Please note that this episode was recorded before the Twelve-Day War with Iran.
In this episode, Richard Pater speaks with Professor Amichai Cohen about the IDF’s conduct in the war against Hamas. They explore Israel’s approach to the rules of engagement, the delivery of Humanitarian Aid, and how Israel’s accountability mechanisms compare internationally.
Professor Amichai Cohen is Professor of Law at Ono Academic College and head of the Amnon Lipkin-Shahak Program on National Security and the Law at The Israel Democracy Institute. Cohen was also a visiting professor and scholar at Columbia Law School and Cambridge University. He is the author of several books on international humanitarian law and has advised both Israeli and international bodies on matters of war crimes and proportionality in armed conflict.
Transcript
(This transcript has been automatically generated by AI — please excuse any potential errors.)
Richard Pater:
Hello and welcome to the BICOM’s Podcast. I’m Richard Pater, the Director of BICOM. Today is Tuesday, the 10th of June. This episode we will focus on the IDF’s legal conduct in the war against Hamas, both in terms of the rules of engagement and the provision for Humanitarian Aid. To discuss this, I’m delighted to welcome back to the podcast, Professor Amichai Cohen.
Professor, thank you very much indeed for joining me. Thanks for having me. So, for background, Professor Amichai is a senior fellow at the Israel Democracy Institute and the head of the Amnon Lipkin Program on National Security and the law. He is also Professor of Law and a former dean of the Law Faculty at the Ono Academic College, and has also been a visiting professor at various prestigious international institutions, including Columbia Law School and Cambridge University.
He’s also the author of several books, including Israel’s National Security Law and Proportionality in International Humanitarian Law. His work has served as a guide on alleged war crimes, and it’s been used extensively in the Turkel Commission report and the report by the UN Independent Commission of Inquiry into the 2014 Gaza conflict.
Professor Amichai, if we can focus first of all on the on the recent return of the outbreak of war following the collapse of the hostage deal, how would you assess in broad terms the IDF conduct in Gaza over the last month?
Professor Amichai Cohen:
So, the two, I think, issues to discuss. The first is the actual advance of the IDF forces into the Gaza Strip in an attempt to overcome Hamas and other, terrorist activities within the Gaza Strip.
What’s being done, I think is, is, a slow advancement with an attempt to protect the forces. We can see that the losses of lives of soldiers, there and, the, the problems that, Israel faced in the initial stages of the war that the Hamas is embedded within the civilian population, etc. So, me of them have been, I wouldn’t say solved, but eased, perhaps, just because there is now a lot the larger the detachment perhaps between the population and the and the military forces.
And the second point, I think, which has taken centre stage in, in recent reports is the issue of, humanitarian assistance to, to the civilians. Now, this has been a major problem, a major ongoing problem. And the problem here we must understand is that I think in contrast to almost any other conflict that we know, of similar magnitude in the recent years of, of, urban, fighting, the civilians have nowhere to go.
So, it’s nothing compared to Lebanon, right? So, over a million civilians fled north, and then almost all of them, 90, 95% of them came back. Okay. And the number of civilian losses and the issue of humanitarian assistance was not a major problem because of the specific geography of the Gaza Strip and the fact that Egypt was completely unwilling to accept any civil and, population from Gaza.
I wouldn’t say completely unwilling, because as you might know, there is a segment of the government population who has fled to Egypt. But anyway, almost all Gazans remained in the Gaza Strip. So, this is a constant issue in this, conflict is how to provide for the civilians who remained in the, in the Gaza Strip.
The, the providing for civilians without assisting Hamas in the provision of goods, actually is the main challenge here. We still need to wait and see whether the current attempts of Israel are working. There are certainly there are issues there with the way it’s built with the fact the Hamas opposes these the fact that it’s not very organized right now.
This still has to be solved. So, I want to come back in a moment about the kind of the, the supply and distribution of Humanitarian Aid. But if I can first just follow up and ask you about the IDF conduct in terms of the, the, the, the military campaign. There is a there’s a narrative outside of Israel, even amongst some of the Israeli allies that accused Israel of breaches of international law or even worse of of war crimes.
What’s your assessment of those allegations? And perhaps you could expand kind of on from you, from your understanding what the stepped the IDF take to, to limit civilian casualties during warfare. So, so we have to differentiate whenever we speak about war crimes, we have to differentiate between low level deviations from orders and high policy. Now, low level deviations from orders happen in every armed conflict.
I know of no armed conflict in history in which there were no viable options of of international humanitarian, no by soldiers. And, I, and another thing we know is that, the more the conflict is prolonged, the more deviations and the more violations we have, because soldiers become tired of the conflict, because their friends were killed during conflict, because the train thing they underwent.
You know, we already, a something of, of them memory in them. And this, level of violations, I don’t know, but I assume just looking at history, perhaps there were violations of this kind in the in the current war, and these have to be dealt with. I’ll speak about it later. The real issue, and this is, I think, what the narrative in the international media is that there is a policy here, right, that Israel has a policy of violating international law.
This is the genocide claim, right? This is the war crimes claim. This is the starvation claim that there is a high policy here of violating, international law. Now, I have seen no evidence for this kind of policy. In fact, we have seen, large amounts of evidence to the contrary in which, commanders have certainly said that the, chief of staff has said we will not violate international law recently.
Even the previous chief of staff is serving several times. The current chief of staff of all is has also said it and, it’s clearly within the Israeli command. There is a problem there. And the problem there is that there are politicians in Israel. We have to be frank about it.
There are politicians in Israel who, for domestic political reasons, I think either they don’t understand, or they don’t care about the effect of the words, even if it’s not policy, the way it’s translated, not only translated internationally, but also translated to the troops. I mean, the air that’s translated here is very problematic. Now, once again, I see it’s not evidence on the ground, but there are statements by irresponsible politicians who, you know, if taken literally, then they certainly strengthened.
And I’m here, I’m not speaking about the politicians who are critical of it. I wouldn’t say, you know, it’s going unsaid then it would that I’m speaking about politicians in power who are in current in the cabinet ministers who are speaking irresponsibly. But this I don’t think has a real direct effect on, on the policies that Israel is, is, undertaking perhaps and this cannot be denied.
And this is, you know, apart from the problem of how it’s translated into English, it’s also a problem, certainly, of the way troops understand if a politician says, and this is a this, I, I’m, I’m extremely, worried about now regarding the investigations. There is a strong internal mechanism that’s been developed for a decade and a half within the Israeli IDF that favourably compares to any international mechanism of, investigation of alleged violations of international law.
Granted, this system is effective to the low level violation we spoke about, right. It’s not that the internal military system can deal with politicians who are, uttering irresponsible statements. This is a political issue in terms of internal violations at all levels. It’s not only, you know, a private or a sergeant within a specific units. No, it can go to, even higher.
Officers, there are investigations, going on. There were a few, The crime of this, most of them are not immediate criminal investigations. So, the way it works is that you start by a fact finding mechanism. There is, built in fact finding mechanism which is independent of the unit. It’s, operated by the chief military advocate general.
She, orders it to investigate. And after she has a record, the factual record, then, then she decides on criminal investigations, indictment, etc. So, we already know of several cases where the criminal investigation levelled some of them, even at the indictment level. Most of them dealing with treatment of detainees. So, in the area of treatment of detainees, which the worst several issues that, several cases, especially 1 or 2 that have garnered, some media attention.
So, there are, criminal indictments of IDF soldiers there. The importance of the mechanism is not only in the number of cases that has been, you know, indicted. It’s in its, deterrence effect. So, every soldier knows that the reason mechanism that looks that might look into, its operation and this strengthens the chains, the chain of command, immediately.
Now that the issue we are facing here, of course, is the immense asymmetry of of the violations, perhaps, as I said, there were violations of specific international humanitarian. You are we are facing, cruel terrorist organization. And I’m not speaking about the October 7th attack. You this, even putting it aside, it’s, terrorist organization which daily shoots at its own people.
Right. So, if you look at violations where the emanate from, they emanate from the fact that Israel is trying to, detach the civilian population from the military activity of Hamas once again, perhaps there are violations there, but the source of violation, you know, we shouldn’t be, we shouldn’t miss the focal point here, the source. If there are violation, the source is the attempt to fight a terrorist organization which intentionally puts itself within the civilian population.
Richard Pater:
Thank you. Just if I can ask, I mean, about the kind of the process of Israel when they carry out air strikes against terror targets and the calculation of where if there are civilians at risk in terms of those strikes, can you just kind of describe what that, process looks like in terms of, the steps taken to, to limit any, casualties and maybe how that has evolved and changed within the last 17 months of warfare?
Professor Amichai Cohen:
Yeah. So, you know, I, I must stress here, I’m not sitting in any, command structure. So, my knowledge here is, taken from, the media and things, people say, openly. So, I’ll say two things or three comments on, on your question. First, as in any of the modern, Army, there are, levels of decision making regarding civilian collateral damage.
So, the three basic principles of targeting in international humanitarian law is distinction. Right? You aim only military targets, precautions. You do everything you can to minimize, the civilian collateral damage and proportionality. If the civilian, collateral damage is, excessive with regards to the direct military advantage, then, you don’t operate in. So, my first comment is that the, the, targeting law is followed in creating the target, banks in using the attacks.
The problem is that, Hamas is so embedded within the civilian population. So, I’ve heard stories of, towns or even cities in the Gaza Strip in which every other house is a legitimate military target. So, now, here’s a problem. If every other house is a legitimate military target, then you have a lot of military targets because Hamas operates from within the military targets, within hospitals, within schools, etcetera.
So, that’s the first point. The second point is that I think the major issue now is not with Air Force bombing. And it’s it’s never actually, when you look at, violations, alleged violations or problems with air chill, it’s not Air Force targeting because the Air Force pilot can always say, if not today, then I’ll bomb it tomorrow.
And you know, so he there is discretion there. The problem is always with force protection. Right. What do you do with the specific unit that goes into an area, a specific area in which there are civilians and there are some that fight there and it’s now under fire. Right. That’s the major dilemma. I think always, in fighting in urban areas of all modern forces, most, many collateral civilians, civilian damage happens in, in these cases of force protection cases, right.
Where you try to think about the soldiers who are now under attack and have no choice. It’s not like the pilot. The pilot has a choice, right? If they won’t bomb you, come back. They many times they don’t have the choice. And the third point I think that has to be taken into account, is that there is actually some kind of, I would say, and an internal conflict here, perhaps even a paradox.
And it’s with the use of the, sophisticated systems, the, the gospel, the lavender, the system. So,me sometimes they call they’re called AI systems, but it’s, incorrect. I think the term it’s more data mining systems. Right? The systems that can identify the, the targets, assist the IDF in identifying targets. Now, these systems were created in order to create a more accurate assessment of, what is a legitimate military target?
And who is, the person who is, combatant. Right. Who are the people who are legitimate military targets? But because there are so many legitimate military targets, what’s created by these systems is not a violation of, of the target, the law in the traditional sense now. So, if you look at the issue of distinction, so identification and precautions and proportionality, these systems do not violate any of these.
In fact the opposite is true. They are much more accurate than any human person could achieve. So, perhaps mistakes, but any mistakes they have are much less than the mistakes humans make. The problem is that the identifies so many targets because there are so many people who are connected to Hamas, and because Hamas is used so much of the civilian infrastructure as a base for military activity, this creates and immense, destruction.
And it in a sense, it’s it’s it’s not illegal, but it it creates the perception, right, that a lot has been damaged simply because, most of the Hamas activity has been identified by these systems. And if I can turn back our attention to the issue of delivery of aid, Israel has expressed, concern that traditional mechanism has enabled Hamas to retain control of the supplies going in, and therefore it sought to circumvent the traditional UN route with this new US Israeli organization, the Gaza Humanitarian Foundation.
First off, in your assessment, is that legal?
As long. So, first of all, clearly, force and I think the correct legal assessment of Israel right now is, I think siege warfare. Right. That’s the area of law in which we need to look. Right. There is a siege over Gaza, certainly the attacking part, the putting the siege can take, certain steps. I would even say extreme steps to try and verify that the, provisions coming in, the essential provisions coming in, food, and medicine, etc., do not actually support the, the enemy.
And what was happening before was that Hamas was taking a large amount of these provisions and taking control of them and using them, you know, so a solution has to be found to this. Now, whether the current solution is the correct one, of course, is a question that would have to be decided according to the results. So, if you monitoring and assistance can effectively be brought to all uninvolved civilians by this system, then it’s, good system.
If this system cannot effectively provide humanitarian assistance, then it’s an insufficient one. I would even say more to. And I try to connect to my, Earlier statement regarding irresponsible statements by politicians. Of course, if the humanitarian assistance is used in order to achieve a completely different political goal, right, of trying to move the population, to a different country, then this this becomes the problem.
And I think a lot of the criticism has to do not with the actual provisions of provision of assistance, which is even rumored to be financed indirectly by Israel. It’s the question of whether Israel is trying to use this, basic duty of allowing provisions to get into the civilian population in order to achieve different goals. And here politicians, who are trying to perhaps domestically, gain points within, the current coalition have stated several, put up several problematic statements, which I think it’s more a question of than how it’s perceived.
And the actual question, I think, once again, the actual test is whether it’s effective, whether it can get to the, if I could use the term the end user. Right. If you can effectively get humanitarian provisions to the, civilians on the ground. And what do you make? You mean we’ve seen that this new mechanism operating for just over a week or so.
00:25:42:02 – 00:26:12:02
Unknown
Do you can you make an assessment? So, a week or so with this is not enough, right. But, you know, there is I think some of the assessment is that there is a trickle down, dynamic here. So, if you put enough food into the Gaza Strip and it doesn’t exactly matter how, then the crisis will drop and provisions will get to everyone in the end.
Right? Because you have a lot of, supply. And if the supply meets the demand, then so the way I, I wouldn’t place all the, you know, all the focus on the question of whether the weights actually provided is according to, you know, but there are problems there. The problem of shooting in the vicinity of these centres, whether there are enough centres.
Certainly this the jury’s still out here on this question. Once again, on the effectiveness of these, of this, of this system and its ability both to cooperate with other organizations and to get to the people who need it most. The, assistant. In terms of kind of, Israel’s relations with, with allies in the international community talking government to government.
I mean, is there more that Israel could be doing to convince kind of skeptical or concerned allies over the idea of contact, kind of, sharing with them some of the, their inside, mechanisms. The, the intelligence to be able to reassure the allies of, of the idea of conduct or is that, would that be unprecedented and unnecessary?
There is possibility. I mean, there is always a possibility. And I actually don’t know. I’m told that Israel is, sharing quite a lot of information, with its, allies. I think the main problem is that it’s not completely clear. What is the endgame in terms of the Israeli policy? So, if Israel would have to take out, realist, the political goal for this conflict to end, I think it would have been easier for its allies to understand what’s the, you know, where is this going?
And so here, but I’m not sure. It’s, a question of more cooperation with the, with its allies. It’s a question of decision making within Israel. Right. There is a substantive question here. What is the Israeli strategy here? And as as much as you hear the Prime minister, speak about the goals of the war or it doesn’t completely clarify, and I’m not sure it’s, clarified even within the perhaps the Prime Minister, himself knows that it’s I’m not sure it’s completely clarified even within the higher political spectrum in, in in Israel.
What exactly the, the strategy here, and therefore it’s very hard to explain to, to to allies here. And once again, and this might sound and it is perhaps, only a secondary issue, but still, I think it’s, it’s important, empathy right now is, is, is underrated in Israel, but we have to, think within us and also, speak outside that it’s we we don’t want the suffering of the civilian population.
It’s not a goal of, of, of Israel. I think it will be once again, it might seem to be a secondary issue, but I think it’s important in, even in international relations, you know, the question of we understand that there is a we are not taking responsibility. We are not to blame regarding the suffering of the civilian population in the Gaza Strip.
But we understand the suffering. We need to, project, this understanding. And I wonder if you could just briefly assess where we currently stand with regard to the, the cases at both the ICC and the ICJ. So, the ICJ, there are several cases with the ICJ. Right. So, one is an ongoing South African, case against Israel, right, in which there were some interim measures and now it’s awaiting, a decision.
Actually, the parties have to submit the, their cases. And, South Africa requested submitting something ex parte, but the court refused them then. So, there’s more time for Israel to submit. This is an ongoing case. Also, I forgot this is the genocide case. There was, an iconic that case advisory opinion that came out, less than a year ago regarding Israel’s control of the territory in general, and which also there were statements regarding the Gaza Strip.
But not directly connected to the war. And there is an ongoing advisory opinion, proceeding regarding the provision of humanitarian assistance. Once again, going on, although this is an advisory opinion case. So, Israel did not appear before the court. Still, it’s, it’s a very, problematic case for Israel. The whole issue of the humanitarian assistance, as they said before, is a major issue in this war.
And once again, it’s A11 reason it’s immensely problematic is that we actually lack, historical, historical, perhaps. There we are, but recent historical examples, because the situation in which 2 million people are moving around in the war zone is, to some extent, unprecedented, in, in, in modern armed conflicts, the, and this connects, of course, to the, issues that the International Criminal Court.
Now, there is that this whole discussion on, regarding the conduct of the, prosecutor, which, I don’t think we should go into because actually, I don’t think that it will have, a lot of effect on the actual case because the case is now already before the court. And, so the, arrest warrants have been approved.
Israel appealed. So, me in some extent, the appeals, where, were accepted in the sense that several issues were returned to the court, the first instance to, re discuss them, the cases of the, that there is another appeal that the Israelis submitted regarding the question of complementarity. This is this is a case, and I think, correctly, that Israel is treating not as a political case.
But if I may, as, the, a lawyer would treat a criminal case in a domestic court. I mean, using every tactic that you can use in order to delay the case, you know, a challenge, every decision do everything you can. And I think it’s the correct way to go about this case.
There is, of course, the outside pressure on the court. The US pressure that’s been applied to the court. I don’t know how many hours do we have for this podcast, but it’s a it’s a discussion that has to be, undertaken, you know, the future of the International Criminal Court within this, international environment.
Richard Pater:
And I will invite you back to discuss that.
Professor Amichai Cohen:
So, it requires, really looking into the history of the court, the way it’s gone. Its case is what happened. Is there a future here? I see the problem is, elsewhere or from the point of view of the court, that it actually doesn’t affect, the behavior of Israel. It has only marginally effect on the behavior of, of Israel, where it has the effect both the International Court of Justice cases is on third states.
Right. So, third states tend to take it more seriously. And the question is, you know, what are you actually expecting them to do apart from, you know, maybe, arresting Netanyahu if he ever comes to France so he won’t come. But what is the expectation of third parties? It was evident in the advisory opinion regarding the control of the territories and in the provisional measures.
And now it’s, I think, the part of the discussion, the advisory opinion regarding the, a provision of humanitarian assistance that’s currently being discussed, the main focus is not necessarily on Israel, it’s on third states. And here I think, from the point of view of all of Israel, one has to be worried about it because what you see now is a deterioration, I think, in the stance of and perhaps you have views about it from where you stand.
I think, better than I that there is, deterioration. Now, mind you, what this war proved is that actually Israel’s ability to garner support internationally was much stronger then, we thought those previous to October 7th, 2023. So, if you would have asked me on October 8th, how long does Israel have for for this conflict to go?
I would have said three months, perhaps six month. Right. That’s the extent of the rope that Israel will get from its allies. Israel actually received the, you know, its allies were very supportive. Supportive. Mostly now it seems that Israel, But the support and, for reasons you asked about earlier, for the reasons we discussed regarding the fact that there is no clear plan, you know, where do you go in the day after because of the pressure of the court, there is mounting support.
Then the Israelis losing. That’s not the United States. Okay. So, perhaps the United States is, now, a world of its own. Right. In terms of international relations, but other democracies, other Western democracies, that there is a clear, I think, losing of support can no, no doubt. Let me just take you back on one point.
Richard Pater:
You mentioned, I mean, the complementary nature of the court is kind of one of the, one of the principles that Israel has long, clung to in the international, arenas because Israel investigates. So, do you think that’s been, has Israel done enough on that front to, to live up to those, those standards? And I think just as a as a closing question as well, are you are you satisfied as within your expertise that Israel has honoured its obligations towards international law in, in a general sense, in this war?
Professor Amichai Cohen:
So, the problem with the question of, complementarity from the point of view of Israel is that you actually have to investigate. So, if you want to claim complementarity, you have to say, okay, I see this and I’ve investigated here, this and for two reasons. This has not been done by Israel. And I’ve written about it with, Professor Shani and, both in Israel and internationally.
But for two reasons. Israel has not undertaken this, obligation or mechanism to investigate the claims that are, being made. The first is that actually, most Israelis don’t think that there is a problem. So, you know, you need some understanding of the problematic nature of the decisions, right? It’s about the decision that the early days immediately following October 7th.
So, politically and I think, public opinion doesn’t actually think there is a problem. So, there’s no internal pressure to investigate. And the second point is that for domestic political reasons, the current government, isn’t willing to investigate almost anything. So, also the failure of the intelligence and of the government in its conception of its relations with Hamas prior to October 7th, 2023, is not investigated.
So, you know, there is, a pushback against any independent investigation right now for domestic political reasons. You know, we all understand, I think, that the politicians, do not have an interest in opening up these issues. And this issue, which is it’s a different issue, right? You could say, okay, don’t investigate whatever happened before October 7th, but I still want to investigate what happened immediately after October 7th, whether it was legal or international.
But it’s all, you know, put in this large bowl of we are not investigating right now. Anything and then, everything is delayed. And in this sense, Israel has not done what it could have done to, and what proved in previous cases to be actually quite effective in, blocking these international pressure. And of course, the result is that there is mounting international pressure in this regard.
The only thing that has been done regarding the actual humanitarian assistance is, very important, case, decision judgment of the Israeli Supreme Court regarding humanitarian assistance, in which the court, I looked into the, previous policy, not the current policy, the previous policy, the humanitarian assistance, and explained, I think two quite convincingly that this policy was, in accordance with, international law.
Richard Pater:
Professor Amichai I had lots of other questions on mine, but I think we’ve run out of time, so, we’ll have to leave it there. But thank you very much indeed for your insights. And perhaps we can invite you on again to, to continue the conversation.
Professor Amichai Cohen:
Thanks for having me. Thank you very much.
