Human Rights Watch recently accused Israel of using white phosphorus munitions in Gaza, and said that such weapons put civilians at risk of serious and long-term injury. In the 2008-2009 Gaza War too, there were allegations that the Israel Defense Forces (IDF) struck the Gaza Strip with sub-munitions containing white phosphorus. The Israeli government, which initially denied this, later acknowledged that it did use white phosphorus in 2009, but only in uninhabitable areas, for the purpose of signalling and marking.
A toxic substance
In the summary of the report of the United Nations Headquarters Board of Inquiry into certain incidents in the Gaza Strip between December 27, 2008 and January 19, 2009, the then UN Secretary General said that the IDF had targeted certain UN facilities and asserted that “any precautions that were taken by the IDF were clearly inadequate in view of the firing of high-explosive shells into the compound [of a UNRWA Field Office].”
Further, the UN Fact Finding Mission on the Gaza Conflict, also called the Goldstone Report (2009), condemned the IDF’s use of white phosphorus in civilian areas. Due to the mounting outrage both at international and domestic levels in the case of Yoav Hass and others v. Chief of Staff (2013), the Israel military agreed to abandon the use of white phosphorus except in situations which they communicated to the Justices at the Israel High Court of Justice. The Court recommended the consideration of alternatives. The outrage over the use of the toxic substance led to calls for investigations into whether its use constituted a violation of international humanitarian law.
White phosphorus has a wide range of applications. It is useful in military operations. But it also poses environmental dangers. White phosphorus can be employed to create dense smoke screens in the context of combat, hindering visibility and providing cover for military manoeuvres. Additionally, it can be used in incendiary devices such as grenades and artillery shells, which can result in persistent and intense fires, effective against people, equipment, and structures. However, the ethical concerns surrounding its use in populated areas are significant due to its potential to cause severe burns and suffering. The Convention on Certain Conventional Weapons (CCW) imposes restrictions on the use of incendiary weapons, including white phosphorus, with the aim of safeguarding civilians.
In addition, white phosphorus use is subject to the rules and principles of international humanitarian law, which aims to minimise harm to both civilians and combatants in armed conflicts. This includes the principles of distinction, which require differentiation between combatants and civilians, and proportionality, ensuring that military actions do not cause excessive harm to civilians compared to the military advantage sought. International humanitarian law also prohibits indiscriminate attacks that may disproportionately harm civilians and civilian objects.
Incendiary weapon
Protocol III under the CCW specifically deals with incendiary weapons. Article 1 of this protocol defines an “incendiary weapon” as a weapon or munition primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target. Article 1(b)(i) includes an exemption in this classification for munitions that may cause unintended incendiary effects, such as illuminants, tracers, smoke, or signalling systems. White phosphorus munitions are primarily intended to produce illuminating and smokescreen effects, with the incendiary aspects being secondary or unintentional. Consequently, incendiary munitions clearly fall within the exceptions outlined in Protocol III’s definition of an “incendiary weapon.”
The Chemical Weapons Convention (CWC) is a treaty that establishes a comprehensive ban on the use of chemical weapons. White phosphorus, although a chemical agent and toxic, is not covered by the CWC. When employed as an incendiary weapon and not for chemical warfare, white phosphorus falls under the regulations of Protocol III of the CCW. However, Protocol III does not effectively regulate multi-purpose munitions such as those containing white phosphorus, which can cause harm in the same way as the incendiary weapons it defines. Strengthening Protocol III would be a progressive step in terms of legal and procedural process. In this context, it is important to consider the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (International Court of Justice Report 226, 1996) and Additional Protocol I of the Geneva Conventions, which assess the effects of specific types of weapons to determine their legality.
The legal consequences of employing white phosphorus in warfare emphasise the utmost importance of upholding international law, treaties, and protocols to reduce harm to both civilians and the environment. Breaches of these legal principles can lead to global condemnation, investigations, and potential prosecution for war crimes. Strengthening Protocol III would create a binding agreement for states that prevents them from engaging in uses that exploit legal loopholes. Removing ambiguity in Protocol III would also facilitate enforcement because with clearer rules, violations will become more easily identifiable.
Nabeela Siddiqui is Assistant Professor of Law, Vinayaka Mission’s Law School, Chennai
