Matthew Waxman, a law professor at Columbia University and an adjunct senior fellow for Law and Foreign Policy at the Council on Foreign Relations, spoke at Tuesday’s Program in American Grand Strategy event on the long-term implications of the war between Israel and Hamas.
Peter Feaver, professor of political science and public policy and director of AGS, moderated the conversation and focused on the legal and policy implications of the ongoing conflict.
Waxman first addressed the sensitive nature of discussing the conflict in Gaza on college campuses, worrying that conversations about the war have tended to be “parallel,” rather than engaging in conversations and debates with other points of view.
At Duke, some faculty members have characterized discourse surrounding the Israel-Hamas war as relatively calm compared to other elite universities, but at the cost of limiting open dialogue about the conflict.
Waxman also acknowledged the enormous scale of civilian casualties and suffering on both sides of the conflict since Oct. 7. Since the October 2023 attacks in southern Israel that killed around 1,200 people and kidnapped 250 more, the Palestinian death toll has surpassed 25,000, according to the Gaza Health Ministry.
“Regardless of who's at fault, or … how responsibility ought to be allocated between the parties, the level of civilian suffering is enormous and tragic,” he said.
The laws of war
Waxman noted that Hamas’ strategy is effective in raising the political cost for Israel, especially in Gaza, one of the most densely populated regions in the world.
“I think Hamas’ strategy is actually built on Israel killing a lot of civilians, [and] destroying a lot of civilian infrastructure, knowing that that would be strategically costly to Israel,” he said, pointing to the high levels of collateral damage in Gaza.
Waxman pointed to allegations that Hamas has buried their military forces under urban areas as a means of using civilians as “human shields” against the Israel Defense Forces. He noted that although international law outlines that militaries may not deliberately target civilian structures, a civilian structure can lose its protected status when military supplies are placed in them.
However, experts say that even if combatants deliberately jeopardize civilians, these non-combatants are still entitled to their protections under humanitarian law and a disproportionate response could be considered a violation of international law.
For Waxman, proportionality is a question of judgement. He pointed out that decisions to balance military advantage against civilian suffering lacks precise, neat or even comparable metrics.
Waxman added that the IDF needs to take precautions to ensure that an attack does not result in more civilian suffering than necessary. While there are “individual acts by IDF soldiers or commanders that look to [him] like war crimes,” he has not found compelling evidence that the Israeli military or government deliberately engages in what he terms “systematic war crimes,” or war crimes as a matter of policy.
“I see why observers of the conflict say north of 20,000 dead, something seems wrong here,” he said. “But I think that's a very snap judgment that is not based on all the facts and not based on very rigorous and nuanced application of the law.”
Enforcement of international laws
Waxman also spoke about South Africa’s allegations before the International Court of Justice that Israel has violated the Genocide Convention, pointing out that South Africa does not have “clean hands in bringing a case like this.”
“I find the way that many, including among the human rights community, are lauding South Africa as a sort of beacon of compliance with international law in this area to be preposterous,” he said. “South Africa has been most protective of Vladimir Putin and ongoing war crimes in Ukraine.”
Waxman believes that South Africa’s argument that Israel is engaging in a deliberate depopulation of Gaza is “preposterous.” He also pointed to the case’s second main allegation, that Israel’s government or military is committing incitement to genocide.
He predicted that at the preliminary stage, the ICJ will order the government of Israel to take measures to clamp down on potential incitement to genocide, such as admitting United Nations investigators or inspectors.
When asked about how international laws can be enforced outside international tribunals, Waxman spoke to the possibilities of exerting diplomatic pressure and the internal military training.
“I think Israel needs to recognize some of the strategic costs that it's incurring with the high levels of civilian suffering that are resulting from ongoing military operations. And again, that's not even a judgment about who bears that responsibility,” Waxman said. “It's just a reality that Israel is bearing political and diplomatic costs. And I think it’s closing off some options for some possible end games that we might talk about.”
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Lucas Lin is a Trinity first-year and a university news editor of The Chronicle's 120th volume.