The hearings in Geneva for Goldstone’s Gaza fact-finding mission came to a close today. The final speaker, Michael Newton, professor of the practice of law at Vanderbilt University and expert in accountability in the practice of hostilities, spoke about the application of international law, especially the Geneva Conventions, to both state and non-state actors during combat.

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Professor Newton said that every Western, modernized military in the world assesses the extent to which civilian casualties and collateral damage are avoided when determining a mission’s success. He said that although the United States and Israel (along with other states) have not ratified Protocol I of the Geneva Conventions, which established the framework of International Humanitarian Law applicable in armed conflict, its main precepts are embedded in their military manuals. Though, what actually matters is how the law is applied during combat.

Professor Newton claimed although many states have reservations to specific aspects of the Protocol I, its core principles have gained widespread acceptance as international customary law.

For example, since 1977 it has become accepted that targets have to be disaggregated and analyzed individually to ascertain the legitimate military objective. In other words, even if there is a letigimate target within a city block, the enire block is not necessarily a military objective, defined as “anything which by its nature, use, purpose, or location makes an effective contribution” to hostilities. Later on he said that even agricultural land could be a legitimate target as long as the purpose in destroying it is neither starvation nor revenge, but on it meeting the definition of a military objective.

He went on to discuss another core principle of the protocol: distinction. He said this principle implies that all feasible measures be taken to limit damage to civilians and applies across the board, both to the attacker or defender sides of combat. Thus, the defender cannot commingle with civilians. It also applies equally, regardless of the character of combatants, to international, non-international, state actors, and non-state actors.

As an example of a defender breaching the rule of distinction, he cited an anecdotal press report, quoting Gaza civilians in the context of the Israeli operations. They said they prayed no one would fire a rocket from their backyards so that they would be kept safe, considering that if someone fired from there, it could expose them to danger. They prayed their defenders would accept their obligations.

He moved on to an explanation of another key factor of Protocol I: proportionality. “The proper test of proportionality says a commander must refrain from an attack that will cause disproportional civilian casualties or environmental damage for the military advantage anticipated,” he said. “It is a war crime for a commander to launch an attack in knowledge that it is disproportionate.” This depends on the information available to a commander, but he cautioned that lack of information does not justify assumptions.

Professor Newton then discussed a final, core principle of the protocol: command responsibility. He said it is not enough for a military to have training manuals. Commanders must embed the precepts of Protocol I into operational practice.

Regarding the question of how exactly Protocol I applies to non-state actors, Professor Newton said that it sets the foundation for customary law that applies to all parties and also allows non-state actors to make unilateral declarations of commitment. If a non-state actor desires legitimacy, credibility, and legal efficacy, it could make a good faith declaration to accept the precepts of Protocol I.  

Professor Newton said that international criminal tribunals are already applying Protocol I as customary law to non-state actors, citing the specific case of Sierra Leone’s tribunal. Referring to rebel group conduct, the tribunal concluded that “acts of violence to spread terror among civilian populations are prohibited. Inflicting terror on non-combatants is never a legitimate military objective in its own right.” From this analysis, he said it follows that it is illegal for a commander to carry out an operation with the core intent of terrorizing people. He argued the principle applies in all armed conflicts and circumstances.

Regarding the mission’s question on the legality of Israel’s use of white phosphorous, Professor Newton said there are a duality of considerations: 1- Is it an illegal weapon and 2- Even if it is legal, can it be used in an unlawful manner?

He went on to discuss the effectiveness of white phosphorus. The material could be used to mark targets for an air-strike. Second, “if you’re trying to vector in forces across large distances, there’s no better way to do it than quick white phosphorous round.” It is very effective as illumination and a smoke screen.

In urban areas booby-trapped with snipers, explosive devices, and trip-wires, white phosphorus could be used to mask troop movements. It would be less damaging than leveling the area with explosives, destroying civilian properties, he said. But if the purpose of masking troops is to move from one area to the next, a commander must consider how damage could be minimized by following a different route. Also, one must be sure to assess how many civilians are in the area before using the weapon. He said that even if a commander has warned civilians to leave, experience may dictate that many will have stayed. Thus, the use of white phosphorus in the presence of civilians cannot be justified simply by stating that they were warned to leave.

Professor Newton said it is not true that the use of white phosphorus violates the Chemical Weapons Convention. Some people would say it falls under the Convention’s ban on the use of air-dropped incendiary weapons in urban areas, but he does not see this as the case. He said that even in urban areas, there are pockets where white phosphorus and other controversial weapons use is acceptable following a detailed analysis of the feasibility of avoiding civilian damage. He said there also needs to be a detailed target analysis before the use of aerial weapons, involving a feedback flow of information to the commander.

Desmond Travers of the fact-finding mission commented that many weapons considered acceptable during World War II and the Cold War have been called into question today because of more sensitive laws about causing injury to targets. He said that in his opinion, some of these weapons should be removed from militaries’ arsenals. Regarding white phosphorus, he said he agrees it’s not a chemical weapon, but asked if its legality should be reviewed, noting that the Irish army stopped using it 39 years ago because of its danger to people and the environment.

Professor Newton responded, “White phosphorus on a playground is different than white phosphorus somewhere else.” Of course, alternatives to its use should always be assessed, he said, but it all comes down to the circumstances.

Regarding the mission’s question about the implications of issuing warnings to civilians, Professor Newton said that warnings alone are not enough. He cited a Hamas brigade commander saying that all Gazans are combatants so it is sufficient for him merely to warn them before occupying their area and using it as a launching ground for Hamas operations. Professor Newton said that all parties are obliged to do what is feasible to eliminate harm to civilians and never co-mingle where it is feasible to not do so.



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