Gaza and the Breakdown of International Law

DAN KURTZ-PHELAN

There’s no question that Hamas violated international law when it attacked Israel on October 7, and as it continues to hold hostages in Gaza. But more than seven months into Israel’s response, the question of whether Israel is violating international law and even committing war crimes is coming to a head.

What’s happening in Gaza may seem unprecedented—but as the legal scholar Oona Hathaway writes for Foreign Affairs, the conflict in Gaza is an extreme example of the breakdown of law of war, but it is not an isolated one. My colleague Kate Brannen spoke with her on May 13 about the causes of that breakdown—and what, if anything, can be done to salvage the rules meant to protect civilians.

KATE BRANNEN

Oona, thank you so much for joining us today.

OONA HATHAWAY

Thanks so much for having me.

KATE BRANNEN

We’re so lucky to have you on this week to discuss your important piece in the latest issue. It’s titled “War Unbound,” about the breakdown of international law. But also, the timing couldn’t be better because of the recent developments in the news, in the legal world, concerning Israel’s war against Hamas: everything from potential arrest warrants from the International Criminal Court to the Biden administration’s report last week to Congress concerning U.S. arms transfers to Israel.

So we will cover all of that. But I did want to start with your piece, which provides the necessary historical context for this moment as it really tries to answer the question: How did we get here? You write that what’s going on in Gaza is the culmination of years of erosion of the laws that are meant to protect civilians. Could you take us back to the birth of what’s called international humanitarian law, or the law of war, and why was it put in place? And how did war change as a result?

OONA HATHAWAY

So in the piece, I go back and say, "Look, let’s look at what the world once looked like." Several hundred years ago, obviously, there were wars between states, but there was very little in the way of rules to regulate those wars. The father of international law, Hugo Grotius, had a view about the way in which war would be regulated, but his vision of the regulation of war and the rules governing war was much more constrained, much less than what we think of today.

In his view, there were very few limitations on what states could do in a war. Essentially, almost nothing was off-limits. In fact, killing civilians really was permissible as long as it was useful. And so, fast forward to World War II and the catastrophe of the war. 30 million civilians were killed in World War II, extraordinary violence. And at the end of that war, among other things, there was an effort to come together to think about how to regulate war in a different way than had been true for hundreds of years.

Now, certainly there had been some efforts before the end of World War II. There were some modest efforts at the end of the 1800s and the early 1900s. But really, the world that we live in is one that was created by the Geneva Conventions of 1949, which created a whole host of really detailed rules to govern war. And the underlying idea of these rules, really the central kind of lodestar, is to try and protect civilians from the violence. And unfortunately, we’re seeing today that that central vision, that central goal is no longer being met. And so part of what I try to do in the piece is to try and think about how that unraveling began to take place.

KATE BRANNEN

I know you point to the U.S. response after the 9/11 attacks as a really pivotal event in the weakening of this body of law. But talk us through from the postwar period up until 9/11. Where was it working and where wasn’t it?

OONA HATHAWAY

Yeah. I mean, there are a lot of things going on in the period right after World War II. Among other things, one of the central goals of the victors in World War II was to prohibit wars between states. And so, one of the ironies of this moment is that we have the United Nations Charter, which prohibits the use of force between states, and we have this new apparatus, United Nations, whose whole job is to try and prevent those wars.

And in fact, that is largely successful. I mean, the number of wars between states goes down radically in the period after World War II. And at the same time, we have these very elaborate rules regulating exactly those wars. So these elaborate rules in the Geneva Conventions, if you ever sit down and read them, it’s hundreds of pages. They’re very detailed, going down all the way to that you’re supposed to pay prisoners of war, and exactly how you’re supposed to treat them, and all these very, very detailed rules.

But actually, very few of those wars are happening, because the rest of the system is actually working in the ways that it was intended to, preventing these wars between states. But at the same time, we began to see a rise in wars within states, in civil wars, in what political scientists refer to as intrastate wars. So there’s increasing violence within states, and the Geneva Conventions were really not aimed at trying to regulate those kinds of wars. So there was an effort to try and expand those rules and to sort of fill in some of the missing gaps. So in the 70s, there was an additional Protocol I, an additional Protocol II, which do try to provide more detailed rules to fill in some of these missing gaps. And that has played some role in giving more specificity around what states and what nonstate actors can do in conflicts.

But there was, I think, growing awareness that while we’ve come up with all these rules that govern a kind of war that isn’t really happening much anymore, meanwhile, we don’t have the rules that we need to govern these kinds of wars that are happening. And these sets of rules, additional protocols, gained a number of adherents—but not every state signed on to them, including the United States, is not signed on to either of the additional protocols. And so it’s a little bit more of a patchwork than the Geneva Conventions themselves, which every state that is a member of the United Nations has signed onto all four of the Geneva Conventions. And that’s certainly not true of these additional protocols.

KATE BRANNEN

So then we arrive at 9/11 and the U.S. response to it. And tell us why the wars that followed 9/11 tested this system, but also how the United States sort of purposefully began to unravel it as well so that it could go after the targets that it wanted to.

OONA HATHAWAY

Yeah, so 9/11, of course, terrible catastrophe, thousands of civilians killed in the United States in an intentional effort at terrorism aimed directly at civilians, civilian infrastructure, and really at the heart of American security. And the understandable response of many was to want to do something to provide greater protection to Americans and to others who are facing the same threat.

But what unfolded was a concerted effort to expand the idea of self-defense so that it’s not just permitting self-defense against other states, which the United Nations Charter clearly was agreed to, included Article 51. And the UN Charter provides for self-defense, and it was long understood to allow states to act unilaterally to defend themselves against threats from other states. But part of what the United States did after the 9/11 attacks was to come up with this theory that Article 51 also allowed states to use self-defense against nonstate actors, and to use self-defense against nonstate actors that might be located in other states.

And all of a sudden, led by the United States, lots of states are claiming the right to act in self-defense against nonstate actor groups, which are almost always located outside their own territory. And so that initiates this whole flood of these conflicts, with states acting outside their own territory against nonstate actor groups located abroad. And a different kind of conflict becomes the primary form of international conflict we began to see in that post-9/11 era.

KATE BRANNEN

There was an interesting piece in The New York Times, I think over the weekend, about U.S. military officials criticizing or really pushing back on how Israel is fighting this war. And I know after October 7, after Hamas’s attack, Israeli officials pointed to the wars the United States carried out after 9/11 and said, “Look, the United States did the same thing. The gloves came off and they waged war similar to how we’re doing it today.” And now you have U.S. military officials saying, “Israel is going too far. This is not how the United States would conduct this war. They are not taking adequate provisions to protect civilians.” I know you’ve worked inside the Pentagon as a top lawyer. Do you think the Israeli military is fighting differently than the U.S. military would?

OONA HATHAWAY

Yeah. Obviously it’s always hard to assess from the outside exactly what’s happening on the inside. And so, like everyone else, I’m kind of left to read the tea leaves based on the evidence that we can see. But based on what we can see, look, the number of civilian deaths are really extraordinary. And it appears—and again, it’s hard to assess this without having the inside intelligence—but it appears that the way that Israel is applying in particular the principle of proportionality, which is a principle under international law that says, “Look, you can’t aim at civilians.” That’s the principle of distinction. So you can’t intentionally target civilians, you can only intentionally target military objectives. But if you’re targeting military objectives, even then you have to be careful not to kill too many civilians. That’s the basic idea of the principle of proportionality.

So the number of civilians that you’re going to kill and the civilian objects that you destroy has to be proportionate to the concrete and direct military advantage gained from that operation. And it’s done on an operation-by-operation basis, so basically a strike-by-strike basis. What is the military objective you’re trying to achieve, and what is the anticipated harm to civilians that is going to likely ensue from taking that strike? And is the advantage that you’re going to gain sufficient to justify the harm to civilians? So you’re not aiming at, you’re not trying to kill those civilians, you’re trying to get this military objective—but you know that you’re going to kill a certain number of civilians.

KATE BRANNEN

Could we just do a quick hypothetical of what that would look like?

OONA HATHAWAY

Yeah. I mean, look, in Gaza what it looks like, what it seems to look like is you’ve got, say, an apartment building that has some militants in it, but also a lot of civilians in it. And you know that there’s militants in that building, maybe even a headquarters, maybe even weapons storage. And you are aiming at those militants or that headquarters, and you know that there’s a certain number of civilians in that building as well.

And so the proportionality assessment says, is the advantage of taking out those militants, killing those militants or the headquarters that they’ve got located there, whatever weapons they have, worth the, say, hundred civilians you’re going to kill in the process that you anticipate are likely located in that building, co-located with them? Now, these are subjective characteristics, since “excessive” is the language within the Geneva Conventions. But there are accepted standards within militaries for what is a proportionate number of civilian deaths that you’re generally willing to accept for different levels of military objectives.

So generally speaking, the United States doesn’t accept any civilian deaths if you’re simply aiming at a low-level ordinary soldier on the other side. If it’s a high-level operative, you might tolerate a small number of civilian deaths. And I think what people are noticing, and what I’m hearing from discussions from folks familiar with the way in which the U.S. applies proportionality analysis, is that it looks like the way in which Israel is applying proportionality analysis in Gaza is out of whack with how the U.S. military would traditionally apply a proportionality analysis. That there’s far more tolerance of harm to civilians and civilian objectives than the United States would ordinarily accept for similar levels of military objectives.

Now, all of this, again, I have to emphasize, is speculation to some degree because, again, the way in which you would assess this is strike-by-strike, and you need to know what did they understand about the target. Who did they know was there? What military objective were they aiming at? How many civilians did they understand were likely to be killed in the process? And we don’t have any of that information. But what we do have is a pattern of activity over the course of many months now, where we can see lots of civilians have been killed. And we also have seen some statements from Israeli government officials, which seem to be talking about proportionality not in a way we’d normally talk about it, which is in a strike-by-strike, here’s the thing we’re trying to get, and here’s why it was worth it in this particular instance to accept a certain number of civilian deaths.

But they seem to be talking about proportionality in a different kind of way, which is as against the kind of existential threat to Israel. And that is not traditionally how proportionality analysis is done or supposed to be done. Because if you do it that way, it’s hard to ever see that a strike is going to not be proportionate; because if you’re weighing it as against one strike and the harm to civilians from that one strike as against your whole war aim, well, inevitably the civilians are going to be on the losing end of that analysis.

KATE BRANNEN

Can you say if it’s also out of whack or out of step with how—my understanding is Israel already had a slightly looser sense of proportionality before this, and it’s gone even further in this war. So is it also out of step with how Israel applied proportionality in the past as well?

OONA HATHAWAY

It seems so. I mean, just, again, judging by what we’re seeing in terms of how these strikes are taking place and how many civilians are dying in the course of these strikes, which suggests a greater tolerance for civilian deaths. Now, I should emphasize that the response on the other side might be, “Well, but the threat is more significant than it’s ever been.” Or the other response might be, “Here we’ve got this network of tunnels underneath Gaza, and that necessitates using these 2,000 pound bombs,” which traditionally you would not use in a highly-populated area because they destroy not just the thing you’re going after, but kind of everything around it. They’re these extraordinarily destructive weapons.

KATE BRANNEN

And those are the weapons, too, that the United States is holding off on for the moment?

OONA HATHAWAY

Exactly. And they’re doing that precisely because these are the kinds of weapons you can’t justify using in a crowded urban environment, precisely because there’s basically no way to use them in a proportionate way. Because you’re always going to kill way more civilians than any rational military objective that you might be seeking.

The Israeli response, as I understand it, is, “Well, but there are these tunnels underneath that we have to destroy, and the only way to do it is to use these very big weapons.” I think the response to that, in turn, is, “Well, but there are so many civilians who are dying and suffering that even given that justification, even given the claim that there’s these tunnels and destroying those tunnels is a legitimate military objective, that the harm to the now tens of thousands of civilians that has come as a result of trying to destroy that underground infrastructure is not justifiable as proportionate to that military objective; even given that that is a legitimate military objective; even accepting that that is a proper war aim; but just you can’t achieve it this way.”

Even if—and this is the hard part—even if that’s the only way you think you can achieve that particular objective; even if you think the only way you can destroy those tunnels is to use these 2,000 pound bombs, the answer is, “Well, even then, it’s not permissible because too many civilians will die.” And this is, hence we see these evacuation orders and an effort to get people out of these locations so that fewer civilians will die in these strikes—but people then not being able to evacuate and not feeling that they have any place safe to go that they will actually be insulated from attack. So this is the sad situation we find ourselves in.

KATE BRANNEN

It is. One of the ways that Gaza is unprecedented that people forget, I think, is that the borders are closed, that you can’t flee, which makes it different than other wars as well in terms of civilian protection.

OONA HATHAWAY

Yes, yes. And I think that’s a really important thing to emphasize, which is that many of the people who are fleeing Rafah now, many have fled several times before, and there isn’t really any place left to go. So we have this extraordinary situation where we have really quite a small, extraordinarily densely populated bit of land. And people have been moving around to try and avoid the areas of conflict. And so there isn’t really any place for civilians to be able to gain shelter or have their basic necessities met. So I think that is one of the real tragedies of this situation.

KATE BRANNEN

We’ve dived into proportionality, which is clearly at play. But I wanted to talk through a few of the other legal terms that I think most people don’t understand, but that are kind of pivotal to how these decisions are being made, and that you talk about in your piece, about the evolution of them over the course of the last few decades as well. Could you tell us about dual-use items? What are they, for a lay person, and how do they complicate these decisions that have to be made about when you can target something and when you have to take proper precautions?

OONA HATHAWAY

Yeah. What I talk about in the piece is these objects that are sometimes referred to as dual-use objects. And it’s actually not a legal term. So dual-use objects, there isn’t such a thing in the Geneva Conventions. Everything under the Geneva Conventions is either a legitimate military objective or a civilian object, either a combatant or a civilian. There isn’t any in-between.

But the reality on the ground is that there are lots of things that are used by both militaries and civilians, and these have increasingly come to be referred to as dual-use objects. So things like an electrical grid; obviously the electrical grid is absolutely essential for civilian thriving, but also important to a military being able to operate successfully. And so electrical grids have increasingly become targets in military conflicts, and there’s been ongoing debate about whether they’re legitimate military objectives or not.

And so in this conflict, almost everything is arguably a dual-use object. So, many of the things that have been held at the border in the humanitarian aid convoys are being treated as dual-use objects. So this has created this real tragedy, because increasingly dual-use objects are being targeted more. And this long predates Gaza. This is really a transformation that we began seeing in the last 15, 20 years, where we see the United States leading the way again on targeting some of these dual-use objects, including financial centers, when, in the fight against [the Islamic State,] ISIS, you see targeting of the oil infrastructure, which obviously is essential to civilian life, but also was a key way in which ISIS was earning its money, and not just using that for its military objects.

So this is one of the ways in which civilians are becoming increasingly vulnerable in war, is because these dual-use objects are increasingly being treated as legitimate military objectives. And when they’re being targeted, there are inevitably more civilians around them and civilians depending on them. And so civilians are harmed as a result.

KATE BRANNEN

The other one I wanted to ask you about is determining who is “taking a direct part in hostilities.” Where does this term come from? Talk about that and how that’s becoming more and more complicated, both because of the kinds of wars that are being fought but also because of technology.

OONA HATHAWAY

This is another way in which the lines have been blurred. The central idea of the Geneva Conventions was, we’re going to create this bright line between civilians and combatants, and that is going to protect civilians. But then the reality of war, particularly the emergence of these wars, civil wars initially, and then these wars between states and nonstate actors outside their territory, has sort of blurred those lines.

So one way in which that’s happened is there is this idea in the Geneva Conventions that civilians are protected, but they lose that protection if they directly participate in hostilities. But then the question becomes, how do you tell the civilians that you’re allowed to kill from the civilians you’re not allowed to kill? That’s one of the real challenges of modern war. So there’s a long debate between the ICRC and the United States government about—

KATE BRANNEN

The ICRC, just to jump in, is the International Committee of the Red Cross.

OONA HATHAWAY

Yes, yes. Sorry. The International Committee for the Red Cross took a more limited view about when civilians were targetable. So if they were actually participating in hostilities, like actually, say, setting out an improvised explosive device, an IED, they’re targetable when they’re doing that, when they’re going to do that, when they’re coming back. When they’re at home having dinner with their families, they’re no longer targetable, was the International Committee for the Red Cross position.

The U.S. position was, no, they’re targetable when they’re at home with their families. And in fact, it’s easier to know where they are at night when they happen to be at home with their families. So that’s one way in which these lines have been blurred. And then another way is what kind of participation is enough to make you a participant in hostility? So there’s real concern that with the rise of the internet and the rise of the use of all kinds of apps on our phones that all of us are carrying with us all the time, whether ordinary civilians are being transformed into direct participants without even really realizing it.

So Ukraine has a number of apps. They’re very clever in using apps for everything from cataloging the damage that’s being done, but also including things like tracking Russian troop movements. And so, one of the things that they were asking civilians to do is to take pictures and upload them with the location information that would allow the Ukrainian military to have a sense of where Russian troops were present.

And one of the concerns that that raises is, is an ordinary civilian walking around with a phone now a direct participant in hostilities? Or even if they aren’t a direct participant, are they now reasonably suspected of being a direct participant? So is anybody who’s walking around carrying a phone suddenly someone the Russian military is going to regard as targetable? Now, of course, the Russian military hasn’t been great about following international humanitarian law, period. But in a way, this might give them an excuse to go after anyone with a phone, which is to say pretty much anyone, because almost everyone is going to have a phone, a smartphone.

And that’s the world that we’re entering into, in which these lines that were supposed to be these bright lines between civilian and combatant are getting blurrier and blurrier, and that’s putting civilians more and more at the crosshairs of states as they’re waging their wars.

KATE BRANNEN

I’m going to switch gears now and get us into the headlines a bit. There are rumors swirling right now that arrest warrants might be coming from the International Criminal Court, the ICC—that they could be in the works for leaders of Hamas, obviously, for the war crimes they carried out on October 7 and their continued holding of hostages, as well as perhaps Israeli leaders.

Tell us what you know about this, what Israeli officials could be charged with, and what impact of these warrants, what they might be, whether that’s political or legal implications.

OONA HATHAWAY

Yeah. Rumors have been swirling, fueled mostly by the Israelis, who came out preemptively to denounce these impending arrest warrants, which made everyone think that they had some insider knowledge that the rest of us didn’t have. I would be extremely surprised if it wasn’t the case that it would be balanced arrest warrants, that you would see arrest warrants for Hamas and the horrific crimes committed by Hamas on October 7, and of course, the ongoing war crime of holding hostages and the harms that are being done to those hostages among other things.

So I would expect that that would be part of the arrest warrants. And then there will probably also be, at some point, arrest warrants against Israeli officials. And I would expect that in terms of the early arrest warrants, if they’re issued, it will probably focus on something we haven’t talked as much about today, which is on use of starvation as a weapon of war and the limitations of humanitarian aid into Gaza. Partially because that is the easiest in a way to assess from the outside, whereas targeting decisions are quite difficult without a lot of fine-grained evidence.

And of course, the Israelis are not cooperating in the investigation, and so that’s just harder evidence to get your hands on. But it’s easier to get evidence of the fact that there’s over a million people facing famine and that there have been real, significant restrictions of humanitarian aid going into Gaza. And I think that that’s what they’ll focus on.

Now, the next question is, what’s the impact of that going to be? And on the one hand, the immediate impact, in terms of actually seeing people on the docket and actually being arrested, is probably zero. The chances of anyone actually being handed over to the ICC for trial is unlikely. I mean, I think it will have an impact in terms of adding to the sense that what Israel is doing is in violation of international law, and it will have more of an impact in terms of public perceptions of the war.

Now, that’s part of the reason I think that Israel is trying to get out in front and sort of delegitimize the issuance of these arrest warrants. And the big question in a way is how the United States responds, because the United States obviously has recently been working more closely with the ICC, particularly in its effort to hold Russians accountable for the crimes that they’ve been committing in Ukraine. And some of that may just dry up in the wake of indictments or arrest warrants issued against Israel.

And so does this sour the relationship between the International Criminal Court and the United States, and does the United States regard this as totally illegitimate? I think those are some of the big questions. And it will probably put pressure on other European states that are party to the Rome Statute to join the Netherlands and some others in terms of restricting their sales of weapons and other things that might be used in the war effort to Israel, and so might lead to increasing isolation of Israel on the international stage. So those are the things I think that are likely to flow from it. I don’t think we’re going to see a trial anytime soon.

KATE BRANNEN

I wanted to talk to you about the report that the Biden administration sent to Congress last week about Israeli use of U.S. weapons. Could you take us back just to tell us what the impetus of this report was, how did it come to be, and what did it require the Biden administration to report, and what did it require it to do?

OONA HATHAWAY

Yeah, so NSM-20, National Security Memo 20, was created by the Biden administration in part because there was a move afoot in Congress to actually require it to do this. And so to head that off, the Biden administration said, “You don’t need to pass a law requiring this. We’re going to issue this memorandum that just basically requires everything you wanted require us to do by law. And we’re going to effectively put these rules in place ourselves.”

So what it requires is regular reporting to Congress about, among other things, how defense articles, so meaning various kinds of things that the United States provides that might be used in military activities by our partners, to ensure that they’re being used in a way that is consistent with international law obligations, including international humanitarian law. And they issued this report and it was delayed for some time. And there have been lots of leaks about all kinds of disagreements within the State Department about some of the conclusions in this report, particularly... Israel was the one that everybody was looking for.

KATE BRANNEN

In the end, it really threaded the needle. It said that Israel most likely has violated international law in Gaza, but that the administration hadn’t reached the conclusion that that means that the United States should withhold aid as a result. For you, what was your big takeaway when you saw this, and what did you make of it?

OONA HATHAWAY

It’s a bit of a frustrating report, in all honesty. I think the challenge for those of us on the outside is that we don’t have the intelligence about exactly what U.S. weapons have been going to Israel and exactly how those weapons have been used, and this kind of fine-grained detail about what Israel knew about the kinds of strikes that it’s been taking and what kinds of precautions it’s been taking. And this is all the sort of information the U.S. government should have and almost certainly does have.

KATE BRANNEN

Right. You are trying to glean what you can from the public sphere, but they have far much more at their fingertips to make these conclusions.

OONA HATHAWAY

Exactly. So they actually have the information that is necessary to come to these conclusions. And in a way, they seem to say that there’s certainly been incidents. I mean, that reasonable reading of this finding is effectively that there have been violations of international humanitarian law. But then they don’t really follow through on what exactly that means. And this is the kind of frustrating aspect of that report. So when I first read this, I thought, “Oh wow, this is really quite something,” because the NSM-20 seems to promise that we’re not going to provide weapons to a state that is using them to violate international humanitarian law. And this report seems to be saying, at least on first read, that there’s evidence that that’s exactly what Israel’s doing. But then they seem to back off on that and it doesn’t prohibit the provision of weapons to Israel despite that finding.

And frankly, they don’t really explain themselves all that well. So it sort of seems like trying to have it both ways. But in the process, I think, undermining the force of what seemed to be the implications of NSM-20, which is a real commitment to ensure the U.S. weapons weren’t being used in ways that are inconsistent with the obligations under the Geneva Conventions. And I think that the harm that’s being done is not just the harm that’s done in terms of U.S. credibility when it comes to Gaza, but I think it’s harm to the credibility of the United States more generally in holding other states to their international humanitarian law obligations.

I mean, the rest of the world looks at this and thinks that there’s just extraordinary hypocrisy; that when it comes to Russia, we’re prepared to call out everything that it’s doing in Ukraine as in violation of international humanitarian law—and in fact, Russia has been violating international humanitarian law in terrible ways in Ukraine—but when it comes to friends, not willing to hold them to a similar standard. At least, the rest of the world is seeing it that way. And I don’t think that this report, this NSM-20 report to Congress, allays any of those fears. If anything, I think it really feeds that sense that there’s something of a potential double standard going on here.

KATE BRANNEN

Well, it very much gets at, I think, your conclusion of your piece, which is to halt this erosion of international law. That the United States, really, because it’s responsible for a lot of it, it needs to take a leadership role and hold itself accountable and hold its friends and allies more accountable. Otherwise, why follow the rules? Why are the rules in place?

OONA HATHAWAY

I think what’s so important is recognizing how powerful the United States is here in setting an example. It’s setting an example not just in terms of the public positions that it’s in a unique position to take because we just have such a big megaphone when it comes to these issues, but we also have this power not only of our example: but also we partner with tens of states around the world. We provide weapons and training and assistance to, by some counts, over 80 different states in the world, that we partner with, that we engage in training missions with, that we provide assistance to.

So the United States has this extraordinary power to really shift how these rules are applied and to hold our partners to the highest standards of international law. And we’re not using it. And in fact, what we’re doing, because we’re setting the example for everyone else, and we’re also training other states in terms of how to do targeting, how to assess proportionality, whether targeting war-sustaining objects is permissible, whether targeting dual-use objects is permissible, that when we have these more permissive standards that we’re applying in our own operations, we’re teaching those to everybody else too.

So it’s not just affecting U.S. counterterrorism operations; it’s affecting counterterrorism operations and other kinds of operations against non-state actor groups everywhere in the world. And so we have this just extraordinary power. And if the United States would use that power for good, we could really do some great things in the world in terms of changing the course of this erosion of the principles that animated this vision at the end of World War II to really try to protect civilians from the worst effects of war. And if we don’t do that—I mean, if we’re willing to turn a blind eye to when our partners are using force in ways that cause civilian harm—we unfortunately also have the power to speed and continue that erosion.

And so I think we really have a choice to face about how we want to shape the world going forward, and whether we want these rules to actually be effective or not. And we can’t apply these rules differently to our friends and to our enemies. I mean, these rules have to apply equally to everyone, and we have to apply them to our own behavior as well, our own ongoing counterterrorism operations as well. And that does mean that sometimes you’re not going to be able to use the force you want to be able to use against your enemy. I mean, it does. Those are the implications of it.

KATE BRANNEN

It does tie your hands.

OONA HATHAWAY

It does tie your hands sometimes. And we’ve lost, in many ways, that central innovation of the postwar era, and civilians are no longer insulated from war in the way that that was originally envisioned. And we have the power to turn the tide if we want to. But at a certain point, the rules are going to become so eroded that it’s going to lose all legitimacy, and the United States is going to lose all legitimacy. And the ability to kind of turn this back is, I think, we’re going to find that we’re going to be past the point of no return, and those rules are no longer going to be salvageable. And I think that would be a real tragedy.

KATE BRANNEN

Well, Oona, thank you so much for joining us today. I always learn so much every time I get to ask you questions, so thank you again for coming on.

OONA HATHAWAY

Thank you so much for having me.