War Crimes – Israel & Gaza
In the conflict between Israel and Hamas in Gaza, the line between legitimate military action and war crime is not always clear. Professor Michael Newton, an expert on the laws of war, gives his analysis on events ranging from bombings, to kidnapping, to human shields in order to better distinguish war crimes in the context of Israel and Palestine.
According to the laws of war, the conflict in Gaza is not a traditional battle between nations. Newton explains that Israeli soldiers and Hamas fighters are in some ways treated differently under international law. Hamas fighters, for example, are not soldiers based on the standard legal definition because they do not fight on behalf of an internationally recognized sovereign state. Rather, under the laws of war, they are “civilians engaged in armed conflict.” This is relevant as it means that Hamas members do not have combatant immunity protections guaranteed to soldiers at war. Additionally, this distinction also presents unique challenges to Israel in targeting Hamas since civilians engaged in armed conflict must be classified based on their actions rather than their status as soldiers.
Professor Newton goes on to analyze various aspects of the Hamas attacks in Israel and the Israel-Hamas conflict in Gaza under the laws of war. Through the lens of war crime definitions, Newton discusses kidnapping, the targeting of civilians, sexual violence, the use of human shields, starvation as a tool of war, targeting hospitals and places of worship, and the use of disproportionate force and other war crime definitions. He walks through his analysis of how they line up with actions on the ground in Israel and Gaza and explains the judgement calls involved in making such determinations. In war, Newton explains, mistakes can happen and difficult choices are required with imperfect information. The rules of war were drafted in such a way to allow commanders to exercise discretion and to achieve legitimate military objectives. War crime laws provide important yet pragmatic guardrails during such periods of often tragic violence.
Michael Newton is a professor at Vanderbilt Law School and is an authority on the law of armed conflict.
Additional Resources
Charging War Crimes: Policy & Prognosis from a Military Perspective – a chapter by Michael A. Newton from The Law and Practice of the International Criminal Court: A Critical Account of Challenges and Achievements, Chapter 29, Carsten Stahn, ed,. Oxford University Press.
The Rome Statute – established in 1998, the Rome Statute is the founding treaty of the International Criminal Court, governing the prosecution of international crimes.
The Geneva Conventions – four treaties setting international legal standards for humanitarian treatment in war, covering soldiers, prisoners, civilians, and the wounded.
