March 25, 2009

V. Israel's Shifting Statements on White Phosphorus

Since the media first reported the IDF's use of white phosphorus in Gaza on the tenth day of military operations, the IDF and Israeli government have shifted their public positions on the issue, from outright denial, to justifying its use, to announcing an internal investigation.

The Times of Londonfirst reported white phosphorus use in Gaza on January 5.  The next day, an IDF spokesman contacted by Human Rights Watch at first said the IDF was using white phosphorus to mark targets and then denied that white phosphorus was being used.[65]  He claimed that the media had mistakenly identified a shell used to mark targets as white phosphorus.  The denials to the media continued.  On January 7, an IDF spokesman told CNN, "I can tell you with certainty that white phosphorus is absolutely not being used."[66]

Reporters inside Gaza and in Israel quickly contradicted the IDF's claim.  On January 8, the Times published photographs of white phosphorus munitions on pallets next to IDF artillery batteries outside of the Gaza Strip.[67]  Based on these images, Human Rights Watch identified the munitions as M825A1 white phosphorus artillery shells.  On January 9 and 10, 2009, Human Rights Watch researchers on the Gaza-Israel armistice line just south of Sderot observed multiple air-bursts of artillery-fired white phosphorus over what appeared to be the Gaza City/Jabalya area.  On January 10, Human Rights Watch issued a press release, calling on Israel to "stop using white phosphorus in military operations in densely populated areas of Gaza."[68]

Media photographs of what appeared to be air-burst white phosphorus made the IDF's denials increasingly untenable.  Still, on January 13, IDF Chief-of-Staff Lt.-Gen. Gabi Askenazi told the Knesset Foreign Affairs and Defense Committee that "[t]he IDF acts only in accordance with what is permitted by international law and does not use white phosphorus."[69]  That same day, however, other IDF officials began to backtrack on their position, ceasing to deny the use of white phosphorus and claiming that the IDF "uses weapons in compliance with international law."[70]

Also on January 13, an Associated Press report quoted Peter Herby, head of the Arms Unit at the International Committee of the Red Cross (ICRC), as saying that white phosphorus use to create a smokescreen or illuminate a target is not prohibited under international law, and that the ICRC had "no evidence to suggest it's being used in any other way."[71]  Two days later, on January 15, following news reports that the IDF had hit the UNRWA compound in Gaza City with white phosphorus shells, Israeli government spokesperson Mark Regev used the ICRC's statement to justify the IDF's attack.  "I would point you to the statement yesterday of the International Committee of the Red Cross," he told CNN.  "After looking into the issue [of whether the IDF was using white phosphorus], they found absolutely no wrongdoing on Israel's part."[72]

On January 17, however, the ICRC publicly disputed this interpretation of its position.  "We have not commented publicly on the legality of the current use of phosphorus weapons by Israel, contrary to what has been attributed to us in recent media reports," Herby said in an official statement.[73]  Nevertheless, the Israeli government continued to misstate the ICRC's position to justify its use of white phosphorus.[74]

In response to media requests, the ICRC further clarified its position. "The fact that International Humanitarian Law does not specifically prohibit phosphorous weapons does not imply that any specific use of weapons containing this substance is legal," Peter Herby told the Christian Science Monitor in early February. "The legality of each incident of use has to be considered in light of all of the fundamental rules I have mentioned. It may be legal or not, depending on a variety of factors."[75]

According to the newspaper, Herby also said: "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. The use of air-dropped incendiary weapons against military objectives within a concentration of civilians is simply prohibited. These prohibitions are contained in Protocol III of the Convention on Certain Conventional Weapons."

In the face of ongoing criticism about the IDF's use of white phosphorus, on January 19 IDF Chief-of-Staff Ashkenazi announced that he had requested the Military Advocate General to investigate allegations that the IDF had used white phosphorus in Gaza. "In response to the claims of NGOs and claims in the foreign press relating to the use of phosphorus weapons, and in order to remove any ambiguity, an investigative team has been established in southern command to look into the issue," an army statement said.[76]  According to Haaretz, the army appointed an artillery officer, Col. Shai Alkalai, to investigate a reserve paratroop brigade that might have fired white phosphorus into crowded areas of Beit Lahiya.  The brigade fired about 20 such shells in the densely populated area of northern Gaza, the newspaper said.[77]

On January 23, The Times quoted Yigal Palmor, an Israeli Foreign Ministry spokesman, as saying, "Yes, phosphorus was used but not in any illegal manner. Some practices could be illegal but we are going into that. The IDF is holding an investigation concerning one specific incident."[78]  An unnamed Israeli defense official told the newspaper that, "at least one month before [white phosphorus] was used a legal team had been consulted on the implications."[79]

In response to written questions about white phosphorus use in Gaza from Human Rights Watch, the IDF said on February 15 that it had "established an investigative team in the Southern Command to look into issues which you have raised, and our reply will be made on the basis of their findings."

 

[65] Human Rights Watch telephone interview with IDF spokesman, January 6, 2009.

[66] "Group Accuses Israel of Firing White Phosphorus into Gaza," CNN, January 12, 2009, http://edition.cnn.com/2009/WORLD/meast/01/12/white.phosphorus/index.html, accessed January 28, 2009.

[67] Michael Evans and Sheera Frenkel, "Victims' Strange Burns Increase Concern Over Phosphorus Shells," The Times, January 8, 2009, http://www.timesonline.co.uk/tol/news/world/middle_east/article5470047.ece, accessed March 2, 2009.

[68] "Israel: Stop Unlawful Use of White Phosphorus in Gaza," Human Rights Watch news release, January 10, 2009, http://www.hrw.org/en/news/2009/01/10/israel-stop-unlawful-use-white-phosphorus-gaza.

[69]Robert Marquand and Nicholas Blanford, "Gaza: Israel Under Fire for Alleged White Phosphorus Use," Christian Science Monitor, January 14, 2009.

[70] Bradley S. Klapper, "Red Cross Says Israel Firing White Phosphorus in Gaza, But No Evidence of Improper Use," Associated Press, January 13, 2009.

[71] Ibid.

[72] Mark Regev's CNN interview can be viewed at http://www.youtube.com/watch?v=9KXlv-FGDa4 (accessed February 4, 2009). His reference to the ICRC statement occurs about two minutes into the interview.

[73] International Committee of the Red Cross, "Phosphorus weapons – the ICRC's view," January 17, 2009, available at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/weapons-interview-170109, accessed January 28, 2009.

[74] See "FAQ - Answers and Questions on the Operation in Gaza," Israel Ministry of Foreign Affairs website, http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Hamas+war+against+Israel/FAQ_Operation_Gaza_Jan_2009.htm, accessed January 29, 2009.

[75] Ilene R. Prusher, "After the War, Gazans Seek Answers on White Phosphorus," Christian Science Monitor, February 5, http://www.csmonitor.com/2009/0205/p04s01-wogn.html, accessed February 24, 2009.

[76]  Luke Baker, "Amnesty Accuses Israel of Crimes Over White Phosphorus," Reuters, January 19, 2009.

[77] Amos Harel, "IDF Probes Improper Use of Phosphorus Shells in Gaza Strip," Haaretz, January 21, 2009, http://haaretz.com/hasen/spages/1057361.html, accessed March 6, 2009.  According to Israeli army sources quoted in the article, aside from this case, the IDF used white phosphorus sparingly and in accordance with international law.

[78] James Hider and Sheera Frenkel, "Israel Admits Using White Phosphorus in Attacks on Gaza," The Times, January 24, 2009, http://www.timesonline.co.uk/tol/news/world/middle_east/article5575070.ece, accessed February 24, 2009.

[79] Ibid.