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Use of White Phosphorous in Gaza and Some Limitations of International Law

S.R. Subramanian is working as an Assistant Professor at the Hidayatullah National Law University, Chhattisgarh and was with the Terrorism Prevention Branch, Division for Treaty Affairs, United Nations Office on Drugs and Crime, (UNODC), Vienna.
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  • March 04, 2009

    Notwithstanding calls for the establishment of an independent and international commission of inquiry to investigate war crimes committed by the Israeli Defense Forces (IDF), Hamas and other Palestinian armed groups during the Operation Cast Lead, a legal issue is whether the use of certain weapons by the Israeli forces is in contravention of international law.1

    The issue became controversial as the accusation was made by no less a person than the Director of Operations in Gaza for the United Nations Relief and Works Agency (UNRWA). In his interview to the BBC, he observed that the UN facility in Gaza housing food and medicines was targeted by three rounds which emitted white phosphorus (WP). Several international non-governmental organizations including Amnesty International and Human Rights Watch have also alleged Israel’s use of white phosphorous in densely populated areas and the disastrous impact on civilians.2 And in an indirectly related move, the UN Human Rights Council has decided to send a fact-finding mission to investigate serious violations of human rights.3

    The initial response of the Israeli Forces was not to comment on the specific weaponry used in the war. Later, in view of the controversy over the fire in the UN compound, IDF admitted the use of WP munitions but insisted that it was employed in the manner allowed by international law. However, the latest report attributable to the IDF notes that white phosphorous munitions may have been used on some occasions in contravention of international law.4 This essentially raises the question on when exactly WP munitions can be used in warfare consistent with international legal obligations and whether its use by the Israeli forces was justified under international law.

    White Phosphorous is the most reactive form of phosphorous. It burns very easily and catches fire quickly, and cannot be extinguished with water. When lit, it produces a large amount of smoke. It also interferes with infra-red optics and weapon-tracking systems, making detection by guided weapons difficult. WP is used to mark a location or to create a smokescreen to obscure troop movements. It is also used as an incendiary weapon against enemy forces. When ignited in the air over a target, the area will be showered by burning particles, which stick to the skin and can cause second and third degree burns. White phosphorus will burn until it disappears or is deprived of oxygen and can cause damage to skin, flesh and even bone. Morbidity and mortality may result from burns sustained from exposure and trauma or due to ingestion.

    The use of white phosphorous munitions is not expressly prohibited under international law. However, international law regulates some specific uses of these weapons. Though no treaty-based law defines it as a ‘chemical weapon’, the international law of direct relevance is contained in three legal instruments: the Geneva Protocol on Poisonous Gases (1925), the Chemicals Weapons Convention (1993), and Protocol III to the Certain Conventional Weapons Convention (1980), officially known as the Protocol III on the Prohibitions or Restrictions on the Use of Incendiary Weapons. Depending on the context whether WP munitions are used as poisonous gas or chemical weapons or incendiary weapons, the relevant rules of international law will be applicable. However, a cursory reading of the above legal sources reveals the serious limitations of international law in addressing this issue.

    Though Israel has ratified the Geneva Protocol of 1925, it added a reservation that its restraint in this regard would be limited towards only those States which have ratified it or will do so in the future.5 Palestine enjoys disputed (but unique) legal status and is not recognized as a state by several states including Israel.6 Hence, it is submitted that Israel will not be bound by the provisions of the Protocol against Palestine.

    Israel has not ratified the Chemicals Weapon Convention so far and restraints on the use of chemical weapons are not applicable to it.7 However, Israel had ratified the 1980 Convention on Certain Conventional Weapons,8 and incendiary weapons are a part of this protocol. However, it chose to adopt three other protocols to the Convention, but not the incendiary weapons protocol.9 Hence, the lone instrument that has the potential to deal with the use of WP as an incendiary weapon is not applicable to Israel. Palestinian groups suggest that the non-adoption of the Incendiary Weapons Protocol is ample proof that Israel reserves the right to use these weapons against its major adversary.

    However, this does not mean that treaty-law is the exclusive legal source to regulate the conduct and responsibility of those engaged in armed conflict vis-à-vis civilians. In fact, the customary rules of international humanitarian law also address such situations. These rules prohibit the use of incendiary weapons against civilian populations, individual civilians, and civilian objects under any circumstances. In particular, they stipulate that in case of an attack on a military objective, all feasible precautions are to be taken with a view to limiting the effects and incidental loss of life and injury to civilians and that damage to civilian objects is to be minimized. Moreover, the rules of war prohibit the use of anti-personnel incendiary weapons when alternative weapons likely to cause less suffering are available.

    The international non-governmental organizations mentioned above are laying much emphasis on these customary rules of international law in order to infuse accountability in warfare. However, one of the major deficiencies of contemporary humanitarian law is that it lacks an effective legal enforcement mechanism. Although in the past serious questions have been raised about the alleged use of WP munitions during the Fallujah assault in Iraq (2004)10 and during the Israel-Lebanese conflict (2006), no credible evidence from investigations is available. On the other hand, there can be no denying that innocent civilians continue to suffer. In conclusion, it is also a fact that the issue of means and methods of warfare can not be isolated from other grave violations of human rights and war crimes.