly what

(55:12):
the US and Israeli position ison these types of targets.
She made an interesting pointabout how the Ukraine is also
targeting fuel, which is verysimilar, and that the world has
not reacted to this by callingZelensky a war criminal for it.
Is that a double standard on thepart of the West?
Or is it simply the West going,hey, we want to win that war,
and we're going to turn a bit ofa blind eye on this?

(55:35):
Which I don't mind.

SPEAKER_16 (55:37):
President Trump threatened, I quote, the United
States is going to knock outevery single power plant and
every single bridge in Iran.
Now singling out an entirecategory of objects as targets
really obliterates the wholeapproach that IHL demands
parties to the war should taketo target selection.
Among experts is actuallycontested whether for a military

(55:57):
objective by nature, so say atank, you need to still
explicitly establish that in thecircumstances ruling at the
time, it meets the two-prongedtest of a military objective.
So it makes an effectivecontribution and there's a
military advantage.
That is controversial.
It is, however, not at allcontroversial that for every
other object, the law demandsthat in each individual the

(56:18):
case, this two-pronged test mustbe applied.
So right now in Iran, there maywell be some bridges and some
power plants that make aneffective contribution to
military action, and the attackmight offer a particular
military advantage in certaincircumstances.
And there may be many others,most seriously, that do not, for
which that is not the case.
In case of doubt about thenature of an object or the

(56:40):
status of an object, there isbroad agreement in scholarship
and military manuals that theobject must be treated as
civilian.
So this is not so much anannouncement to violate the law
by the president, but it isbasically an announcement not to
apply it at all, to completelysidestep the logic demanded by
international law, and ofcourse, that by implication will
lead to serious violations.

SPEAKER_13 (57:16):
So basically, Trump is a total war advocate in the
way he's speaking and has beenthreatening total war, which
means he could be accused of warcrimes for those threats.
Iran has also been active,including the targeting of
civilian infrastructure such asrefineries, and they even hit

(57:39):
Kuwait's international airportrecently.
And let's not forget that theyblocked the Strait of Hormoz.
Here I have the UAE foreignminister giving us her
perspective on Iraniantargeting.

SPEAKER_15 (58:15):
We've borne the brunt of most of the missiles
and drone attacks.
And it's really quite surprisingfor us that Iran has taken such
an irrational path to fight theGulf states and act in this
quite unlawful, quiteunacceptable manner.

(58:36):
The retaliatory measures thatIran has taken to attack the
Gulf states is really where theissue we have is.
And I have to highlight herethat Iran isn't simply attacking
military bases that have notlaunched a single missile from

(58:56):
them, because we've made itclear that our territory would
not be used to launch an attackagainst Iran.
They are actually targetingcivilian infrastructure as well,
whether it's airport or it's oiltankers.
And I think that's a questionthat one must ask about.
Why is Iran using this measureto fight through their

(59:22):
grievances with the Israelis andwith the Americans?

SPEAKER_13 (59:25):
Now to dive a bit deeper into Iran's strategy.
Firstly, in the opening days ofthe war, Iran responded to the
attacks by spraying missiles allover the place.
And here we have Eva Pasarn,who's a lecturer from the
University of Cambridge,explaining what the Iranians
seem to be doing as a strategy.

SPEAKER_18 (01:00:07):
This is having an impact on places that are often
considered to be calm, stable,desirable locations.
People go on holiday to Dubai,Abu Dhabi, Oman.
Iran is really hoping to putpressure on these Gulf states to
then put pressure onto theUnited States to get Trump to
sort of reduce the intensity orto stop the attacks on Iran.

(01:00:31):
So it's having hugeimplications.

SPEAKER_13 (01:00:48):
Of course, as we've heard from our legal scholars,
Iran's conduct in terms ofspraying missiles everywhere
contravenes the principles ofdiscrimination and necessity and
could therefore be consideredwar crimes.
We could also look at the Straitof Homoes.
Blocking the Strait has twomajor effects.
One's economic, which we'llunderstand every time we fill up
our car.
But there are bigger strategicissues at play here.

(01:01:10):
And here is former U.S.
National Security Advisor JohnBolton to cover a key issue with
Iran's conduct of war in termsof blocking the Strait of
Homoes.

SPEAKER_09 (01:01:20):
The Iranians have made palpable what was a
potential threat to close theStrait of Hormuz for many years.
And uh people discounted it.
We benefited from it from loweroil prices.
Now they've closed it andthreatened the use of force.
I think that their efforts tonegotiate a reopening of the
strait are simply intended todemonstrate that they do control

(01:01:42):
it and that you have to bargainwith them before they'll consent
to let Arab oil and othercargoes come out of the Gulf.
I think that's a mistake becauseif they negotiate an end to the
blockade of their own oil andopening the strait to everybody
else, I think they'll believethey can turn the Strait of
Hormuz on and off like a lightswitch.

(01:02:03):
And if we're not prepared to useforce today, who in the future
is going to be prepared to useit?
I don't understand why the GulfArabs can even contemplate this,
but I think we have a largerobligation because if this
precedent is established in theStrait of Hormuz, not only will
it have continuing negativeeconomic consequences for the
world because of the oil and gascoming from the Gulf, but it

(01:02:26):
will call into question everyother international waterway
similar to the geography of theStrait of Hormuz, like the
Dardanelles and the Bosporus inTurkey, like the Strait of
Malacca between Malaya andMalaysia and Indonesia.
These are uh have been deemedfor centuries to be
international waterways to whichships have a right of free

(01:02:47):
passage.
And if that is uh taken away, uhthis is a much bigger change
than just the Strait of Hormuz.
This is a regime in Tehranthat's desperately playing for
time.
Uh and if we let it up off itsback, if we effectively give it
control of the strait andthey're able to gain the oil
revenues from uh resuming exportof their oil, they will rebuild

(01:03:08):
the Kudz force, they willrebuild the besieged militia,
they will rebuild their nuclearprogram, they will rebuild their
missile program, they willrebuild their drone program,
they'll repress their ownpeople, and they'll threaten the
Gulf and the Middle East evenmore than before.
I'm not saying it would be easy,but I am saying that if you
allow Iran to keep control ofthis in effect, whether they're

(01:03:29):
charging quote-unquoteenvironmental tolls or not, uh,
we are going to come to regretit in a major way.
And so should every othercountry around the world that
depends on freedom of the seas,because that is the fundamental
question that Iran is raisinghere.
What had been an internationalwaterway where there was a right
of innocent passage, uh not onlyfor commercial vessels, but even

(01:03:52):
for warships in time of peace.
That right of innocent passageis on the way to being history.

SPEAKER_13 (01:03:58):
I certainly agree with John Bolton on the issue of
international waterways.
Part of the global rules-basedorder, the order that underpins
the laws of war and free trade,which is really important to us
in the West, is thatinternational waterways are for
everyone.
We cannot let Iran control thatwaterway.
And the strikes the US andIsrael are making against

(01:04:19):
Iranian assets that impinge thataccess are justified.
So far, the conduct seems tohave been in accordance with the
laws of war, but I'd be happy tosee them start targeting
secondary systems, even if theyaffect civilians, because this
is just too important to let theIranians get away with.
It isn't just the Strait ofHomoes, it's the principle of

(01:04:39):
it.
Imagine if other internationalwaterways were blocked on the
precedents set by Iran.
Your very cheap iPhones wouldget very, very expensive if that
happened.
Regardless of which side istargeting civilians, and it has
become commonplace.

(01:05:00):
The issue here is that by notacting or speaking up against
these types of targeting,customary laws are being formed
that contravene the written law.
That being Protocol 1 of theGeneva Conventions.
And Professor Dill earlier madethe point that this will need to
be tested in the internationalcourts to see how or if this law
is shifting.

(01:05:22):
So we've come back to the samearguments again.
What is the right way to fight awar?
Is total war okay or not?
I mean, it was okay up until theend of World War II, and now
it's not.
Of course, the aims of the war,or in terms of the laws of the
war, the necessity will dictatehow a war is fought.

(01:05:44):
If you're fighting a war to slowdown a foe or retaliate in self
defense, that's different from awar where you seek to
permanently change thesituation, or where you're
fighting for your life or yournation's existence.
One of those permanent Changesthat have been talked about with
respect to Iran is regimechange.

(01:06:04):
We hear a lot about regimechange in the media and from the
leaders across the world.
Whether it's the actual plan, wedon't know.
And it doesn't really matter nowbecause it's perceived by many
to be the intents behind the USand Israeli attacks on Iran.
In terms of the conduct of war,we then have to ask ourselves is
regime change a legally agreedmethod of conducting war

(01:06:27):
according to the modern laws ofwar?
And I'll remind you that I'musing the term modern because
during and before World War II,regime change was often the aim
of war.
But apparently, regimes are runby civilians, and we've somehow
got it into our collective headsthat they aren't targets.
To remind you of the reasons whywe might support regime change

(01:06:50):
in Iran, here's John Bolton,former U.S.
National Security Advisor.

SPEAKER_09 (01:06:55):
Well, I think it's uh completely justified for us
to strike to try and stop Iranfrom getting nuclear weapons.
You know, they've shouted deathto America under this regime for
47 years and death to Israel forthe same amount of time.
And their terrorist threataround the world is something we
face in this country, face it inEurope, obviously in the Middle

(01:07:16):
East with Hezbollah and Hamasand the Houthis in Yemen.
So it's a very dangerous regime.
It oppresses its own people.
When they demonstrated againstit in January, the regime killed
32,000 people, machine gunnedthem in the street
indiscriminately.
And any country government thatwill do that to their own
people, you can imagine whatthey do to their enemies.

(01:07:38):
I think the risk of an Iraniannuclear weapon or the risk of
terrorist attacks on Americansaround the world uh justifies
this.

So the question is (01:07:47):
is regime change the objective of this
mission?
Is it something other than that?
Do we have the uh resolve to seeit through?
Military action to aid thepeople of Iran to overthrow the
regime uh is very much in ourAmerican national interest.
We have to keep in mind, if wedon't overthrow the regime, they

(01:08:08):
will rebuild and uh they'll beright back to threaten us again.

SPEAKER_13 (01:08:12):
In response to Bolton's thinking, I'm gonna
give you a clip here fromProfessor Dill, who's talking
about regime change.

SPEAKER_16 (01:08:20):
So the second basket then are strikes against
leadership targets or regimetargets.
Um, the US and Israel haveattacked here, the secret
police, intelligenceheadquarters, and the offices
and residences of regimeleaders.
Clearly, these objects areimplicated in the political aims
of the United States and Israelin Iran.
We may also have few moralqualms about the destruction of

(01:08:42):
this kind of infrastructuregiven the danger that the
Iranian regime poses to therights of Iranians.
The United States has also hadquite a similar approach in Iraq
in 2003.
It is, however, contested now asit was in 2003.
To what extent these kind ofpolitical control targets
individually make an effectivecontribution to Iran's military

(01:09:03):
action?
That would have to be tested ineach case before we can proceed
to questions of proportionalityand precautions.
I think residences of regimeleaders are particularly
problematic in my view, both forthe kind of precedent they set,
but also in the notion that anyconnection they have to military
action is really quiteattenuated.
Wars of regime change have thetendency to push warfare into a

(01:09:24):
logic where you conceive of theenemy not as a belligerent with
military capabilities to beovercome and therefore targeted.
That's the logic the lawdemands, but as you conceive of
the enemy as a politicalapparatus to be dismantled by
kinetic force.
And that in itself isproblematic and intention with
how IHL conceives of warfare.

SPEAKER_13 (01:09:44):
So Professor Dill explained how political targets
are not well covered byinternational humanitarian law
because those laws are aboutmilitary warfare and not to the
execution of political leadersby kinetic means.
So a war of regime change, whichthis war could be said to be
because of the many strikesagainst the leaders in Iran, is
problematical in terms ofenforcing the laws of war

(01:10:07):
because they weren't writtenwith that in mind.
It comes back to the perspectiveof the attacker and whether the
necessity of killing leaders aspart of the regime change
campaign is enough to overridethe discrimination principle.
Especially when you considerthat many of them were killed in
their homes along with theirfamilies.
Now, Dill's view isn't the onlyone on this, and here's

(01:10:30):
Professor Gabor again on thesame topic.

SPEAKER_11 (01:10:35):
This unfortunately requires us to not only talk
about Yusin Bello, but to goback to the connections between
Yusad Bellum and Yusin Bello.
And this is one of the areas inwhich the kind of the vaunted
separation between these twodisciplines breaks down.
So I'll need to address themboth.
Regime change is excluded bothas a ground for going to war and

(01:11:00):
as a legal objective in war.
Now, this dual exclusion, it'snot a coincidence.
It's deliberate that both bodiesof law prohibit regime change.
Under USAD Bellam, at leastsince the UN Charter in 1945,
force is lawful only in responseto an armed attack or with

(01:11:20):
Security Council authorization.
Regime change is not one of thecharacteristics that authorizes
the use of force.
And I think the world had anobject lesson in this when the
Security Council did authorizethe use of force in Libya, which
then turned into an unauthorizedregime change to which many

(01:11:42):
states rightfully objected.
So even where a government ishostile or repressive,
destabilizing, that characteralone does not generate a legal
right to use force.
Allowing force based on thepolitical undesirability would
turn the prohibition of use offorce into an entirely
subjective factor and eviscerateits functionality.

(01:12:06):
Now, as to use in Bellow, evenwhen an armed conflict exists,
that does not render regimechange into a lawful goal.
IHL is purpose neutral.
It doesn't validate politicalprojects, it regulates targets,
means, methods, and protectionsaccorded to those or to combat.

(01:12:28):
A lawful military objective, aswe know, is one that effectively
contributes to military actionand whose neutralization yields
a definite military advantage.
This is the gospel according toAP1, Article 52.2.
And as for people as targets,that concept is expressed as the
distinction between combatantand civilian.

(01:12:50):
Over 250 years ago, Rousseau'ssocial contract established that
the only legitimate object ofwar is to neutralize enemy
forces, not to harm individualsas individuals.
On the other hand, a politicaloutcome, the removal of
government authority, thecollapse of a regime, the
transformation of society, thatdoes not meet that test.

(01:13:13):
This matters in practice becauseonce regime change is
articulated as a use at Bellumobjective, pressure then builds
to stretch core distinctions inthe use in Bellow.
Civilian leaders are reframed asmilitary targets, governance or
data infrastructure is treatedas, quote, war-sustaining.

(01:13:35):
Civilian harm is normalizedthrough over-assertion of the
concept of dual use objectives.
These are all poignant exampleshow use at bellum violations can
put pressure on use in Bellocompliance.
These are the pressures that IHLis precisely meant to resist.

(01:13:56):
Occupation law makes the pointeven more starkly.
Even total control does notconfer a mandate for political
transformation.
The occupier must maintain thelegal status quo ante.
It administers, it does notredesign, it does not conquer.
So I think the bottom line isthis international law

(01:14:18):
deliberately restricts war tomanaging violence and not
reordering politicalcommunities.
Regime change may well occur asa factual consequence of war,
but it is never a lawfuljustification to either to go to
war, nor is it a legitimatemilitary objective in war.

SPEAKER_13 (01:14:38):
Wow.
Now, I have to say I learnedsomething there.
I find it amazing that we humansmanaged to write a law that says
regime change is not alegitimate reason for going to
war.
I think it's just plain wrong.
And we talked it off by sayingthat you can't target a regime
once we are at war.
Let me tell you why I think thisis nonsensical.

(01:15:02):
When you consider threatsagainst your nation, there are
two components the capacity tocarry out the threats, in other
words, the equipment and thesoldiers and the army and the
airplanes and the ships, and thecyber attacks and whatever other
attacks you're doing.
And the intent to do so, intentmeaning what the leaders intend

(01:15:23):
to do.
Surely if you take out theleaders that intend to commit an
act of war or terror orconducting war inappropriately,
then you are eliminating thethreat, thus making the
leadership a legitimate target.
Imagine telling the Allies inWorld War II that they weren't

(01:15:44):
allowed to target regime changein Hitler's Germany.
How asinine would that havebeen?
But the law isn't simple, is it?
There's actually another threadwe need to consider here.
During the global war on terror,assassinating militia leaders

(01:16:07):
was a regular occurrence in Iraqand Afghanistan.
Yet you didn't hear about regimechange or calling those killings
a war crime.
So we'll hear now from ProfessorLieblek, who is a professor in
Tel Aviv.
So of course there's some biasin this.
And oh by the way, what you'regonna hear are two acronyms.
One is IHL, which meansinternational humanitarian law,

(01:16:30):
as we've said.
And the other term that's usedis NIAC, which stands for
non-international armedconflict.
So a conflict with anorganization that is not a
state.
And remember what Schmidt toldus two episodes ago.
Under the UN Charter, you saidvellum, which is just cause for
going to war.
The reasons you go to war areapplicable only to states.

(01:16:51):
Non-state actors that committerror or war are, according to
the UN Charter, simplycommitting a crime and should be
dealt with by domestic laws.
Of course, we all know that'sjust plain nonsense, especially
after the twenty years ofwarfare in Afghanistan.
Anyway, here's Lee Lake.

SPEAKER_21 (01:17:24):
During the war on terror, for instance, it was
argued that these are necessarybecause it's the only way to
deal with terroristorganizations.
They don't have regular uhmilitary units.
And moreover, that you can'treally distinguish between uh
political and militaryleadership of terrorist
organizations because theyoperate in gray zones.
And we see traces, more thantraces, of this reasoning in

(01:17:47):
attacks on uh Iranianleadership.
We have the implicit idea thatyou cannot really distinguish
between regime targets andtraditional military objectives
in the same way because we'redealing with uh quote unquote
terrorist regime, or um, youknow, we can think about the
targeting of the assembly ofexperts building.

(01:18:07):
These are the type of argumentsthat we've seen developed in the
context of NIAX during the warin terror as supposedly uh
reaction to the specificchallenges of NIAX.
Don't get me wrong, I think youknow Iran's own conduct has a
lot to do with Isso.
So the entire dual statestructure, which the IRG sees
somehow like a parallelgovernment or military, uh, the

(01:18:29):
vague relations between Iran andits proxies, its tactics of kind
of actually asymmetric tacticsof launching um missiles and
taking cover, um, the hormothactions with uh the small boats
and and so on and so forth, fromthe perspective of how we
theoretically think about IHL.
This process really reveals thatthe dynamics of the war against

(01:18:54):
terror were never really aboutchallenges of non-state actors
or about you know sovereignsversus non-sovereigns, but in
the formal sense, but more abouthow war is waged in situations
of power gaps.

SPEAKER_13 (01:19:06):
So you heard Liebly say that targeting leaders in
terrorist organizations becamethe norm in the global war on
terror, but that technicallyspeaking, under the laws of war,
the modern interpretation of thelaws of war, countries shouldn't
be doing that.
But the US and Israel targetedthe Iranian regime.
And as I mentioned last episode,you can easily accuse Iran of

(01:19:28):
state-sponsored terrorism,which, in my way of reasoning,
or rescuing reason, seems to methat Iranian leaders have lost
any claim to protection underthe laws of war because they
don't follow the laws of warwhen they engage in
state-sponsored terrorism.
I therefore have no problem withtargeting the Iranian
leadership.
In fact, I applaud the US andIsrael for doing it.

(01:19:50):
Let's address regime change nowby looking at the Israeli and
Iranian perspectives as wereexpressed at the United Nations
shortly after the warrecommenced on the 28th of
February, 2026.
First, here's the Iranianrepresentative.

SPEAKER_00 (01:20:05):
It is regrettable that some members of this body
in a blatant double standarddisregarded the flagrant act of
aggression committed by the USand Israel on Iran and condemned
Iran for using its inherentright to self-defense on the UN
Charter.
This morning, the United Statesregime jointly and in
coordination with the Israeliregime initiated an unprovoked

(01:20:29):
and premeditated aggressionagainst the Islamic Republic of
Iran for the second time in therecent months.
While deliberately attackingcivilian-populated areas in
multiple large cities of Iranwhere millions of people reside.
As a result of this brutal armedattack, hundreds of civilians

(01:20:49):
have been killed and injured.
In addition to the numerouscivilian residential building,
the aggressors have alsotargeted a school in the city of

(01:21:11):
Minop, Hormozgan, Province,killing more than 100 children.
This is not only an act ofaggression, it is a war crime
and a crime against humanity.

SPEAKER_13 (01:21:24):
He made a few interesting points.
Firstly, he chastised the UN forfailing to act after the 12-day
war, and he chastised the UN forblaming Iran for breaching the
laws of war in its choice oftargeting in response to the US
and Israeli attacks.
Additionally, he talked aboutcivilian casualties, including a
school in Minnah, which is wherewe talked about those 140 kids

(01:21:44):
earlier, which died in the firstwave of strikes on the 28th of
February, and he called that awar crime.
Now, let's hear the Israeliresponse to this.

SPEAKER_05 (01:21:53):
For forty-seven years, the Islamic regime in
Iran has led crowds in chantingMarjbar Israel, Marjbar Amrika.
Mr.
Iravani, do you want totranslate these chants?
Your leaders have been chantingit for years in public events in

(01:22:15):
your parliament.
Marjbar Israel, Marjbar Amrika.
They mean death to Israel, deathto America.
This is not the anger of aradical fringe.
It is state sanctioned hatred.

(01:22:35):
And while those Marjbar chantsechoed, uranium was enriched,
centrifuges spanned, missileswere built, facilities were
buried deep underground.
It was never just emptyrhetoric.
It was preparation for action.

(01:22:58):
But today, alongside our ally,the United States, we act to
stop it.
Israel stands before you today,having acted with the United
States to confront and stop anexistential threat before it
became irreversible.
The operation targets nuclearinfrastructure, ballistic

(01:23:22):
missile sites, the machinery ofrepression that fuels terror
across our region.
We did not act of impulse.
We did not act of aggression.
We acted out of necessity,because the Iranian regime left
no reasonable alternative.

(01:23:44):
This operation is guided byclear objectives: eliminate
immediate threats, dismantle thenuclear program, destroy its
ballistic missile production,neutralize naval threats, break
the proxy network thatdestabilizes the region.
The operation was carried out inorder to protect the people of

(01:24:07):
Israel within the framework ofthe ongoing armed conflict
between Israel and Iran, in linewith the UN Charter and in
accordance with internationallaw.

SPEAKER_13 (01:24:18):
Listening to that, it's pretty clear that Israel is
invoking self-defense as thejustification for the war, as we
talked about two episodes ago.
And they cite military necessityin the degradation of the
nuclear program, the Iranianmilitary, and the Iranian
governments.
In other words, they seek regimechange.
Iran went on to make the pointthat targeting regimes is

(01:24:40):
unlawful under the UN Charter,but it took that guy so long to
come to that point that I didn'trecord it.
Whether it makes sense to go forregime change or whether that is
supposedly illegal, I think wecan boil the difference down to
two simple questions that I'dlike you to consider.
Firstly, how hard should yourcountry fight to win a war?
And are you ready to sacrificemoral absolutism to win a war?

(01:25:04):
Put another way, are youprepared to lose soldiers,
battles, or even a war?
Or allow a country to continuesponsoring state terrorism or
obtain nuclear weapons with atrack record like Iran's all for
the sake of following the lawsof war?
Are those laws correct?
My view is that many in the Westare deluding themselves about
the laws of war and taking anarrow view about them, as we

(01:25:27):
often hear in the media.
For example, and I've playedthis clip before, but it just
kills me.
Here's Australian Prime MinisterAnthony Albanese talking about
the war in Gaza.

SPEAKER_01 (01:25:38):
The civilian casualties and death in Gaza is
completely unacceptable.
It's completely indefensible.
We have rules of engagement, andthey're there for a reason.
And they're to stop innocentlives being lost, and that is
what we have seen.

SPEAKER_13 (01:25:59):
His comments about civilian casualties being
completely indefensible are 100%incorrect according to the laws
of war.
They are indeed defensible.
It just depends on thecircumstances.
It would be good if ourpoliticians actually knew what
the law was before they madestatements like that.
The point I'm making here isthat the protestations of
Western leaders and othernations is pointless.

(01:26:22):
It's only through the fullnessof an investigation of intent
rather than analysis of thedestruction that you can make
claims about breaching the lawsof war.
The question you, my fellowWesterners, need to consider is
this.
If your livelihood is at stake,would you prefer your military
to abide by the laws of war andplay fair?

(01:26:44):
Even if that means they mightlose the battle while they
retain the moral high ground?
Or are you okay with yoursoldiers and military leaders
taking broad interpretations ofthe law to get the job done and
win the war?
Israeli leaders are taking abroad interpretation and have
abandoned the moral high groundin favor of necessity in Gaza

(01:27:04):
and in Lebanon because they'resick and tired of having rockets
launched into Israel.
Which begs the question Are thelaws of war still relevant?
Particularly in a world wheretheir originator and previous
champion, the United States, isno longer abiding by them.
Or are we witnessing a shift inwhat is now permissible under

(01:27:26):
the laws of war on our littlesmall planet?
Let's start with the broaderquestion about the very basis
for the laws of war, which hasto do with how the U.S.
championed them in the aftermathof World War II.
And here is Gabor summing upthis point.

SPEAKER_11 (01:27:41):
I do think that the bad news is that I have seen an
unprecedented degree of pressureon traditional IHL values.
I should say unprecedented in myprofessional lifetime, you know,
30, 40 years or so.
And I can kind of try to put afinger on what exactly is

(01:28:04):
unprecedented.
It is not that there areviolations.
Rather, it's the differencebetween, on the one hand, the
denial that you're violating arule, which in fact reinforces
the existence and the value ofthe rule.
Say, for example, no, I'm notcommitting torture.

(01:28:24):
That reinforces the prohibitionagainst torture.
That's not what's happening, atleast in the Trump
administration, and I dare sayto some extent in the Israeli
Armed Forces Administration.
What rather seems to behappening is that, you know, we
don't care about the rules.
You know, rules don't constrainus.

(01:28:45):
And that's not exclusively true.
You know, the State Departmentdid issue recently a legal
justification for the use offorce in Iran.
It was kind of expertlydestroyed by commentators who
actually know something moreabout international law than
what the people in the StateDepartment seem to know or seem

(01:29:06):
to care about.
But more and more what we'veseen coming out of the mouths of
important people like theSecretary of Defense, I'm not
going to call him the Secretaryof War, and the President of the
United States, is a disregardfor the very existence of legal
norms.
That is new and that isunprecedented coming from these

(01:29:29):
states that I have to say areprobably the most important
states in developing anddetermining the way the world
reacts to IHL in general.
The United States was socritical in the formulation of
international human rights lawand aspects of the Geneva

(01:29:50):
Conventions.
So these are the worryingtrends.

SPEAKER_13 (01:29:54):
So not only do we have U.S.
leaders poo-pooing the laws ofwar, but we also have them
flouting those rules through theconduct of the war, as mentioned
earlier.
For example, targeting leaders.
The issue of targeting leadersis the classic case that comes
out of recent conflicts.
It seems to be the norm over thepast 20 years.
Yet our legal scholars aretelling us you can't do that.

(01:30:17):
Perhaps the law is indeedchanging, and in the context of
Iran, perhaps it needs to changebecause of how they have become
a state sponsor of terrorism andnumerous proxy wars and are
seeking nuclear weapons.
Here's Professor Dill again,this time discussing the notion
that the laws are changing.

SPEAKER_16 (01:30:37):
Targeted killings is a kind of non-state actor thing,
that it was actually also reallyprominent already in 2003 in
Iraq.
So Iraq, Afghanistan, the globalwar on terror were in many cases
the where we see the originalsin.
There's also the notion thatIsrael and the United States
have always taken very, verypermissive positions on a lot of
key concepts of internationalhumanitarian law.

(01:30:58):
So when you then make anincremental step away from a
already very permissiveprovision, you come quite close
to unraveling the provisionentirety so that it has no more
protective capacity.
In that sense, you can see thisas a kind of incremental process
of the United States and Israelmoving away ever more from the
kind of acquis, right, of whatwe as an international community

(01:31:18):
over centuries agreed on is thelimits of warfare.
That is an optimistic way thoughof looking at it, because I
think there's also the wholepolitical backstory to it, which
is that these two regimes haveinternally, as Ilya said,
backslid that they're no longerreally proper full-fledged
democracies and that they havepopulist leaders that have
embraced the notion that theyshould not be constrained by

(01:31:41):
international law.
And I think that is thequalitative change.
Yes, we have an incrementalchange in ever more permissive
positions of international lawwhere the interpretation in fact
swallows the rule whole at somepoint.
But I think we also have a kindof political context in which
the rhetoric and theinstitutional dismantling of
safeguards at home, um, thenotion that the population is no

(01:32:02):
longer brought along to be aconstraint on hawkish leaders,
all of these things I think umspeak of a qualitative um shift.

SPEAKER_13 (01:32:09):
Now I'd say we need to rescue some reason here.
If the laws created in the midto late 1800s, when war was
indeed hell, as Sherman said,had to be amended after World
War II to make them restrictiveso that we brought humanity into
the conflict, or brought theelement of humanity into our
thinking when we're conductingwars.

(01:32:30):
And now we find ourselvesfighting enemies that don't play
by those rules.
So is it time to rewrite them?
Perhaps the conflicts sinceOctober 7, 2023 are indeed
rewriting them just throughcustom.
And I'll add this if we ever goto war with China or Russia, we
will most likely have to discardour values and our adherence to

(01:32:52):
those laws of war.
Because I doubt those twocountries are going to play by
the rules, and it'll beexistential for us in the West.
In fact, we know that in thecase of Russia, they are
regularly striking civiliantargets, which, of course, is
against the extant laws of war.
Now, it's not all doom andgloom.
We do need some laws.
There are many that think we'llcome out of this current war and

(01:33:14):
reaffirm the extant laws of war.
And here's Gabor again giving ushis reasons for that.

SPEAKER_11 (01:33:19):
I want to point to two personal experiences.
I learned my human rights lawfrom Lou Hankin, who wrote the
book uh for the United States,and who famously said, and I
think it's still probably true,most states obey most
international law most of thetime.
Now, following up on that, Ithink it was maybe in my second

(01:33:40):
or third day of working at theICRC back in the 1990s.
I was brought into thepresident's office, and the
first thing he showed me was aframed letter from Nelson
Mandela on his wall.
And the letter said that thevalue of the ICRC is not in the
violators that are heldaccountable.

(01:34:01):
It's in the violations thatnever happen because of the
ICRC's work.
That is analogous to the waythat international law works in
general, that IHL works ingeneral.
It is very difficult to quantifyhow IHL is working in connection
with things that don't go wrong.

(01:34:22):
It's much easier to analyze thethings that do go wrong and to
therefore conclude that we arein a bad state.
For the most part, we still livein a world that is more or less
effectively governing warthrough through IHL.
Again, unprecedented pressureson that law.

(01:34:45):
Um, but I am not yet ready to goalong with, say, the vision of
Canadian Prime Minister Carneythat there has been a rupture.
There are pressures, there hasbeen a great deal of reason to
be worried about the future ofIHL.
But I'm thinking and hopefulthat we can get through this

(01:35:10):
portion of history and keep IHLalive.
And the reason for that isbecause it serves the purposes
of states.
To the extent that states havean interest in maintaining
international peace andsecurity, because, well, for
obvious reasons, I think thatthere is an imperative among

(01:35:33):
States to keep true to theprinciples of IHL.
And I am hopeful that it is thataspect of state self-interest
that will cause us to come outof this place that we're in now
and hopefully to you know toreturn to a situation in which

(01:35:55):
states continue to acknowledgenot only that the law matters,
but that compliance with the lawmatters.

SPEAKER_13 (01:36:03):
I'd like to think Gabor is correct.
But I'll say two things aboutwhat it would take to rescue the
laws of war as we knew them.
First, the US has to return toabiding by them.
We in the West need the US to bechampioning those laws of war.
Otherwise, we're going to beoutnumbered by the global south.
Secondly, we would need to seesome prosecution of Iranian,

(01:36:28):
Israeli, and yes, US leaders fortheir conduct in the current war
with respect to violations ofthe laws of war.
After all, without enforcement,laws are meaningless.
Now, how that happens, I don'tknow.
But if you want to re-establishthe laws of war and have a world
in which countries and nationsactually follow them, we are

(01:36:49):
gonna need to see some of that.
Here's Professor Dill again,this time touching on this point
about enforcement.

SPEAKER_16 (01:36:56):
Constituencies that believe in the law is not the
same as constituencies that havean interest in upholding the
law, right?
Because one of the tragedy isthat the IHL as it stands,
almost anybody has an interestin upholding it, right?
Various constituencies, whetheryou're the war fighter or um,
you know, the belit theforward-leaning belligerent or
the civilian population or thethird party, almost anyone has

(01:37:19):
an interest in upholding it.
Most publics around the worldcertainly would have an interest
in standing up for it,objectively speaking.
But that's not the same asunderstanding your interest and
standing up for it and alsomaking a calculation of short
versus long-term interest.
So a lot of third states havebeen silent in the face of
pretty egregious violations ofinternational humanitarian law,

(01:37:42):
some other laws, butparticularly international
humanitarian law.
And there's no good kind ofrational explanation for it
other than that they prioritizetheir short-term interest and
not drawing the iron and justjeopardizing alliances and
friendships over the kind oflong-term interest that they
should have or have, objectivelyspeaking, in upholding the rule
of law and in protecting reallyhard-won sets of customary

(01:38:05):
international legal rules forthe for the conduct of war.
So it's in some sense a problemof short-term versus long-term.
It's also often a problem ofcollective action, that no one
wants to stick their head abovethe parapet while the others are
not with you.
But objectively speaking, Ithink the tragedy here is that
particularly with the laws ofwar and the laws on the conduct
of hostilities, everyone reallyhas an interest in upholding

(01:38:26):
them.
Um they're always under pressurefrom the belligerents fighting
the war, but third partiesreally have an interest in
standing up for them.
And when we don't see thathappening, it is not because no
one has an interest in it, butpartly because these
constituencies that might havean inter would have an interest
in it are not necessarilymobilized or ready to stand up
for the law.
And that is really a big problemat the moment.

SPEAKER_13 (01:38:48):
Now, she approached enforcement from the perspective
that if other countries aresupporting the need for the laws
of war, then that is somehowenough to keep them alive.
Perhaps that's true, especiallyin the bizarre world of the
United Nations, where talk seemsto rule the day instead of
actions.
I can be hopeful that one daythe United Nations will actually
do something about violations ofthe UN Charter.

(01:39:10):
One thing that came out of thisdiscussion was a great comment
from Gabor about the need forpublic education on the laws of
war, and here he is talkingabout it.

SPEAKER_11 (01:39:19):
One of the greatest unmet needs here is public
education.
The ICRC at one time promoted a,I think, a fairly effective
program of bringing IHL intopublic schools, high schools,
you know, university programs,even for students that aren't
focused on international law.

(01:39:39):
I start my semester in IHLalways with the observation that
IHL is too important to be leftto the militaries and to
politicians alone.
But I see now in the portrayalsof kind of international
law-related incidents inresponsible newspapers like the

(01:40:00):
New York Times that either getinternational law wrong or that
don't address it at all, eventhough it's the most important
construct for the things thatit's reporting about.
So what I'm seeing is a generalabsence of knowledge, concern,
and education among the generalpublic.

(01:40:21):
And I would love to see agreater emphasis on bringing
non-fighters, non-governmentalofficials into more
conversations about theimportance of IHL.

SPEAKER_13 (01:40:35):
As Gabor said, the only groups that are schooled in
the laws of war now are themilitary and international
lawyers.
I dealt with both of thesegroups in my military career,
and even they don't get itright.
Yet it's our public servants andpoliticians who are often called
upon to make decisions aboutconduct of war and then how to

(01:40:56):
enforce the laws of war, andthey have so little
understanding of them, whichcauses them to get it wrong in
many cases.
And when it comes to the media,well, they just get AI to drum
up some opinion about it, whichis wrong fifty percent of the
time.
My advice to you is this ifsomeone is talking about war
crimes and the laws of war orinternational humanitarian law,

(01:41:19):
and if it isn't a militaryofficer or a lawyer, be very
cautious about what you'rehearing.
It's probably wrong.
Well, I think I've wandered allover the map on this topic.
So I'm gonna summarize.
And we're gonna consider wherethis leaves Iran, the US, and

(01:41:41):
Israel, and their leaders andsoldiers and sailors and airmen
who may at some point be accusedof war crimes.
In terms of war crimes, many ofthem have certainly bent or
broken the laws of war.
Whether it's the leader whosanctioned attacks against
civilian targets or madethreats, or whether it's the
tank commander who fired shellsinto a hospital, or a pilot who
dropped a guided bomb onto abridge.

(01:42:03):
These things are all inquestion.
It may turn out that they allface prosecution.
Or we might accept this as thenew norm and end up with revised
customary law in terms of howand why we fight wars.
Or maybe we might end up with arevision, a written revision,
across the entirety of the UNand the UN Charter, which, by

(01:42:26):
the way, is long overdue.
To capture some of thesentiments we see in the West,
here's Ben Rhodes, who was anational security advisor in the
Obama government.

SPEAKER_03 (01:42:35):
At the beginning, this was about the nuclear
program, or it was about helpingIranians rise up.
That's not happening.
There's not going to be somequick regime change to a
democratic Iran.
That's clearly not happening,which was very predictable by
anybody who paid attention toIran at all.
And Trump seems to not besurrounded by anybody who knows
anything about Iran based on howhe's acting.

(01:42:56):
We are now just lashing out.
And we should be very clear.
When he threatens to blow upenergy and electricity
generation, that is a war crime.
What is accomplished by blowingup civilian infrastructure other
than making the Iranian regimedig in even more and lash out
even more at similar civiliantargets across the Middle East?

(01:43:17):
When you start committing warcrimes or going on a slippery
slope to hitting civilianinfrastructure, you have a race
to the bottom.
And I worry that between whatIsrael is doing in Lebanon and
Iran, what the United States isnow doing and you know what
Trump is threatening to do moreof, and what Iran is doing in
response, we see what happenswhen there are no laws of war.
And the people who are caught inthe middle are the ones who

(01:43:39):
suffer, who are largely innocentcivilians.

SPEAKER_13 (01:43:42):
I think he's right.
We do need laws of war.
I'm not sure the moderninterpretation is reflective of
how a war can degenerate.
And so I think we couldreasonably ask for some
second-tier or alternateinterpretation of the laws of
war.
To put it another way, we needlaws of war for total war.
Not just the clinical wars ofthe early 2000s that became

(01:44:05):
clinical because we in the Westhad overwhelming superior forces
and could abide by the rulesthat we put in place, those
restrictive rules.
Instead, I think we need laws ofwar that recognize the situation
where a country is fighting forits life.
And we need to recognize that inthose circumstances, the laws

(01:44:26):
need to be different.
Kind of like Israel and Iran aredoing at the moment.
And as for Iran, the focus ofthe last four episodes, I'll
leave you with a few thoughtshere from various speakers.
Let's start with AnthonyBlinken, former U.S.
Secretary of State, talkingabout the need for deeper
thinking and planning about thelonger-term strategy in this

(01:44:46):
war.

SPEAKER_08 (01:44:48):
Part of the problem with these things is that it's
very hard to uh produce regimechange from outside.
You can't bomb your way to it.
Uh, we've had a lot ofexperience with that, and not
not such good experience overthe last 20 years.
It's even not so likely to comefrom the streets, even with the
extraordinarily courageousIranian people.
Uh it's more likely to come fromkind of within the palace.

(01:45:08):
And then it could go in any oneof, you know, multiple
directions.
You you could get more pragmaticpeople, not not good guys, but
more pragmatic people who areopen to, you know, curbing the
excesses of the regime, focusingat home instead of focusing
abroad, doing deals.
But right now it looks morelikely that you're going to have
um hardliners.
The WHO uh had a song way backin the uh in the 60s or 70s, you

(01:45:31):
know, uh here's to the new boss,same as the old boss.
That seems to be right now atleast where we're headed.
You've seen extraordinarilycourageous people uh beyond uh
imagination who are out in thestreets looking for change,
getting mowed down by thisregime, and we all want to see a
different future for them,different leadership for them.
But it's very, very hard, if notimpossible, to uh to do that

(01:45:55):
from the outside, as we weresaying.
And the risks now are that uminstead of having a change,
having a transition, you have animplosion, and then maybe even
an explosion that has realeffects outside the country.
Our partners in the in theregion have uh far fewer
interceptors, air defenseinterceptors than we do.

(01:46:15):
If it gets to the point wherethey're running out and the
Iranians have enough to continuegoing at their infrastructure,
at their people, I think there'sgoing to be a pretty strong
demand signal on theadministration to take an
off-ramp to stop.
We've had other second and thirdorder consequences here.
At the very time when Russia isreally reaching a uh a weak
point uh because of itsdependence on oil to fuel its

(01:46:36):
war economy, in large partbecause the price of oil has
gone down, uh it's having moretrouble exploiting uh oil
because of sanctions andrestrictions that we put on
technology, that's been a hugeand growing factor.
And the thing to do now,ideally, would be to squeeze the
shadow fleet that they have uhthat's going around the world,
and that's um the one thingthat's able to keep them going.

(01:46:57):
At the very time when that'spossible and that that might
force Putin uh to finally cut adeal on Ukraine, they get a
lifeline, and the lifeline isthe price of oil is going up,
and the value of that shadowfleet oil is going up, and
people will need it and want tobuy it.
The Europeans, in turn, havingmoved away from Russian gas, are
now more dependent on the MiddleEast.

(01:47:17):
And if that uh gets tied up, ifthe Straits of Hormuz remain
problematic, uh.
So mapping out, gaming out,planning out, and and then
making sure you have somethingin place to deal with all of
these second and third ordereffects, usually important, and
it's not at all clear to me thatthat was done.

SPEAKER_13 (01:47:36):
To add to the need for strategy, here's former U.S.
National Security Advisor JohnBolton saying the U.S.
needs to stay the course andfinish the job.

SPEAKER_09 (01:47:45):
The Iranian regime has spent 47 years entrenching
itself in power.
Think of it as an even biggerversion of Hamas that over the
years spent billions of dollarsnot for the benefit of the
Palestinian residents of Gaza,but to build a fortress of
tunnels under the Gaza Strip.
That's what the regime in Iranhas done.

(01:48:08):
Now, uh, you know, if we weregoing to go after regime change,
I certainly would have done manydifferent things than what the
Trump administration has done.
Even eliminating their supremeleader and hundreds of leaders
at the top, the further you godown below, the same ideology
appears.
The faces may be different, butthe ideology, the radical
Islamicist ideology, is thesame.

(01:48:29):
It's why we've tried for decadesto change their behavior
diplomatically and to economicpressure.
We've tried hard and we'vealways failed.
And, you know, it's just amatter of logic.
When you try to change anadversary's behavior and can't
do it, you either have to put upwith the threat or change the
regime.
It's that straightforward.
The opposition is verywidespread.

(01:48:51):
Uh, it's not well organized.
That's why it needs help fromthe outside.
Uh, and I think one thing thatwe can look for is people uh in
leadership positions uh in theregime that they are there who
don't share the ideology, butthey're not going to step out
and make themselves known uh inthe middle of this kind of
tumult.

(01:49:11):
But we want them to have theperception this ship is sinking
and they don't want to go downwith it.
Uh and perhaps at the end of itwe we end up with a military
government, at least not onewith radical uh Islamicist
ideology.
They restore order, and then wegive the people of Iran space to
come up with what they thinktheir own government ought to be
in the future.

(01:49:32):
That that's what we should do.
We don't have to run thecountry, we don't have to put
boots on the ground.
We do need to aid the peopleinside the country to take
control of their own destiny.
Uh and you have to rely on theestimates of your military and
intelligence for what you thinkis necessary and plan for the
contingency that maybe you needto do more.
Just because the Iranian regimehas proven to be more fanatic

(01:49:55):
and more desperate to keepitself in power than perhaps the
Trump White House.
Uh realized simply proves theimportance of getting rid of
this regime before it is ableonce again to pursue nuclear
weapons and internationalterrorism around the world with
the threat of death anddestruction that those programs

(01:50:15):
entail.

SPEAKER_13 (01:50:17):
And the big question that comes out of the current
state of play is what willhappen in Iran?
I've got two perspectives foryou.
First, here's retired GeneralStan McChrystal talking about
the approach the U.S.
is taking in recent times andhow their conduct in war is
affecting Iran.

SPEAKER_10 (01:50:34):
There are three great seductions that happen to
American administrations and tomilitary.
The first is the idea of covertaction.
And a new president comes in andhe's told by the intelligence
community we can create thisgreat effect and it will be
covert.

(01:50:55):
No one will ever know who didit, and it'll just be a good
outcome.
And in my experience, it neverstays covert and it rarely
works.
But it's seductive because itseems like an easy approach to a
naughty problem.
The second seduction is, which Ilived as a part of, is the
surgical special operations raidthat is probably epitomized by

(01:51:20):
the Maduro raid.
And I would argue that wedemonstrated extraordinary
competence that night, but notmuch changed.
I don't think that we actuallydemonstrated the ability to
change the facts on the groundto any extent, which gets to the

(01:51:40):
third great seduction, andthat's air power.
And, you know, we all love airpower.
In World War II, we went intothe war with the Duhay theories
that air power, the bomber willalways get through, and
therefore air power will bedominant.
And it was certainly very, veryuh contributory, but it was

(01:52:01):
never dominant.
When we got into Vietnam, whichwas the classic case, and we
developed a strategy that saidfor North Vietnam, we will have
a reestat and an escalationstrategy, and we will raise the
pressure on them until we hitthe point at which they're
willing to quit.
It's not worth it anymore.
What we didn't perceive, therewas no point for North Vietnam.

(01:52:26):
They were asymmetricallycommitted to the outcome.
And so we've entered Iraq in2003 with shock and awe.
And then we spent a decade therefighting after it.
I think that we fell for theseduction that if we bomb key
targets, that we will producethe outcome we want.

(01:52:48):
But the outcome's in the mindsof the people.
And unless you're going to killall the people, you may not
affect that outcome.
So, but we may be in a pointwhere we've run into a country
that has an extraordinarycapacity to be bombed.
Since I've retired from themilitary, I've been involved in
some investing and I love thatline.

(01:53:09):
This time it's different.
I go, okay.
I agree, the capability is somuch more.
And I have to keep an open mindthat it is possible that the
dynamic has changed so much thatwe finally hit a tipping point
where it will be decisive.
But I'm not seeing that and Idon't feel that.

(01:53:29):
And the other part that I wouldbring out is we thought really
early in Afghanistan that thepeople on the ground who we were
targeting would be awed andintimidated by the bombing, and
that they would respect ourcapability.
In many ways, what we found,particularly with the tribal

(01:53:51):
members, they were disdainful ofit.
They knew you could bomb them,but they said, if you're not
willing to get down on theground, look me in the eye, and
fight me mano womano, then youare not morally on my level.
And I think that we can't forgetthat people fight because of
their passions.

(01:54:12):
It's not a geopoliticalcalculation that's going to
drive what Iran does eventually.
It will be what's in theirhearts.
And so this idea of decapitatingthe regime, and we've got this
current leader, well, we killedhis father, we killed his wife,
we apparently banged him uppretty good.
And then we say, well, that willmake him more willing to

(01:54:34):
negotiate, wouldn't have thateffect on me.
The Iranian opposition is notreally evident.
We saw in 2009 they came in thestreets and they were sort of
beaten back into submission.
And then reportedly thousands ofIranians protesting were killed
by the regime in recent months.
But I couldn't name theopposition leader.

(01:54:56):
I couldn't tell you theliberation front of Iran.
And I know that the Shah's sonis going around, but I don't
think he's a legitimatealternative.
I think that we can't gauge theactual strength of the desire of
Iranian people to change.
And of course, a war will oftencause people to coalesce around

(01:55:20):
their government.

SPEAKER_13 (01:55:21):
Now contrast McChrystal's perspective that
the Iranian regime has gainedstrength with the thoughts of
Alex Younger, who is a formerhead of MI6, and his prediction
about the future of the IslamicRepublic.

SPEAKER_02 (01:55:34):
I think that they are in the death rows.
But I think the irony is thatthe biggest threat to them is
peace, not war.
The January uh uprising showedthat they have no answers.
The hatred that engendered isendemic and will will last for
decades.
Uh the estimates are up to10,000 of their own citizens

(01:55:56):
machine gunned in the street byIRGC-sponsored militias.
I don't expect them to surviveinto the long term as a result.
But of course, ironically, thissituation is an environment
where they they get an extralease of life because it's hard
for opposition to organize inthe face of an air campaign, and

(01:56:18):
they're licensed to be even morebrutal than they were before.
The very large majority of Iran,perhaps 80% of them, they've had
it with the theocratic regime.
That actually was sort of howthe voting went when Masoud
Pajeshkian was elected.
And it wasn't a manipulatedelection, you know, it showed
that pretty well 80% of Iran wasnothing more to do with this uh

(01:56:40):
sort of total resistancetheocratic ideology.
But the 20%, or probably evenless 10%, are the ones with the
guns.
And that is proving decisive.
They are empowered by thesituation to continue to
brutalize the population.

SPEAKER_13 (01:56:54):
I'm not sure which of these two views I buy into.
Certainly McChristo's view isproving to be true for now, but
I suspect Young is also rightand will see the Islamic regime
fall.
Maybe sooner rather than later.
Until then, you and I can onlywatch as the contest unfolds.
And at least now, after thesefour episodes, you should be

(01:57:15):
able to argue a perspective onthis conflict.
More importantly, when you hearsomeone, like your politicians,
flapping their guns about howthis person or that state is
committing war crimes, help themunderstand what actually
constitutes a war crime.
And maybe engage them in adiscussion or write to your
politician about moderninterpretation of the laws of

(01:57:38):
war and whether they are stillvalid in the context of an
increasingly autocratic anddangerous world.
This is going to be particularlypertinent as US and Israeli
leaders potentially face warcrime charges in the coming
years.
And I'm going to add here foryou Australians, it's already
started for you because VictoriaCross winner Ben Robert Smith

(01:58:00):
goes to trial for murderingAfghanis during the global war
on terror.
Should he go to jail for that?
Or was it just another aspect ofSherman's war as hell?
Those are going to be veryinteresting cases that
potentially reshape the laws ofwar.
If you found this four partseries on Iran to be
informative, or if you enjoyedthe episode, please recommend it

(01:58:21):
to a friend.
Thanks for listening.

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Rescuing Reason - E15 - Iran Pt 4 - War Crimes

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