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.
Great post. The same issues arise regarding cluster bombs, although there’s a recent initiative to ban them (http://www.stopclustermunitions.org/the-solution/the-treaty/?id=84 – however, that’s definitely not customary law).
David, an interesting post on a legal question that may indeed have been taken for granted by various actors engaged in reporting on the conflict. All the same, I would like to add a few complimentary comments in order to sharpen some of the issues that you have referred to, pertaining to both legal and factual matters.
“Firstly, the use of white phosphorous in civilian areas is hardly unlawful in the categorical sense” :
It is indeed true that prima facie the use of white phosphorus is not prohibited by IHL. Nevertheless, the most fundamental of principles on which this legal framework is based advocates for the protection of the civilian population, i.e. the principle of distinction and therefore also the obligation to take all necessary precautions in procuring any particular attack. The ICRC submits that the use of this weapon “is subject to further restrictions. The use of such white phosphorous weapons against any military objective within concentrations of civilians is prohibited unless the military objective is clearly separated from the civilians” (see: http://www.icrc.org/Web/Eng/siteeng0.nsf/html/weapons-interview-170109). These words are clear and unequivocal and are supported directly by the text of Art 2(2) of Protocol III.
International customary law also recalls that “particular care” should be taken when attacking a military target with incendiary weapons and “[i]f this substance is used against fighters, the party using it is obliged to assess whether a less harmful weapon can be used to put the fighters out of action”. In other words, the question that should be asked is whether the detriment to the civilian population is too high to justify the military advantage (see Art 36 of Protocol I). In this case, therefore, it would not make a different whether the injury to civilians is “incidental” or “primarily designed”, as provided in the definitions of Art 1 of Protocol III.
“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.”:
Following the abovementioned, consequently, despite a possible ‘diversity’ in white phosphorous munitions from a technical perspective, the application of the legal norm is not changed. This is to say that regardless of the kind of munition that is used, when the effects of the particular weapon are known and it is nevertheless used in a densely populated area, numerously in challenging climatical conditions (i.e. windy, foggy, etc), the belligerent party is expected to take account for all the factors at hand under a particularly high professional standard of care.
“…as [the protocol] has only 101 state parties its status in customary law is questionable.”:
I would tend to challenge this particular appreciation of the creation of customary international law. In fact the ICRC’s study on customary IHL has exemplified that it is not the case concerning this particular rule. More over, one cannot escape the fact that this basic rule of IHL is grounded on the pillars of the whole legal framework, i.e. the principle of distinction and the utmost protection of the civilian population.
The answer to the question of whether white phosphorus was used is clearly yes, according to numerous sources, inter alia the ICRC’s official statement cited above: “Yes. According to widespread media reports, images and analysis from credible experts, phosphorous weapons have been used in the conflict.”
“…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” (AP news piece) :
The inavailability of evidence pointing to any clear direction at the premature stage when such statements were made should not be doubted. It should be emphasized that the evidence that is considered here pertains to intention to use phosphorus to deliberately and indiscriminately target civilians. Firstly, the illegality of any such attack is not conditional on intention. Secondly, the threshold for illegality in itself is considerably lower than that which amounts to “deliberate” or “indiscriminate” attacks and, as mentioned above, the mere awareness of the circumstances in the field (i.e. densely populated areas, people in the streets, climatical conditions, etc) are likely to substantiate the violation of the laws of war in the use of these munitions.
Finally, I think that indeed the most interesting and contentious issue that comes out of this information is the fact that Mr. Herby of the ICRC had acted with insufficient caution in the particular circumstances and the media did its part in distorting and decontextualising the things said with those intended. Thereafter the media reports the short interview with Herby reported on the ICRC’s website clarifies the not only the ICRC’s position but also that which is most logical considering the premature nature of any of the claims at such an early stage – it notes that in order to determine the legality of the use of the weapon the ICRC would corroborate reports and initiate a thorough investigation in order to arrive at a solid conclusion as for the legality of any such actions. As David has mentioned, the fact that certain mandate and policy related institutional considerations have significant weight in this decision process cannot be ignored.
Valentina, I believe we’re in broad agreement when it comes to the legality of white phosphorous. My position, which I hoped to make clear in my post, can be summed up thusly:
According to Protocol III:
1. The use of white phosphorous munitions with incidental incendiary effects (that is, smoke producing or illuminating agents) in civilian areas is not unlawful [but see below].
2. Attacking military targets with white phosphorous weapons away from civilian areas is not unlawful [but see below].
3. Attacking military targets with white phosphorous weapons in civilian areas is always unlawful if carried out by air, and usually unlawful if carried out by other means, unless due care and attention is paid to protecting civilians, and the military target is a sufficient distance away from civilian buildings.
According to recognised principles of customary international law:
1. Due care and attention must always be paid to ensuring that white phosphorous munitions do not cause harm to civilians or civilian structures, in line with the principle of distinction between combatants and non-combatants. There are of course no exceptions to this rule, and it applies even to the use of smoke-producing agents, illuminators, and attacks on military targets.
Regarding the IDF vis-a-vis Gaza, that Israel used white phosphorous munitions in Gaza is itself not in doubt (and is not controversial, as white phosphorous is the most common military smoke-producing agent). The key question is how it has been used, i.e. has the principle of distinction been maintained?
The only points at issue between us seem to me to be:
1. Has Israel used white phosphorous munitions in such a way that it has caused unnecessary damage to civilians or civilian buildings – i.e. has it violated the principle of distinction? It would seem to be that the answer is no at this stage, but of course evidence could prove otherwise. Regardless, it should not be presumed that members of the IDF are guilty of war crimes.
2. Is Protocol III part of customary international law? I would argue that the ICRC’s study is neither definitive nor formative. Customary law is formed by State practice and opinio juris over a number of years, not by the ICRC or other NGOs. Regardless, even if we accept for the sake of argument that Protocol III is customary law, there is no evidence at this stage to indicate that the IDF has contravened it, because even by its standards the use of white phosphorous munitions with incidental incendiary effects is not intrinsically unlawful in civilian areas.
Regarding your 3rd point in the comment above,
“Attacking military targets with white phosphorous weapons in civilian areas is always unlawful if carried out by air, and usually unlawful if carried out by other means, unless due care and attention is paid to protecting civilians, and the military target is a sufficient distance away from civilian buildings.”
Amnesty International investigated the use of white phosphorous use by the IDF and Gaza:
“Artillery is an area weapon; not good for pinpoint targeting. The fact that these munitions, which are usually used as ground burst, were fired as air bursts increases the likely size of the danger area”
If correct, does “air burst” qualify for unlawfull in accordance with your point 3 above?
If this article in general, and that point in particular was taken in good faith, would you still hold that the IDF did not violate the principle of distinction?
Jmclaren, thanks for the comment. The Amnesty article seems to say much the same thing as the HRW one I linked to, and I have to reiterate that what NGOs say about international law is neither formative nor definitive. It may be Amnesty International’s opinion that artillery is somehow different from other non-aerial attacks, but the relevant treaty (Protocol III regarding incendiary weapons) makes no such distinction. (I believe that ‘air delivered’ in that protocol refers only to those weapons delivered by planes, helicopters etc.)
The incendiary weapons protocol also does not prohibit the use of munitions with incidential incendiary effects in civilian areas – its only prohibitions relate to incendiary weapons and attacks on military or civilian targets. This distinction is very important. White phosphorous is the most effective military smoke producing agent. If it is used merely to cloak troop movements, then any incendiary effect is incidental, and not prohibited.
I would also reiterate that Israel has not ratified that protocol, so it arguably makes the point moot.
Regarding the principle of distinction in customary law: it is important to remember that nobody realistically expects there to be no civilian loss of life and no damage to civilian infrastructure in war. And as sad as this fact may be, nor does International Humanitarian Law expect it. What it expects is that civilians should never be the target of deliberate attack; that attacks should never be carried out in a widespread and indiscriminate way; and that if there is danger of collateral damage in a given attack, then the military value of that attack must be weighed against the potential loss of civilian life, and due care paid to mitigating such losses. In my experience many NGOs and media commentators either do not know about this last point or else ignore it, and tend to portray any loss of civilian life as a war crime. Not so: such losses are a sad waste, but the law is rather more discriminating than is often portrayed.
Therefore, I would say that if Amnesty International provides incontravertible evidence that the IDF used white phosphorous attacks in an indiscriminate way, and if those attacks were proved to be disproportionate (i.e. the damage to civilian infrastructure and civilian life outweighed the potential military advantage gained), then it would be apparent that the IDF had acted unlawfully. I am not convinced that Amnesty International, HRW or anybody else has provided any such evidence. Evidence that civilians have been wounded or killed, and evidence that buildings have been damaged, is not in itself evidence of illegal action, even if it is deeply regrettable.
David, thanks for your response and clear explanations. I fully take on board your point about NGOs.
As you noted previously, Protocol III explicitly distinguishes between the use of non-incendiary white phosphorous munitions and white phosphorous weapons, whereas the AI article I linked to used the term weapon.
The contentious munition used in Gaza appears to be the M825A1 shell, categorised by Janes as the non-incendiary type, i.e. not a weapon.
However, given your point:
“What it (International Humanitarian Law) expects is that civilians should never be the target of deliberate attack; that attacks should never be carried out in a widespread and indiscriminate way; and that if there is danger of collateral damage in a given attack, then the military value of that attack must be weighed against the potential loss of civilian life, and due care paid to mitigating such losses.”
could an arguement be made against violation of IHL given that the method of delivery, air burst, of white phosphorous munitions over densely populated civilian areas is by its nature widespread and indiscriminate?
Regarding the general point about civilian casualties and civilian property it appears the Israeli military are becoming more bullish about its general approach to its military operations as noted by this article in Haaretz (the point about the Southern Commander),
and an article provided by Valentina.
Jmclaren, this might sound like a facetious response but it is entirely genuine: all weapons have the potential to be used in unlawful ways. Some instances of the use of the M825A1 shell might turn out to have been unlawful. But that is, really, just the same as saying that some uses of the 5.56x45mm bullet might turn out to have been unlawful. Just as this statement does not mean that the use of the 5.56x45mm bullet is unlawful in the blanket sense, I don’t believe it would be either sensible or in line with IHL to say that the use of M825A1 shells in civilian areas by the IDF is in and of itself indicative of unlawful activity. There is nothing inherent in the usage of that munition that makes it unlawful. (The comparison between artillery shells and rifle rounds is a very simplistic one, but I think it suffices to make the point in this instance.)
Regarding bullishness of the IDF, the Haaretz article you linked to seemed to indicate to me that legal experts are becoming more influential. Haaretz, don’t forget, has rather a left-wing bias. The statement that “one reason for the international law division’s permissive positions is its desire to remain relevant and influential” is pure editorialising. Another spin might be that, to the contrary, the legal experts genuinely believe they can succesfully ensure the army’s respect for the law. I am not an expert on the relationship between the IDF command and its legal division, however.
There has always been a rather distasteful machismo to statements by IDF officials, and the article Valentina linked to is nothing new in that respect. It is all part of the depressing war of words which accompanies the Israeli-Arab conflict. And the IDF has also always had a policy of “hitting back twice as hard” when Israel is attacked. But in comparison to other militaries, especially considering the difficulties it is faced with, the IDF’s record in IHL terms is relatively good (while far from perfect). It certainly stands in sharp contrast to the records of Israel’s various enemies down the years – which is no excuse, of course, for unlawful acts on the part of the IDF.
Thanks for your interesting and thoughtful postings here. As my comments and the ICRC’s views are referred to several times I wanted to propvide some clarification.
The Associated Press report paraphrasing an interview with me which apprears in your second yellow box got a number of things wrong. In fact the views provided to them were the exactly the same as those in the interview later published on the ICRC website for which you provide a link at the end of your origninal post.
The primary error in their reporting was to extrapolate from the fact that white phosphorousis is not specifically prohibited to the assumption that any specific use is legal. As you and others have highlighted, the legality of any specific use also depends on its conformity with the general IHL rules on distinction, proportionality and feasible precautions. Judgements on these issues in turn depend on evidence of the effects and the facts on the ground at the time of use.
To summarise, the ICRC’s views didn’t change over time but we felt obliged to publish the web interview due to the misrepresentation of our views in the AP story and the repetition of the contents of the AP report by others.
Peter Herby, ICRC, Geneva
Mr. Herby, thank you very much for clarifying your position, and I apologise for any inadvertent misrepresentation of your views. I suppose this is another instance which goes to show that when it comes to Israel and Palestine, it is often extremely difficult to trust what media outlets report.