The Concept of “Proportionality” in International Law and the Laws of Armed Conflict Transcript

Sarah: Good afternoon. It is my pleasure to welcome you yet again to another one of EMET’s topical and timely webinars. This webinar was generously sponsored by Donna Gary in loving memory of her late husband, Stewart Hunter Gary.

An international commission of inquiry, headed by Navi Pillay, and on-going on since 2021, is investigating both Hamas and the state of Israel for war crimes and crimes against humanity. Since we last spoke, they are saying both sides must be held accountable. Karin Khan, Prosecutor of the International Court (ICC), visited Israel and Ramallah and has drawn a moral equivalence between a terrorist group and a nation-state. In this regard, he stated we must preserve evidence of “war crimes” being committed by both sides.

Meanwhile, Israel is accusing the United Nations of ignoring wide-scale evidence of rape, especially during the Rave Music Festival of October 7th. There has been well-documented evidence by survivors of the rave festival, that women were gang raped. A number of the bodies found have been so badly mutilated it has been very difficult for Israeli authorities to investigate. The women’s bodies tell a horrific story. We are now hearing from women, including Sheryl Sandberg of Meta, who are horrified and outraged by the atrocities. NBC News was told about a woman who was raped repeatedly while Hamas terrorists passed her from one man to another. During interrogation, a Hamas terrorist said there was a woman who looked like an angel and between eight and ten terrorists raped her before shooting her in the head. There are Arabic documents that were found on captured Hamas terrorists. These documents instruct them on how to say “take off your pants” in Hebrew. Israeli women’s groups have been trying to appeal to the United Nations and have felt terribly alone and abandoned. There has been a reluctance among women’s groups and the United Nations to investigate these crimes. Israel’s critics are downplaying and even dismissing this evidence of massive sexual violence.

We are honored to have Natasha Hausdorff with us today. Natasha is a wonderful barrister, as they say in England, and is the head of UK Lawyers for Israel. Natasha holds law degrees from Oxford and Tel Aviv universities and was a fellow in the National Security Program at Columbia Law School, where I went to school. Natasha previously worked for Skadden Arps in London and Brussels and was a clerk for the President of the Israel Supreme Court Justice, Miriam Naor in Jerusalem. She frequently appears on international media and discusses international law, foreign affairs, and national security policy.

First of all, Natasha, welcome. It is really an honor and a privilege to have you. Before we begin, can you tell us a bit about the concept of proportionality in armed conflict?

Natasha Hausdorff: I certainly can, Sarah, and thank you so much for having me. It is a pleasure to be with you. I am very grateful for the promotion. I should perhaps clarify that UK Lawyers for Israel is an organization I have been involved in for over ten years as a volunteer. I am very privileged to serve as the Legal Director of our charitable trust arm and we have a wonderful CEO, Jonathan Turner, who has made this organization a force to be reckoned with. UK Lawyers for Israel has a long list of victories, some of which are included in our website in news articles and brochures and some which cannot be made public. So, I am very privileged to continue to assist Jonathan Turner in a voluntary capacity.

Nowhere is that work more desperately needed than in the context of the misrepresentations of international law and specifically as regards this concept of proportionality. Proportionality in international law of armed conflict, or humanitarian law, has a very specific meaning. Especially over the last couple of months, however, we have been seeing a misrepresentation of what proportionality means. In many cases, proportionality is presented as a comparison of body counts. The grotesque consequence of that analysis must be that an insufficient number of Israelis have died to merit Israel’s response. Many people seem to have embraced this approach but it is reprehensible, wrong in law and wrong in logic. As a matter of common sense, there is a problem with saying that one must reciprocate in a similar manner against a foe, no matter how reprehensible the atrocities committed by that foe might be. That concept was perhaps debunked most forcefully by Douglas Murray in recent months. I know his challenge to that concept, that very flawed concept of proportionality, went viral. The problem with rejecting proportionality based on the comparison of casualty figures, is that it causes many to reject the principle of proportionality outright. That is difficult and problematic because a principle of proportionality does exist in international law and it is important. We recognize what it is. This is because it enables us to recognize that Israel not only complies with the principle of proportionality but takes extraordinary measures to uphold that principle. These measures compare well with what Israel does to uphold other aspects of the law of armed conflict as well.

Israel is facing unprecedented challenges in its conflict with Palestinian terror groups. Israel has developed innovative practices and targeted munitions to facilitate compliance with the principle of proportionality in this conflict. What this means in international law is that a reasonable military commander needs to make an assessment on a strike-by-strike bases. This assessment involves a balance between the military necessity and the military objective balanced against the anticipated foreseen collateral damage, damage to civilians and civilian objects.

Critically, this is an analysis of intent. It is not an effects-based analysis. We will all, of course, recognize the awful pictures coming out of Gaza. There is undoubtedly destruction of what Israel has been targeting in terms of terror infrastructure. It is clear this terror infrastructure has embedded itself in civilian buildings, in residential areas, and near protected buildings. We have instances also of clinics, of UN schools and we will talk more about hospitals. So, civilian-protected buildings are being provided as cover for the Hamas terror infrastructure. In that context, the proportionality principle applies according to what the army expects and anticipates in terms of a strike against an individual target. That is informed by the intelligence that the Israeli defense forces have. All this information combined, facilitates an assessment.

There is a track record Israel has with respect to the application of international law and specifically the principle of proportionality. This track record has been analyzed through previous conflicts by high-level military officials. They considered Israel’s conduct from operations in Gaza in 2008, all the way to the present day, Iron Swords Operation. The analysis has been consistent with respect to analyzing the precautions and the measures that Israel takes and importantly with respect to the involvement of army lawyers. The Military Advocate General Corps sits outside the chain of command. These army lawyers are answerable to the attorney general and not to the Chief of Staff. That is important because they will frequently have to make calls on strikes. The commanders may decide that there is an important military imperative to conduct a strike but it is up to the lawyers to help that commander make the assessment of proportionality and they do so based on the information they have about civilians on the ground.

Sarah: So, there are determinations that are being made by the attorney general. At what point does the attorney general determine that a strike is proportional to the military objective? Does the attorney general have the ultimate authority to say, no, you cannot attack a certain structure or building?

Natasha: I need to clarify that these targeting decisions are taken on a strike-by-strike basis. Decisions are taken much lower down the chain but with the involvement of lawyers in that process. I would argue, this is unprecedented amongst law-abiding militaries around the world. The British and American armies absolutely employ legal experts and analysis when conducting operations. However, the very close involvement of IDF lawyers at lower levels, is unusual, to say the least. Ultimately, however, I think it is also important to stress that the law of armed conflict provides a basic standard but recognizes that even law-abiding armies and soldiers will inevitably partake in horrific scenes. The expectation is that civilians will die as a matter of collateral damage.

I have engaged both with commanders making decisions and the lawyers informing them. Through this engagement, I have the consistent impression that military commanders in the field are required to conduct a moral assessment that is over and above the legal one. This is informed by the IDF’s code of ethics, code of arms, and by the moral ethical code they adhere to. When one considers the balancing act required, there are no hard and fast rules. It is ultimately the responsibility of the commander in the field and that is a responsibility that is taken very seriously. It is no short order for a military commander to have to make that decision especially where collateral damage is concerned. As such, it will depend on the facts and the circumstances in each instance.

The IDF takes measures to strike that balance and reduce the number of civilian casualties as much as possible. I am sure many in the audience will be familiar with these measures. They include warning civilians of impending strikes. That, of course, has the effect of also warning Hamas and the Palestinian Islamic Jihad where the IDF will be striking. Those warnings take the form of leaflets dropped from planes and drones. They take the form of phone calls and text messages to individual householders. They also take the form of a technique developed by Israel called Knock on Roof. This involves a loud bang on the roof of a building which is about to be targeted with a strike. Knock on Roof serves as a final warning and provides any remaining civilians with a last opportunity to leave.

It is interesting to note the number of videos that we have of buildings in Gaza being destroyed. The reason the cameras capture the strikes contemporaneously, is because of these warnings and often because Knock on Roof occurred before the strike was conducted. These warnings are deployed for two reasons. Firstly, to comply with another key principle of the law of armed conflict, the principle of precaution. This is the requirement to do everything possible to reduce the likelihood of civilian casualties. Secondly, the warnings enable Israel to better strike the balance needed as part of proportionality and to prosecute its military objectives properly.

We can step back for a moment and contemplate what people misrepresenting this principle of proportionality are asking Israel to do. They are asking the IDF to afford immunity to Hamas while they operate from within civilian areas and use civilians as human shields. All of Israel’s recent efforts, encouraging and assisting civilian evacuations to the south of Gaza and out of Khan Yunis, were to prevent Hamas from achieving that sort of victory. They prevented Hamas from immunizing itself against lawful legitimate military strikes by holding Gazan and abducted Israeli civilians as hostages. This is something we need to be forcefully putting forward. As a matter of law and of common sense, this is this utterly unintelligible and illiterate. What is being called for is a carte blanche for terror organizations. That principle, that precedent, will not stop with Israel. It will ultimately bind all law-abiding states seeking to combat this sort of terrorism. It will enable the unscrupulous individuals who use civilians as human shields.

These arguments were not being put forward with respect to the coalition forces’ activities against ISIS in Mosul. This is because they are illogical. They do not enable legitimate military might to be used to counter terrorist forces. They are as illegitimate in this case, vis-à-vis, Hamas as they would have been against ISIS.

Sarah: Excellent. Could you speak about the primary responsibility of a government to protect its civilian population and where that is in international law?

Natasha: Very good question. It is a matter of customary international law. It is reflected in the acknowledgment of the inherent right of states to self-defense in Article 51 of the UN Charter. I note that there is nothing in international law which bestows that right on states. It is simply recognized as being inherent because the primary function a responsible government has is to keep its citizens safe. This undoubtedly informed Israel’s objectives in this Operation of Iron Swords.

The Israeli government stated from the outset their objective is the destruction of Hamas so that it never has the capability of conducting another 7th of October. Hamas leadership has said repeatedly that they wish to commit the 7th of October over-and- over again One of the two key aims in the war against Hamas to prevent it from ever happening again. The other key aim, of course, is the return of the hostages. This objective is also about keeping Israeli citizens safe to the extent possible. The discussion, since the violation of the ceasefire by Hamas on Friday last week, is focused around applying military pressure to Hamas to achieve a further release of hostages. Matters reached an impasse, of course, because Hamas fired in violation of the ceasefire agreement. So, the requirement and the responsibility of the government to protect its citizens, informs all of Israel’s actions in this war.

Hamas is a government of sorts and is responsible for the Palestinian Arabs living in Gaza. Protecting their people, unfortunately, is the opposite of their aims. They have clearly stated their aims are the destruction of Israel and the murder of Jewish people. They use their civilians to further their aims rather than protecting them. Generation after generation they are taught the highest calling in life is to become a martyr and they celebrate the creation of so-called martyrs.

It is impossible to know what the casualty figures in Gaza truly are. Over the past few days, analysis of casualties has determined the figures from the Hamas-controlled Ministry of Health are far from accurate. Additionally, Hamas is not providing information on two key factors. The first is the percentage of the total casualty figures reported who are Hamas combatants or members of other Palestinian terror organization members. They are simply putting out total casualty numbers. The other missing part of the puzzle here is how many of the reported casualties died as a result of missiles fired from the Gaza Strip. The Al-Ahli Hospital car park strike, as an example, was proven to be a Palestinian Islamic Jihad missile, intended for Israel. This type of information was missing from casualty figures in previous conflicts as well.

We do not know the total figures yet and we certainly do not know how many civilians have been killed as a result of Hamas or Islamic Jihad missiles. We recognize that while Israel has the Iron Dome and provides shelters for its civilian population, Hamas does the opposite. There is no protection of Gaza civilians from Hamas and Palestinian Islamic Jihad. Unlike Israeli strikes, theirs come without warning.

Sarah: How does one eradicate a theological nationalistic idea such as that driving Hamas? Can it be eradicated through warfare? Do you think that it will take on a life form of its own after the war when they will hide behind their victimology and their videos of their martyrs and civilian casualties?

Natasha: One cannot eradicate this ideology purely through military means alone. I have heard the suggestion that Israel’s actions are simply creating a standard-bearer for Hamas and encouraging more support. It is important to recognize the fallacy in this often-repeated suggestion. We have seen the opposite on the ground in the Gaza Strip. We are seeing occasional videos of Palestinians critical of what Hamas caused and the war they started. We are seeing criticism of Hamas’s tactics in terms of using its civilian population as human shields, shooting fleeing civilians, and preventing them from leaving areas that Israel was targeting. Some Palestinians are also critical of Hamas for bombing civilian convoys in the early weeks of this war while they were seeking to follow Israeli recommendations and evacuate to the south.

So, I think, we are already starting to see a turn in terms of support for Hamas. However, there obviously remains a great deal of support for Hamas not just in the Gaza Strip, but also in the West Bank, which is very worrying. Recent polls indicate 70 to 80% popular support for October 7^th attack, in areas under the Palestinian Authority control. These are the so-called moderates in this equation.

We should step back for a moment and consider what is radicalizing these people. 3,000 people do not spontaneously wake up one morning and decide that it is a good day to slaughter Jews. That does not happen as a matter of rational common sense. These attackers were people from Hamas, Palestinian Islamic Jihad, Fatah, the PFLP, the affiliates of the PLO and the so-called moderates in the West Bank. These people have been subject to 30 years of brainwashing and indoctrination and believe the highest calling in life is to be a martyr. They exalt martyrdom and understand their role is to slaughter as many Jews as possible. This is the result of the Palestinian Authority’s control over the education system and the curriculum. This indoctrination has manifested itself in textbooks, in children’s TV programs, in football associations named after martyrs and in mathematical problems calculating the number of martyrs in different scenarios. A number of reports from NGOs have covered the impact of these textbooks, much of the curriculum, and of international funding and so these are not a surprise. According to UN statistics, about three out of four of the terrorists who crossed the border on the 7th of October were educated in the UNRWA school system. That must give us pause. It is not Israel driving incitement and hatred, it is the international community and the financial and other support given to create and maintain this infrastructure. One must recognize that where hate is sown, war is reaped. We must acknowledge the impact of this ideology when considering proposals for the day after this war. Post-war proposals are still very much in development. Those I have seen promulgated, involve a concept of denazification borrowing from the aftermath of the Second World War. This denazification process would be implemented in conjunction with Marshall Plan-like initiatives to build the economy. All proposals recognize the denazification and wholesale reform of the Palestinian education system is key.

The Palestinian pay-for-slay policy works together with the education system to incite terrorism. It is also supported by the international community. This policy, enshrined in Palestinian law, pays terrorist salaries according to the severity of their crimes and based on the number of Jews they have managed to slaughter.  I will give you an example. Ali Qadi, one of the leaders of the Nukhba Force, planned the 7th of October attacks over a period of around two years. Ali Qadi was released in the 2011 Gilad Shalit deal. The Palestinian Authority continued to pay him a salary even after his release from jail. By all accounts, this afforded him the time to plan and orchestrate the 7th of October attacks.

The ideology embraced by Hamas and other Palestinian terror organizations poses a threat to Jews all over the world and to Western liberal democratic values. If this threat is going to be properly grappled with, we need to address education and we need to address the terror salaries which continue to be paid.

Sarah: Right. There have been many pieces of legislation put forward dealing with the issues you discussed. Unfortunately, this legislation has not yet been passed in the United States but we must continue to try and get it passed going forward. There is also an ill wind blowing from the US State Department right now. They want a continuous Palestinian state stretching from Gaza through the West Bank, or Judea and Samaria, with East Jerusalem as its capital. This comes while one of the Bersick polls you mentioned, reported that 89% of Palestinians want the martyrs brigade, the Al-Aqsa Brigade of Hamas, to be in power.

So, can you comment first on attempts in Europe to stop the UNRWA funding? Then please comment on your feelings about inserting Mahmoud Abbas, or another figure from the Palestinian Authority, as the leader of Gaza when this war is over.

Natasha: Well, Israel has made it clear there will have to be some form of an Israeli security presence in the Gaza Strip after the war. In 2005, Israel withdrew from Gaza under international pressure. At that time, many believed the promises made by the international community and they expected Gaza to become a new Singapore. This expectation has plainly proven to be false. One cannot snap one’s fingers and expect democracy overnight. I remember a BBC reporter interviewing ordinary civilians in the cafes of Gaza City in advance of the 2006 election. The reporter asked a gentleman how he would be voting in the election. The gentleman replied that he and his six sons would be voting for Hamas. The reporter moved on, and did not ask him how he knew definitively all his six sons would be voting for Hamas. This interview was conducted with several weeks still to go to the election.  I think this response was indicative of how that society worked and the journey that had to be undertaken before real democracy could take hold.

Of course, we see the same in the West Bank. Mahmoud Abbas is in his 18th year of a four-year term. This is the only thing preventing a Hamas takeover in the West Bank.  After the 2006 elections in Gaza, Hamas took over the Gaza Strip violently. The Israeli security presence and cooperation with the Palestine Authority, is what is preventing Hamas from taking over the West Bank and throwing their Fatah opposition members off the roofs of buildings, as they did in Gaza. After what we have experienced over the last two months, it is extremely troubling to see calls for a two-state solution continuing and calls for Mahmoud Abbas to be given control of the Gaza Strip. Some of these calls are emanating from the United States.

I cannot see how any Israeli government can actively advance a two-state solution while the 7th of October remains within living memory. Of course, Israel has a history of not learning from history. Israeli people have a unique ability to advance based on hope and trust and a desperate belief that peace is achievable. The security concessions and very hard choices that have been made in pursuit of peace are testament to that optimism. However, that goodwill and desire to advance positively with one’s neighbors has taken a battering considering what happened on October 7^th. This is not least because the communities around the south of Gaza were the most actively involved in seeking positive cooperation and economic links with the Palestinians.

It is an important to remember that between January and August of this year, there were over 400,000 entrances from Gaza into Israel, mostly people on work permits. Many individuals from Gaza came to work in the communities around the border area in the south of Israel. These were the communities attacked on October 7^th. Materials found on many of the October 7^th terrorists included plans listing individuals by household, the number of children, whether there was a dog, whether there was a gun in the house and detailed instructions of what the terrorists were to do to each family. This information was obviously compiled using intelligence gathered by workers coming into Israel from Gaza. I have not seen this discussed on international media, but it is a horrifying factor that the Israeli public has certainly internalized. Therefore, the suggestion that matters can simply pick up from where they left off is not credible. It is not workable and extremely concerning to hear proposals from the international community that are so far off the mark.

This pressure from the international community is not new and I can give an example. This example is a telling instance of when international pressure pushed peace further away rather than bringing it closer. Mahmoud Abbas made a remark during the Obama administration. At that time President Obama’s policy called for a moratorium on Israeli settlement building and appeared to be blaming the settlements exclusively for the failing peace process. Mahmoud Abbas said, “How can I be less Palestinian than the president of the United States?” What he meant by that was that he could not go to a negotiating table and ask for anything less than was being demanded on his behalf by the president of the United States. He could far less leave a negotiating table having achieved anything less than was being demanded on his behalf by the US. Let us be clear about what that demand from the US was. It was a demand that Jews not to be allowed to live in certain areas simply because they are Jews. It determined that a Jewish presence in Judea and Samaria is illegitimate. Now, that position does resonate with the Palestinian Authority but it is not realistic and it certainly was not realistic in the context in which any negotiations might have progressed at that time.

This example illustrates that uninformed and problematic positions taken by international actors have the opposite effect to that of advancing peace. In many cases, these international actors are allies of Israel. I come back to a point we discussed earlier on. At the crux of this is education. I visited Ramallah on several occasions. I was extremely encouraged by venture capital startup funds looking to create Silicon Vadi in Ramallah. They were looking to create economic links with the Israeli startup world and also create a Palestinian middle class with a stake in society. This middle class would ultimately reject their current leadership that has not been serving their interests. Obviously, this vision can only properly proceed where the next generation is not educated to hate.

Sarah: Great. I am reminded of a quote by John F. Kennedy that peace does not exist in signed documents and charters alone but in the hearts and minds of the children.

Natasha: We see that with The Abraham Accord.

I would like to provide another example if I may. I do not want it to sound in any way like I am America bashing. I am a big fan of the United States and I certainly look forward to continued US leadership in promoting freedom around the world. However, I am reminded of Secretary of State Kerry’s remarks at the Saban Conference in 2016, “Mark my words,” he said or something along these lines. “There will never be a separate peace between Israel and the Arab world without a resolution to the Israeli-Palestinian issue.” I am paraphrasing slightly but that is the gist of what he said. He was proven very wrong with the Abraham Accords. I think that illustrates that received wisdom, especially, vis-à-vis, the Israeli-Arab conflict, is often extremely misplaced and very damaging. By 2016, engagement between Israelis and the citizens of many of those Abraham Accords countries was already plain to see and many realized peace was achievable. Successive Israeli governments had sought this peace over many years and it ultimately proved successful.

Sarah: Joseph Epstein, my wonderful colleague, is going to read some of the questions that have come in. Before I turn to Joseph, I have one last question. Natasha, you believe that October 7th caused a sea change and Israeli foreign policy will be now be based on sober realism rather than hope and wishful thinking?

Natasha: I hope so. I anticipate that. It seems to me to be the only logical conclusion. But I am also aware I may yet be proved wrong. I was in Israel over the last few days. The resilience and the strength of that country left an indelible impression on me. That resilience and strength does appear to go hand in hand with the realization and acknowledgment of what Israel is really dealing with. This is not just with respect to the 7th of October. We have not talked yet about the geopolitical context here. The rest of the Arab world, including those entities that have yet to make peace with Israel, are watching carefully. This is one of the reasons that Israel’s robust response and the completion of its aims, vis-à-vis, Hamas is so important.  Hezbollah, another Iranian proxy on Israel’s border, is already attacking. The northern and southern communities along the borders that Israel shares with terror organizations have been evacuated. I think the Arab world is keeping a very close eye on this. As such, Israel’s actions are not just critical, vis-à-vis, Hamas but critical, vis-à-vis, the other threats that it is facing in the region.

Sarah: Thank you. Joseph will now read some of the questions that have come in. Joseph.

Joseph: Thank you, Sarah, and thank you, Natasha. This has been a very insightful presentation. I would like now to turn to questions that we have received via the Q&A function. The first one was, could you please discuss how the IDF’s decisions regarding when to strike or not have changed in this war versus past engagements in Gaza? Apparently, there have been sources that have said that the Rules of Engagement have been loosened and responsibility has been moved lower in the chain of command.

Natasha: I cannot answer that question because the Rules of Engagement are not made public. This is for good reason. If they were then Hamas would adapt its practices to thwart Israeli efforts and would be better informed in doing so. The reason I referred to previous operations is because there has been opportunity to analyze and investigate after the operations concluded. Investigations have been done internally in Israel and by bodies outside of Israel. These include independent bodies like the high-level military group that I referenced earlier. I think that track record and past practice is important is because it speaks to more than just what Israel did in those previous operations. It speaks to the ethical approach that is embraced.

This conflict is different because the military objectives are different. Israel has never previously said it will destroy Hamas entirely and will dismantle its ability to conduct any operations from the Gaza Strip. That has never been part of the previous aims although many argue it should have been. The leeway Israel was afforded by the international community in previous conflicts was more restricted that it is now. In that regard, we can also talk about international responsibility for what happened on the 7th of October. While the challenge and approaches in this war are different, there are strong indicators that Israel’s approach is still consistently above the requirements of international law. We see that from the steps taken to evacuate civilians and to provide warnings of strikes and because Israel is conducting ground operation. Israel has superior air power and if proportionality was not an issue, if civilian collateral damage wasn’t an issue, this war would have been over a long time ago and might not have involved Israeli forces going in on the ground.

I say “might not” because the tunnel situation is a particularly difficult challenge. Some of them might not be reachable by aerial bombardment because they are built very far underground. The 300 miles of tunnels does need to be addressed by Israel in pursuit of Hamas. However, the fact that we have troops going in on the ground is indicative of Israel maintaining the highest standards required by the international law of armed conflict in terms of proportionality. The example of the Al Shifa Hospital in particular, illustrates this. Israel sent Israeli Special Forces with Arabic speakers and medical staff into the hospital to help differentiate between Hamas terror operatives and the sick, the injured, the doctors, nurses and medical staff. This illustrates Israel is not only maintaining the highest standards with respect to proportionality but also in terms of distinction. This is a principle that I am not sure we have mentioned yet.

We have three main principles, distinction, proportionality, and necessity. Israel is acting out of military necessity. It is not gratuitously attacking any targets in Gaza. It is going after the terror infrastructure where that is necessary for achieving its military objectives.

Joseph: Thank you so much, Natasha. Our next question has to do with Egypt. What are Egypt’s obligations? Does it have any obligation, under international law, to allow in refugees from Gaza or to somehow ease the situation?

Natasha: Egypt has a very important obligation under international law. I have not heard anyone discussing this obligation. It falls under a treaty of the African Union, the convention governing the specific aspects of refugee problems in Africa. Egypt acceded to that treaty in 1980, and it is important because that treaty incorporates a definition of refugee which is far broader than the refugee convention. Article 1, Paragraph 2, states, “The term Refugee shall also apply to every person who owing to external aggression, occupation, foreign domination, or events seriously disrupting public order in either part or whole of his country of origin or nationality is compelled to leave his place of habitual residence in order to seek refuge in another place outside of his country of origin or nationality.”

Absent that convention, does Egypt have a responsibility to open its borders to refugees? In the classical sense, those fleeing persecution would have the right to cross the border. Unfortunately, those fleeing a conflict or serious disruption to public order would not qualify. In Egypt’s case, however, it bound itself to a local treaty in 1980 and its obligations under that are clear. We have not heard any clamor in the international community for Egypt to comply with those obligations and facilitate the evacuation of civilians from Gaza across the border into Rafah on the Egyptian side. In Rafah, Hamas would likely not be able to divert humanitarian aid provided to Palestinian citizens and they would be better provided for in terms of humanitarian assistance. So, there are many reasons to be calling on Egypt to comply with its international obligations and it is extremely troubling that we have not heard that from any authoritative international quarter.

Joseph: That actually brings me to another question from the audience. Why do you think there has been a lack of pressure on Egypt and even Jordan to take in Gazans and Palestinians so that they are not held as human shields while Israel deals with Hamas?

Natasha: I think there are many layers to that analysis. My answer is informed by my own reading and 20-odd years of following international relations in that part of the world. Plainly, Egypt is fearful of the Muslim Brotherhood within Egypt itself and Hamas is part of that. Unlike Israel, Egypt’s treatment of Gaza has been reprehensible. Israel provided water and electricity across the border until the 7th of October. At that time, much of the infrastructure needed to provide those resources was attacked and destroyed by Hamas. This included pipes and electricity running through the communities on the south.

In contrast to Israel’s support of the citizenry of Gaza, Egypt has policed its border robustly and has taken lethal action along that border where it felt it was justified. Those who support Egypt’s position understand why taking in Gazan citizens would put Egypt in a difficult position. That does not really explain why, the United States, for instance, does not use its leverage to save Palestinian lives. The United States supports Egypt with billions of dollars and could therefore influence Egypt’s actions with respect to the Palestinians in Gaza.

The wider Arab world has called for Palestinians not to be permitted to leave Gaza because they object to what they call displacement. In some quarters, this is referred to as a second Nakba. Now, in that context, of course, we would have to analyze exactly what is meant by the first Nakba. We probably do not have time on this call to go into the details of 1948 and the deep misrepresentations which have taken root over the last 75-odd years. However, it is very important we identify similar misrepresentations here.

An evacuation of civilians across the border from where Hamas is using them as civilian human shields is intended to save Gazan lives. Israel’s request or recommendations that they evacuate on that basis have been utterly misrepresented as an attempt to displace. I think that narrative is plainly playing a role in the reluctance of many international actors to call out Egypt’s violations of its international law obligations.

Joseph: Thank you so much, Natasha. It seems that we are out of time. I would like to thank you again for this amazing presentation. I’d also like to thank our audience for showing up. You guys are the backbone of EMET and if you feel that this webinar was informative and you liked it, please consider giving EMET a donation. Thank you so much.

Natasha: It has been my pleasure.

Sarah: Natasha, you have been wonderful. Thank you so much.

Natasha: Thank you.

[END]