White Phosphorous: A Grey Area?
White phosphorous has become well-known in recent years, mainly as a result of the controversy surrounding its use during the US invasion of Iraq in 2003, and the recent conflicts between Israel and Hizbollah and Hamas. It is primarily a smokescreen-producing agent, used to conceal troop movements, and is also a means of illuminating the battlefield. However, it can have incendiary side effects which cause horrific injuries to human beings.
Human Rights Watch has condemned the use of white phosphorous by the Israeli Defence Forces during the recent action in Gaza:
The IDF’s credibility [it said] probably took the biggest hit on the issue of its use of white phosphorous. A typical artillery shell of white phosphorous releases 116 phosphorus-soaked wedges which, upon contact with oxygen, burn intensely, releasing a distinctive plume of smoke. That smoke can be used legitimately to obscure troop movements, but white phosphorous can be devastating when used in urban areas, igniting civilian structures and causing people horrific burns. Its use by the IDF in densely populated sections of Gaza violated the legal requirement to take all feasible precautions during military operations to avoid harming civilians. It never should have been deployed.
However, the situation is not as clear as Human Rights Watch would like to portray. Firstly, the use of white phosphorous in civilian areas is hardly unlawful in the categorical sense. The Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) does prohibit the use of incendiary weapons against civilian targets, and also their use against military targets in civilian areas. (There is an absolute prohibition of such attacks by air, and a general prohibition on those from the ground ‘except when such military objective is clearly separated from the concentration of civilians and all feasible precautions are taken’ to prevent civilian casualties.) But it is doubtful that most uses of white phosphorous come under those terms. Protocol III specifically exempts ‘Munitions which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems’ (Article 1.1.b.i), and only concerns itself with ‘any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons’ (Article 1.1). The vast majority of white phosphorous munitions come under the umbrella of the former and not the latter, so their use cannot be said to be prohibited under the protocol’s terms. Though some white phosphorous weapons clearly do qualify as incendiary weapons according to Protocol III, the majority do not, and their use in civilian areas is therefore not unlawful. Moreover, Israel (like the USA, Malaysia, Syria, Iran and others) has not ratified this Protocol, and as it has only 101 state parties its status in customary law is questionable. We must therefore view the issue of Protocol III as a red herring.
Of course, all feasible means must be taken to prevent harm to civilians in conflict: this is not controversial. Regardless of the weapons used, deliberate, indiscriminate or disproportionate attacks which cause civilian casualties are absolutely prohibited as one of the oldest standards of international humanitarian law. But has the IDF used white phosphorous to commit such attacks?
The answer would appear to be no:
“In some of the strikes in Gaza it’s pretty clear that phosphorus was used,” Herby [head of the ICRC's mines-arms unit] told The Associated Press. “But it’s not very unusual to use phosphorus to create smoke or illuminate a target. We have no evidence to suggest it’s being used in any other way.”
In response, the Israeli military said Tuesday that it “wishes to reiterate that it uses weapons in compliance with international law, while strictly observing that they be used in accordance with the type of combat and its characteristics.”
Herby said that using phosphorus to illuminate a target or create smoke is legitimate under international law, and that there was no evidence the Jewish state was intentionally using phosphorus in a questionable way, such as burning down buildings or consciously putting civilians at risk.
Herby later appeared to avoid claiming this statement as his own, but did not provide evidence to contradict it nor issue a denial. So it must be assumed that this later effort at avoidance was based on a political consideration – i.e. a desire to preserve the impartiality of the ICRC.
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