Monday, August 13, 2012

Links We Like #2

Today we have an intensive legal document about Israel's use of white phosphorus during Cast Lead. You remember this as the last talking point remaining from that period, so you can use it to inform yourself ever time the Huffington Posters play that card, and they always do. Here is a small sampling:
Even if white phosphorus were to be categorized as an incendiary weapon under Protocol III of the CCW, Israel did not violate the Article 2(2) prohibition on making civilian populations or objects the object of an incendiary attack.[151]  The interpretation of the phrase "to make . . . the object of an attack"[152] is the key to understanding the proper interpretation and application of this provision of Protocol III of the CCW.
            To make the civilian population an object of attack necessarily requires an intention to make that specific population or thing the object of an attack.  One argument that would seemingly eliminate the intent requirement of this provision posits that even if there is no intent for a civilian population to be an object of attack, but a civilian population does, in fact, unintentionally become attacked, then this is a violation of the CCW.  However, Article 2(2) of Protocol III cannot be interpreted this way because this interpretation would render the phrase "to make an object of"[153] inoperable. 

            If the civilian population is attacked, but there was no intent for the civilian population to be attacked, then logically and linguistically the civilian population cannot be understood to have been "made the object of"[154] an attack.  To the contrary, the civilian population accidentally or mistakenlybecame "attacked" during a military operation where the attacking military had consciously made something else the object of attack.[155]  This becomes more clear when it is understood that the common definitions for the word "object" in this context are "a person or a thing to which thought, feeling, or action is directed,"[156] and "the purpose aim or goal of a specific action or effort."[157]  Common synonyms of object are "objective," "purpose," and "intent."[158]  All of this further shows that the phrase "make civilians an object of attack,"[159] necessarily must include an intent element. 

            During and after the Israeli military operation in Gaza, the Israeli military and government spokesmen have repeatedly stated that white phosphorus was used only in accordance with international law.[160]  Investigations into Israel's Gaza operations have turned up no evidence that Israel made civilians or civilian objects the object of white phosphorus attacks.[161] 

            There have been numerous accusations raising the presumption that Israel's use of white phosphorus in civilian areas must have been to attack civilians because there was no military need for smoke obscuration or illumination in that area.[162]  These have been countered by evidence showing that the alleged "civilian buildings and objects" where white phosphorus was used to obscure or illuminate the battlefield were, in fact, legitimate military objectives.[163]  This evidence shows that there were Hamas fighters, Israeli forces, and military objectives in the areas at the times that white phosphorus was used.  This leads to the logical conclusion that there was a military need for smoke obscuration or illumination in furtherance of protecting and assisting the Israeli ground troops during their missions against those military targets, and shows the faulty reasoning behind the presumptions that the white phosphorus must have been used to attack civilians[164] because there were no other explanations for its use.[165] 

            Most importantly, there is no evidence to show that Israel even made enemy combatants the object of white phosphorus attacks,[166] and there is no evidence that the Israeli military made the Gazan civilian population or civilian objects the object of any white phosphorus attacks.[167]   In fact, all reported and known civilian injuries resulting from white phosphorus are inconsistent with a white phosphorus deployment as anything other than as an obscurant or illuminant[168]

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