|September 1, 2009||by Steven Stotsky|
Did Israel's Use of White Phosphorus Constitute a War Crime?
Operation Cast Lead, the Israeli incursion into Gaza from Dec. 27, 2008 to Jan. 18, 2009, prompted Amnesty International and Human Rights Watch, two prominent human rights groups, to accuse Israel of committing war crimes. Both organizations habitually charge Israel with war crimes after major military operations. As in past cases, these most recent charges received ample coverage in the media. Amnesty International has also produced a film clip accusing Israel of recklessly using white phosphorus. This analysis examines Amnesty International's charge that Israels use of white phosphorus was illegal.
Background on the Use of White Phosphorus and Controversy Surrounding it
Ignited white phosphorus is used to create a smoke screen to conceal the movement of ground troops. Used in this way in open areas, it is not considered an incendiary or anti-personnel weapon and is not subject to the restrictions that apply to incendiary weapons. The American Federation of Scientists fact sheet
on white phosphorus describes it as having "low lethality" when used as intended. The fact sheet adds that "under that qualification, WP [White Phosphorus] is not necessarily considered an incendiary weapon if it incidentally sets buildings on fire."
The accusations against Israel are similar to those lodged against American troops fighting in Fallujah in 2004. The charge against American troops received extensive publicity after an Italian documentary film, "The Hidden Massacre" claimed that white phosphorus was used not only as a smoke system but also as an incendiary anti-personnel weapon. The use of incendiary weapons in civilian areas is proscribed by conventions. Although neither the US nor Israel has signed on to these conventions, both generally abide by their admonitions.
There is no evidence that Israel intentionally used white phosphorus as an anti-personnel incendiary weapon, but Amnesty International and Human Rights Watch claim that Israel was reckless and showed wanton disregard for innocent life by using it in densely populated regions where civilians could be harmed by it. Israel claims that it used white phosphorus strictly according to accepted practices and took measures to minimize civilians casualties. It further asserts that military necessity required its use in densely populated areas, because this is where Hamas fighters congregated and threatened Israeli troops.
The International Red Cross has taken a more cautious position than Amnesty International or Human Rights Watch. The IRC web site published a statement on Jan. 17, 2009 in which it states that it has not determined whether Israels use of white phosphorus was legal or not. The web site contains no further update to this original statement.
The rest of this report looks at charges lodged by Amnesty International, in its July, 2009 report and Israel's response to these charges that was published on July 29, 2009.
Amnesty International Charges
On January 22, 2009 the New York Times reported,
found "indisputable evidence of widespread use of white phosphorus in densely populated residential areas in Gaza City and in the north." In a statement, it said its investigators "saw streets and alleyways littered with evidence of the use of white phosphorus, including still-burning wedges and the remnants of the shells and canisters fired by the Israeli Army." It called such use a likely war crime and demanded a full international investigation.
Amnesty International said it
Amnesty International followed up this accusation in its July report titled, Israel/Gaza: Operation "Cast Lead": 22 days of death and destruction. On page 2 it states:
White Phosphorus... was repeatedly fired indiscriminately over densely populated residential areas, killing and wounding civilians.... It was launched from artillery shells in air-burst mode, which aggravated already devastating consequences of the attacks. Each shell ejected over a hundred felt wedges impredgnated with highly incendiary white phosphorus, which rained down over houses and streets.... Artillery in general and white phosphorus in particular should never be used in populated areas. Yet in Gaza Israeli forces repeatedly fired them into densely populated residential areas, knowing that such imprecise weapons would kill and injure civilians. Such attacks were indiscriminate and as such unlawful under international law.
The report gives short shrift to Israeli rebuttals of the charge, leaving the impression that the accusations, down to the details, are established fact.
The Israeli response, The Operation in Gaza, Factual and Legal Aspects, published on July 29, 2009, provides a rebuttal to the charges lodged by Amnesty International and others.
The report describes the IDFs use of white phosphorus:
The IDF used two different types of munitions containing white phosphorous exploding munitions and smoke projectiles... Exploding munitions were used only in open unpopulated areas for marking and signalling. No exploding munitions containing white phosphorous were used in built-up areas of the Gaza Strip.
The second and main type of munitions containing white phosphorous employed by the IDF during the Gaza Operation was smoke screening projectiles.These shells contained relatively small amounts of white phosphorous and were used exclusively to create smoke screens for military requirements, such as camouflaging armoured forces from anti-tank squads deployed by Hamas in Gazas urban areas.
The restrictions on the use of incendiary weapons under Protocol III (relating to Incendiary Weapons) to the Convention on Certain Conventional Weapons ("CCW Protocol III") does not apply to weapons whose intended purpose is to create smoke screens. Article I further expressly excludes from its purview munitions which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems.
Amnesty International acknowledges that "using white phosphorus as an obscurant is not forbidden under international law..." Both sides agree on the type of shells Israel used and that they were airbursted high in the air. Israel however, defines these types of shells as "smoke projectiles" and not as "exploding" munitions or incendiaries and therefore finds their use permissible under normal conventions. Amnesty International apparently disagrees, stating:
International humanitarian law prohibits the use of incendiary weapons against civilians. The cases investigated by Amnesty International of deaths and injuries to civilians caused by white phosphorus indicate that Israeli forces violated the prohibition on indiscriminate attack.
This distinction is crucial, because if the shells are not incendiaries but only smoke screen projectiles, then the indiscriminate charge becomes less relevant since smoke screen agents are by definition not targeted weapons. As the Israeli reports points out
The obscurant smoke shells were used by the IDF for military purposes only (e.g. camouflaging armoured forces from anti-tank squads deployed by Hamas in Gaza's urban areas), and were not aimed at civilians.... Smoke obscurants containing white phosphorous were not used for targeting purposes and are not intended as anti-personnel weapon they cannot be classified as an indiscriminate weapon; otherwise, any smoke-screening means would be prohibited, in contrast to the well-established practice of militaries worldwide
The Amnesty International report does not pursue this argument, focusing instead on the use of these devices in densely populated areas:
...in Gaza Israeli forces repeatedly fired them into densely populated residential areas, knowing that such imprecise weapons would kill and injure civilians. Such attacks were indiscriminate and as such unlawful under international law.
In particular, Amnesty International criticizes the manner in which Israel deployed the shells. It criticizes the use of airbursts to disseminate the white phosphorus. The Israeli report takes the opposite view stating:
Some have suggested that IDF could have used less harmful munitions, or used the munitions in a less harmful manner, to achieve the same military objective, for example, by using smoke munitions without white phosphorous or by firing the munitions as ground-burst rather than air-burst projectiles. However, neither of these alternatives provides the same military advantages...
Targeting the munitions at the ground rather than exploding them high in the air would fail to achieve the area of dispersal required for military purposes and would actually result in much more severe damage to buildings and persons on the ground.
The IDF took several precautions and other measures that were appropriate with respect to these particular munitions. First, the munitions were used only for the purpose for which they were designed, i.e. to create smoke screens, rather than to attack personnel or destroy buildings, purposes for which IDF has a variety of more effective munitions. Second, the use of felt wedges soaked in white phosphorous tends to further reduce dispersal of the substance and its incendiary side effects as compared to exploding munitions containing white phosphorous. Third, the smoke projectiles were employed using delay fuses which release the felt components of the projectile at a distance of at least 100 metres above the ground. This method (as opposed to the use of contact fuses), is consistent with the use of the projectiles for smoke-screening purposes only. Furthermore, air-bursting the munitions at a considerable distance above ground meant that it was less likely that any person or building would be harmed by the explosions.
In other words, while Amnesty International claims air-bursting impregnated filaments showed flagrant disregard for the safety of civilians, Israel claims just the opposite is the case.
The Israeli report also contradicts Amnesty International's assertion that "Israeli forces continued to employ the same tactics for the entire duration of the 22 day offensive." Israel stated that it changed the protocol for using the weapon after a Jan. 15 incident:
... after reports of an incident on 15 January 2009 during combat in Tel al-Hawa in which white phosphorous smoke projectiles set fire to a UNRWA warehouse, an IDF directive was issued, effective through the end of the Gaza Operation, establishing a safety buffer of several hundred metres from sensitive sites when using smoke projectiles.
A second component of the charges against Israel involves the broader question of proportionality. The Israeli report addresses this question:
...In the case of smoke munitions containing white phosphorous, the expected military benefit was that they would protect Israeli forces from attack: a compelling military objective. Against this objective, one must weigh the anticipated risk of harm to civilians and property from the use of smoke munitions, which are designed to be a non-lethal type of munition. The non-lethal nature of smoke screens when compared to the effect of explosive munitions was particularly important, given that Hamas and other terrorist organisations sought to blend in with the civilian population, making it difficult or impossible to use explosive munitions without inflicting substantial civilian casualties.
Israel acknowledges that civilians may have been harmed by the munition although it questions the reliability of such reports, stating that "There appears to be insufficient evidence to conclude that white phosphorous caused extensive injuries to civilians in the course of the Gaza Operation." While acknowledging that some civilian structures may have caught fire as a result of the shells, it notes that out of thousands of these projectiles fired, each containing 116 wedges, the damage was not excessive. It concludes that the "scope of casualties and damage" resulting from their use was "relatively limited compared to the significant military advantage gained by smoke-screening." Israel's line of argument is consonant with the fact sheet of the American Federation of Scientists which allows that if structures catch fire inadvertently, that does not necessarily constitute a violation.
The still unanswered question is how many Palestinian casualties were caused by white phosphorus and how severe were most of these casualties. The heavy reliance by Amnesty International (and Human Rights Watch as well) on anecdotal incidents does not answer that question. A few anecdotal incidents cannot establish whether these casualties were unfortunate rare incidents or representative of a pattern of indiscriminate use.
The Israeli report on July 29 examines many of the incidents described by the Amnesty International report and offers contradictory information. Claims made in the Amnesty International report that witnesses saw no Hamas fighters in an area that was hit by white phosphorus are of dubious credibility considering the control Hamas still exerts over Gazans. The Israeli report exposes examples of duplicity on the part of Hamas. For example, an ambulance medic reported killed by an Israeli strike was later interviewed apparently alive and well.
The Israeli report discusses several incidents involving the use of white phosphorus near hospitals and schools where it claims Hamas fighters and rocket teams were engaging Israeli forces from within or in close proximity of these civilian sites. The Amnesty International report either denies that fighters were present or argues that the presence of fighters among the civilians obligates Israel to refrain from using indiscriminate weapons. The Israeli report also discusses in detail the Tel al-Hawa school incident in which white phosphorus filaments apparently set fire to civilian structures.
While it may be tempting for critics of Israel's military operation to discount the rebuttal offered by Israel, the longstanding bias against Israel exhibited by Amnesty International and Human Rights Watch does not offer an objective source to examine the facts. One clear difference between the Israeli report and the Amnesty International report is the tone in which it is written. The Amnesty International report expresses full confidence in its accusations even though the evidence is controversial and the credibility of witness testimonies questionable under existing circumstances. The Israeli report, by comparison, takes a more cautious approach, indicating that a number of incidents are still under investigation. This difference in tone and process between Israeli investigations and the reports issued by Amnesty International and Human Rights Watch has been evident after every round of conflict between Israel and its enemies.
To review the actual reports see the links below:
The Israeli Report of July 29, 2009
The Amnesty International Report July 2009
For more information on Amnesty International's history of charging Israel with crimes review NGO Monitor.