Planned Change is Useful Step but Inadequate
May 19, 2013
Banning the use of white phosphorus as an incendiary weapon would prevent future suffering from this terrible weapon, but only prosecutions will bring justice to the victims of its past unlawful use.
Sarah Leah Whitson, Middle East director

(Jerusalem) – Israel should strengthen an announced reduction of its military use of white phosphorus munitions by banning all use of “air-burst” white phosphorus munitions in populated areas without exception. Human Rights Watch has also urged all countries to make white phosphorus illegal when used as an incendiary weapon.

On May 13, 2013, the Israeli Supreme Court heard a petition by Israeli human rights and other civil society groups seeking a ban on the Israel Defense Forces’ use of certain white phosphorus munitions in populated areas. At the hearing, the Israeli state attorney proposed “a prohibition on the use of white phosphorus in built-up areas for the time being, with two limited exceptions that were presented before the judges” in a separate ex parte hearing. For undisclosed security reasons, the petitioners and their lawyers were not allowed to review the proposed exceptions.

“It’s good the Israeli military has decided at last to reduce its use of white phosphorus munitions, which are indiscriminate when air-burst in urban areas,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “But such munitions are deadly and Israel should not delay a ban on their unlawful use or hedge it with vague time limits and secret exceptions.”

Israel proposed to the court that the Israeli military would change its practices on white phosphorus voluntarily and not because current practices violate international humanitarian law, or the laws of war.

On May 2, the Israeli military stated it would “significantly reduce its usage of smoke shells containing white phosphorus during the conduct of hostilities in urban areas.” But the military said that until it developed alternative munitions, its use of white phosphorus to screen Israeli troops during hostilities “may be expected in future military operations as the need arises.”

White phosphorus generates a dense white smoke and ignites on contact with oxygen. It is considered an incendiary rather than a chemical munition, and is not banned by international treaty. However, the use in populated areas of “air-burst” white phosphorus munitions, which spread burning wedges of the toxic substance over large areas, violates the laws of war prohibition against attacks that cannot discriminate between civilians and combatants, Human Rights Watch said.

During fighting in the Gaza Strip in 2008-2009, Israeli forces repeatedly used air-burst white phosphorus munitions from 155 mm artillery over populated areas. Each air-burst shell spread 116 burning white phosphorus wedges in a radius extending up to 125 meters from the blast point, depending on conditions and the angle of attack.In the six cases that Human Rights Watch investigated, Israeli white phosphorous attacks killed twelve civilians, including three women and seven children. Dozens more were injured, with burns or smoke inhalation. The white phosphorous attacks damaged civilian structures, including a school, a market, a humanitarian aid warehouse, and a hospital, Human Rights Watch said.

In two cases, Human Rights Watch’s investigation revealed no military justification for the Israeli military’s use of white phosphorus as an obscurant because Israeli forces were not on the ground in those areas at the time of the attacks. In other cases, Israeli forces used air-burst white phosphorus on the edges of populated areas, perhaps as an obscurant to mask the movement of its forces, but substantial amounts of white phosphorus landed up to a few hundred meters inside residential areas. 

This pattern and apparent policy of indiscriminate white phosphorus attacks, which Human Rights Watch documented in a 2009 report “Rain of Fire,” is unlawful and evidence of war crimes. The Israeli military acknowledged using white phosphorus after initially denying it, but cleared its forces of any laws of war violations on the basis of severely flawed investigations.

In 2011, 117 Israeli individuals, human rights groups and other civil society groups petitioned the Supreme Court to require Israel’s military “to prohibit the use… in populated areas” of munitions that air-burst white phosphorus. The filing said that these weapons cause “indiscriminate and uncontrollable” harm to civilians and that less harmful alternative munitions were available.

Israel contended in response to the petition that the military’s use of white phosphorus in urban areas did not violate the law of armed conflict. Israel’s position, as asserted by the military’s May 2 statement, is that, “The international law governing armed conflict does not contain a customary law prohibition on the use of white phosphorus for screening purposes, whether employed in an urban area or otherwise,” and that the Israeli military’s use of “smoke shells containing white phosphorus for screening purposes” is “conducted according to the requirements of international law.”

The statement failed to acknowledge that air-bursting heavy artillery shells containing white phosphorus over densely populated areas causes indiscriminate harm to civilians and civilian objects, Human Rights Watch said.

The military spokesperson’s office said on May 2 that Israel was developing “a new type of smoke shells that do not contain white phosphorus” for screening Israeli troop movements. Until the alternative was available, it said, “the use and stockpiling of the current smoke shells will continue as deemed necessary.” The New York Times reported on April 26 that the military “planned to remove shells containing phosphorus from active use within about a year.” The military’s May 2 statement said, however, that “there is currently no expected date for the completion of this process.”

In the May 13 hearing, the petitioners, led by the Israeli peace group Yesh Gvul, repeated an earlier request that the court accept into evidence a 2012 report by United Kingdom-based groups, Forensic Architecture and Situ Studios. The report concluded on the basis of computer modeling that air-bursting M825 white phosphorus munitions spread white phosphorus wedges over an elliptical area as large as 28,400 square meters, and that in urban areas the munitions put the “civilian population in these areas at great risk of death or injury, and the civilian objects and environment at an equal risk of destruction, damage, or contamination by a flammable and toxic substance. This risk cannot be managed nor controlled by the armed forces that deploy these munitions.”

The Israeli military initially denied using white phosphorus in Gaza during what it called “Operation Cast Lead.” A military spokesman told CNN on January 7, 2009, that “white phosphorus is absolutely not being used.” The military chief of staff at that time, Lt. Gen. Gabi Ashkenazi, gave the Israeli parliament, the Knesset, a similar assurance six days later. The military later changed its position and admitted that it had used white phosphorus during the operation but asserted that its use had complied with international law.

The military opened a “command investigation,” conducted by a colonel on the basis of interviews with only Israeli forces, into allegations of unlawful white phosphorus use “from a general perspective” but did not look at specific incidents. Another command investigation examined Israel’s shelling of a United Nations compound in January 2009 with both high-explosive and white phosphorus munitions. The military disciplined two senior officers who “authorized the firing of explosive shells” in the incident, but did not discipline anyone for the use of white phosphorus munitions. The Israeli military did not conduct any criminal investigations or issue any indictments.

During the 2008-2009 fighting in Gaza, the Israeli military’s unlawful use of white phosphorus was neither incidental nor accidental, Human Rights Watch found. It was repeated over time and in various locations, with the military “air-bursting” the munition in populated areas up to the last days of its military operation.

A medical report prepared during the Gaza hostilities by the Israeli Health Ministry said that, “[w]hite phosphorus can cause serious injury and death when it comes into contact with the skin, is inhaled or is swallowed,” and that burns on less than 10 percent of the body can cause fatal organ damage.

In addition to creating smoke screens, the Israeli military also used white phosphorus munitions to mark or illuminate targets at night. On April 25, the website of the Israeli newspaper Ma’ariv reported that an unnamed senior officer who “commands one of the main units of the ground forces that have used white phosphorus munitions in the past” said that Israeli troops had night-vision equipment, making it unnecessary to use white phosphorus to mark targets at night.

The Israeli military used white phosphorus in Lebanon in 1982 and 2006, but as far as Human Rights Watch has been able to determine, the 2008-2009 conflict was the first and only time it used white phosphorus munitions in Gaza. During investigations in Gaza in 2009, Human Rights Watch identified dozens of spent M825A1 white phosphorus artillery shells, which had been produced in the US.

Israel’s investigations into war crimes allegations after the 2008-2009 hostilities in Gaza failed to meet international standards, Human Rights Watch said. The military criminally prosecuted only four soldiers and officers, of whom one was sentenced to seven-and-a-half months in prison and another to 45 days in prison. The Hamas leadership in Gaza failed to conduct any investigations into war crimes by its forces.

White phosphorus munitions are generally designed to serve as smokescreens and to illuminate targets, but their humanitarian effects are harmful, regardless of their intended purpose. Human Rights Watch has been working to strengthen Protocol III of the 1980 Convention on Conventional Weaponsby urging states parties to prohibit the use of all incendiary weapons in civilian areas while working towards a complete ban.

Israel has joined the Convention on Conventional Weapons, but has not ratified the protocol on incendiary weapons.

“Banning the use of white phosphorus as an incendiary weapon would prevent future suffering from this terrible weapon, but only prosecutions will bring justice to the victims of its past unlawful use,” Whitson said.