Rescuing Reason - E15 - Iran Pt 4 - War Crimes

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Hello and welcome to Rescuing Reason.
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This episode is the last of our four-part series on Iran.
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In today's episode of Rescuing Reason, we are considering whether the conduct of the US-Israeli war with Iran is in accordance with the laws of war.
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I'm your host, Bill Karolakis.
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I'm a retired senior Air Force officer.
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I use history and research to baseline the topics on rescuing reason, and I'll be offering you a Spartan perspective in each episode, in other words, taking a pragmatic view that values the nation and broader Western society over individual interests.
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So far in this series, we looked at how Persia became modern day Iran, and then we considered whether the Iranian nuclear weapons program and Iran's support for proxy wars and state-sponsored terrorism all justify preemptive strikes on Iran.
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I concluded that they did.
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And if you want to hear how I reached that conclusion, please listen to episodes twelve, thirteen, and fourteen of Rescuing Reason.
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Today we're looking not at whether war is justified or ethical, but rather how this war is being fought.
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And by this war I mean the conflict that started in mid-2025 with the twelve-day war between Israel and the US on one side and Iran on the other, and which recommenced on the twenty-eighth of February twenty twenty-six.
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And as of this recording, that war is in some kind of ceasefire, sort of, maybe not.
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At the end of the day, they're still shooting at each other.
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Something we need to bear in mind when we're talking about Iran, nuclear power, war, and war crimes is that the media is rife with misinformation about all of those things.
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Mostly because people are very biased on these topics, but sometimes because of deliberate misinformation or disinformation.
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I'll call out that bias as we go through the contentious issues related to Iran.
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The reason we're talking about the conduct of war and the laws of war is that it caught my interest largely because I'm particularly amazed at how often reporters and commenters and our politicians will accuse someone or some nation of war crimes without actually understanding the international laws and international customary law that underpins the concept of war crimes and just wars, which I detailed partly in episode 13.
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And in today's episode, we'll take a deep dive into the laws that underpin conduct in war.
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In modern language, this is called international humanitarian law, and you'll hear a lot of people call it IHL.
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But its older name was the laws of war or the laws of armed conflict.
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We need to quickly spell out the difference between legality of wars and legal conduct in war, and how talk of war crimes can be misguided in those contexts.
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And here we have ex-U.S.
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Army lawyer Cody Harnish with an excellent explanation.
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Let's discuss the difference between Juicebellum and Juice in Bellow.
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Everyone is arguing about whether this war is legal, and they are mixing up two completely different bodies of law.
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This confusion is everywhere right now.
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There are two completely separate legal frameworks at play in any war, including this one in Iran.
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First, juice at Bellum.
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That governs whether a state can start a war in the first place.
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Think, did the US have a legal right to use force under the UN Charter?
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Was it self-defense?
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Was there a UN Security Council authorization?
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That's Juice at Bellum.
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Second, Juice and Bellum, also called the law of armed conflict, and that governs how wars are fought after it already starts.
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Think, can I target this person?
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Is this strike proportional?
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Did we protect civilians?
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These two bodies of law are independent from one another.
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One does not fix the other either.
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A war can be illegal at the start, but the individual strikes during the war can still completely follow the law of armed conflict.
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And the reverse is also true.
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A war can be perfectly legal at the start and still be fought in a way that involves war crimes.
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Here's the key principle.
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The moment there is an armed conflict, the law of armed conflict applies, period.
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The legality of the war itself does not change how legally one can wage war on the battlefield.
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Law of armed conflict asks, given that there is already fighting, are we following the rules when we fight?
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So when you hear someone say, this war is illegal, so every strike is illegal, that's wrong.
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And when someone says the strike was precise, so the war must be legal, that's also wrong.
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Two different legal questions, two different rule books, and one does not excuse the other.
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As Cody said, conduct is covered by the laws of armed conflict, or IHL.
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And once we've reviewed those laws, we'll look at four aspects of the conflict with Iran.
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Firstly, Israel's initial response in Gaza and Lebanon after the 7 October 2023 attacks.
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And while I'd like to think of the Gaza conflict as separate from the Iran war, they are linked in some ways.
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Then we'll consider the targets selected by both sides in the mid-2025 or the 12-day war.
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And finally, we'll look at targeting in the 2026 phase of the war, along with the rhetoric that has been rife in the media from both sides and from politicians on both sides.
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Throughout these examples, we'll look to assess whether the laws of war have been broken and by whom and to what degree.
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And we'll finish by considering what all of this means for the laws of war themselves.
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Let's start off with the law.
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Now, this is a quick lesson on the history of where the laws of war came from in terms of conduct of war, or juice and bello is the Latin term.
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For more detailed accounts, check out episode two of Rescueing Reason, where I cover Juice and Bello and Juice at Bellum in great detail.
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The history of the laws of war go way back, but for our quick lesson, suffice to say we can name Henry Dunon as the key founder.
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He witnessed the horrors of the Battle of Solferino in eighteen fifty nine, and after that he pushed for the establishment of the International Red Cross in eighteen sixty three, and in eighteen sixty four the Geneva Convention for the amelioration of the condition of wounded in armies in the field, which was signed by most of the European powers.
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This was amended in 1906, 1929, and then again in 1949, and it's now known as the first Geneva Convention.
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Three more conventions were added or revised by 1949, all to do with how to treat soldiers and civilians during war.
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Notably, the fourth Geneva Convention is about the protection of civilian persons in time of war.
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There are additional amendments to these conventions called protocols, and they were adopted in 1977 and 2005.
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In addition to the Geneva Conventions and Protocols, which are primarily concerned with principles of humanity, the law of The Hague was developed through conferences in 1899 and 1907 to codify the conduct of war.
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Its aim was to quote determine the rights and duties of belligerents in the conduct of operations and limit the choice of means in doing harm.
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End quote.
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So it concerns itself with the definition of combatants, in other words, who you can target and who shouldn't be targeted.
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It establishes rules relating to the means and methods of warfare and examines the issue of what is a legitimate military objective.
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In addition to all that, there is the Nuremberg principle, which says that you shouldn't follow illegal orders.
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And I'm going to replay a clip that I had in the last episode because it's a good explanation from Colonel Robert Hamilton.
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And illegal order is clear.
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It's either an order that's illegal under U.S.
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law, is illegal under military law, or is illegal under key components of international law, like the law of armed conflict or international humanitarian law, the Geneva Convention.
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So it's incumbent upon any service member to understand what is illegal and what is illegal, and to refuse to carry out orders that are illegal, meaning orders that violate either U.S.
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law, U.S.
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military law, or international humanitarian law.
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There aren't gray areas so much as there are, there's a large body of law that I just referenced here, right?
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U.S.
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domestic law, the UCMJ, and international law.
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So uh the way we train service members to understand what's an illegal order and what's not is so there's extensive training at every level of the training and education system in all branches of the U.S.
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military, from basic training to the war colleges, which is the are the senior education institutions that educate lieutenant colonels and colonels.
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So at every level, there's extensive training.
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This comes from the Nuremberg Tribunal after the Second World War when uh many of the Nazi military and government officials on trial, their defense was I was following orders.
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In other words, I committed war crimes or crimes against humanity, but I was told to do that by my superior commander.
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The U.S.
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military from that point forward uh has made it explicit that military members have a duty to not carry out illegal orders.
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They have a duty to refuse illegal orders.
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The final pieces of the puzzle that form the laws of war are some modern conventions and protocols that outlaw specific weapons, mostly because these weapons cause death and injury long after the conflicts have ended.
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For example, the banning of mines, cluster munitions, booby traps, anti-personnel mines, blinding lasers, and attacking civilians with incendiary weapons.
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All very nasty stuff.
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The law of The Hague, the Geneva Conventions and those protocols, and the other specific treaties have varying degrees of concurrence around the world, with most countries agreeing to them.
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As they should, because they encapsulate basic human values and our intrinsic distaste of human suffering.
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In total, these form the basis for what is called the law of arms conflict or laws of war, and now more commonly referred to as the international humanitarian law, which I'd say, as I've said before, is a title that smacks of political correctness, and I like using the term laws of war instead.
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Regardless, those laws and customary laws were parts of the post-World War II establishment of the global rules-based order, which was led by the US and the UK as a means of ensuring a few key outcomes.
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Those outcomes were having multilateral institutions like the United Nations or the World Trade Organization or the International Monetary Fund.
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It also set out human rights and equality, economic cooperation, and security cooperation.
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The one big difference between pre-World War II and today for our purposes in considering the laws of war is how the globe, through the United Nations, has generally said we don't want any more total war, meaning win at all costs, or meaning that we don't want wars to be fought too horrifically.
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So what is total war, you might ask?
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Well, there are three general concepts that we can think of when we talk about general approaches to war at one extreme end, which is the total war end, is the General Sherman War is hell doctrine.
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Sherman was renowned for routing the Confederates in the U.S.
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Civil War, leading the campaign in the Indian Wars, and then becoming the US Army commanding general.
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He said that soldiers fighting a war, quote, can do anything at all that is useful in fighting any blame their actions entails falls upon the leaders of the other side.
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Put another way, Sherman was saying victory is all that matters, and the ends justify the means.
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So you might imagine that if Sherman was judging Israel, he would not find them guilty of breaking the laws of war in their attacks on Gaza, Lebanon, or Iran.
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The opposite of Sherman's view is moral absolutism, which says that the rules of war are a series of categorical and unqualified prohibitions, and that they can never rightly be violated even in order to defeat aggression.
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So it's a very pacifist view.
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In other words, be prepared to lose for the sake of the moral high ground and for the sake of following the modern interpretation of the laws of war.
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Those backing this perspective would convict most Israeli leaders of war crimes for their actions in Gaza.
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And of course there is the middle ground, in which the laws of war are applied, but only when able or in line with the state's strategic aims.
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This tends to mean that the concept of necessity, which we're going to talk about later, becomes paramount for the attacker.
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In other words, when it's necessary to win a battle or a war, a state will loosely interpret discrimination and proportionality, which are other concepts that we're going to cover in a minute, as Israel is doing in Gaza.
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If you take the advice of legal experts, they would say that through the provisions of customary law and the UN Charter and those conventions and protocols I mentioned earlier, the modern interpretation leans more towards having to justify every single action in war rather than taking Sherman's approach, which of course was to put all the blame on the other side for anything and everything that happens in the war.
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And here we have Professor Rachel Van Landingham, who is a retired U.S.
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military judge advocate general, and now a professor at Southwestern Law School.
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And she's using Donald Trump's threats against Iran as an example of how the modern laws of war no longer support total war.
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Why?
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Because the love of war says we don't engage in total warfare anymore.
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We don't believe that children are the enemy and that civilians are the enemy.
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The love of war says, look, we're going to divide the middle field, which in the modern days is love in the city to run into civilian objects and they're protected and civilian people that are protected.
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And then there's military targets, love and military objectives that make an effective contribution to military action and whose disruption provides a definite military advantage.
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We divide the world into those two camps by saying we're just going to bomb everything, bomb every single bridge, every single power plant that serves civilians that is threatening indiscriminate attack, and it is one of the most horrible war crimes there are.
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And we're going to come back to Trump and other conduct in these wars in a few minutes.
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But first we need to discuss enforcement of those laws.
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Because without enforcement, of course, laws lose some of their meaning.
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In our world, that enforcement comes from international agreements that established bodies to do that enforcement and to clarify all those roles.
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For the laws of war, they're enforced through the provisions of the United Nations, the International Court of Justice, which is an arm of the United Nations, and the International Criminal Court, which was set up under the Rome Treaty.
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It's important to note that the International Court of Justice deals with state level issues, and the International Criminal Courts deals with matters against individuals.
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So in the case of Israel and Gaza, the International Court of Justice is hearing the genocide case brought by South Africa against Israel, and they're expecting a judgment somewhere around 2027.
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And the International Criminal Court has issued a warrant for the arrest of Benjamin Netanyahu on war crime charges related to the prosecution of the war in Gaza.
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Interestingly, there isn't a warrant for Trump's arrest yet.
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Before we can jump into the US Israeli-Iranian war to consider whether their conduct violates the laws of war, we need to review those three key principles I mentioned a minute ago because they underpin the laws of war and how they're interpreted by those legal bodies.
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And those terms are discrimination, proportionality, and necessity.
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And here's Professor Max Marguiles of West Point covering those principles.
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As we've seen in recent conflicts around the world, by their very nature, legitimate military targets are often located in or around population centers.
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What's more, the rise of proxy groups and non-state actors who may not wear uniforms but are nonetheless legitimate targets if you can identify them, further complicate efforts to protect civilians.
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While it may be relatively easy with today's technology to identify something as a legitimate target, the state's obligations under international humanitarian law do not stop there.
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The principle of proportionality dictates that militaries try to minimize collateral civilian casualties, keeping them proportional to the direct military advantage gained.
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In other words, killing a single private far from the battlefield is unjust and illegal if you had to raise a village to do so, even though they would be a legitimate target.
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But comparing the value of human lives is always more complicated than that.
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Especially in a war of attrition where the goal is to wear down the enemy and deplete their resources, it can be nearly impossible to separate the immediate tactical or operational consequences from their broader strategic purpose.
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Every munitions factory destroyed creates incalculable advantages over the enemy's morale and capabilities in the long run.
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And that's to say nothing of vital dual-use infrastructure like electric grids and the internet.
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As the world becomes more urbanized and interconnected and war turns more towards city centers, it will become ever harder to keep civilians out of harm's way.
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Proportionality is not the only principle to uphold.
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The principles of distinction, which prohibit indiscriminate force that cannot distinguish between combatants and civilians, and the principle of military necessity, which requires states to choose targets only with legitimate military purposes, may seem like they should be easier to uphold with modern technology, but all too often states may try to blur the lines.
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Today it's almost standard to count all men of fighting age as combatants, which seemingly by definition violates the principle of distinction.
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In a world where significant fighting happens away from or totally without front lines, and where combatants may go without uniform as often as civilians, distinction will be even harder.
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So basically, we humans have sought to put bounds on what is permissible during the conduct of war.
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Those bounds are about humanizing war, and the goal is to balance the aims of defeating or weakening the enemy with minimizing civilian and human suffering.
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Those principles that bound conduct in war are variable, and some say that one principle cannot be discarded, such as humanity, in favor of others, such as military necessity, which, by the way, happens a lot.
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Here's Professor Vincent Chattel, a professor of international law in Switzerland speaking on what matters, where he succinctly captured the aim of the laws of war, which he refers to as international humanitarian law.
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Humanitarian law is resilient.
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It is not a naive or idealistic law.
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The very content of international humanitarian law is to establish a balancing act between military necessity and humanitarian considerations.
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So it is not absolute, it does allow exceptions in particular instances.
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And Kaly, the term law of war is perhaps a better label than humanitarian law.
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So Vince had quite the thick accent there.
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I hope you caught it all, but his point about balancing humanity with the military aims sums it up rather well.
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Now what we'll do is we'll consider a few examples of what's been happening over the past year in the conflicts with Iran, and we'll see if we can make sense of the laws of war and their applicability to the conduct of the belligerents.
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Let's start with a tangential situation, that of Israel's response to the 7 October 2023 attacks by Hamas.
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I say tangential, but I think that the lack of a global response to Israeli action has emboldened Israel.
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And so the Gaza campaign is a bit of a precursor of things that came afterwards.
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In other words, do you think Israel would have attacked Iran if the world had stepped in to control Israel's actions in Gaza and then Lebanon?
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Perhaps, perhaps not.
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We'll never know.
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I did cover this topic in episode two of Rescuing Reasons, so you can go ahead back and listen to that if you feel like it.
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But here's a quick recap.
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In case you're unfamiliar with the situation, on the 7th of October 2023, Hamas attacked.
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Attacked Israel from Gaza, killing about twelve hundred people in southern Israel and taking over two hundred hostages.
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Israel responded with a series of overwhelming military attacks.
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Those Israeli attacks theoretically targeted Hamas, which is the militant terrorist group that was running Gaza, and those initial attacks were, of course, in self-defense.
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If someone hits you, you get to hit them back.
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But those Israeli attacks have caused a lot of collateral damage to infrastructure and death and injury to civilians.
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Estimates of civilian casualties are in the tens of thousands, with some estimates going over a hundred thousand, and about seventy to eighty percent of Gaza has been damaged.
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Just focusing on what Max said about proportionality, you have to wonder if the devastation and slaughter in Gaza is compliance with the laws of war.
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Never mind how you can assert that seventy percent of Gaza was a necessary military target that gave military advantage.
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And with that many civilian casualties, one wonders just how diligent the Israelis have been when it comes to discrimination.
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All of which points to potential war crimes coming out of Israel's conduct of war in Gaza.
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However, there are counterviews.
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Israel says it is complying with the laws of war.
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But I'd say that the death toll and the seventy percent destruction of Gaza indicates that Israel is using a broad interpretation of those laws when they say they're complying.
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Here is what Israeli lawyers said to the International Court of Justice when defending Israeli actions, and this is a quote.
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Israel restricts its targeting practices to attack military personnel or objectives in accordance with international humanitarian law in a proportionate manner in each case.
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Every civilian casualty in this conflict is a human tragedy that demands our compassion.
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But the court is not told how many thousands of casualties are in fact militants, how many were killed by Hamas fire, how many were civilians taking direct part in hostilities, and just how many are the result of legitimate and proportionate use of force against military targets, even if tragic.
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Of course, Israel does have every right to act to defend itself in accordance with the rules and principles of international law, and so it has done.
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The accusations against Israel are about the conduct of the war, not whether the war was justified.
00:24:35.200 --> 00:24:39.759
As I discussed in episodes two and thirteen, Israel does indeed have the right to defend itself.
00:24:40.240 --> 00:24:46.079
The question is how it is defending itself and whether their conduct in war constitutes war crimes.
00:24:47.039 --> 00:25:04.400
Israel also responded to a June 2024 report from the Office of the United Nations High Commissioner for Human Rights, which found Israel responsible for violating fundamental principles of international humanitarian law on the conduct of hostilities in its indiscriminate and disproportionate attacks in Gaza.
00:25:05.119 --> 00:25:17.920
Regarding indiscriminate aerial bombing, Israel said, and here's another quote In many instances, aerial munitions, including those with a wide area of effect, are the only type of weapon that can accomplish the military objective.
00:25:19.440 --> 00:25:26.880
In other words, Israel is saying that the principle of necessity overrides the principles of proportionality and discrimination.
00:25:27.680 --> 00:25:47.039
Israel went on to criticize the UN for a legal analysis based on the final outcome of the attacks rather than the internal Israeli decision-making process, which of course they're not going to tell us about, and for the assumption that, quote, attacking a large number of targets or using certain munitions implies a problem with the application of the rules of distinction.
00:25:47.200 --> 00:25:47.920
End quotes.
00:25:48.720 --> 00:25:58.000
Put another way, Israel is suggesting that large-scale indiscriminate assaults can be militarily justified and are thus legally permissible.
00:25:59.200 --> 00:26:02.799
There are many lawyers who don't agree with that, and we'll hear from them soon enough.
00:26:08.559 --> 00:26:14.000
Indeed, Israel's stance contradicts what we just heard from Professor Van Laningham a few minutes ago.
00:26:14.240 --> 00:26:19.200
So we have the law of war lawyers saying one thing and Israel saying another.
00:26:19.920 --> 00:26:24.799
We're talking about constrained war versus close to but not quite total war.
00:26:25.680 --> 00:26:32.880
And the fact that Israel continues to act in the same way begs the question about whether those laws have much meaning anymore.
00:26:32.960 --> 00:26:35.680
And we're going to come back to that topic towards the end of this podcast.
00:26:36.480 --> 00:26:41.839
My view on this is that we simply can't look at seven October and the ensuing Israeli response.
00:26:42.799 --> 00:26:47.039
We should be considering the totality of the history between Gaza and Israel.
00:26:47.599 --> 00:27:01.920
Even though immincy of the threat or timeliness of self-defense responses might be debated here, I think that most people understand that Israel is sick and tired of attacks coming from Gaza and basically decided to remove that threat once and for all.
00:27:02.559 --> 00:27:12.559
Indeed, there was plenty of international support or at least quiet acceptance for Israel's initial responses in those first few weeks after the 7th of October, 2023.
00:27:13.519 --> 00:27:24.960
And given that modern threats are unpredictable, as I discussed two episodes ago, there is a legal view that we no longer have to wait until just before an attack to preemptively strike in self-defense.
00:27:25.119 --> 00:27:28.160
And we can thank George Bush Junior for that interpretation.
00:27:28.400 --> 00:27:30.480
And I think it's the right view in modern times.
00:27:31.200 --> 00:27:37.039
Based on that interpretation, you can see why Israel is still attacking Gaza and of course now Lebanon.
00:27:38.079 --> 00:27:46.640
And if you take Israel's perspective, well, they see a threat and they are going to remove it because from their perspective, that is a military necessity.
00:27:47.279 --> 00:27:56.400
Remember, the law of proportionality permits civilian casualties and collateral damage in conflict when the law of proportionality is followed.
00:27:56.960 --> 00:27:59.200
The question is, to what degree?
00:27:59.440 --> 00:28:10.559
And here we have Professor Marco Sassoli of the University of Geneva explaining why it might be okay to blow up a school or a refugee camp or a hospital, as Israel has done.
00:28:11.279 --> 00:28:20.160
When it comes to conduct of hostilities, which means bombing, then it is not the result that counts.
00:28:20.960 --> 00:28:23.759
You see a destroyed school.
00:28:24.079 --> 00:28:33.680
But in law, you don't yet know whether this was a violation of humanitarian law because you should know first whether this was the target.
00:28:33.839 --> 00:28:38.960
And what was it at the school or under the school at the moment when it was attacked?
00:28:39.279 --> 00:28:46.079
And perhaps the school was not the target, but something nearby, a rocket launcher.
00:28:46.400 --> 00:28:49.119
Then the proportionality comes in.
00:28:49.599 --> 00:29:02.400
But to evaluate whether the proportionality, and I give you an example from recently from the Gaza Strip, Israel attacked a target in the refugee camp of Jabalia.
00:29:02.960 --> 00:29:07.759
And Israel says, yes, in the turnover, there was an important leader of Hamas.
00:29:08.559 --> 00:29:19.839
And then to evaluate the proportionality, we would need to know how important was it, what was the military advantage to kill this leader?
00:29:20.160 --> 00:29:30.240
Because, let us be clear, although it is not seen so often in public opinion, bombing cannot be justified by punishing.
00:29:30.319 --> 00:29:34.240
I mean, even if he has committed the worst crimes, that's not the issue.
00:29:34.480 --> 00:29:36.799
And revenge is not the issue.
00:29:37.039 --> 00:29:45.759
The issue is he is a legitimate target because he commits acts of violence whether lawful or unlawful.
00:29:46.000 --> 00:29:54.160
I always give my son who is in the Swiss Army as an example, or was in the Swiss Army as an old Swiss man at a certain age.
00:29:54.400 --> 00:30:01.279
I mean, he is a totally harmless person, but he was a member of the armed forces, therefore it was a legitimate target.
00:30:01.519 --> 00:30:14.640
But obviously, if uh the French attacked Switzerland, they couldn't kill many civilians just to get my son, because this would be disproportionate, because my son is not very dangerous.
00:30:15.359 --> 00:30:21.039
So we would need to know all kinds of things which the parties will not tell us.
00:30:21.519 --> 00:30:26.799
Well, that perspective from Professor Sassoli didn't quite cover Israel's conduct.
00:30:27.039 --> 00:30:39.119
The Israelis are weighting military necessity far more than discrimination and proportionality, and far more than most legal scholars think they should, but not all legal scholars.
00:30:39.359 --> 00:30:46.960
Here's Natasha Hausdorff, who's a British international lawyer, putting a pro-Israeli spin on it in an interview.
00:30:47.839 --> 00:30:52.880
Taking out a rocket before it's fired is a perfectly legitimate, necessary military aim.
00:30:53.039 --> 00:31:00.000
That strike would also have to distinguish between military targets which are lawful to strike, civilian buildings which wouldn't be.
00:31:00.559 --> 00:31:03.200
What about a rocket launcher inside a refugee tent?
00:31:03.599 --> 00:31:05.599
Unless they are being used for military purposes.
00:31:06.000 --> 00:31:27.599
So it's not the case that civilian buildings or schools, hospitals, even refugee encampments maintain a civilian status if they are in fact being used directly for hostilities by combatants, by terrorists in this case, terrorist armies of Hamas in also Palestinian Islamic Jihad, or indeed Khezbalah to the north of Israel.
00:31:28.240 --> 00:31:31.359
I'm curious, did you pick up on Natasha's bias?
00:31:31.599 --> 00:31:34.880
She regularly speaks on behalf of Israeli interests.
00:31:35.119 --> 00:31:44.960
Regardless, the points you can pull from Natasha is that the Israelis don't believe they should constrain their conduct in war because of discrimination or proportionality.
00:31:45.680 --> 00:31:54.400
Although I will say, by talking about those requirements in court, as I mentioned a couple of minutes ago, Israel is at least recognizing the existence of the laws of war.
00:31:55.680 --> 00:31:59.359
I myself am torn on the issue of Israel's mass destruction in Gaza.
00:32:00.079 --> 00:32:04.319
The reasoning to be rescued here is highly dependent on your perspective.
00:32:04.960 --> 00:32:15.759
Humanists simply point to all the civilian deaths, including the many dead children, the blown-up hospitals and schools, and they side with the modern interpretation of the laws of war.
00:32:15.920 --> 00:32:25.759
In other words, it sure looks like Israel is conducting total war, which is something, as we said earlier, through the United Nations, the world agreed to stop doing after World War II.
00:32:26.640 --> 00:32:44.480
Now the people in southern Israel and its leaders have a different view because they're tired of abiding by those laws, particularly since neither those laws nor eighty years of the UN, and we're talking about peacekeeping and aid, have helped Israel achieve security.
00:32:45.119 --> 00:32:48.960
So the Israelis have stepped towards total warfare to get the job done.
00:32:49.599 --> 00:33:00.319
They blow up schools and blow up hospitals if they think there's a connection to their future security, or if they think there's some future military disadvantage inherent in those buildings.
00:33:01.440 --> 00:33:02.880
Yes, it's horrific.
00:33:03.599 --> 00:33:19.279
But if you're an advocate of total war or Sherman's doctrine of war is hell, then you probably believe in fighting to win, not fighting with a hand tied behind your back, which is what the modern laws of war do in this situation.
00:33:20.000 --> 00:33:21.680
So I can see both sides here.
00:33:22.079 --> 00:33:30.720
The question of Israel's overwhelming assault on Gaza will ultimately go to the International Criminal Courts or the International Court of Justice for a ruling.
00:33:30.880 --> 00:33:32.799
And I have no idea how it's going to turn out.
00:33:32.960 --> 00:33:36.480
It'll depend on whether the laws themselves survive the current trends.
00:33:37.119 --> 00:33:38.559
Again, more on that shortly.
00:33:39.519 --> 00:33:40.960
Let's get back to Iran.
00:33:47.039 --> 00:33:55.440
The US and Israel struck Iran in mid-2025 as a measure of self-defense in that they targeted Iran's nuclear weapons program.
00:33:55.680 --> 00:33:58.720
It was a limited set of strikes, only lasting twelve days.
00:33:58.880 --> 00:34:02.720
We discussed that attack two episodes ago in terms of whether it was justified.
00:34:02.960 --> 00:34:09.760
As for the conduct in that war, the targets were generally in line with the stated aims of the war, which was to eliminate the Iranian nuclear program.
00:34:10.480 --> 00:34:15.679
But there were a few anomalies in the target set which may have breached the laws of war.
00:34:15.920 --> 00:34:19.280
And here's a summary of the attacks conducted in the twelve-day war.
00:34:19.840 --> 00:34:32.800
Eight infrastructure sites, mostly components of Iran's nuclear program, were hit, but that included Imam Hussein University's physics department, which Israel said was involved with experiments related to the nuclear weapons program.
00:34:33.039 --> 00:34:36.719
And remember, schools are supposedly not legitimate targets.
00:34:36.960 --> 00:34:40.320
But you can see why it might make sense to target the school in this case.
00:34:40.559 --> 00:34:43.440
About thirty-five targeted assassinations were made.
00:34:43.599 --> 00:34:47.760
Many were Revolutionary Guard commanders and quite a few were nuclear scientists.
00:34:48.000 --> 00:34:51.119
So here we have the purposeful targeting of civilians.
00:34:51.519 --> 00:35:01.440
But in my view, if you're intent on removing a military threat, the production capability should be targetable, including the brain power behind that capability, civilian or not.
00:35:01.679 --> 00:35:04.000
You'll hear a legal counterview shortly.
00:35:04.639 --> 00:35:08.079
About ten government facilities across various departments were struck.
00:35:08.239 --> 00:35:13.360
We have no idea what the military necessity was for targeting buildings that would clearly have had civilians in them.
00:35:13.519 --> 00:35:18.239
About fifty military targets were struck, ranging from missile bases to air defense, etc.
00:35:18.559 --> 00:35:21.840
I don't think these would be outside the realms of the laws of war.
00:35:22.400 --> 00:35:25.840
There might be corner cases where such strikes were illegal.
00:35:26.159 --> 00:35:36.400
Four civilian targets were hit without explanation from Israel, except that one was a hospital, which was adjacent to a legitimate target, and Israel said the hospital strike was an error.
00:35:36.719 --> 00:35:39.039
And we'll hear about errors in a few minutes.
00:35:39.840 --> 00:35:43.760
And about half a dozen refineries and energy production sites were hit.
00:35:44.000 --> 00:35:52.719
These were civilian-run targets, and in the context of removing Iran's nuclear capability, you have to question the legitimacy of those targets.
00:35:52.960 --> 00:36:04.400
But if you are trying to foment regime change or damage the overall economy, both of which are elements of total war, then you can see why they might be legitimate targets.
00:36:04.639 --> 00:36:14.480
So to reiterate, that would be a total war scenario, which, as we've heard, is no longer considered legal under the modern interpretation of the laws of war.
00:36:15.039 --> 00:36:16.079
Now what do you think?
00:36:16.320 --> 00:36:19.679
Should total war be an agreed way of getting rid of a nuclear threat?
00:36:19.840 --> 00:36:25.679
I have to say the Hawk in me says, yeah, hit them and keep hitting them until the nuclear threat is gone.
00:36:26.000 --> 00:36:30.079
But that's my subjective view, not the view of the law.
00:36:30.239 --> 00:36:34.480
Let's look at an example of how this targeting is supposed to work under the laws of war.
00:36:34.559 --> 00:36:38.480
And here's Professor Van Laningham again with an example about a bridge.
00:36:38.880 --> 00:36:47.840
You have to make an individual case-by-case analysis of each bridge and every power plant that is being considered to be a lawful military objective.
00:36:48.079 --> 00:36:57.119
Its use or intended use has to make an effective contribution to the military, to military action, not the regime in general, but to military action.
00:36:57.280 --> 00:37:05.840
And so a bridge, therefore, like the bridge that was destroyed last week, a bridge could make an effective contribution to military action because it's being used as a resupply line.
00:37:06.000 --> 00:37:13.119
Logistical lines are often a legitimate lawful military objectives in the war, despite the fact that they also have a civilian use.
00:37:13.280 --> 00:37:17.599
Their destruction at the time has to provide a definite military advantage.
00:37:17.760 --> 00:37:19.360
But that's not the end of the analysis.
00:37:19.519 --> 00:37:32.000
The law of war goes even further to say, okay, once you've determined that there's some kind of military connection here, there's a connection to military action, and its destruction or disablement will produce a military advantage.
00:37:32.159 --> 00:37:34.480
Then we have to look at will civilians be harmed?
00:37:34.639 --> 00:37:47.760
And of course, by taking up power plants, civilian that are civilian in nature, civilians will be harmed because civilian power plants provide civilians' electricity to their homes, to water purification plants, to hospitals, you name it, right?
00:37:47.840 --> 00:37:51.039
This is why the United States strongly condemned Russia.
00:37:51.199 --> 00:38:09.440
And our State Department concluded that Russia was engaged in war crimes of indiscriminate attacks because it was taking out power plants, electrical infrastructure in Ukraine during the dead of winter, in which Ukrainians were plunged into life-threatening cold without the definite military advantage.
00:38:10.079 --> 00:38:12.880
Of course, Professor Van Lanningham has some bias here.
00:38:13.039 --> 00:38:15.360
So let's get the view from Oxford University.
00:38:15.519 --> 00:38:19.840
Here's Professor Janina Dill talking about the principles of targeting.
00:38:20.400 --> 00:38:28.639
So I think the first question we need to address is to what extent it's actually possible to legally assess US and Israeli targeting or conduct in this war.
00:38:28.960 --> 00:38:35.840
The information in the public realm regarding the objects and persons that the United States and Israel have targeted is obviously limited.
00:38:36.159 --> 00:38:44.719
That just means that any analysis must be seen as preliminary and subject to the cabinet, that it would change if new facts came to light.
00:38:44.960 --> 00:39:01.360
But there is also a deeper challenge here that really befalls any legal analysis of conduct and war, which is that in many cases, when you look at conduct and war, even if you literally can see what is happening, you cannot definitively establish criminality, sometimes not even illegality.
00:39:01.760 --> 00:39:08.960
That is chiefly the case when the legal assessment depends on what the attacker reasonably knew at the time of attack or intended to do.
00:39:09.199 --> 00:39:11.440
Now that is not always the case.
00:39:11.679 --> 00:39:16.480
Sometimes illegality, even criminality, is actually visible to the naked eye.
00:39:16.800 --> 00:39:21.280
And allow me, just by contrast, to give you some examples from beyond the war in Iran.
00:39:21.519 --> 00:39:38.880
For instance, a sniper directly firing a child, a small child walking on the hands of a parent, sexual assault against persons in detention, a soldier playing with the head of a war dead and posting a picture of it online, a unit entering a village and then leveling every building in it.
00:39:39.119 --> 00:39:47.119
These are the contexts in which the conduct is without a plausible set of contextual facts that would make it anything but a war crime.
00:39:47.199 --> 00:39:51.280
So here the war crime and the illegality itself is visible to the naked eye.
00:39:51.440 --> 00:40:07.599
But air warfare is fundamentally different because even if you hit a hospital or a school, so a presumptively civilian object or a specially protected object, there is a set of circumstances, however unlikely those circumstances may be, in which this would not be illegal.
00:40:07.920 --> 00:40:23.599
That doesn't mean, however, we can hide behind this difficulty of a preliminary analysis and wait for the type of kind of behind-the-scenes investigation or even a court case that would be necessary to definitively establish illegality and certainly criminality.
00:40:23.840 --> 00:40:26.400
Why can't we hide behind that or can't wait for that?
00:40:26.880 --> 00:40:35.599
Well, first, practically, in the vast majority of cases of sort of sketchy immense strikes, no such investigation is ever forthcoming, no court case ever happens.
00:40:35.840 --> 00:40:39.760
But conceptually and more importantly, we can't wait for the courts.
00:40:39.920 --> 00:40:42.960
Wait for the courts is often what we're sort of called upon to do, right?
00:40:43.119 --> 00:40:48.000
Because law is more than a tool for ex post facto accountability.
00:40:48.320 --> 00:40:56.000
Law is meant to guide the soldier in action in that moment, and then obviously requires that soldiers learn from past attacks.
00:40:56.159 --> 00:41:02.159
And in addition, critically, law is also meant to guide third parties' evaluation of what is going on in the moment.
00:41:02.400 --> 00:41:09.440
So law is meant to help us, or actually chiefly third states, to appropriately react to how wars are conducted.
00:41:09.599 --> 00:41:15.199
And if a conduct in war fails to instantiate legal demands, then third states must react.
00:41:15.360 --> 00:41:19.679
They must withdraw their support, their cooperation now, not in 10 years.
00:41:19.920 --> 00:41:28.960
For that reason, so law is meant to be a tool of concurrent evaluation, and evaluate we must, even if it is difficult, tentative, and preliminary.
00:41:29.519 --> 00:41:37.840
In addition to targeting, Professor Dill covered an important point there about the laws of war and how it doesn't matter if we prosecute war crimes or not.
00:41:38.159 --> 00:41:45.679
Having those laws in place has a constraining effect on many nations and on many military personnel as well.
00:41:45.920 --> 00:41:53.440
And here she is again, this time talking about how the law looks at military targets, including those where civilians are killed.
00:41:53.840 --> 00:41:58.719
Let's start by reviewing what has been attacked by the United States and Israel in Iran.
00:41:58.960 --> 00:42:04.719
I like to think about it as sort of four buckets of targets that raise distinct legal questions.
00:42:04.960 --> 00:42:07.119
First, military objectives by nature.
00:42:07.360 --> 00:42:09.199
Second, political targets.
00:42:09.440 --> 00:42:13.519
Third, presumptively civilian and specially protected objects.
00:42:13.760 --> 00:42:18.000
And fourth, I'll talk about two cases of so-called dual-use targeting.
00:42:18.320 --> 00:42:25.840
So, first, there are strikes against nuclear facilities, ballistic missile infrastructure, net defense systems, military production science.
00:42:26.000 --> 00:42:28.079
These are military objectives by nature.
00:42:28.239 --> 00:42:33.119
They're extremely likely to make an effective contribution to Iran's military action.
00:42:33.360 --> 00:42:39.519
It is extremely likely that their destruction offers a definite military advantage to Israel or the United States.
00:42:39.760 --> 00:42:48.960
That means it is extremely likely that these objects fulfill the customary definition of a military objective enshrined in the Falas Additional Protocol to the Geneva Conventions.
00:42:49.199 --> 00:42:54.239
The legality of each attack in this category then depends on proportionality and precautions.
00:42:54.719 --> 00:42:59.039
The cumulative civilian casualty count of this war is certainly alarming.
00:42:59.360 --> 00:43:06.639
In less than six weeks, there are between 1,700 and 3,400 civilians have been killed by M-Strike.
00:43:06.880 --> 00:43:10.320
These are different accounts that you can find in open source literature online.
00:43:10.800 --> 00:43:19.119
But it is worth remembering that every individual killed in an illegal aggression was arbitrarily deprived of their right to live, according to human rights law.
00:43:19.360 --> 00:43:28.000
But from an unhm or loss of war perspective, our analysis must kind of end here because proportionality and precautions must be evaluated attack by attack.
00:43:28.079 --> 00:43:31.039
So these principles attach to an individual's strike.
00:43:31.280 --> 00:43:41.119
So since we don't know much more about the kind of individual numbers attaching to strikes and the specific military advantage, there's not much more we can say about these types of attacks.
00:43:41.599 --> 00:43:46.159
Professor Dill made the point that each strike has to be assessed individually.
00:43:46.320 --> 00:43:48.159
What did the targeteers know?
00:43:48.400 --> 00:43:50.719
What kind of proportionality was involved?
00:43:50.880 --> 00:43:52.239
What was the necessity?
00:43:52.400 --> 00:43:55.599
Did they apply discrimination laws for what they knew?
00:43:55.840 --> 00:43:59.679
We can look at the 140 ish school children that were killed on 2018.
00:44:00.159 --> 00:44:01.280
February as an example.
00:44:01.920 --> 00:44:05.920
Yes, horrific to think of so many young, innocent lives that were lost.
00:44:06.239 --> 00:44:11.280
But unless you are inside the targeting cycle, you have no idea what the basis was for that attack.
00:44:11.760 --> 00:44:16.960
And although it was a huge mistake, clearly a mistake, mistakes happen in war.
00:44:17.519 --> 00:44:24.800
If the US thought it was a legitimate target, and I'd say with two tomahawks hitting it, I'm guessing it was not a weapon error.
00:44:25.199 --> 00:44:27.360
It was indeed an intended target.
00:44:27.599 --> 00:44:31.599
But perhaps they were working with old information about what was in that building.
00:44:32.079 --> 00:44:35.360
Or maybe some targeteer mixed up his or her coordinates.
00:44:35.519 --> 00:44:36.639
That's happened before.
00:44:37.280 --> 00:44:40.559
The question then becomes, is it still a war crime?
00:44:40.800 --> 00:44:44.159
Even if the attacking nation thought it was a military target.
00:44:44.800 --> 00:44:49.440
The answer in my mind is no, we shouldn't be punishing them for that.
00:44:49.679 --> 00:44:54.320
Because to expect our people to get it right 100% of the time is nonsense.
00:44:54.880 --> 00:44:56.800
The lawyers have a different view.
00:44:57.119 --> 00:45:04.239
Here's Professor Gabor Rona, who is a professor of law at the Cardazo Law School, discussing this very point.
00:45:04.880 --> 00:45:11.039
The Manab School bombing illustrates the problem of over-reliance on artificial intelligence.
00:45:11.199 --> 00:45:16.480
You know, many facts about this bombing are still unknown, but I think there's enough to develop some preliminary thoughts.
00:45:17.119 --> 00:45:23.519
Hundreds of targets being identified in just a matter of minutes by artificial intelligence.
00:45:23.679 --> 00:45:42.159
And this, you know, the vaunted human in the loop that's supposed to make everything okay is given only minutes, maybe even only seconds at best, you know, insufficient time or resources to actually vet the validity of the targets that AI is producing.
00:45:42.400 --> 00:45:56.000
It is important, as you mentioned, that this tragedy occurred on the first day of hostilities, where there was just a bottleneck of so many targets being identified that the humans simply cannot properly vet.
00:45:56.159 --> 00:46:02.159
And in addition, the the results coming out of AI are only as good as the data submitted.
00:46:02.320 --> 00:46:10.719
There's nothing special about AI that changes the fact that when there's garbage going in, there's garbage coming out.
00:46:10.960 --> 00:46:23.760
Now, if this were a case of traditional vetting or even traditional vetting with an AI complement, there would have been reliance on intel on the ground, satellite imagery.
00:46:24.079 --> 00:46:34.719
All of this would have shown that there was a playground, there were brightly colored murals on the exterior walls of the school, there were children with backpacks and parents going in, in and out.
00:46:34.960 --> 00:46:37.920
Obviously not a military objective.
00:46:38.239 --> 00:46:45.280
The larger problem with reliance on AI is the diffusion of accountability.
00:46:46.000 --> 00:46:48.559
Who's responsible when bad things happen?
00:46:48.719 --> 00:46:50.480
Is it the designer of the algorithm?
00:46:50.639 --> 00:46:52.719
Is it the gatherer of the data?
00:46:52.880 --> 00:46:54.800
Uh, the person who submits the data?
00:46:54.960 --> 00:46:57.039
Is it that human in the loop?
00:46:57.280 --> 00:47:17.039
Not only does this dilute the possibility of accountability, but but given that dilution, parties are then encouraged to stray even further from compliance with the principles of distinction, proportionality, and precaution, thus undermining the protective purposes of IHL.
00:47:17.360 --> 00:47:36.719
I also want to say concerning MINA, there has appeared to develop a conventional wisdom, at least in the popular press, that since the attack was not intentionally against civilians, and I don't believe that the United States intentionally targeted a school, but that it was rather a mistake, and therefore it cannot be criminal.
00:47:36.880 --> 00:47:38.559
It can't be a war crime.
00:47:38.800 --> 00:47:40.159
That's not correct.
00:47:40.400 --> 00:47:40.960
The U.S.
00:47:41.119 --> 00:47:53.280
War Crimes Act incorporates specific provisions of the 1907 Hague Convention IV, which obligates parties to take all necessary steps to avoid civilian harm.
00:47:53.519 --> 00:47:59.840
In other words, it is codifying the principle of precaution into a war crime.
00:48:00.159 --> 00:48:11.119
So certainly the degree of culpability or punishment is not as great as it would be if there were an intentional attack against civilians.
00:48:11.440 --> 00:48:17.840
It is simply not the case that there is no criminal accountability for mistakes.
00:48:25.440 --> 00:48:30.480
But his talk about it being a war crime, even if it is a mistake, is a point to note.
00:48:31.280 --> 00:48:36.639
He said it's still a war crime because insufficient precautions were taken to discriminate the targets.
00:48:36.960 --> 00:48:45.199
Now I have to say, knowing what I know about the targeting cycle, I doubt very much that the US military left it up to AI to select targets.
00:48:45.519 --> 00:48:51.119
I find it much more likely that outdated intelligence was used to select that school as a target.
00:48:51.519 --> 00:48:58.159
But it still begs the question if you weren't doing much about discriminating the targets, are you breaching the laws of war?
00:48:58.400 --> 00:49:01.440
Well, I kind of get how that would be a breach of the laws of war.
00:49:01.679 --> 00:49:09.440
Especially in the case of the school, because it had been a school for quite some time, and the US has the technical ability to check these things out.
00:49:10.320 --> 00:49:12.960
Yet I'll give you another perspective to chew on here.
00:49:13.280 --> 00:49:17.440
In a large-scale war, who's got time for all that checking?
00:49:18.239 --> 00:49:25.920
Is it reasonable to say, look, in a big war, we can't expect the belligerents to check every target that closely?
00:49:26.400 --> 00:49:27.119
What do you think?
00:49:27.440 --> 00:49:30.159
Do you think we should take the time to check targets closely?
00:49:30.559 --> 00:49:34.800
Or do you think we should just get on them with a job and get that war over with as fast as we can?
00:49:35.280 --> 00:49:42.960
Should our militaries have an onus on them to get it right 100% of the time, even if it slows up the process of conducting the war?
00:49:43.599 --> 00:49:48.800
Apparently, that's how the modern laws of war are being interpreted by these legal scholars.
00:49:49.280 --> 00:49:55.280
Given how much targeting happens in war, I think that rule is nuts and we need something else.
00:49:55.679 --> 00:49:56.719
I'll come back to that.
00:49:57.360 --> 00:49:59.280
And we aren't through with targeting yet.
00:49:59.440 --> 00:50:03.039
Here's Professor Dill again talking about targeting requirements.
00:50:03.679 --> 00:50:09.119
So let's turn to the third bucket, the kind of attack that is particularly dangerous for civilians.
00:50:09.360 --> 00:50:17.280
According to the Iranian Red Crescent, 498 schools and 236 health facilities have been attacked in this war.
00:50:17.760 --> 00:50:27.840
This is obviously not necessarily all verified, but 20 of attacks of these attacks on healthcare facilities have also been mentioned by the WHO in reporting.
00:50:28.239 --> 00:50:30.400
Schools are presumptively civilian objects.
00:50:30.559 --> 00:50:32.960
Hospitals are even specially protected.
00:50:33.280 --> 00:50:42.000
Obviously, not everything that is attacked was targeted, and not everything that was targeted was identified as that what it truly is.
00:50:42.320 --> 00:50:55.119
For instance, the horrific attack against a complex of schools in MENAP may have been a case of misidentification, where the United States meant to target the building it targeted, but mistook it for something else.
00:50:55.360 --> 00:51:09.760
If that is the case, I've publicly argued this already, it likely still violates precautionary principles, since it was feasible to establish this as a school, but it is not implausible that the United States here did not know it was targeting a school.
00:51:10.079 --> 00:51:31.519
But if we generally assume that the United States and Israel often target what they hit and they often know what they are targeting, these attacks against schools and hospitals or attacks that destroy schools and hospitals should raise serious alarms, as potentially instantiating what it looks like when the United States rejects tepid legality and fights without stupid rules of engagement.
00:51:31.599 --> 00:51:33.920
These are quotes from the Secretary of War.
00:51:34.159 --> 00:51:44.639
Now, any object, really any object, even a specially protected object or presumptively civilian object, can in principle become a military objective, but only in very narrow circumstances.
00:51:44.880 --> 00:51:55.440
In Gaza and Lebanon, every time Israel destroyed or attacked a hospital or school, it attached the perfunctory of an unsubstantiated claim that Hamas had used the object for military purposes.
00:51:55.679 --> 00:52:06.239
That alone does not guarantee that these attacks are legal, but of course it is the first necessary step to make any attack against a hospital or school anything but manifestly illegal.
00:52:06.400 --> 00:52:12.800
In the case of a hospital, there would also have to be acts harmful to the enemy, the youth would have to include that.
00:52:13.039 --> 00:52:30.320
Now it is remarkable then that other than the kind of vague allegation of co-mingling, that Iranians commingle by Ambassador Waltz, we have not actually heard detailed claims by the United States or Israel regarding the status of the hospitals and schools and universities that were destroyed in Iran.
00:52:30.800 --> 00:52:39.519
Now Dill discussed protected items such as schools and hospitals and made the points that the US and Israel are pretty good at knowing what they're hitting, and I agree with her on that.
00:52:39.760 --> 00:52:42.960
Yet they have hit a lot of schools and a lot of hospitals.
00:52:43.519 --> 00:52:49.599
One assumes they knew some of them were schools and hospitals, which means they weren't innocent mistakes.
00:52:50.159 --> 00:52:53.679
And she covered the point that innocent mistakes are indeed possible.
00:52:54.320 --> 00:53:04.400
She went on to say that schools and hospitals can still be legitimate military targets, but under the modern laws of war, you have to prove the military necessity of striking those targets.
00:53:04.960 --> 00:53:07.840
In other words, the military benefits gained from those strikes.
00:53:08.320 --> 00:53:16.159
Of course, we're never going to get the US or Israel to cough up those arguments, but one assumes they went through the process of making those assessments.
00:53:16.639 --> 00:53:22.639
She went on to discuss bridges and the energy sector as a whole and whether they are targetable en masse.
00:53:23.199 --> 00:53:28.159
So finally, let me briefly turn to the fourth bucket, bridges and energy infrastructure.
00:53:28.400 --> 00:53:33.599
These are structures that are often used simultaneously by both the civilian population and the military.
00:53:33.840 --> 00:53:43.760
Human Rights Watch, for instance, has documented attacks against gas fields, power plants, oil storage facilities, fuel depots, which has caused toxic acidic rain.
00:53:43.920 --> 00:53:48.960
So these are attacks that are dangerous for civilians and also dangerous for the environment.
00:53:49.360 --> 00:54:03.599
As before, the first legal question is whether a particular bridge or a piece of energy infrastructure made an effective contribution to Iran's military action by location for bridges or by purpose or use for bridges and energy infrastructure.
00:54:03.920 --> 00:54:16.079
The United States has long claimed that energy infrastructure and oil can be attacked just when it sustains the adversary's capacity to wage war, even if it does not also make an effective contribution to military action.
00:54:16.239 --> 00:54:22.079
But this argument is contrary to the legal text and has never gained much traction outside the United States and Israel.
00:54:22.239 --> 00:54:25.199
It is contested even inside the United States.
00:54:25.760 --> 00:54:30.559
Ukraine has recently attacked Russian oil-related targets that sustain the Russian economy.
00:54:30.800 --> 00:54:36.960
And the argument has been floated that since states have been largely silent about that, maybe here the customary law is shifting.
00:54:37.119 --> 00:54:49.440
But I think to shift customary law, um, where really a vast majority of states um attaches to the kind of old definition, which is also enshrined in the text, I think we would require more affirmative practice and more explicit opinion yours.
00:54:50.159 --> 00:54:59.360
Now Professor Dill covered the point that under modern interpretations, those types of civilian targets must be contributing to the military campaign if you're going to hit them.
00:54:59.760 --> 00:55:08.320
You can't just say, well, all the energy is part of the military campaign and then go knock out all the energy because the civilians are using it.
00:55:08.719 --> 00:55:15.199
However, as Professor Dill pointed out, that's exactly what the US and Israeli position is on these types of targets.
00:55:15.519 --> 00:55:25.840
She made an interesting point about how the Ukraine is also targeting fuel, which is very similar, and that the world has not reacted to this by calling Zelensky a war criminal for it.
00:55:26.079 --> 00:55:28.480
Is that a double standard on the part of the West?
00:55:28.800 --> 00:55:34.320
Or is it simply the West going, hey, we want to win that war, and we're going to turn a bit of a blind eye on this?
00:55:35.039 --> 00:55:36.000
Which I don't mind.
00:55:37.199 --> 00:55:44.159
President Trump threatened, I quote, the United States is going to knock out every single power plant and every single bridge in Iran.
00:55:44.800 --> 00:55:54.000
Now singling out an entire category of objects as targets really obliterates the whole approach that IHL demands parties to the war should take to target selection.
00:55:54.400 --> 00:56:07.519
Among experts is actually contested whether for a military objective by nature, so say a tank, you need to still explicitly establish that in the circumstances ruling at the time, it meets the two-pronged test of a military objective.
00:56:07.599 --> 00:56:10.639
So it makes an effective contribution and there's a military advantage.
00:56:10.800 --> 00:56:11.760
That is controversial.
00:56:11.840 --> 00:56:20.719
It is, however, not at all controversial that for every other object, the law demands that in each individual the case, this two-pronged test must be applied.
00:56:20.960 --> 00:56:31.760
So right now in Iran, there may well be some bridges and some power plants that make an effective contribution to military action, and the attack might offer a particular military advantage in certain circumstances.
00:56:31.920 --> 00:56:36.800
And there may be many others, most seriously, that do not, for which that is not the case.
00:56:37.039 --> 00:56:46.239
In case of doubt about the nature of an object or the status of an object, there is broad agreement in scholarship and military manuals that the object must be treated as civilian.
00:56:46.480 --> 00:57:00.639
So this is not so much an announcement to violate the law by the president, but it is basically an announcement not to apply it at all, to completely sidestep the logic demanded by international law, and of course, that by implication will lead to serious violations.
00:57:16.559 --> 00:57:27.119
So basically, Trump is a total war advocate in the way he's speaking and has been threatening total war, which means he could be accused of war crimes for those threats.
00:57:33.280 --> 00:57:41.280
Iran has also been active, including the targeting of civilian infrastructure such as refineries, and they even hit Kuwait's international airport recently.
00:57:41.360 --> 00:57:44.320
And let's not forget that they blocked the Strait of Hormoz.
00:57:44.800 --> 00:57:52.320
Here I have the UAE foreign minister giving us her perspective on Iranian targeting.
00:58:15.119 --> 00:58:20.639
We've borne the brunt of most of the missiles and drone attacks.
00:58:20.800 --> 00:58:36.159
And it's really quite surprising for us that Iran has taken such an irrational path to fight the Gulf states and act in this quite unlawful, quite unacceptable manner.
00:58:36.480 --> 00:58:45.679
The retaliatory measures that Iran has taken to attack the Gulf states is really where the issue we have is.
00:58:45.920 --> 00:59:03.039
And I have to highlight here that Iran isn't simply attacking military bases that have not launched a single missile from them, because we've made it clear that our territory would not be used to launch an attack against Iran.
00:59:03.280 --> 00:59:10.800
They are actually targeting civilian infrastructure as well, whether it's airport or it's oil tankers.
00:59:10.960 --> 00:59:14.880
And I think that's a question that one must ask about.
00:59:15.119 --> 00:59:25.280
Why is Iran using this measure to fight through their grievances with the Israelis and with the Americans?
00:59:25.760 --> 00:59:28.880
Now to dive a bit deeper into Iran's strategy.
00:59:29.039 --> 00:59:36.239
Firstly, in the opening days of the war, Iran responded to the attacks by spraying missiles all over the place.
00:59:36.480 --> 00:59:45.440
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.
01:00:07.920 --> 01:00:15.599
This is having an impact on places that are often considered to be calm, stable, desirable locations.
01:00:15.760 --> 01:00:18.880
People go on holiday to Dubai, Abu Dhabi, Oman.
01:00:19.119 --> 01:00:31.599
Iran is really hoping to put pressure on these Gulf states to then put pressure onto the United States to get Trump to sort of reduce the intensity or to stop the attacks on Iran.
01:00:31.760 --> 01:00:33.360
So it's having huge implications.
01:00:48.480 --> 01:00:59.519
Of course, as we've heard from our legal scholars, Iran's conduct in terms of spraying missiles everywhere contravenes the principles of discrimination and necessity and could therefore be considered war crimes.
01:01:00.159 --> 01:01:02.000
We could also look at the Strait of Homoes.
01:01:02.320 --> 01:01:04.159
Blocking the Strait has two major effects.
01:01:04.320 --> 01:01:07.760
One's economic, which we'll understand every time we fill up our car.
01:01:08.079 --> 01:01:10.559
But there are bigger strategic issues at play here.
01:01:10.880 --> 01:01:12.400
And here is former U.S.
01:01:12.559 --> 01:01:19.440
National Security Advisor John Bolton to cover a key issue with Iran's conduct of war in terms of blocking the Strait of Homoes.
01:01:20.000 --> 01:01:26.880
The Iranians have made palpable what was a potential threat to close the Strait of Hormuz for many years.
01:01:27.039 --> 01:01:29.039
And uh people discounted it.
01:01:29.360 --> 01:01:31.679
We benefited from it from lower oil prices.
01:01:31.760 --> 01:01:34.480
Now they've closed it and threatened the use of force.
01:01:34.719 --> 01:01:50.239
I think that their efforts to negotiate a reopening of the strait are simply intended to demonstrate that they do control it and that you have to bargain with them before they'll consent to let Arab oil and other cargoes come out of the Gulf.
01:01:50.639 --> 01:02:03.679
I think that's a mistake because if they negotiate an end to the blockade of their own oil and opening the strait to everybody else, I think they'll believe they can turn the Strait of Hormuz on and off like a light switch.
01:02:03.840 --> 01:02:08.719
And if we're not prepared to use force today, who in the future is going to be prepared to use it?
01:02:09.039 --> 01:02:40.480
I don't understand why the Gulf Arabs can even contemplate this, but I think we have a larger obligation because if this precedent is established in the Strait of Hormuz, not only will it have continuing negative economic consequences for the world because of the oil and gas coming from the Gulf, but it will call into question every other international waterway similar to the geography of the Strait of Hormuz, like the Dardanelles and the Bosporus in Turkey, like the Strait of Malacca between Malaya and Malaysia and Indonesia.
01:02:40.880 --> 01:02:48.159
These are uh have been deemed for centuries to be international waterways to which ships have a right of free passage.
01:02:48.320 --> 01:02:54.000
And if that is uh taken away, uh this is a much bigger change than just the Strait of Hormuz.
01:02:54.400 --> 01:02:58.320
This is a regime in Tehran that's desperately playing for time.
01:02:58.480 --> 01:03:22.639
Uh and if we let it up off its back, if we effectively give it control of the strait and they're able to gain the oil revenues from uh resuming export of their oil, they will rebuild the Kudz force, they will rebuild the besieged militia, they will rebuild their nuclear program, they will rebuild their missile program, they will rebuild their drone program, they'll repress their own people, and they'll threaten the Gulf and the Middle East even more than before.
01:03:23.119 --> 01:03:35.679
I'm not saying it would be easy, but I am saying that if you allow Iran to keep control of this in effect, whether they're charging quote-unquote environmental tolls or not, uh, we are going to come to regret it in a major way.
01:03:35.840 --> 01:03:44.639
And so should every other country around the world that depends on freedom of the seas, because that is the fundamental question that Iran is raising here.
01:03:44.800 --> 01:03:54.159
What had been an international waterway where there was a right of innocent passage, uh not only for commercial vessels, but even for warships in time of peace.
01:03:54.320 --> 01:03:57.599
That right of innocent passage is on the way to being history.
01:03:58.320 --> 01:04:02.239
I certainly agree with John Bolton on the issue of international waterways.
01:04:02.480 --> 01:04:13.760
Part of the global rules-based order, the order that underpins the laws of war and free trade, which is really important to us in the West, is that international waterways are for everyone.
01:04:14.159 --> 01:04:17.119
We cannot let Iran control that waterway.
01:04:17.360 --> 01:04:23.199
And the strikes the US and Israel are making against Iranian assets that impinge that access are justified.
01:04:23.760 --> 01:04:36.239
So far, the conduct seems to have been in accordance with the laws of war, but I'd be happy to see them start targeting secondary systems, even if they affect civilians, because this is just too important to let the Iranians get away with.
01:04:36.639 --> 01:04:40.079
It isn't just the Strait of Homoes, it's the principle of it.
01:04:40.639 --> 01:04:44.880
Imagine if other international waterways were blocked on the precedents set by Iran.
01:04:45.199 --> 01:04:49.360
Your very cheap iPhones would get very, very expensive if that happened.
01:04:55.519 --> 01:05:00.159
Regardless of which side is targeting civilians, and it has become commonplace.
01:05:00.800 --> 01:05:10.320
The issue here is that by not acting or speaking up against these types of targeting, customary laws are being formed that contravene the written law.
01:05:10.639 --> 01:05:13.519
That being Protocol 1 of the Geneva Conventions.
01:05:13.679 --> 01:05:21.440
And Professor Dill earlier made the point that this will need to be tested in the international courts to see how or if this law is shifting.
01:05:22.400 --> 01:05:24.960
So we've come back to the same arguments again.
01:05:25.360 --> 01:05:27.920
What is the right way to fight a war?
01:05:28.400 --> 01:05:30.800
Is total war okay or not?
01:05:30.960 --> 01:05:35.119
I mean, it was okay up until the end of World War II, and now it's not.
01:05:36.079 --> 01:05:43.840
Of course, the aims of the war, or in terms of the laws of the war, the necessity will dictate how a war is fought.
01:05:44.320 --> 01:05:57.840
If you're fighting a war to slow down a foe or retaliate in self defense, that's different from a war where you seek to permanently change the situation, or where you're fighting for your life or your nation's existence.
01:05:58.880 --> 01:06:04.400
One of those permanent Changes that have been talked about with respect to Iran is regime change.
01:06:04.800 --> 01:06:08.639
We hear a lot about regime change in the media and from the leaders across the world.
01:06:08.880 --> 01:06:11.119
Whether it's the actual plan, we don't know.
01:06:11.440 --> 01:06:17.840
And it doesn't really matter now because it's perceived by many to be the intents behind the US and Israeli attacks on Iran.
01:06:18.400 --> 01:06:30.079
In terms of the conduct of war, we then have to ask ourselves is regime change a legally agreed method of conducting war according to the modern laws of war?
01:06:30.639 --> 01:06:38.639
And I'll remind you that I'm using the term modern because during and before World War II, regime change was often the aim of war.
01:06:39.360 --> 01:06:46.400
But apparently, regimes are run by civilians, and we've somehow got it into our collective heads that they aren't targets.
01:06:46.719 --> 01:06:53.360
To remind you of the reasons why we might support regime change in Iran, here's John Bolton, former U.S.
01:06:53.519 --> 01:06:55.199
National Security Advisor.
01:06:55.679 --> 01:07:02.239
Well, I think it's uh completely justified for us to strike to try and stop Iran from getting nuclear weapons.
01:07:02.400 --> 01:07:09.840
You know, they've shouted death to America under this regime for 47 years and death to Israel for the same amount of time.
01:07:10.239 --> 01:07:20.320
And their terrorist threat around the world is something we face in this country, face it in Europe, obviously in the Middle East with Hezbollah and Hamas and the Houthis in Yemen.
01:07:20.480 --> 01:07:22.400
So it's a very dangerous regime.
01:07:22.559 --> 01:07:23.920
It oppresses its own people.
01:07:24.079 --> 01:07:32.320
When they demonstrated against it in January, the regime killed 32,000 people, machine gunned them in the street indiscriminately.
01:07:32.559 --> 01:07:38.480
And any country government that will do that to their own people, you can imagine what they do to their enemies.
01:07:38.719 --> 01:07:47.039
I think the risk of an Iranian nuclear weapon or the risk of terrorist attacks on Americans around the world uh justifies this.
01:07:47.280 --> 01:07:51.360
So the question is: is regime change the objective of this mission?
01:07:51.519 --> 01:07:53.119
Is it something other than that?
01:07:53.360 --> 01:07:56.719
Do we have the uh resolve to see it through?
01:07:57.039 --> 01:08:04.639
Military action to aid the people of Iran to overthrow the regime uh is very much in our American national interest.
01:08:05.039 --> 01:08:12.480
We have to keep in mind, if we don't overthrow the regime, they will rebuild and uh they'll be right back to threaten us again.
01:08:12.960 --> 01:08:19.520
In response to Bolton's thinking, I'm gonna give you a clip here from Professor Dill, who's talking about regime change.
01:08:20.000 --> 01:08:24.399
So the second basket then are strikes against leadership targets or regime targets.
01:08:24.560 --> 01:08:32.159
Um, the US and Israel have attacked here, the secret police, intelligence headquarters, and the offices and residences of regime leaders.
01:08:32.399 --> 01:08:38.159
Clearly, these objects are implicated in the political aims of the United States and Israel in Iran.
01:08:38.319 --> 01:08:47.760
We may also have few moral qualms about the destruction of this kind of infrastructure given the danger that the Iranian regime poses to the rights of Iranians.
01:08:48.159 --> 01:08:52.479
The United States has also had quite a similar approach in Iraq in 2003.
01:08:52.800 --> 01:08:56.640
It is, however, contested now as it was in 2003.
01:08:56.880 --> 01:09:03.840
To what extent these kind of political control targets individually make an effective contribution to Iran's military action?
01:09:04.159 --> 01:09:09.439
That would have to be tested in each case before we can proceed to questions of proportionality and precautions.
01:09:09.840 --> 01:09:20.720
I think residences of regime leaders are particularly problematic in my view, both for the kind of precedent they set, but also in the notion that any connection they have to military action is really quite attenuated.
01:09:21.039 --> 01:09:31.680
Wars of regime change have the tendency to push warfare into a logic where you conceive of the enemy not as a belligerent with military capabilities to be overcome and therefore targeted.
01:09:31.840 --> 01:09:39.119
That's the logic the law demands, but as you conceive of the enemy as a political apparatus to be dismantled by kinetic force.
01:09:39.199 --> 01:09:44.239
And that in itself is problematic and intention with how IHL conceives of warfare.
01:09:44.560 --> 01:09:56.640
So Professor Dill explained how political targets are not well covered by international humanitarian law because those laws are about military warfare and not to the execution of political leaders by kinetic means.
01:09:56.960 --> 01:10:09.119
So a war of regime change, which this war could be said to be because of the many strikes against the leaders in Iran, is problematical in terms of enforcing the laws of war because they weren't written with that in mind.
01:10:09.680 --> 01:10:20.479
It comes back to the perspective of the attacker and whether the necessity of killing leaders as part of the regime change campaign is enough to override the discrimination principle.
01:10:20.880 --> 01:10:26.159
Especially when you consider that many of them were killed in their homes along with their families.
01:10:26.640 --> 01:10:32.720
Now, Dill's view isn't the only one on this, and here's Professor Gabor again on the same topic.
01:10:35.039 --> 01:10:43.840
This unfortunately requires us to not only talk about Yusin Bello, but to go back to the connections between Yusad Bellum and Yusin Bello.
01:10:44.239 --> 01:10:50.960
And this is one of the areas in which the kind of the vaunted separation between these two disciplines breaks down.
01:10:51.119 --> 01:10:53.680
So I'll need to address them both.
01:10:54.079 --> 01:11:03.039
Regime change is excluded both as a ground for going to war and as a legal objective in war.
01:11:03.279 --> 01:11:06.720
Now, this dual exclusion, it's not a coincidence.
01:11:07.039 --> 01:11:12.319
It's deliberate that both bodies of law prohibit regime change.
01:11:12.479 --> 01:11:22.479
Under USAD Bellam, at least since the UN Charter in 1945, force is lawful only in response to an armed attack or with Security Council authorization.
01:11:22.720 --> 01:11:28.399
Regime change is not one of the characteristics that authorizes the use of force.
01:11:28.640 --> 01:11:44.800
And I think the world had an object lesson in this when the Security Council did authorize the use of force in Libya, which then turned into an unauthorized regime change to which many states rightfully objected.
01:11:45.119 --> 01:11:53.840
So even where a government is hostile or repressive, destabilizing, that character alone does not generate a legal right to use force.
01:11:54.000 --> 01:12:06.319
Allowing force based on the political undesirability would turn the prohibition of use of force into an entirely subjective factor and eviscerate its functionality.
01:12:06.640 --> 01:12:16.239
Now, as to use in Bellow, even when an armed conflict exists, that does not render regime change into a lawful goal.
01:12:16.560 --> 01:12:19.520
IHL is purpose neutral.
01:12:19.680 --> 01:12:28.479
It doesn't validate political projects, it regulates targets, means, methods, and protections accorded to those or to combat.
01:12:28.720 --> 01:12:38.319
A lawful military objective, as we know, is one that effectively contributes to military action and whose neutralization yields a definite military advantage.
01:12:38.640 --> 01:12:42.800
This is the gospel according to AP1, Article 52.2.
01:12:43.119 --> 01:12:50.239
And as for people as targets, that concept is expressed as the distinction between combatant and civilian.
01:12:50.479 --> 01:13:02.880
Over 250 years ago, Rousseau's social contract established that the only legitimate object of war is to neutralize enemy forces, not to harm individuals as individuals.
01:13:03.119 --> 01:13:12.960
On the other hand, a political outcome, the removal of government authority, the collapse of a regime, the transformation of society, that does not meet that test.
01:13:13.520 --> 01:13:26.000
This matters in practice because once regime change is articulated as a use at Bellum objective, pressure then builds to stretch core distinctions in the use in Bellow.
01:13:26.399 --> 01:13:34.880
Civilian leaders are reframed as military targets, governance or data infrastructure is treated as, quote, war-sustaining.
01:13:35.119 --> 01:13:42.640
Civilian harm is normalized through over-assertion of the concept of dual use objectives.
01:13:42.960 --> 01:13:50.800
These are all poignant examples how use at bellum violations can put pressure on use in Bello compliance.
01:13:50.960 --> 01:13:55.920
These are the pressures that IHL is precisely meant to resist.
01:13:56.239 --> 01:13:59.520
Occupation law makes the point even more starkly.
01:13:59.760 --> 01:14:04.880
Even total control does not confer a mandate for political transformation.
01:14:05.119 --> 01:14:09.439
The occupier must maintain the legal status quo ante.
01:14:09.760 --> 01:14:14.399
It administers, it does not redesign, it does not conquer.
01:14:14.640 --> 01:14:24.159
So I think the bottom line is this international law deliberately restricts war to managing violence and not reordering political communities.
01:14:24.399 --> 01:14:37.680
Regime change may well occur as a factual consequence of war, but it is never a lawful justification to either to go to war, nor is it a legitimate military objective in war.
01:14:38.720 --> 01:14:39.199
Wow.
01:14:39.359 --> 01:14:41.680
Now, I have to say I learned something there.
01:14:41.920 --> 01:14:50.239
I find it amazing that we humans managed to write a law that says regime change is not a legitimate reason for going to war.
01:14:50.800 --> 01:14:53.119
I think it's just plain wrong.
01:14:53.279 --> 01:14:57.760
And we talked it off by saying that you can't target a regime once we are at war.
01:14:58.720 --> 01:15:01.439
Let me tell you why I think this is nonsensical.
01:15:02.079 --> 01:15:17.920
When you consider threats against your nation, there are two components the capacity to carry out the threats, in other words, the equipment and the soldiers and the army and the airplanes and the ships, and the cyber attacks and whatever other attacks you're doing.
01:15:18.720 --> 01:15:24.239
And the intent to do so, intent meaning what the leaders intend to do.
01:15:24.640 --> 01:15:40.000
Surely if you take out the leaders that intend to commit an act of war or terror or conducting war inappropriately, then you are eliminating the threat, thus making the leadership a legitimate target.
01:15:40.560 --> 01:15:48.159
Imagine telling the Allies in World War II that they weren't allowed to target regime change in Hitler's Germany.
01:15:48.399 --> 01:15:50.399
How asinine would that have been?
01:15:51.439 --> 01:15:54.079
But the law isn't simple, is it?
01:16:00.159 --> 01:16:02.880
There's actually another thread we need to consider here.
01:16:03.439 --> 01:16:10.640
During the global war on terror, assassinating militia leaders was a regular occurrence in Iraq and Afghanistan.
01:16:11.039 --> 01:16:15.520
Yet you didn't hear about regime change or calling those killings a war crime.
01:16:16.239 --> 01:16:21.119
So we'll hear now from Professor Lieblek, who is a professor in Tel Aviv.
01:16:21.199 --> 01:16:22.960
So of course there's some bias in this.
01:16:23.600 --> 01:16:26.079
And oh by the way, what you're gonna hear are two acronyms.
01:16:26.239 --> 01:16:30.960
One is IHL, which means international humanitarian law, as we've said.
01:16:31.119 --> 01:16:36.079
And the other term that's used is NIAC, which stands for non-international armed conflict.
01:16:36.720 --> 01:16:39.199
So a conflict with an organization that is not a state.
01:16:39.520 --> 01:16:41.920
And remember what Schmidt told us two episodes ago.
01:16:42.159 --> 01:16:47.520
Under the UN Charter, you said vellum, which is just cause for going to war.
01:16:47.840 --> 01:16:50.800
The reasons you go to war are applicable only to states.
01:16:51.039 --> 01:16:59.039
Non-state actors that commit terror or war are, according to the UN Charter, simply committing a crime and should be dealt with by domestic laws.
01:16:59.600 --> 01:17:04.800
Of course, we all know that's just plain nonsense, especially after the twenty years of warfare in Afghanistan.
01:17:04.960 --> 01:17:06.079
Anyway, here's Lee Lake.
01:17:24.720 --> 01:17:31.359
During the war on terror, for instance, it was argued that these are necessary because it's the only way to deal with terrorist organizations.
01:17:31.439 --> 01:17:33.920
They don't have regular uh military units.
01:17:34.079 --> 01:17:43.039
And moreover, that you can't really distinguish between uh political and military leadership of terrorist organizations because they operate in gray zones.
01:17:43.199 --> 01:17:49.840
And we see traces, more than traces, of this reasoning in attacks on uh Iranian leadership.
01:17:50.079 --> 01:18:07.039
We have the implicit idea that you cannot really distinguish between regime targets and traditional military objectives in the same way because we're dealing with uh quote unquote terrorist regime, or um, you know, we can think about the targeting of the assembly of experts building.
01:18:07.279 --> 01:18:17.600
These are the type of arguments that we've seen developed in the context of NIAX during the war in terror as supposedly uh reaction to the specific challenges of NIAX.
01:18:17.920 --> 01:18:22.159
Don't get me wrong, I think you know Iran's own conduct has a lot to do with Isso.
01:18:22.880 --> 01:18:49.119
So the entire dual state structure, which the IRG sees somehow like a parallel government or military, uh, the vague relations between Iran and its proxies, its tactics of kind of actually asymmetric tactics of launching um missiles and taking cover, um, the hormoth actions with uh the small boats and and so on and so forth, from the perspective of how we theoretically think about IHL.
01:18:49.760 --> 01:19:06.000
This process really reveals that the dynamics of the war against terror were never really about challenges of non-state actors or about you know sovereigns versus non-sovereigns, but in the formal sense, but more about how war is waged in situations of power gaps.
01:19:06.720 --> 01:19:20.399
So you heard Liebly say that targeting leaders in terrorist organizations became the norm in the global war on terror, but that technically speaking, under the laws of war, the modern interpretation of the laws of war, countries shouldn't be doing that.
01:19:21.199 --> 01:19:23.920
But the US and Israel targeted the Iranian regime.
01:19:24.479 --> 01:19:42.079
And as I mentioned last episode, you can easily accuse Iran of state-sponsored terrorism, which, in my way of reasoning, or rescuing reason, seems to me that Iranian leaders have lost any claim to protection under the laws of war because they don't follow the laws of war when they engage in state-sponsored terrorism.
01:19:42.960 --> 01:19:46.399
I therefore have no problem with targeting the Iranian leadership.
01:19:46.640 --> 01:19:48.960
In fact, I applaud the US and Israel for doing it.
01:19:50.159 --> 01:20:01.680
Let's address regime change now by looking at the Israeli and Iranian perspectives as were expressed at the United Nations shortly after the war recommenced on the 28th of February, 2026.
01:20:01.920 --> 01:20:04.159
First, here's the Iranian representative.
01:20:05.039 --> 01:20:21.359
It is regrettable that some members of this body in a blatant double standard disregarded the flagrant act of aggression committed by the US and Israel on Iran and condemned Iran for using its inherent right to self-defense on the UN Charter.
01:20:21.680 --> 01:20:36.399
This morning, the United States regime jointly and in coordination with the Israeli regime initiated an unprovoked and premeditated aggression against the Islamic Republic of Iran for the second time in the recent months.
01:20:36.720 --> 01:20:44.800
While deliberately attacking civilian-populated areas in multiple large cities of Iran where millions of people reside.
01:20:45.359 --> 01:20:51.439
As a result of this brutal armed attack, hundreds of civilians have been killed and injured.
01:21:03.680 --> 01:21:16.479
In addition to the numerous civilian residential building, the aggressors have also targeted a school in the city of Minop, Hormozgan, Province, killing more than 100 children.
01:21:16.720 --> 01:21:23.600
This is not only an act of aggression, it is a war crime and a crime against humanity.
01:21:24.159 --> 01:21:25.600
He made a few interesting points.
01:21:25.840 --> 01:21:37.279
Firstly, he chastised the UN for failing to act after the 12-day war, and he chastised the UN for blaming Iran for breaching the laws of war in its choice of targeting in response to the US and Israeli attacks.
01:21:37.680 --> 01:21:49.199
Additionally, he talked about civilian casualties, including a school in Minnah, which is where we talked about those 140 kids earlier, which died in the first wave of strikes on the 28th of February, and he called that a war crime.
01:21:49.840 --> 01:21:52.399
Now, let's hear the Israeli response to this.
01:21:53.600 --> 01:22:04.880
For forty-seven years, the Islamic regime in Iran has led crowds in chanting Marjbar Israel, Marjbar Amrika.
01:22:06.000 --> 01:22:06.239
Mr.
01:22:06.479 --> 01:22:10.239
Iravani, do you want to translate these chants?
01:22:10.800 --> 01:22:16.319
Your leaders have been chanting it for years in public events in your parliament.
01:22:18.239 --> 01:22:21.279
Marjbar Israel, Marjbar Amrika.
01:22:22.560 --> 01:22:26.880
They mean death to Israel, death to America.
01:22:28.000 --> 01:22:31.279
This is not the anger of a radical fringe.
01:22:32.000 --> 01:22:35.119
It is state sanctioned hatred.
01:22:35.920 --> 01:22:51.279
And while those Marjbar chants echoed, uranium was enriched, centrifuges spanned, missiles were built, facilities were buried deep underground.
01:22:51.840 --> 01:22:54.960
It was never just empty rhetoric.
01:22:55.520 --> 01:22:58.000
It was preparation for action.
01:22:58.640 --> 01:23:04.800
But today, alongside our ally, the United States, we act to stop it.
01:23:05.279 --> 01:23:17.600
Israel stands before you today, having acted with the United States to confront and stop an existential threat before it became irreversible.
01:23:18.159 --> 01:23:28.079
The operation targets nuclear infrastructure, ballistic missile sites, the machinery of repression that fuels terror across our region.
01:23:28.880 --> 01:23:31.119
We did not act of impulse.
01:23:31.600 --> 01:23:33.920
We did not act of aggression.
01:23:35.039 --> 01:23:43.199
We acted out of necessity, because the Iranian regime left no reasonable alternative.
01:23:44.479 --> 01:24:02.159
This operation is guided by clear objectives: eliminate immediate threats, dismantle the nuclear program, destroy its ballistic missile production, neutralize naval threats, break the proxy network that destabilizes the region.
01:24:02.800 --> 01:24:18.000
The operation was carried out in order to protect the people of Israel within the framework of the ongoing armed conflict between Israel and Iran, in line with the UN Charter and in accordance with international law.
01:24:18.800 --> 01:24:26.720
Listening to that, it's pretty clear that Israel is invoking self-defense as the justification for the war, as we talked about two episodes ago.
01:24:26.960 --> 01:24:34.399
And they cite military necessity in the degradation of the nuclear program, the Iranian military, and the Iranian governments.
01:24:34.560 --> 01:24:36.880
In other words, they seek regime change.
01:24:37.680 --> 01:24:45.359
Iran went on to make the point that targeting regimes is unlawful under the UN Charter, but it took that guy so long to come to that point that I didn't record it.
01:24:46.239 --> 01:24:54.960
Whether it makes sense to go for regime change or whether that is supposedly illegal, I think we can boil the difference down to two simple questions that I'd like you to consider.
01:24:55.199 --> 01:24:59.439
Firstly, how hard should your country fight to win a war?
01:25:00.239 --> 01:25:04.319
And are you ready to sacrifice moral absolutism to win a war?
01:25:04.720 --> 01:25:09.039
Put another way, are you prepared to lose soldiers, battles, or even a war?
01:25:09.199 --> 01:25:17.199
Or allow a country to continue sponsoring state terrorism or obtain nuclear weapons with a track record like Iran's all for the sake of following the laws of war?
01:25:18.000 --> 01:25:19.199
Are those laws correct?
01:25:20.079 --> 01:25:28.960
My view is that many in the West are deluding themselves about the laws of war and taking a narrow view about them, as we often hear in the media.
01:25:29.119 --> 01:25:32.960
For example, and I've played this clip before, but it just kills me.
01:25:33.119 --> 01:25:38.239
Here's Australian Prime Minister Anthony Albanese talking about the war in Gaza.
01:25:38.960 --> 01:25:46.000
The civilian casualties and death in Gaza is completely unacceptable.
01:25:46.159 --> 01:25:48.319
It's completely indefensible.
01:25:48.560 --> 01:25:53.119
We have rules of engagement, and they're there for a reason.
01:25:53.279 --> 01:25:58.960
And they're to stop innocent lives being lost, and that is what we have seen.
01:25:59.680 --> 01:26:06.319
His comments about civilian casualties being completely indefensible are 100% incorrect according to the laws of war.
01:26:06.560 --> 01:26:08.159
They are indeed defensible.
01:26:08.239 --> 01:26:10.079
It just depends on the circumstances.
01:26:10.399 --> 01:26:15.039
It would be good if our politicians actually knew what the law was before they made statements like that.
01:26:15.600 --> 01:26:21.520
The point I'm making here is that the protestations of Western leaders and other nations is pointless.
01:26:22.399 --> 01:26:31.439
It's only through the fullness of an investigation of intent rather than analysis of the destruction that you can make claims about breaching the laws of war.
01:26:32.479 --> 01:26:36.399
The question you, my fellow Westerners, need to consider is this.
01:26:37.119 --> 01:26:43.680
If your livelihood is at stake, would you prefer your military to abide by the laws of war and play fair?
01:26:44.239 --> 01:26:48.319
Even if that means they might lose the battle while they retain the moral high ground?
01:26:48.880 --> 01:26:56.319
Or are you okay with your soldiers and military leaders taking broad interpretations of the law to get the job done and win the war?
01:26:57.439 --> 01:27:09.279
Israeli leaders are taking a broad interpretation and have abandoned the moral high ground in favor of necessity in Gaza and in Lebanon because they're sick and tired of having rockets launched into Israel.
01:27:09.760 --> 01:27:14.000
Which begs the question Are the laws of war still relevant?
01:27:14.800 --> 01:27:22.239
Particularly in a world where their originator and previous champion, the United States, is no longer abiding by them.
01:27:22.800 --> 01:27:28.880
Or are we witnessing a shift in what is now permissible under the laws of war on our little small planet?
01:27:29.680 --> 01:27:35.680
Let's start with the broader question about the very basis for the laws of war, which has to do with how the U.S.
01:27:35.840 --> 01:27:38.479
championed them in the aftermath of World War II.
01:27:38.560 --> 01:27:40.880
And here is Gabor summing up this point.
01:27:41.520 --> 01:27:52.560
I do think that the bad news is that I have seen an unprecedented degree of pressure on traditional IHL values.
01:27:52.720 --> 01:27:58.880
I should say unprecedented in my professional lifetime, you know, 30, 40 years or so.
01:27:59.279 --> 01:28:05.600
And I can kind of try to put a finger on what exactly is unprecedented.
01:28:05.840 --> 01:28:08.319
It is not that there are violations.
01:28:08.960 --> 01:28:21.359
Rather, it's the difference between, on the one hand, the denial that you're violating a rule, which in fact reinforces the existence and the value of the rule.
01:28:21.600 --> 01:28:24.479
Say, for example, no, I'm not committing torture.
01:28:24.640 --> 01:28:27.520
That reinforces the prohibition against torture.
01:28:27.760 --> 01:28:37.600
That's not what's happening, at least in the Trump administration, and I dare say to some extent in the Israeli Armed Forces Administration.
01:28:37.760 --> 01:28:43.840
What rather seems to be happening is that, you know, we don't care about the rules.
01:28:44.000 --> 01:28:45.600
You know, rules don't constrain us.
01:28:45.680 --> 01:28:47.600
And that's not exclusively true.
01:28:47.760 --> 01:28:54.960
You know, the State Department did issue recently a legal justification for the use of force in Iran.
01:28:55.199 --> 01:29:06.960
It was kind of expertly destroyed by commentators who actually know something more about international law than what the people in the State Department seem to know or seem to care about.
01:29:07.119 --> 01:29:24.000
But more and more what we've seen coming out of the mouths of important people like the Secretary of Defense, I'm not going to call him the Secretary of War, and the President of the United States, is a disregard for the very existence of legal norms.
01:29:24.159 --> 01:29:42.960
That is new and that is unprecedented coming from these states that I have to say are probably the most important states in developing and determining the way the world reacts to IHL in general.
01:29:43.439 --> 01:29:51.520
The United States was so critical in the formulation of international human rights law and aspects of the Geneva Conventions.
01:29:51.760 --> 01:29:53.920
So these are the worrying trends.
01:29:54.880 --> 01:29:56.479
So not only do we have U.S.
01:29:56.560 --> 01:30:03.760
leaders poo-pooing the laws of war, but we also have them flouting those rules through the conduct of the war, as mentioned earlier.
01:30:03.920 --> 01:30:05.520
For example, targeting leaders.
01:30:06.000 --> 01:30:10.560
The issue of targeting leaders is the classic case that comes out of recent conflicts.
01:30:10.960 --> 01:30:13.439
It seems to be the norm over the past 20 years.
01:30:13.840 --> 01:30:17.199
Yet our legal scholars are telling us you can't do that.
01:30:17.840 --> 01:30:30.720
Perhaps the law is indeed changing, and in the context of Iran, perhaps it needs to change because of how they have become a state sponsor of terrorism and numerous proxy wars and are seeking nuclear weapons.
01:30:31.039 --> 01:30:36.399
Here's Professor Dill again, this time discussing the notion that the laws are changing.
01:30:37.359 --> 01:30:43.359
Targeted killings is a kind of non-state actor thing, that it was actually also really prominent already in 2003 in Iraq.
01:30:43.520 --> 01:30:49.119
So Iraq, Afghanistan, the global war on terror were in many cases the where we see the original sin.
01:30:50.000 --> 01:30:57.840
There's also the notion that Israel and the United States have always taken very, very permissive positions on a lot of key concepts of international humanitarian law.
01:30:58.000 --> 01:31:08.000
So when you then make an incremental step away from a already very permissive provision, you come quite close to unraveling the provision entirety so that it has no more protective capacity.
01:31:08.560 --> 01:31:22.079
In that sense, you can see this as a kind of incremental process of the United States and Israel moving away ever more from the kind of acquis, right, of what we as an international community over centuries agreed on is the limits of warfare.
01:31:22.399 --> 01:31:41.920
That is an optimistic way though of looking at it, because I think there's also the whole political backstory to it, which is that these two regimes have internally, as Ilya said, backslid that they're no longer really proper full-fledged democracies and that they have populist leaders that have embraced the notion that they should not be constrained by international law.
01:31:42.000 --> 01:31:43.920
And I think that is the qualitative change.
01:31:44.079 --> 01:31:52.640
Yes, we have an incremental change in ever more permissive positions of international law where the interpretation in fact swallows the rule whole at some point.
01:31:52.800 --> 01:32:09.119
But I think we also have a kind of political context in which the rhetoric and the institutional dismantling of safeguards at home, um, the notion that the population is no longer brought along to be a constraint on hawkish leaders, all of these things I think um speak of a qualitative um shift.
01:32:09.680 --> 01:32:12.399
Now I'd say we need to rescue some reason here.
01:32:12.640 --> 01:32:29.359
If the laws created in the mid to late 1800s, when war was indeed hell, as Sherman said, had to be amended after World War II to make them restrictive so that we brought humanity into the conflict, or brought the element of humanity into our thinking when we're conducting wars.
01:32:30.079 --> 01:32:34.000
And now we find ourselves fighting enemies that don't play by those rules.
01:32:34.239 --> 01:32:36.079
So is it time to rewrite them?
01:32:36.960 --> 01:32:42.960
Perhaps the conflicts since October 7, 2023 are indeed rewriting them just through custom.
01:32:43.600 --> 01:32:53.359
And I'll add this if we ever go to war with China or Russia, we will most likely have to discard our values and our adherence to those laws of war.
01:32:53.680 --> 01:32:58.960
Because I doubt those two countries are going to play by the rules, and it'll be existential for us in the West.
01:32:59.760 --> 01:33:07.359
In fact, we know that in the case of Russia, they are regularly striking civilian targets, which, of course, is against the extant laws of war.
01:33:08.159 --> 01:33:09.840
Now, it's not all doom and gloom.
01:33:10.000 --> 01:33:11.359
We do need some laws.
01:33:11.600 --> 01:33:16.000
There are many that think we'll come out of this current war and reaffirm the extant laws of war.
01:33:16.079 --> 01:33:18.800
And here's Gabor again giving us his reasons for that.
01:33:19.439 --> 01:33:21.920
I want to point to two personal experiences.
01:33:22.159 --> 01:33:37.279
I learned my human rights law from 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 the time.
01:33:37.600 --> 01:33:44.640
Now, following up on that, I think it was maybe in my second or third day of working at the ICRC back in the 1990s.
01:33:44.800 --> 01:33:54.399
I was brought into the president's office, and the first thing he showed me was a framed letter from Nelson Mandela on his wall.
01:33:54.479 --> 01:34:01.680
And the letter said that the value of the ICRC is not in the violators that are held accountable.
01:34:01.840 --> 01:34:06.560
It's in the violations that never happen because of the ICRC's work.
01:34:06.800 --> 01:34:14.079
That is analogous to the way that international law works in general, that IHL works in general.
01:34:14.319 --> 01:34:22.479
It is very difficult to quantify how IHL is working in connection with things that don't go wrong.
01:34:22.640 --> 01:34:31.520
It's much easier to analyze the things that do go wrong and to therefore conclude that we are in a bad state.
01:34:31.840 --> 01:34:40.880
For the most part, we still live in a world that is more or less effectively governing war through through IHL.
01:34:41.119 --> 01:34:45.119
Again, unprecedented pressures on that law.
01:34:45.359 --> 01:34:56.000
Um, but I am not yet ready to go along with, say, the vision of Canadian Prime Minister Carney that there has been a rupture.
01:34:56.159 --> 01:35:04.319
There are pressures, there has been a great deal of reason to be worried about the future of IHL.
01:35:04.800 --> 01:35:14.479
But I'm thinking and hopeful that we can get through this portion of history and keep IHL alive.
01:35:14.640 --> 01:35:20.479
And the reason for that is because it serves the purposes of states.
01:35:20.800 --> 01:35:37.920
To the extent that states have an interest in maintaining international peace and security, because, well, for obvious reasons, I think that there is an imperative among States to keep true to the principles of IHL.
01:35:38.399 --> 01:36:02.720
And I am hopeful that it is that aspect of state self-interest that will cause us to come out of this place that we're in now and hopefully to you know to return to a situation in which states continue to acknowledge not only that the law matters, but that compliance with the law matters.
01:36:03.600 --> 01:36:05.680
I'd like to think Gabor is correct.
01:36:06.000 --> 01:36:10.319
But I'll say two things about what it would take to rescue the laws of war as we knew them.
01:36:10.880 --> 01:36:14.479
First, the US has to return to abiding by them.
01:36:14.720 --> 01:36:18.479
We in the West need the US to be championing those laws of war.
01:36:18.720 --> 01:36:22.399
Otherwise, we're going to be outnumbered by the global south.
01:36:22.720 --> 01:36:35.600
Secondly, we would need to see some prosecution of Iranian, Israeli, and yes, US leaders for their conduct in the current war with respect to violations of the laws of war.
01:36:35.920 --> 01:36:38.560
After all, without enforcement, laws are meaningless.
01:36:38.720 --> 01:36:41.039
Now, how that happens, I don't know.
01:36:41.439 --> 01:36:50.560
But if you want to re-establish the laws of war and have a world in which countries and nations actually follow them, we are gonna need to see some of that.
01:36:51.039 --> 01:36:55.359
Here's Professor Dill again, this time touching on this point about enforcement.
01:36:56.239 --> 01:37:02.399
Constituencies that believe in the law is not the same as constituencies that have an interest in upholding the law, right?
01:37:02.479 --> 01:37:09.119
Because one of the tragedy is that the IHL as it stands, almost anybody has an interest in upholding it, right?
01:37:09.279 --> 01:37:20.960
Various constituencies, whether you're the war fighter or um, you know, the belit the forward-leaning belligerent or the civilian population or the third party, almost anyone has an interest in upholding it.
01:37:21.199 --> 01:37:26.720
Most publics around the world certainly would have an interest in standing up for it, objectively speaking.
01:37:26.880 --> 01:37:35.359
But that's not the same as understanding your interest and standing up for it and also making a calculation of short versus long-term interest.
01:37:35.600 --> 01:37:45.520
So a lot of third states have been silent in the face of pretty egregious violations of international humanitarian law, some other laws, but particularly international humanitarian law.
01:37:45.760 --> 01:38:07.520
And there's no good kind of rational explanation for it other than that they prioritize their short-term interest and not drawing the iron and just jeopardizing alliances and friendships over the kind of long-term interest that they should have or have, objectively speaking, in upholding the rule of law and in protecting really hard-won sets of customary international legal rules for the for the conduct of war.
01:38:07.760 --> 01:38:10.319
So it's in some sense a problem of short-term versus long-term.
01:38:10.399 --> 01:38:17.520
It's also often a problem of collective action, that no one wants to stick their head above the parapet while the others are not with you.
01:38:17.840 --> 01:38:26.640
But objectively speaking, I think the tragedy here is that particularly with the laws of war and the laws on the conduct of hostilities, everyone really has an interest in upholding them.
01:38:26.800 --> 01:38:33.359
Um they're always under pressure from the belligerents fighting the war, but third parties really have an interest in standing up for them.
01:38:33.520 --> 01:38:45.439
And when we don't see that happening, it is not because no one has an interest in it, but partly because these constituencies that might have an inter would have an interest in it are not necessarily mobilized or ready to stand up for the law.
01:38:45.520 --> 01:38:47.359
And that is really a big problem at the moment.
01:38:48.479 --> 01:38:57.119
Now, she approached enforcement from the perspective that if other countries are supporting the need for the laws of war, then that is somehow enough to keep them alive.
01:38:57.920 --> 01:39:03.920
Perhaps that's true, especially in the bizarre world of the United Nations, where talk seems to rule the day instead of actions.
01:39:04.479 --> 01:39:09.680
I can be hopeful that one day the United Nations will actually do something about violations of the UN Charter.
01:39:10.479 --> 01:39:18.560
One thing that came out of this discussion was a great comment from Gabor about the need for public education on the laws of war, and here he is talking about it.
01:39:19.359 --> 01:39:24.239
One of the greatest unmet needs here is public education.
01:39:24.479 --> 01:39:39.600
The ICRC at one time promoted a, I think, a fairly effective program of bringing IHL into public schools, high schools, you know, university programs, even for students that aren't focused on international law.
01:39:39.920 --> 01:39:50.479
I start my semester in IHL always with the observation that IHL is too important to be left to the militaries and to politicians alone.
01:39:51.039 --> 01:40:11.520
But I see now in the portrayals of kind of international law-related incidents in responsible newspapers like the New York Times that either get international law wrong or that don't address it at all, even though it's the most important construct for the things that it's reporting about.
01:40:11.760 --> 01:40:21.199
So what I'm seeing is a general absence of knowledge, concern, and education among the general public.
01:40:21.439 --> 01:40:34.239
And I would love to see a greater emphasis on bringing non-fighters, non-governmental officials into more conversations about the importance of IHL.
01:40:35.119 --> 01:40:42.640
As Gabor said, the only groups that are schooled in the laws of war now are the military and international lawyers.
01:40:42.960 --> 01:40:48.159
I dealt with both of these groups in my military career, and even they don't get it right.
01:40:48.560 --> 01:41:03.119
Yet it's our public servants and politicians who are often called upon to make decisions about conduct of war and then how to enforce the laws of war, and they have so little understanding of them, which causes them to get it wrong in many cases.
01:41:03.279 --> 01:41:10.960
And when it comes to the media, well, they just get AI to drum up some opinion about it, which is wrong fifty percent of the time.
01:41:11.279 --> 01:41:26.079
My advice to you is this if someone is talking about war crimes and the laws of war or international humanitarian law, and if it isn't a military officer or a lawyer, be very cautious about what you're hearing.
01:41:26.319 --> 01:41:27.600
It's probably wrong.
01:41:32.880 --> 01:41:36.399
Well, I think I've wandered all over the map on this topic.
01:41:36.800 --> 01:41:38.079
So I'm gonna summarize.
01:41:38.720 --> 01:41:47.039
And we're gonna consider where this leaves Iran, the US, and Israel, and their leaders and soldiers and sailors and airmen who may at some point be accused of war crimes.
01:41:47.279 --> 01:41:51.520
In terms of war crimes, many of them have certainly bent or broken the laws of war.
01:41:52.159 --> 01:42:02.560
Whether it's the leader who sanctioned attacks against civilian targets or made threats, or whether it's the tank commander who fired shells into a hospital, or a pilot who dropped a guided bomb onto a bridge.
01:42:03.119 --> 01:42:04.800
These things are all in question.
01:42:05.359 --> 01:42:08.319
It may turn out that they all face prosecution.
01:42:09.039 --> 01:42:17.600
Or we might accept this as the new norm and end up with revised customary law in terms of how and why we fight wars.
01:42:17.840 --> 01:42:28.079
Or maybe we might end up with a revision, a written revision, across the entirety of the UN and the UN Charter, which, by the way, is long overdue.
01:42:28.399 --> 01:42:35.359
To capture some of the sentiments we see in the West, here's Ben Rhodes, who was a national security advisor in the Obama government.
01:42:35.840 --> 01:42:39.840
At the beginning, this was about the nuclear program, or it was about helping Iranians rise up.
01:42:40.000 --> 01:42:40.960
That's not happening.
01:42:41.119 --> 01:42:45.359
There's not going to be some quick regime change to a democratic Iran.
01:42:45.520 --> 01:42:50.800
That's clearly not happening, which was very predictable by anybody who paid attention to Iran at all.
01:42:50.960 --> 01:42:56.560
And Trump seems to not be surrounded by anybody who knows anything about Iran based on how he's acting.
01:42:56.800 --> 01:42:59.119
We are now just lashing out.
01:42:59.279 --> 01:43:00.399
And we should be very clear.
01:43:00.560 --> 01:43:05.520
When he threatens to blow up energy and electricity generation, that is a war crime.
01:43:05.760 --> 01:43:17.039
What is accomplished by blowing up civilian infrastructure other than making the Iranian regime dig in even more and lash out even more at similar civilian targets across the Middle East?
01:43:17.199 --> 01:43:24.159
When you start committing war crimes or going on a slippery slope to hitting civilian infrastructure, you have a race to the bottom.
01:43:24.319 --> 01:43:36.399
And I worry that between what Israel is doing in Lebanon and Iran, what the United States is now doing and you know what Trump is threatening to do more of, and what Iran is doing in response, we see what happens when there are no laws of war.
01:43:36.479 --> 01:43:41.760
And the people who are caught in the middle are the ones who suffer, who are largely innocent civilians.
01:43:42.479 --> 01:43:43.359
I think he's right.
01:43:43.520 --> 01:43:44.960
We do need laws of war.
01:43:45.119 --> 01:43:49.359
I'm not sure the modern interpretation is reflective of how a war can degenerate.
01:43:49.520 --> 01:43:56.319
And so I think we could reasonably ask for some second-tier or alternate interpretation of the laws of war.
01:43:57.039 --> 01:44:01.600
To put it another way, we need laws of war for total war.
01:44:01.920 --> 01:44:13.920
Not just the clinical wars of the early 2000s that became clinical because we in the West had overwhelming superior forces and could abide by the rules that we put in place, those restrictive rules.
01:44:14.479 --> 01:44:21.760
Instead, I think we need laws of war that recognize the situation where a country is fighting for its life.
01:44:22.079 --> 01:44:27.600
And we need to recognize that in those circumstances, the laws need to be different.
01:44:28.159 --> 01:44:31.119
Kind of like Israel and Iran are doing at the moment.
01:44:31.840 --> 01:44:38.239
And as for Iran, the focus of the last four episodes, I'll leave you with a few thoughts here from various speakers.
01:44:38.560 --> 01:44:40.880
Let's start with Anthony Blinken, former U.S.
01:44:40.960 --> 01:44:47.199
Secretary of State, talking about the need for deeper thinking and planning about the longer-term strategy in this war.
01:44:48.000 --> 01:44:54.159
Part of the problem with these things is that it's very hard to uh produce regime change from outside.
01:44:54.239 --> 01:44:55.680
You can't bomb your way to it.
01:44:55.760 --> 01:45:00.159
Uh, we've had a lot of experience with that, and not not such good experience over the last 20 years.
01:45:00.399 --> 01:45:05.680
It's even not so likely to come from the streets, even with the extraordinarily courageous Iranian people.
01:45:05.840 --> 01:45:08.720
Uh it's more likely to come from kind of within the palace.
01:45:08.880 --> 01:45:11.840
And then it could go in any one of, you know, multiple directions.
01:45:12.079 --> 01:45:23.840
You you could get more pragmatic people, not not good guys, but more pragmatic people who are open to, you know, curbing the excesses of the regime, focusing at home instead of focusing abroad, doing deals.
01:45:24.000 --> 01:45:27.680
But right now it looks more likely that you're going to have um hardliners.
01:45:27.920 --> 01:45:34.079
The WHO uh had a song way back in the uh in the 60s or 70s, you know, uh here's to the new boss, same as the old boss.
01:45:34.239 --> 01:45:37.119
That seems to be right now at least where we're headed.
01:45:37.439 --> 01:45:51.199
You've seen extraordinarily courageous people uh beyond uh imagination who are out in the streets looking for change, getting mowed down by this regime, and we all want to see a different future for them, different leadership for them.
01:45:51.520 --> 01:45:57.039
But it's very, very hard, if not impossible, to uh to do that from the outside, as we were saying.
01:45:57.359 --> 01:46:09.680
And the risks now are that um instead of having a change, having a transition, you have an implosion, and then maybe even an explosion that has real effects outside the country.
01:46:09.840 --> 01:46:15.520
Our partners in the in the region have uh far fewer interceptors, air defense interceptors than we do.
01:46:15.680 --> 01:46:27.279
If it gets to the point where they're running out and the Iranians have enough to continue going at their infrastructure, at their people, I think there's going to be a pretty strong demand signal on the administration to take an off-ramp to stop.
01:46:27.600 --> 01:46:30.239
We've had other second and third order consequences here.
01:46:30.399 --> 01:46:48.159
At the very time when Russia is really reaching a uh a weak point uh because of its dependence on oil to fuel its war economy, in large part because the price of oil has gone down, uh it's having more trouble exploiting uh oil because of sanctions and restrictions that we put on technology, that's been a huge and growing factor.
01:46:48.239 --> 01:46:57.119
And the thing to do now, ideally, would be to squeeze the shadow fleet that they have uh that's going around the world, and that's um the one thing that's able to keep them going.
01:46:57.279 --> 01:47:11.039
At the very time when that's possible and that that might force Putin uh to finally cut a deal on Ukraine, they get a lifeline, and the lifeline is the price of oil is going up, and the value of that shadow fleet oil is going up, and people will need it and want to buy it.
01:47:11.359 --> 01:47:17.520
The Europeans, in turn, having moved away from Russian gas, are now more dependent on the Middle East.
01:47:17.680 --> 01:47:22.239
And if that uh gets tied up, if the Straits of Hormuz remain problematic, uh.
01:47:24.880 --> 01:47:35.840
So mapping out, gaming out, planning out, and and then making sure you have something in place to deal with all of these second and third order effects, usually important, and it's not at all clear to me that that was done.
01:47:36.319 --> 01:47:39.039
To add to the need for strategy, here's former U.S.
01:47:39.119 --> 01:47:42.399
National Security Advisor John Bolton saying the U.S.
01:47:42.560 --> 01:47:45.199
needs to stay the course and finish the job.
01:47:45.760 --> 01:47:51.119
The Iranian regime has spent 47 years entrenching itself in power.
01:47:51.359 --> 01:48:05.199
Think of it as an even bigger version of Hamas that over the years spent billions of dollars not for the benefit of the Palestinian residents of Gaza, but to build a fortress of tunnels under the Gaza Strip.
01:48:05.439 --> 01:48:07.760
That's what the regime in Iran has done.
01:48:08.000 --> 01:48:15.439
Now, uh, you know, if we were going to go after regime change, I certainly would have done many different things than what the Trump administration has done.
01:48:15.920 --> 01:48:23.279
Even eliminating their supreme leader and hundreds of leaders at the top, the further you go down below, the same ideology appears.
01:48:23.439 --> 01:48:29.199
The faces may be different, but the ideology, the radical Islamicist ideology, is the same.
01:48:29.359 --> 01:48:35.119
It's why we've tried for decades to change their behavior diplomatically and to economic pressure.
01:48:35.279 --> 01:48:37.439
We've tried hard and we've always failed.
01:48:37.520 --> 01:48:39.439
And, you know, it's just a matter of logic.
01:48:39.520 --> 01:48:46.880
When you try to change an adversary's behavior and can't do it, you either have to put up with the threat or change the regime.
01:48:46.960 --> 01:48:48.479
It's that straightforward.
01:48:48.800 --> 01:48:51.039
The opposition is very widespread.
01:48:51.199 --> 01:48:52.720
Uh, it's not well organized.
01:48:52.800 --> 01:48:55.119
That's why it needs help from the outside.
01:48:55.199 --> 01:49:11.680
Uh, and I think one thing that we can look for is people uh in leadership positions uh in the regime that they are there who don't share the ideology, but they're not going to step out and make themselves known uh in the middle of this kind of tumult.
01:49:11.840 --> 01:49:17.039
But we want them to have the perception this ship is sinking and they don't want to go down with it.
01:49:17.119 --> 01:49:25.199
Uh and perhaps at the end of it we we end up with a military government, at least not one with radical uh Islamicist ideology.
01:49:25.439 --> 01:49:32.079
They restore order, and then we give the people of Iran space to come up with what they think their own government ought to be in the future.
01:49:32.239 --> 01:49:33.279
That that's what we should do.
01:49:33.439 --> 01:49:36.479
We don't have to run the country, we don't have to put boots on the ground.
01:49:36.720 --> 01:49:41.680
We do need to aid the people inside the country to take control of their own destiny.
01:49:42.079 --> 01:49:51.359
Uh and you have to rely on the estimates of your military and intelligence for what you think is necessary and plan for the contingency that maybe you need to do more.
01:49:51.520 --> 01:49:59.680
Just because the Iranian regime has proven to be more fanatic and more desperate to keep itself in power than perhaps the Trump White House.
01:50:00.239 --> 01:50:16.319
Uh realized simply proves the importance of getting rid of this regime before it is able once again to pursue nuclear weapons and international terrorism around the world with the threat of death and destruction that those programs entail.
01:50:17.119 --> 01:50:21.760
And the big question that comes out of the current state of play is what will happen in Iran?
01:50:22.239 --> 01:50:24.000
I've got two perspectives for you.
01:50:24.159 --> 01:50:28.239
First, here's retired General Stan McChrystal talking about the approach the U.S.
01:50:28.319 --> 01:50:33.520
is taking in recent times and how their conduct in war is affecting Iran.
01:50:34.720 --> 01:50:43.920
There are three great seductions that happen to American administrations and to military.
01:50:44.239 --> 01:50:46.880
The first is the idea of covert action.
01:50:47.039 --> 01:50:55.199
And a new president comes in and he's told by the intelligence community we can create this great effect and it will be covert.
01:50:55.359 --> 01:50:59.279
No one will ever know who did it, and it'll just be a good outcome.
01:50:59.439 --> 01:51:03.760
And in my experience, it never stays covert and it rarely works.
01:51:04.000 --> 01:51:09.279
But it's seductive because it seems like an easy approach to a naughty problem.
01:51:09.680 --> 01:51:22.159
The second seduction is, which I lived as a part of, is the surgical special operations raid that is probably epitomized by the Maduro raid.
01:51:22.640 --> 01:51:31.520
And I would argue that we demonstrated extraordinary competence that night, but not much changed.
01:51:31.840 --> 01:51:43.359
I don't think that we actually demonstrated the ability to change the facts on the ground to any extent, which gets to the third great seduction, and that's air power.
01:51:43.600 --> 01:51:46.159
And, you know, we all love air power.
01:51:46.399 --> 01:51:57.439
In World War II, we went into the war with the Duhay theories that air power, the bomber will always get through, and therefore air power will be dominant.
01:51:57.600 --> 01:52:02.319
And it was certainly very, very uh contributory, but it was never dominant.
01:52:02.560 --> 01:52:19.439
When we got into Vietnam, which was the classic case, and we developed a strategy that said for North Vietnam, we will have a reestat and an escalation strategy, and we will raise the pressure on them until we hit the point at which they're willing to quit.
01:52:19.520 --> 01:52:20.960
It's not worth it anymore.
01:52:21.199 --> 01:52:26.079
What we didn't perceive, there was no point for North Vietnam.
01:52:26.319 --> 01:52:30.560
They were asymmetrically committed to the outcome.
01:52:30.800 --> 01:52:35.680
And so we've entered Iraq in 2003 with shock and awe.
01:52:35.760 --> 01:52:40.239
And then we spent a decade there fighting after it.
01:52:40.479 --> 01:52:47.920
I think that we fell for the seduction that if we bomb key targets, that we will produce the outcome we want.
01:52:48.000 --> 01:52:50.319
But the outcome's in the minds of the people.
01:52:50.640 --> 01:52:55.359
And unless you're going to kill all the people, you may not affect that outcome.
01:52:55.439 --> 01:53:04.079
So, but we may be in a point where we've run into a country that has an extraordinary capacity to be bombed.
01:53:04.479 --> 01:53:09.119
Since I've retired from the military, I've been involved in some investing and I love that line.
01:53:09.279 --> 01:53:10.640
This time it's different.
01:53:10.880 --> 01:53:12.159
I go, okay.
01:53:12.800 --> 01:53:15.520
I agree, the capability is so much more.
01:53:15.680 --> 01:53:26.319
And I have to keep an open mind that it is possible that the dynamic has changed so much that we finally hit a tipping point where it will be decisive.
01:53:26.560 --> 01:53:29.279
But I'm not seeing that and I don't feel that.
01:53:29.520 --> 01:53:48.000
And the other part that I would bring out is we thought really early in Afghanistan that the people on the ground who we were targeting would be awed and intimidated by the bombing, and that they would respect our capability.
01:53:48.239 --> 01:53:54.079
In many ways, what we found, particularly with the tribal members, they were disdainful of it.
01:53:54.319 --> 01:54:05.600
They knew you could bomb them, but they said, if you're not willing to get down on the ground, look me in the eye, and fight me mano womano, then you are not morally on my level.
01:54:06.079 --> 01:54:11.840
And I think that we can't forget that people fight because of their passions.
01:54:12.079 --> 01:54:18.000
It's not a geopolitical calculation that's going to drive what Iran does eventually.
01:54:18.159 --> 01:54:20.239
It will be what's in their hearts.
01:54:20.479 --> 01:54:31.119
And so this idea of decapitating the regime, and we've got this current leader, well, we killed his father, we killed his wife, we apparently banged him up pretty good.
01:54:31.279 --> 01:54:37.680
And then we say, well, that will make him more willing to negotiate, wouldn't have that effect on me.
01:54:37.920 --> 01:54:41.039
The Iranian opposition is not really evident.
01:54:41.279 --> 01:54:46.159
We saw in 2009 they came in the streets and they were sort of beaten back into submission.
01:54:46.239 --> 01:54:52.720
And then reportedly thousands of Iranians protesting were killed by the regime in recent months.
01:54:53.039 --> 01:54:56.000
But I couldn't name the opposition leader.
01:54:56.239 --> 01:55:00.800
I couldn't tell you the liberation front of Iran.
01:55:01.439 --> 01:55:07.439
And I know that the Shah's son is going around, but I don't think he's a legitimate alternative.
01:55:07.920 --> 01:55:15.600
I think that we can't gauge the actual strength of the desire of Iranian people to change.
01:55:15.680 --> 01:55:21.279
And of course, a war will often cause people to coalesce around their government.
01:55:21.760 --> 01:55:33.520
Now contrast McChrystal's perspective that the Iranian regime has gained strength with the thoughts of Alex Younger, who is a former head of MI6, and his prediction about the future of the Islamic Republic.
01:55:34.239 --> 01:55:37.840
I think that they are in the death rows.
01:55:38.000 --> 01:55:42.399
But I think the irony is that the biggest threat to them is peace, not war.
01:55:42.640 --> 01:55:46.239
The January uh uprising showed that they have no answers.
01:55:46.479 --> 01:55:51.520
The hatred that engendered is endemic and will will last for decades.
01:55:52.079 --> 01:56:00.880
Uh the estimates are up to 10,000 of their own citizens machine gunned in the street by IRGC-sponsored militias.
01:56:01.119 --> 01:56:05.359
I don't expect them to survive into the long term as a result.
01:56:05.920 --> 01:56:22.079
But of course, ironically, this situation is an environment where they they get an extra lease of life because it's hard for opposition to organize in the face of an air campaign, and they're licensed to be even more brutal than they were before.
01:56:22.479 --> 01:56:28.800
The very large majority of Iran, perhaps 80% of them, they've had it with the theocratic regime.
01:56:29.119 --> 01:56:34.319
That actually was sort of how the voting went when Masoud Pajeshkian was elected.
01:56:34.479 --> 01:56:43.520
And it wasn't a manipulated election, you know, it showed that pretty well 80% of Iran was nothing more to do with this uh sort of total resistance theocratic ideology.
01:56:43.600 --> 01:56:47.199
But the 20%, or probably even less 10%, are the ones with the guns.
01:56:47.359 --> 01:56:48.880
And that is proving decisive.
01:56:49.199 --> 01:56:53.359
They are empowered by the situation to continue to brutalize the population.
01:56:54.479 --> 01:56:56.960
I'm not sure which of these two views I buy into.
01:56:57.119 --> 01:57:03.920
Certainly McChristo's view is proving to be true for now, but I suspect Young is also right and will see the Islamic regime fall.
01:57:04.560 --> 01:57:06.000
Maybe sooner rather than later.
01:57:06.960 --> 01:57:11.279
Until then, you and I can only watch as the contest unfolds.
01:57:12.079 --> 01:57:18.159
And at least now, after these four episodes, you should be able to argue a perspective on this conflict.
01:57:18.800 --> 01:57:31.439
More importantly, when you hear someone, like your politicians, flapping their guns about how this person or that state is committing war crimes, help them understand what actually constitutes a war crime.
01:57:32.319 --> 01:57:44.800
And maybe engage them in a discussion or write to your politician about modern interpretation of the laws of war and whether they are still valid in the context of an increasingly autocratic and dangerous world.
01:57:45.760 --> 01:57:53.039
This is going to be particularly pertinent as US and Israeli leaders potentially face war crime charges in the coming years.
01:57:53.279 --> 01:58:04.079
And I'm going to add here for you Australians, it's already started for you because Victoria Cross winner Ben Robert Smith goes to trial for murdering Afghanis during the global war on terror.
01:58:04.560 --> 01:58:05.920
Should he go to jail for that?
01:58:06.399 --> 01:58:09.840
Or was it just another aspect of Sherman's war as hell?
01:58:10.159 --> 01:58:14.640
Those are going to be very interesting cases that potentially reshape the laws of war.
01:58:15.279 --> 01:58:22.479
If you found this four part series on Iran to be informative, or if you enjoyed the episode, please recommend it to a friend.
01:58:22.800 --> 01:58:24.319
Thanks for listening.