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ISRAEL AND WHITE PHOSPHORUS DURING OPERATION CAST LEAD: A CASE
STUDY IN ADHERENCE TO INADEQUATE HUMANITARIAN LAWS
By
Mark Cantora*
"[T]he Jews . . .
came back again and fell upon those of Gaza and slew of them about
a thousand. But as those of Gaza stoutly resisted them,
and would not yield for either their want of anything, nor for the great
multitude that were slain (for they would rather suffer any hardship whatever,
than come under the power of their enemies) . . . ."[1]
"I don't think there has ever
been a time in the history of warfare, when any army has made more efforts to
reduce civilian casualties and deaths of innocent people than the IDF is doing
today in Gaza."[2]
I.
INTRODUCTION
Gaza has
been embroiled in countless conflicts over thousands of years.[3] The Israeli-Palestinian conflict has been
continuous for over a century, alternating between occasional periods of tense
calm and far more frequent periods of violence and war.[4] At the end of December 2008, after years of
Israeli attacks targeting Gaza-based members of Hamas and Hamas attacks
targeting Israel's
military and civilian population, the Israeli military entered Gaza for a
large scale operation aimed at removing Hamas as a threat to Israel.[5] First as speculation, and then as a fact admitted
by Israel, it
was shown that Israel used
white phosphorus as a part of its operations in Gaza. [6]
White phosphorus is a chemical that
was first produced in 1669.[7] It has been used for numerous purposes since
at least the early 20th century,[8]
including as an anti-personnel weapon, an incendiary, a smoke-producing
obscurant, and a light-producing illuminant.[9] White phosphorus's dual nature, as both a
tactically useful and relatively safe obscurant and illuminant, and as a deadly
and destructive incendiary, has made it a controversial substance.[10]
The Hamas organization in Gaza and
numerous non-governmental organizations (NGO's) and media outlets have
announced their conclusion that Israel's use of white phosphorus in Gaza was a
war crime in violation of multiple international humanitarian laws aimed at
reducing human suffering and civilian casualties.[11] The Israeli government and military have
adamantly insisted that Israel's use
of white phosphorus was wholly consistent with international humanitarian law.[12]
However, there has not been an
objective non-biased systematic analysis of the implicated international
humanitarian laws and their relevance to Israel's use
of white phosphorus in Gaza.[13] Without this type of analysis, any useful
conclusion about the legality of Israel's use
of white phosphorus in Gaza is
problematic. But more importantly, Israel's use
of white phosphorus in Gaza
provides a useful case study of the inadequacy of international humanitarian
law and the consequences of this inadequacy. This article aims to systematically analyze Israel's
adherence to the international humanitarian laws relevant to the use of white
phosphorus in war. Section II lays out a
brief factual background of the properties of white phosphorus, the history of
military uses of white phosphorus, and the history of the recent
Israeli-Palestinian conflict leading up to Israel's
operations in Gaza from
late December 2008 to mid January 2009 (the "Gaza Conflict"). Section III analyzes the international
humanitarian law relevant to Israel's use
of white phosphorus in Gaza. It applies that law to the evidence of Israel's
white phosphorus use during the Gaza Conflict and concludes that Israel made a
realistic and earnest attempt to follow international humanitarian law relevant
to the use of white phosphorus. Section IV sets forth the position that an
international law ban on all uses of white phosphorus munitions is needed. This section will conclude that because the
use of white phosphorus has two major consequences not compatible with
humanitarian morals, a White Phosphorus Convention Conference should be
immediately convened, and a multilateral treaty prohibiting all military uses
of white phosphorus should be drafted.
Simply put, this article concludes that even if a state's military
meticulously adheres to all international humanitarian laws relevant to the
wartime use of white phosphorus, the consequences of this lawful use of white phosphorus are so inconsistent with
humanitarian principles and morals that a White Phosphorus Convention
prohibiting all military uses of white phosphorus should be immediately
adopted. The international community is
open to criticism for its failure to recognize that the currently legal uses of
white phosphorus still have dire consequences, and swift legal action must be
taken to eliminate all military uses of white phosphorus.
II. WHITE
PHOSPHORUS AND ISRAEL:
SCIENCE AND HISTORY
White phosphorus
has been used for multiple purposes for over one-hundred years.[14] However, the science and history of white
phosphorus is not extensively known.[15] Similarly, the Israeli-Palestinian conflict
has been ongoing for over a century,[16]
and a seeming "media-saturation" has always accompanied the conflict.[17] However, the history of the most recent flare-up
of this century-long conflict is oftentimes overlooked. A brief background into the science of white
phosphorus, the history of white phosphorus use, and the history of the more
recent events in the Israeli-Palestinian conflict, is necessary in order to
fully understand the context and legal implications of Israel's use
of white phosphorus during the Gaza Conflict.
A. The Science of White Phosphorus
White
phosphorus is an inorganic white or pale-yellow waxy solid.[18] White phosphorus ignites spontaneously when
exposed to air or to temperatures above 30 degrees Celsius.[19] When white phosphorus combusts after
ignition, it oxidizes to produce a bright luminescent glow[20]
and a thick white smoke.[21] Because white phosphorus burns at temperatures
reaching 2,760 degrees Celsius, the produced smoke tends to form rapidly rising
pillars.[22] The oxidation of white phosphorus into smoke
continues until all of the white phosphorus is consumed or deprived of oxygen.[23]
B. History of White Phosphorus Munitions
White phosphorus was first heavily
employed as a weapon by the United
States military in the European
Theatre during World War II.[24] It was initially designed to be used for its
smoke screening characteristics,[25]
and as the war progressed throughout the early 1940's, white phosphorus became
a major component in the battle tactics of the Allied ground forces in Europe[26] and
the Pacific theatre.[27] While the primary and most publicized use of
white phosphorus was as a smoke screen obscurant, it was also heavily used as
an anti-personnel weapon.[28]
White phosphorus was reportedly used
during the Korean Conflict[29]
and the American war in Vietnam.[30] In Vietnam, white
phosphorus was frequently used in conjunction with Napalm, a controversial
incendiary munition.[31]
More recently, white phosphorus was
likely used in 1988 by Iraqi forces against its own Kurdish citizens,[32] in 1993 by Israeli forces in Lebanon,[33]
in 1994 by Russian forces in Chechnya,[34]
in 1995 by Serbian forces in Serbia,[35]
in 2006 by Israeli forces in Lebanon,[36] in
2004 by American forces in Iraq,[37]
and in 2008-2009 by Israeli forces in Gaza.[38]
C. Background to the 2008-2009 Conflict in Gaza
The
Israeli-Palestinian conflict has been ongoing since the late 19th century.[39] However, the most recent flare-up, dubbed "Operation
Cast Lead" by the Israeli military, is a direct result of the Israeli
withdrawal from Gaza in
2005.[40]
In 2004, after a continuous Israeli
military and civilian presence in the Gaza strip
following Israel's
victory in the Six Day War of 1967,[41] Israel made
the decision to unilaterally withdraw all Israeli military and civilian
presence from the Gaza Strip by the end of 2005.[42] Under the directions of Israeli Prime Minister
Ariel Sharon, the Israeli military evacuated all Israeli citizens from Gaza,
destroyed all former Israeli residential structures in the recently evacuated
Israeli communities and completed its pullout from the entire Gaza Strip[43]
on September 15, 2005.[44]
Four months later on January 25, 2006, a
political wing of the Palestinian organization Hamas[45]
won a majority of seats in the Palestinian Legislative Council.[46] In 2007, Hamas took control over the entire
Gaza Strip, effectively removing any power and influence in Gaza of Palestinian
Authority President Mahmoud Abbas and his Fatah[47]
faction.[48] Throughout this entire period, Hamas and other
Palestinian militants continued their already frequent firing of qassam rockets[49]
into (pre-1967) Israeli territory,[50]
and the Israeli military continued frequent artillery barrages and airstrikes
on military targets in the Gaza Strip.[51]
Between September 2005 and June
2008, the conflict between Hamas and Israel
continued unabated, and included thousands of qassam attacks, hundreds of artillery barrages, and numerous
Israeli ground incursions into Gaza.[52] However, on June 19, 2008 Israel and
Hamas entered into a twenty-six week cease-fire agreement.[53] During this time, the number of attacks on
both sides decreased significantly.[54] The cease-fire lasted until its official
expiration date on December
19, 2008.[55] The day after, Israel
offered to extend the cease-fire.[56]
Hamas, citing alleged Israeli violations of the initial agreement, declared its
unwillingness to extend the truce.[57] Thereafter, hostilities resumed at an
intensified level.[58] While the Israeli government debated the
potential courses of action, the Israeli cities of Sderot[59], Ashkelon,[60]
and Netivot,[61] as well as communities in
the Western Negev[62] were
all hit by numerous qassam rocket and
mortar attacks.[63]
On December 27th, Israel
attacked more than 170 targets as part of the first phase of a renewed
offensive in Gaza in
what it called "Operation Cast Lead."[64] On January
3, 2009, Israel began
the conflict's first large ground incursion[65]
into Gaza.[66] Between December 27th and January
17th, Israeli troops and Palestinian militants[67]
battled throughout the Gaza Strip.[68] On January 17th, Israel
declared a unilateral ceasefire, resulting in general cessation of hostilities.[69]
Throughout the entire conflict in Gaza, the
IDF used modern urban warfare tactics, including tanks, infantry assaults,
night-time assaults, and white phosphorus for obscuration and illumination or
marking.[70]
III. THE
USE OF WHITE PHOSPHORUS UNDER INTERNATIONAL HUMANITARIAN
LAW
Historical examples of international
humanitarian law setting forth standards for proper and humane conduct during
the course of warfare can be traced back to antiquity.[71] The immediate prelude to the modern era of
international humanitarian law began around 1863 when the Geneva Conference
founded the International Committee of the Red Cross (ICRC).[72]
The 1864 Geneva Convention for the Amelioration of the Condition of Wounded and
Sick in Armies in the Field was drafted by the ICRC in order to protect
military medical facilities and workers during times of war.[73] The
Hague conventions of 1899 and 1907, placed
humanitarian limits on methods of warfare in order to reduce human suffering.[74] The
initial drafts of the First, Second, and Third Geneva Conventions adopted
between 1864 and 1929 all placed numerous humanitarian prohibitions on various
means and methods of warfare.[75]
After the inception of the modern
human rights movement after World War II,[76]
the Four Geneva Conventions of 1949 (made up of revised versions of the First,
Second, and Third Geneva Conventions, a new Fourth Geneva Convention, and
various protocols and annexes), codified international humanitarian law.[77] These humanitarian laws are applicable to all
states party to the conventions. Since 1949, various international instruments
have been created-thus further codifying and updating international
humanitarian law.[78]
There are five sources of
international humanitarian law that are potentially applicable to a state's use
of white phosphorus munitions in the course of war: (1) The Geneva "Gas
Protocol"[79] of 1925 (2) the Chemical
Weapons Convention,[80]
(3) Protocol III of the Convention on Certain Conventional Weapons,[81]
(4) relevant provisions of the Fourth Geneva Convention of 1949[82],
and (5) customary international humanitarian law norms.
A. The Gas Laws
The
major international instrument dealing with poison gas usage as a method of
warfare is the 1925 Geneva
"Gas Protocol."[83] This instrument completely banned the use of
"asphyxiating, poisonous, or other gasses, and of all analogous liquids
materials or devices...."[84]
The Protocol and its related instruments do not define "asphyxiating,
poisonous, or other gases."[85]
Israel became
a party to this instrument on February
20th, 1969,[86]
and expressed only limited, specific reservations.[87] Any use of these prohibited weapons by Israel would
be in direct violation of international humanitarian law.[88] However, Israel's use
of white phosphorus does not violate the Geneva Gas Protocol because white
phosphorus is not an asphyxiating or poisonous gas.[89]
The international community
generally understands that a weapon's legality under the Geneva Gas Protocol
depends on both the weapon's intended purpose,[90]
and the weapon's actual effect when used.[91] The International Court of Justice has stated
that a weapon is typically prohibited under international instruments
prohibiting gas weapons (including the 1925 Geneva Gas Protocol, among others)
only if its primary effect when used is human asphyxiation or poisoning.[92]
The primary effect of the smoke
created by white phosphorus is not "asphyxiating or poisonous" in the
context of the 1925 Geneva Gas Protocol. White phosphorus smoke can be a mild irritant.[93]
Limited human exposure to white phosphorus smoke is significantly less damaging
than even brief limited exposure to small amounts of other gases known to be
prohibited by the Geneva Gas Protocol.[94] Although there have been relatively few
scientific studies on the effect of human exposure to white phosphorus smoke,[95]
the effects of prolonged exposure to white phosphorus smoke can cause a variety
of health problems[96] and,
in extreme cases of exposure to excessive amounts of white phosphorus smoke in
high concentrations or prolonged exposure to white phosphorus smoke over a long
period of time, death.[97] Of course, if white phosphorus were used in
such a way that humans were asphyxiated or poisoned by the smoke produced, then
it would clearly be illegal under the Geneva Gas Protocol.
Israel's use of white phosphorus in
its operations were not intended to poison or asphyxiate humans, nor are there
any reports of combatants or civilians being asphyxiated or poisoned by white
phosphorus smoke or gas during the Gaza Strip operation.[98] The white phosphorus smoke used by the Israeli
military as a "tracer" or "marker" illuminant, and as an obscurant
in outdoor areas, had the primary (and exclusive) effect of illumination and
obscuration, not asphyxiation or poisoning.[99] There is no evidence or allegations that the
Israeli military targeted white phosphorus at indoor or closed off areas where
greater concentrations of white phosphorus smoke could result in asphyxiation
or poisoning, nor is there any evidence that asphyxiations or poisonings were
caused by white phosphorus smoke, as opposed to the other types of smoke in the
area.[100]
Thus, Israel's use
of white phosphorus was not in violation of the 1925 Geneva Gas Protocol
because Israel used
white phosphorus solely as an obscurant and an illuminant, and it was not used
for the purpose of asphyxiating or poisoning humans, and it did not have the effect
of asphyxiating or poisoning humans.[101]
B. The
Chemical Weapons Convention.
The
Chemical Weapons Convention (CWC) is a multilateral international treaty that
came into force on April
29, 1997.[102] It has 188 state signatories.[103] The Convention bans the stockpiling,
dissemination, and use of chemical weapons as a method of warfare.[104] Article I(1) states that "[e]ach Party to
this Convention undertakes never under any circumstances to use chemical
weapons."[105]
Unlike the Geneva Gas Protocol, the
CWC defines "chemical weapons."
They are defined as follows:
"Chemical
Weapons" means the following, together or separately:
(a) Toxic chemicals and
their precursors, except where intended for purposes not prohibited under this
Convention, as long as the types and quantities are consistent with such
purposes;
(b) Munitions and
devices specifically designed to cause death or other harm through the toxic
properties of those toxic chemicals specified in paragraph (a), which would be
released as a result of the employment of such munitions and devices.
(c) Any equipment
specifically designed for use directly in connection with the employment of
munitions and devices specified in subparagraph (b)"[106]
The
Convention then defines "Toxic Chemical," in Article II as "any
chemical which through its chemical action on life processes can cause death,
temporary incapacitation, or permanent harm to humans or animals."[107] The Convention also defines "purposes not
prohibited under this Convention" as "[m]ilitary purposes . . . not
dependant on the use of the toxic properties of chemicals as a method of
warfare."[108]
Over the years, there has been some
confusion about the CWC and its application to certain chemical weapons not
listed in the Convention's Annexed Schedules.[109] While the CWC's application to those chemicals
listed on the Schedules is not in doubt, it is important to point out that the
chemicals listed in the Annex Schedules is not an exhaustive list, and that
chemicals not included, but that meet the CWC's definitions of "chemical
weapons" are also banned under the CWC.[110] However, white phosphorus is not one of those
chemicals because it is not a chemical weapon under the CWC's definition of a
chemical weapon.
For a weapon to come under the ban
of the CWC as a chemical, it must cross three thresholds. First, the weapon must meet the CWC's
definition of a toxic chemical (or be designed to cause harm or death through
the toxic properties of toxic chemicals).[111] Second, even if the weapon is a toxic
chemical because it can cause death
or severe injuries through its chemical processes, but it is not specifically designed to cause death or
other harm through its toxic properties, the weapon is not a prohibited
chemical weapon under the CWC.[112] Third, even if the weapon is a toxic chemical,
but it is used for military purposes not dependant on the use of its toxic
properties as a method of warfare and its use is of the type and quantity
consistent with those purposes, then the weapon is still not a prohibited
chemical weapon under the CWC.[113]
White phosphorus is clearly a toxic
chemical and crosses the first threshold. When white phosphorus[114]
is exposed to the skin or ingested, its chemical action can result in numerous
injuries including internal injuries such as liver and kidney damage or
failure, shock, coma, and death.[115] These severely detrimental chemical actions on
life processes render white phosphorus a toxic chemical under the CWC.
However,
the white phosphorus munitions used by Israel fail
to pass the next two thresholds. The white phosphorus munitions used by Israel during
the Gaza
conflict were designed solely for use as smoke screens and illuminants.[116] Furthermore, white phosphorus falls under the
CWC's exception for purposes not prohibited by this convention.[117] The white phosphorus munitions used by Israel in Gaza were
administered for their uses as a smoke screen and an illuminant.[118] These uses are dependent on white phosphorus'
thermal properties, as opposed to its harmful chemical properties.[119] As recent as 2008, the Organization for the
Prohibition of Chemical Weapons (the treaty implementing body of the CWC) had
stated that white phosphorus is not a prohibited chemical weapon under the CWC
because the use of white phosphorus as an obscurant and illuminant is not
"dependent on the use of the toxic properties of chemicals as a method of
warfare."[120]
Finally, human rights organizations
have implied that Israel's use
of white phosphorus in Gaza in
2009 is not prohibited by the CWC. While
disseminating reports and communiqués highly critical of Israel's use
of white phosphorus in Gaza, and
declaring Israel's use
of white phosphorus in violation of numerous other international laws, none of
the major human rights organizations, including Human Rights Watch,[121]
Amnesty International,[122]
and B'Tselem,[123] suggested that the
Israeli use of white phosphorus violated the CWC. In the ICRC's brief message addressing the
possible international humanitarian legal issues raised by Israel's use
of white phosphorus in the Gaza strip,
there was no mention of Israel's use
of white phosphorus being prohibited by the CWC.[124] These obvious omissions are a strong
indication that Israel's
white phosphorus use in Gaza in
2009 did not violate the CWC.
All of this leads to the conclusion
that Israel's use of
white phosphorus in the Gaza Strip did not violate the CWC. In any event, Israel is not
a party to the CWC and is not bound legally by its provisions.[125]
C. The Convention on Certain Conventional
Weapons
The
Convention on Certain Conventional Weapons (CCW) is a multilateral treaty
banning or prohibiting certain uses of numerous conventional weapons.[126] 110 states, including Israel, are
parties to the Convention as amended in 2001.[127] Protocol III of the Convention (or the
"Protocol on Prohibitions or Restrictions on the Use of Incendiary
Weapons") is in force in 104 states.[128] While Israel is a
party to numerous other Protocols of the CCW,[129]
it is not a party to Protocol III.[130]
Protocol III of the CCW restricts or
prohibits certain military uses of incendiary weapons.[131] Protocol III defines "incendiary
weapons" as "any weapon or munition which is 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 a target."[132] The Protocol pointedly provides that
incendiary weapons do not include,
"munitions which may have
incidental incendiary effects, such as illuminants,
tracers, smoke or signaling systems."[133]
Protocol III then goes on to list
the numerous restrictions of military uses of incendiary weapons:
1. It is
prohibited in all circumstances to make the civilian population as such,
individual civilians or civilian objects the object of attack by incendiary
weapons.
2. It is
prohibited in all circumstances to make any military objective located within a
concentration of civilians the object of attack by air-delivered incendiary
weapons.
3. It is
further prohibited to make any military objective located within a
concentration of civilians the object of attack by means of incendiary weapons
other than air-delivered incendiary weapons, except when such military
objective is clearly separated from the
concentration of civilians and all feasible
precautions are taken with a view to limiting the incendiary effects to the
military objective and to avoiding, and in any event to minimizing, incidental
loss of civilian life, injury to civilians and damage to civilian objects.[134]
Israel's use of white phosphorus in
Gaza did not violate Protocol III of the CCW because: (a) white phosphorus is
not an incendiary weapon and does not come under the auspices of this
Convention, (b) even if white
phosphorus were considered an incendiary weapon, Israel did not make the
civilian population as such or civilian objects the object of any attacks by
incendiary weapons, (c) Israeli did not make any military objective located
within a concentration of civilians the object of attack by air-delivered
incendiary weapons, and (d) Israel did not make any military objective located
within a concentration of civilians the object of attack by non-air-delivered
incendiary weapons.
1. White Phosphorus is Not
an Incendiary Weapon
The
white phosphorus munitions used by Israel in Gaza are
not incendiary weapons under the definition in Protocol III of the CCW. The definition states that incendiary weapons
are weapons which are "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 a target."[135] While some forms of white phosphorus
munitions, such as the white phosphorus napalm weapon called
"super-napalm," which is specifically designed as a stronger, more
effective version of a napalm,[136]
may fit into the definition of "incendiary weapons,"[137]
the white phosphorus munitions used by Israel in Gaza do not fit into the CCW's
definition because those munitions were not primarily designed to set fires or
cause burn injuries.[138] On the contrary, the white phosphorus
munitions used by Israel are
primarily designed for use as a smoke dispensing obscurant.[139] The CCW specifically states that incendiary
weapons do not include illuminants and smoke systems.[140] The white phosphorus munitions used by Israel fit
neatly into the category of either an illuminant or an obscurant, and its legal
incidental incendiary effects are similar to those of other clearly legal
illuminants and smoke systems, such as illumination flares,[141]
oil-smoke grenades,[142]
and Hexachloroethane (HC) smoke munitions.[143]
Finally, the ICRC arguably takes a
different approach to the categorization of incendiary weapons under the CCW.[144] Instead of looking to the "primary
design" purpose of the weapon in order to determine whether or not the
weapon can be categorized as an "incendiary weapon", as is required
by a literal interpretation of the text in Article I(1), Peter Herby of the
ICRC stated that a weapon is regulated by the CCW when it is "used as an
incendiary weapon."[145] This implies that the weapon's eventual actual use, as opposed to its
designed purpose, to set fire to objects, or to cause burn injury to persons is
what determines whether or not the arms or munitions are an incendiary weapon
regulated by Protocol III of the CCW.[146]
Even under this analysis there is
very little evidence that Israeli military operations used white phosphorus
munitions for burning objects or people.[147] There is only one known instance where the
Israeli army used white phosphorus not as an obscurant or an illuminant, but to
burn away brush.[148] Under Peter Herby's interpretation of the
ICRC, this one instance would be governed by the laws of Protocol III of the
CCW.[149] However, as the next three sub-sections will
show, even if white phosphorus were
considered an incendiary weapon, all of Israel's uses of white phosphorus were
legal under Protocol III of the CCW.[150]
2. Israel did not Make the Gazan Civilian Population or Civilian Objects the Object of
Any White Phosphorus Attack.
Even if white phosphorus were
to be categorized as an incendiary weapon under Protocol III of the CCW, Israel did
not violate the Article 2(2) prohibition on making civilian populations or
objects the object of an incendiary attack.[151] The interpretation of the phrase "to make
. . . the object of an attack"[152]
is the key to understanding the proper interpretation and application of this
provision of Protocol III of the CCW.
To make the civilian population an object
of attack necessarily requires an intention to make that specific population or
thing the object of an attack. One
argument that would seemingly eliminate the intent requirement of this
provision posits that even if there is no intent
for a civilian population to be an object of attack, but a civilian population
does, in fact, unintentionally become attacked, then this is a violation of the
CCW. However, Article 2(2) of Protocol
III cannot be interpreted this way because this interpretation would render the
phrase "to make an object of"[153]
inoperable.
If the civilian population is
attacked, but there was no intent for the civilian population to be attacked,
then logically and linguistically the civilian population cannot be understood
to have been "made the object of"[154]
an attack. To the contrary, the civilian
population accidentally or mistakenly became
"attacked" during a military operation where the attacking
military had consciously made something
else the object of attack.[155] This becomes more clear when it is understood
that the common definitions for the word "object" in this context are
"a person or a thing to which thought, feeling, or action is
directed,"[156]
and "the purpose aim or goal of a specific action or effort."[157] Common synonyms of object are
"objective," "purpose," and "intent."[158] All of this further shows that the phrase
"make civilians an object of attack,"[159]
necessarily must include an intent element.
During and after the Israeli
military operation in Gaza, the
Israeli military and government spokesmen have repeatedly stated that white
phosphorus was used only in accordance with international law.[160] Investigations into Israel's Gaza
operations have turned up no evidence that Israel made
civilians or civilian objects the object of white phosphorus attacks.[161]
There have been numerous accusations
raising the presumption that Israel's use of white phosphorus in civilian areas
must have been to attack civilians because there was no military need for smoke
obscuration or illumination in that area.[162] These have been countered by evidence showing
that the alleged "civilian buildings and objects" where white
phosphorus was used to obscure or illuminate the battlefield were, in fact,
legitimate military objectives.[163] This evidence shows that there were Hamas
fighters, Israeli forces, and military objectives in the areas at the times
that white phosphorus was used. This
leads to the logical conclusion that there was
a military need for smoke obscuration or illumination in furtherance of
protecting and assisting the Israeli ground troops during their missions
against those military targets, and shows the faulty reasoning behind the
presumptions that the white phosphorus must have been used to attack civilians[164]
because there were no other explanations for its use.[165]
Most importantly, there is no
evidence to show that Israel even
made enemy combatants the object of
white phosphorus attacks,[166]
and there is no evidence that the Israeli military made the Gazan civilian
population or civilian objects the object of any white phosphorus attacks.[167] In
fact, all reported and known civilian injuries resulting from white phosphorus
are inconsistent with a white phosphorus deployment as anything other than as
an obscurant or illuminant[168]
3. Israel did not Use Air-Delivered White Phosphorus to Attack Any Military Objectives Located
Within a Concentration of Civilians.
Once
again, even if white phosphorus were
to be categorized as an incendiary weapon under Protocol III of the CCW, Israel did
not violate the Article 2(2) prohibition against using air-delivered white
phosphorus to attack any military objectives located within a concentration of
civilians. Protocol III of the CCW
defines a "concentration of civilians" as "any concentration of
civilians, be it permanent or temporary, such as inhabited parts of cities, or
inhabited towns or villages, or as in camps or columns of refugees...."[169] The Gazan cities, towns, and villages in which
Israel engaged in military operations fall under the CCW's definition of
"concentration of civilians."
However, all the evidence has shown Israel's
deployment of white phosphorus to have been delivered from artillery and other
ground-based delivery systems.[170] These ground delivery systems do not come
under Article 2(2)'s prohibition on "air-delivered" incendiary
weapons.[171] Furthermore, even if white phosphorus deployed
from ground-based delivery systems were considered to be air-delivered
incendiaries, there is no proof that Israel made
any military objectives located within civilian concentrations an "object
of attack" with the white phosphorus.[172]
4. Israel did not Use Non-Air-Delivered White Phosphorus to Attack Any Military Objectives Located
Within a Concentration of Civilians.
Finally, even if white phosphorus were to be categorized as an incendiary
weapon under Protocol III of the CCW, Israel did not violate the Article 2(3)
prohibition against making military objectives located within a concentration
of civilians the object of an attack with incendiary weapons,[173]
because, as has been reiterated multiple times, there is no evidence that
Israel used white phosphorus for any reason other than as an obscurant or
illuminant.[174] Therefore, there cannot be a violation under
the CCW's prohibition against making military objectives in a civilian
population the "object of attack"
using those incendiary weapons.
It is important to note that the CCW
does not imply that only using
incendiary weapons for offensive attacks
against civilian populations is prohibited by the CCW.[175] Attacks can be "defensive," and
these types of attacks are similarly prohibited under the CCW.[176] The proper distinction is not between the
"offensive" and "defensive" use of incendiary weapons, but
between "attacking" and "other uses such as obscuring or
illuminating." For instance, if a
military is located within a civilian population and is under an offensive
attack against its position, that military force is prohibited from using
incendiary weapons in a defensive counter-attack against the invading military
force if that defensive attack will be located within a concentration of
civilians. However, if a military force
is engaging in an offensive attack against an enemy force located within a
civilian population, and the military force uses incendiary weapons within the
civilian population as an obscurant smokescreen to protect the military force's
attacking soldiers, then this incendiary weapon is being used
"offensively" but it is not being used to attack civilians or even
the enemy military. This use would be
legal, because although it is "offensive" it is not what is understood
as an "attack."
All the available evidence and a
lack of any evidence to the contrary show that Israel's use
of white phosphorus in Gaza did
not violate Protocol III of the CCW.
D. Customary International Law and the Geneva Conventions
The Fourth
Geneva Convention (GCIV) is a multilateral treaty dealing with the general
treatment of civilians in times of war.[177] 194 states are parties to the GCIV, and Israel became
one of them on July
6, 1951.[178] The GCIV is binding law on Israel during
all military operations, including during the Gaza Conflict.[179]
Customary international law is
unwritten international law that is the "general and consistent practice
of states followed by them from a sense of legal obligation."[180] The ICRC has used the traditional methods of
ascertaining specific customary international laws,[181]
and has come up with an authoritative list of customary international
humanitarian laws that are binding law on all states.[182]
Together, the relevant articles of
the Fourth Geneva Convention, and the relevant customary international
humanitarian laws can be understood to form fundamental basic rules of
international law binding on the State of Israel and relevant to the Israeli
military's use of white phosphorus in Gaza.
One of these basic rules is the rule
against indiscriminate attacks.[183] Indiscriminate attacks are:
those [attacks] which
are not directed at a specific military objective, which employ a method or
means of combat which cannot be directed at a specific military objective; or,
which employ a method or means of combat the effects of which cannot be limited
as required by international humanitarian law and consequently, in each such
case, are of a nature to strike military objectives and civilians or civilian
objects without distinction.[184]
Human Rights Watch and other NGO's have concluded that Israel's use of white
phosphorus violates this customary international legal norm against
indiscriminate attacks.[185]
Human Rights Watch, at the same time,
does recognize that Israel's official military
policy was to use white phosphorus only within the bounds of international law
as an obscurant and illuminant.[186]
The lack of any evidence showing Israel's use of white
phosphorus as anything but an obscurant and an illuminant, and not as a weapon for
"attack" or as a "method or means of combat," precludes any
possibility of Israel having violated this
customary international rule against indiscriminate attacks.
Of course, there is no
universally recognized definition for "methods and means of combat/warfare,"[187]
and an analysis of the proper definition is beyond the scope of this
paper. However, it has been suggested, albeit in
relation to the phrase as it is used in the CWC, that using a non-weaponized
munition "to systematically enable or multiply the use of lethal force
against hostile enemies," is not a method of combat/warfare.[188] Furthermore, under this definition, when the
use of a non-weaponized munition is incidental to the accomplishment of the
larger military goal, this use would likely not come under the category of a
method of combat/warfare.[189]
Applying this definition to Israel's use
of white phosphorus strongly suggests that Israel's use
was not a method of warfare. Israel did
not use white phosphorus as a "lethal-force" multiplier,[190] such
as using white phosphorus to force enemy combatants out of fortified positions
in order to better target and kill them with conventional weapons[191]-a
tactic known as "Shake and Bake."[192] The Israeli military used white phosphorus to
increase the ability of Israeli soldiers to operate against Hamas and weapons
facilities;[193] and this use does not
seem to come under the definition of "lethal-force" multiplier.[194] More importantly, Israel's use
of white phosphorus as an obscurant or illuminant marker was incidental to the
larger military objective of destroying Hamas's ability to fire rockets and
mortars into Israel.[195] The use of white phosphorus smoke and
illumination capabilities was, therefore, not integral to Israel's
larger military objectives.
It must be conceded
that if the Israeli military's use of
white phosphorus solely as an obscurant and marking illuminant is somehow
considered a "method or means of combat" or an "attack,"
then its use of white phosphorus may have been in violation of the customary international
law prohibiting the "employment a method or means of combat the effects of
which cannot be limited . . . and are of a nature to strike military objectives
and civilians or civilian objects without distinction."[196]
However, it is a strong argument that
the use of non-weaponized white phosphorus as an obscurant and illuminant does
not come under the most commonly used definitions of "means and methods of
combat/warfare."[197]
Another customary international humanitarian
law requires that during a conflict:
Each party to the
conflict must do everything feasible to cancel or suspend an attack if it
becomes apparent that the target is not a military objective or that the attack
may be expected to cause incidental loss of civilian life, injury to civilians,
damage to civilian objects, or a combination thereof, which would be excessive
in relation to the concrete and direct military advantage anticipated.[198]
The Israeli
military adhered to this customary international law by oftentimes canceling
operations, even when the anticipated
military advantages could arguably have been greater than the loss of civilian
life because of the increased possibility of incidental civilian casualties.[199]
It might be argued that the Israeli
army's use of white phosphorus even when they knew it would cause civilian harm or casualties violated this law. However, this argument again depends on the
faulty defining of white phosphorus use as an obscurant as an
"attack."
The customary international law
stating, "[a]ttacks by bombardment by any method or means which treats as
a single military objective a number of clearly separated and distinct military
objectives located in a city, town, village, or other area containing a similar
concentration of civilians or civilian objects are prohibited,"[200]
is not implicated by Israel's use of white phosphorus in Gaza. First, as already discussed, the deployment of
white phosphorus as an obscurant cannot legitimately be categorized as an
"attack" because it was not being used for the purposes of killing,
harming, or destroying any military combatants, let alone civilians. Second, even
if the use of white phosphorus munitions as an obscurant were considered an
"attack," the law only prohibits attacks which treat as a single
objective "clearly separated and
distinct"[201]
military objectives located in a civilian concentration. The implied purpose of this law is to make
illegal "carpet-bombings" and attacks that destroy entire areas. This law is meant to encourage choosing the
alternative of complex pinpointed attacks on the separate and distinct military
objectives, which are less dangerous for civilians but more dangerous for the
attacking force.
Israel's
military objective was qassam rocket
launch sites, Hamas weapons storage facilities, Hamas training facilities, and
Hamas militants themselves.[202] There is a large amount of evidence showing
that Hamas forces were spread out among numerous buildings, and their fighters
were engaging Israeli forces from multiple residential and commercial buildings.[203] These Hamas militants- qua military objectives- were in no way clearly separated and
distinct from one another, but were amorphous, moving military objectives
located throughout large urban areas. As
such, the Israeli military deployed white phosphorus smoke in order to
facilitate and enhance their ability to make pin-pointed attacks against these
distinct and mobile targets. The use of
white phosphorus allowed the Israeli military to send more ground troops in to
destroy military objectives, as opposed to the alternative of shellings or
bombings which, while accurate in their own right, are always less accurate
than ground-forces operations. Israel's use
of white phosphorus as an obscurant necessarily reduced civilian casualties
which would otherwise likely have resulted from less accurate methods of
warfare. If using obscuring white
phosphorus smoke were considered an "attack," and this type of
"attack" is considered technically illegal under the very laws that
are meant to reduce civilian casualties, then in this particular situation, the
law is honored more in breach of its provisions than adherence to its
provisions.
Another customary international law
implicating the fundamental rule of "distinction" between military
and civilian casualties is the law requiring effective advance warning of
attacks which may affect the civilian population, unless circumstances do not
permit.[204] This law is not implicated in Israel's use of
white phosphorus because, as already discussed, the Israeli military did not
use white phosphorus to "attack" anything and was therefore under no
duty to warn the Gaza civilians of its use of white phosphorus.
Even
if the use of white phosphorus was considered as part of the
"attack," there is ample evidence of the Israeli military giving
advance warning of attacks[205]
to civilians by utilizing tens of thousands of air-dropped flyers, phone calls,
radio messages, person-to-person contact, and even, after all the previously
mentioned warnings, firing non-lethal, non-explosive warning shots in the midst
of battling militant forces attacking from residential buildings. [206]
The basic rules of international
humanitarian law pursuant to the customary rules of international humanitarian
law and the relevant provisions of the Geneva Conventions are complex and
highly technical areas of law, and its proper application and explication
typically requires extensive knowledge of both military and legal expertise.[207] These basic rules of international
humanitarian law do not require a complete absence of civilian casualties, nor
do they prohibit military operations that, by necessity, are unfortunately
located within civilian population centers.[208] The laws do require military operations to
take all feasible precautions to
prevent incidental civilian casualties.[209] There is enough evidence available to show
that Israel's use
of white phosphorus in Gaza did
not violate these important laws.
IV. AFTER GAZA: THE NEED
FOR A WHITE PHOSPHORUS CONVENTION
It has been shown that, at best,
there are only a few pieces of ambiguous evidence that could lead to the
conclusion that Israel's use
of white phosphorus violated international humanitarian laws during the Gaza
Conflict. Although not necessarily
deserving of any moral approbation, the Israeli military's actions do not
warrant the public branding of Israel as
"war-criminals," or "law-breakers."
However, this should not be the
conclusion of the analysis. Israel's use
of white phosphorus in Gaza
provides an ideal opportunity to highlight a severe gap in the current
international humanitarian legal paradigm.
White phosphorus has many legitimate military uses, and it can often be
used to decrease incidental civilian casualties, rather than increase them.[210] But the use of white phosphorus has potential
detrimental effects which have not been explored by the international community
or the major human rights organizations.
A. Reasons in Support of a Ban on All Uses
of White Phosphorus
Human
contact with white phosphorus smoke is not typically fatal, and in an open
environment, not especially dangerous.[211] The real harm comes from human contact with
the burning pieces of white phosphorus itself.[212] Because white phosphorus combusts when
exposed to the atmosphere and continues to burn until it is deprived of oxygen
or until all the white phosphorus is consumed, white phosphorus burns are
especially painful and life-threatening.[213] The chemical composition of white phosphorus
causes it to quickly burn through multiple layers of skin before continuing to
burn internal structures in the body.[214] Oftentimes, by the time white phosphorus is
far enough into the body to be deprived of oxygen, it has caused severe burns
and damage to many of the internal organs.[215]
When white phosphorus is used as a
smoke obscurant or marking illuminant, rather than as weaponized white
phosphorus used as an incendiary,[216]
the design of white phosphorus shells makes them no more or less susceptible to
causing human casualties when used in ways prohibited by international law than
are bullets, bombs, missiles, and smoke munitions not using white phosphorus.[217] As can be seen from numerous examples
throughout history, such as the carpet-bombings in Europe during World War II,[218]
and the civilian casualties resulting from conventional aerial bombings in the
current war in Afghanistan,[219]
conventional weapons can also cause large civilian casualties if those weapons
are not used according to international humanitarian laws and principles. Accordingly, the fact that white phosphorus
has at least some potential to cause
death, injury, or civilian suffering is not the strong policy justification
needed in order to obtain widespread support in favor of a complete ban on
white phosphorus munitions.
However, there are two other more
specific and more persuasive reasons why the international legal regime is in
need of a convention clearly and categorically banning the use of white
phosphorus for all purposes. These
reasons are (1) the possibility of escalation from the proper legal use of
white phosphorus to the use of white phosphorus for its unequivocally illegal
purposes, and (2) the lingering danger posed by white phosphorus on the
civilian population long after the ending of hostilities. These two reasons for a complete white
phosphorus ban can find their analogous equivalents in the main reasons for the
CWC's ban on the use of Riot Control Agents (RCA) as a method of warfare, and
the Convention on Cluster Munitions' complete ban on the use of cluster
munitions.
1. Escalation
A
potential consequence of any conflict is the escalation of a conflict fought
with conventional methods and within the bounds of international humanitarian
law into a conflict fought with unconventional methods and outside of the legal
norms required by the international legal regime.[220] An essential, if not "the
essential", objective of international humanitarian law is to prevent
these types of escalations.
When the international community was
drafting and negotiating the CWC, the proper use of RCA's was a hotly debated
issue.[221] RCA's, such as tear-gas and pepper-spray, are
beneficial and generally non-lethal[222]
tools for quelling domestic riots and dispersing non-combatant civilians from
conflict zones.[223] RCA's are also useful in numerous different
scenarios and situations where ground-troops are trapped, or pinned down, and
need to be extricated from situations which, in the absence of RCA's, would
require the use of deadly force against civilian populations.[224]
However, the CWC strictly prohibits
the use of RCA's as a method of warfare.[225] The primary reason for this ban was the
possibility of an escalation of the conflict from a conventional conflict to an
unconventional chemical conflict.[226] The drafters reasoned that after one side to
a conflict deployed RCA's, the other side could easily mistake these agents as
lethal chemical weapons and respond with a retaliatory chemical strike.[227] The consequences of this kind of escalation
was considered so abhorrent and contrary to international humanitarian
standards that the goal of preventing this escalation trumped any tactical or
military advantages that would come from allowing the use of RCA's as a method
of warfare.[228]
The danger of this kind of
escalation can be analogized to an escalation from a conflict including the
legal use of white phosphorus as an obscurant or illuminant to a conflict in
which white phosphorus is used for one of its many illegal uses. In fact, this situation has already happened
on a minor scale in the Gaza Conflict. On January
15, 2009, Hamas fired a qassam-like phosphorus rocket into Israel,[229]
which is an illegal use of white phosphorus under numerous international laws.[230] Luckily, this was the only instance of
retaliatory use of white phosphorus in the 2009 conflict. Obviously, the danger of escalation leading to
illegal uses of white phosphorus or the retaliatory use of actual chemical
weapons is real and analogous to situations involving RCA's. This reason alone trumps any benefits derived
from the legal use of white phosphorus and points to the necessity for an
international legal ban on the use of white phosphorus for all purposes.
2. Lingering Effects
All
modern conflicts fought in urban settings are necessarily fought with weapons
that can cause incidental injuries and deaths in the civilian populations. However, international humanitarian
considerations require that these weapons pose no lingering danger to the
civilian population after the conflict ends.[231] International humanitarian law and universal
morality condemns civilian injuries caused after the end of conflict, if only
for the simple observation that these innocent civilians are being
unnecessarily injured. While incidental
non-combatant injuries are accepted as war-time realities, injuries and deaths
caused by lingering dangerous weapons and munitions after the end of
hostilities are universally unacceptable as needless and easily avoidable. It is for these reasons that 107 states
adopted the Convention on Cluster Munitions (the "CCM") on May 30, 2008.[232] The CCM completely bans the use of cluster
munitions for any purpose.[233]
A cluster munition is a "conventional munition that is designed to disperse
or release explosive submunitions each weighing less than 20 kilograms, and
includes those explosive submunitions."[234] The smaller submunitions frequently fail to
explode on impact, leaving behind a volatile unexploded weapon, until it is
either set off on contact or disarmed.[235] Innocent civilians make up an unconscionably
large proportion of injuries resulting from cluster munitions.[236] These injuries occur days, weeks, months, and
even years after the ending of hostilities.[237] Because of these horrific lingering effects on
civilian populations, the international community has joined together under the
CCM to condemn the use of cluster munitions.
Like cluster
munitions, white phosphorus has detrimental lingering effects on civilian
populations. After a white phosphorus
shell is fired as an obscurant explodes, it releases hundreds of pieces of felt
saturated with white phosphorus, which immediately ignite upon exposure to the
atmosphere.[238] These pieces of felt fall to the ground and
continue to burn until deprived of oxygen.[239] Oftentimes, the white phosphorus felt-wedges
become covered by sand, dirt, or debris, which effectively stops the chemical
combustion process.[240] However, these felt-wedges will continue to be
volatile until they are once again exposed to oxygen.[241] When accidentally uncovered by civilians days,
weeks, or months later, the white-phosphorus felt wedges can reignite and cause
painful, and often life-threatening chemical burns to whomever accidentally
comes into contact with the uncovered felt-wedge.[242] These lingering dangers are analogous to those
caused by the use of cluster munitions and should be similarly addressed by the
international community.[243]
B. A Call for a White Phosphorus Convention
The possibility
of an escalation
from a proper legal use of white phosphorus to the use of it for its
unequivocally illegal purposes, and the lingering danger posed by white
phosphorus on the civilian population long after the ending of hostilities, are
two urgent reasons why the use of white phosphorus for any purposes should be
categorically banned by international humanitarian law. White phosphorus cannot be ignored since it
has potential consequences that are too similar to those that were addressed by
the CWC with regards to RCA's and by the CCM with regards to cluster munitions.
International law does not properly address these consequences with regard to
white phosphorus, and the currently existing international laws are too
ambiguous and unspecific to succeed in curbing the use of all white phosphorus
munitions. Therefore, it is imperative
for the international community to convene a White Phosphorus Convention
Conference in order to address these issues and fill this substantial gap in
international humanitarian law.
V. CONCLUSION
Israel's use
of white phosphorus in its Gaza
offensive from December 2008 to January 2009 was not illegal under
international humanitarian law. Israel's use
of white phosphorus was legal under the Geneva Gas Protocol, the CWC, Protocol
III of the CCW, and the fundamental international humanitarian rules as found
in the GCIV and customary international humanitarian law norms. Although not a signatory to many of the above
treaties, Israel
followed the rules listed therein. All
of the evidence of civilian casualties and injuries caused by Israel's
white phosphorus use is consistent with casualties resulting from errant,
mistaken, and incidental harm caused by white phosphorus used legally as an
obscurant.
However, while the world has been
focused on Israel's
failure to further limit civilian casualties during the Gaza Conflict, the
failure of the international legal community to address the dangers of white
phosphorus has been largely ignored. Although
Israel cannot be faulted for not following laws that should exist, but do not,[244]
the international legal community can be faulted for not having already
recognized this serious gap in international humanitarian law and taken
immediate remedial measures. White
phosphorus has many uses, some of them quite benign, but the possibility of
conflict escalation from a conventional war to an unconventional war, and the
lingering effects of white phosphorus even when white phosphorus is used wholly
within the bounds of existing international humanitarian law, shows the
international legal community has not yet properly addressed this serious
issue. The failure of international
humanitarian laws to prohibit behavior that is incompatible with international
humanitarian principles, morals, and goals is a major flaw in a typically
comprehensive system. Hopefully, a White
Phosphorus Convention Conference will be convened in the near future. A White Phosphorus Convention, completely
banning the use of white phosphorus in military conflicts would be a necessary,
and welcome, step towards the goal of eliminating, as much as possible,
incidental pain and suffering of civilian populations during wartime.
APPENDIX
A
One illustrative example
of Hamas using "civilian" buildings for their military operations is
the situation at the Al-Quds hospital in the Tel-al-Hawa neighborhood of Gaza City. HRW cited local residents which claimed that
no Palestinian fighters were in the area at the time that the white phosphorus
felt wedges landed on the roof of the hospital and set the top floors of the
hospital on fire.[245]
However, the lack of any
Palestinian fighters in the area when the building was set ablaze by the white
phosphorus wedges is irrelevant. The
white phosphorus munitions used by Israel were specifically
designed to create smoke in order to obscure Israeli troop movements from enemy
vision. Because this white phosphorus is
not used for attacking enemy combatants (or civilians), but for obscuring
allied troop movements, only the presence in the area of allied troops is
relevant to the analysis. Multiple
sources from both the Israeli and the Palestinian side attesting both to the
presence of Israeli troops in Tel-al-Hawa from shortly after 12:00 am on
Thursday morning until dawn on Friday morning, and to the heavy fighting in the
neighborhood throughout the day corroborate the use of white phosphorus as an
obscurant for military troops in Tel-al-Hawa.[246]
It seems clear that the fire in the hospital was an
unfortunate, yet legal, consequence of errant white phosphorus felt-wedges
which were purposely air-burst at a higher altitude than tactically needed, in
order to reduce civilian casualties.[247] The example of Tel-al-Hawa is illustrative of
the many situations in which Israel was using white
phosphorus for legal obscurant purposes in military areas, but was improperly
accused of using white phosphorus to improperly attack "civilian"
objectives.
* J.D. Candidate, 2010, Hofstra University School of Law. I would like to
sincerely thank Tamar for being my rock, my foundation, and my inspiration. I
would like to dedicate this article to James and Elizabeth Cantora, who deserve
more credit and more thanks for all my accomplishments than I could fit into a
novel, let alone this brief note.
[1] Flavius
Josephus, The Antiquities of the Jews, reprinted in Josephus: The
complete Works 432 (William Whiston, A.M. trans., Thomas Nelson 1998)
(A.D. 93).
[2] BBC:
Gaza
Conflict: Israel
Continues Offensive Despite UN resolution (BBC News television broadcast Jan. 9, 2009), available at http://www.bicom.org.uk/videos/bbc-news--military-analysis ,
also available at http://www.youtube.com/watch?v=WssrKJ3Iqcw&feature=PlayList&p=E0E97254A41BE061&playnext=1&playnext_from=PL&index=56
(quoting retired British Colonel Richard Kemp).
[3] See,
e.g., Josephus,
supra note 1; Martin A. Meyer, History of the City of Gaza: From the
Earliest Times to the Present Day (AMS
Press 1966) (1907).
[4] See
generally Howard M. Sachar, A History
of Israel from the Rise of
Zionism to our Time (Alfred
A. Knopf, Inc. 2d ed. 1996) (writing
on the history of Israel and the Israeli-Palestinian conflict).
[5] The
State of Israel, The Operation
in Gaza: 27 December 2008 - 18 January 2009, Factual and
Legal Aspects (2009).
[6] Sheera Frenkel, Israel
Backs Down Over White Phosphorus, Timesonline, Apr. 23, 2004, http:www.timesonline.co.uk/tol/new/world/middle_east/
article5160448.ece (last visited Oct. 13, 2009).
[7] See
Federation of American Scientists, White Phosphorus Fact Sheet, http://www.fas.org/programs/ssp/bio/
factsheets/whitephosphorusfactsheet.html (last visited Oct.
12, 2009)
(noting the discovery of white phosphorus).
[8] See
GlobalSecurity.org , Military: White Phosphorus, http://www.globalsecurity.org/military/systems/munitions/wp.htm (last visited Oct.
12, 2009).
[9] Id.
[10] Steven Stotsky, Did Israel's
Use of White Phosphorus Constitute a War Crime?, CAMERA,
Sept. 1, 2009, http://www.carmera.org/index.asp?x_context=2&x_outlet=118&x_article=1723
(last visited Oct. 27, 2009).
[11] See,
e.g., id.
[12] See
The State of Israel supra note 5.
[13] The NGO "Human
Rights Watch" ("HRW") released a report outlining alleged
evidence of Israeli violations of international humanitarian law. See Human
Rights Watch, Rain of Fire: Israel's
Unlawful Use of White Phosphorus in Gaza
(2009). However, as this article will show, their
evidence, allegations, and legal conclusions tend more toward polemics than a
real legal analysis. Similarly, the Israeli army has released investigatory
conclusions that exonerate Israel for any wrongdoing
under international law. The State of
Israel supra note 5. For
obvious reasons, this report and its conclusions also do not fit the criteria
of "objective" and "non-biased."
[14] See,
e.g., GlobalSecurity.org , Military: White Phosphorus, supra note 8. ("White Phosphorus is used in almost every
product imaginable - from soft drinks to toothpaste. White phosphorus is used
by industry to produce phosphoric acid and other chemicals for use in
fertilizers, food additives, and cleaning compounds. Small amounts of white
phosphorus were used in the past in pesticides and fireworks."); Christian
H. Aall, The American Phosphorus
Industry, 44 Indust. & Eng'g
Chemistry 1520, 1520-25 (1952).
[15] See
discussion infra Part II. A-B.
[16] See
Brandon Hollander, A Golden State
Solution to the Israeli-Palestinian Water Conflict, 30
Hastings Int'l & Comp. L. Rev. 103, 105 (2006) (noting that the
Israeli-Palestinian conflict goes back to at least the beginning of Zionist
efforts in Israel in the 1880's).
[17] See,
e.g., UJA Federation, 60 Years of
Israel Facts About Israel, http://www.israelatsixty.ca/engine.cfm?i=22 (last
visited Oct. 12, 2009) ("Israel receives more media coverage, per capita
and per square foot, than any nation on earth.").
[18] See
U.S. Army Center for Health Promotion and Preventative Medicine, Detailed Facts
About White Phosphorus (WP), http://chppm-www.apgea.army.mil/dts/docs/detwp.pdf
(last visited Oct. 12, 2009).
[19] Id.
[20] See
GlobalSecurity.org , Military: White Phosphorus, supra note 8.
[21] See
Subcomm. on Military Smokes and
Obscurants, Nat'l Research Council, Toxicity of Military Smokes and Obscurants
20 (vol. 2 1999), available at http://www.nap.edu/openbook.php?record_id=9621&page=20 ;
see GlobalSecurity.org , Military:
White Phosphorus, supra note 8.
[22] See
U.S. Army Field
Manual No. 3-50: Smoke Operations:
Appendix G, at 96 (1990), available at http:/www.globalsecurity.org/military/library/policy/army/fm/3-50/Appg.htm .
[23] See
GlobalSecurity.org , Military: White Phosphorus, supra note 8.
[24] See,
e.g., A.C. Monahan, Smoke Protects
Fighters, 46 Science News Letter
10, 10 (July 1, 1944) (noting frequent use of white phosphorus as both a
smokescreen and an incendiary).
[25] See
Joseph D. Tessier, Shake & Bake: Dual
Use Chemicals, Contexts, and the Illegality of American Phosphorus Attacks in Iraq, 6 Pierce L. Rev. 323, 346 (2007) ("[White Phosphorus] was originally designed to cloak troops
with smoke screens . . . . ").
[26] Army
& Navy White Fire, TIME, Nov. 29, 1943, available
at http://www.time.com/time/magazine/article/
0,9171,791156,00.html .
[27] See,
e.g., Dr. Frank Thone, Preview of
Armageddon, 45 Science News Letter
314, 314 (May 13, 1944) (picturing the use of white phosphorus
as an incendiary phosphorus bomb).
[28] Army
& Navy White Fire, supra note 26
("Originally used to cloak troops
or positions with harmless white clouds, WP (white phosphorus) has become one
of the great anti-personnel weapons of the war.").
[29] See
Korea Institute of Military
History, The Korean War 310
(University of Nebraska Press 2000) (1997) (noting the American use of white
phosphorus as both an obscurant and an anti-personnel weapon during the war in Korea).
[30] See
J.B. Neilands, Progress of the Chemical
War, 10 Asian Survey 209, 215
(1970) (noting the American use of white phosphorus as both an obscurant and as
an anti-personnel during the war in Vietnam).
[31] See
id. ("White phosphorus is the classic ignition substance for
Napalm."); see also, Anthony A.
D'Amato, Harvey L. Gould & Larry D. Woods, War Crimes and Vietnam: The "Nuremberg Defense" and the
Military Service Register, 57 Cal. L.
Rev. 1055, 1096 n. 259 (1969) (noting the use of a white
phosphorus-napalm mix known as "supernapalm").
[32] See Possible Use of Phosphorous Chemical Weapons by Iraq in Kurdish Areas Along the Iraqi-Turkish-Iranian Borders; and Current Situation of Kurdish Resistance and Refugees, http://www.gulflink.osd.mil/declassdocs/dia/19950901/950901_22431050_91r.html (last visited Oct. 13, 2009) (noting in an intelligence brief that the Iraqi military very likely used white phosphorus against members of Iraq's Kurdish population).
[33] See
Tessier, supra note 25, at 349 (noting the Israeli use of white
phosphorus in Lebanon).
[34] See
id. at 349-50. See also Lester
W. Grau, Changing Russian Urban Tactics:
The Aftermath of the Battle for Grozny, 38 INSS
Strategic Forum (July 1995), available
at http://www.globalsecurity.org/military/library/report/
1995/ grozny.htm ("Smoke and white phosphorus rounds were very useful in Grozny. White phosphorus, which
burns upon explosion, creates a smoke screen and, since smoke is essential for
movement in city fighting, every fourth or fifth Russian artillery or mortar
round fired was a smoke or white phosphorus round.").
[35] See
Roger Cohen, NATO May be Called On to
Silence Guns in Sarajevo, New York
Times, May 25, 1995, at 14, available
at http://www.nytimes.com/1995/05/25/world/nato-may-be-called-on-to-silence-guns-in-sarajevo.html
("In some areas [of Sarajevo], thick white smoke
filled the air, apparently billowing from white phosphorus grenades fired to
intimidate civilians.")
[36]See Meron Rappaport, Israel Admits Using White Phosphorus Bombs During War in Lebanon, Haaretz, Oct. 22, 2006, available
at http://www.haaretz.com/hasen/spages/777549.html .
[37] See
US Used White Phosphorus in Iraq, BBC News, Nov. 16, 2005, available
at http://news.bbc.co.uk/2/hi/middle_east/4440664.stm (noting American
white phosphorus use in Iraq). See
also U.S. Used Phosphorous Munitions
in Fallujah, The Washington Post, Nov.
16, 2005, available at http://www.washingtonpost.com/wp-dyn/content/article/2005/
11/16/AR2005111600374.html ("Lt. Col. Barry Venable, a Pentagon spokesman,
said . . . that while white phosphorous is most frequently used to mark targets
or obscure a position, it was used at times in Fallujah as an incendiary weapon
against enemy combatants . . . .").
[38] See GlobalSecurity.org , Military: White
Phosphorus, supra note 8.
[39] Benny
Morris, 1948: A History of the First Arab-Israeli War 1 (2008) (dating
the beginning of the conflict to the early 1880's).
[40] See
generally Israel's
Disengagement Plan: Renewing the Peace Process (2005), http://www.mfa.gov.il/NR/rdonlyres/23EFC707-AEBA-4195-BB90-B6BA8AB616FF/0/disengagement2.pdf
(last visited Oct. 28, 2009) (discussing Israel's plan to remove Israeli civilians and
military from the Gaza Strip and West Bank).
See also, CAMERA, Timeline and Causes
of "Operation Cast Lead" in Gaza, http://www.camera.org/index.asp?x_context=7&x_issue=52&x_article=1581
(last visited Oct. 13, 2009).
[41] See Sachar, supra note 4, at 667 (1996) (explaining
Israel's control over Gaza as a result of the Six Day War of 1967).
Although the Israeli military began establishing kibbutz outposts in Gaza immediately after the Six Day War, the
Jewish-Israeli civilian presence in Gaza was minimal until a large influx in the
1980's after the Israeli evacuation of the Sinai Peninsula. See
generally Jewish Agency for Israel: History of Gush Katif - Gaza Strip, http://www.jewishagency.org/JewishAgency/English/Jewish+Education/Compelling+Content/Eye+on+Israel/
Current+Issues/Peace+and+Conflict/Disengagement/2.+History+of+Gush+Katif++Gaza+Strip.htm
(last visited Oct. 23, 2009).
[42]See
Israel's
Disengagement Plan: Renewing the Peace Process, supra
note 40. See also Ariel Sharon's
Disengagement Plan (and George Bush's Letter Accepting It): April
14, 2004, available at http://www.mideastweb.org/disengagement.htm .
[43] For security reasons, Israel continues to maintain control over Gaza's airspace, territorial waters, and the Philadelphi Route. See
Israel Ministry of Foreign Affairs, The
Cabinet Resolution Regarding the Disengagement Plan, June
6, 2004, available at http://www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Revised+Disengagement+Plan+6-June-2004.htm .
[44] See
Demolition of Gaza Homes Completed, Ynet
News, September 1, 2005, http://www.ynetnews.com/articles/
0,7340,L-3136516,00.html (last visited Oct. 28, 2009).
[45] In an attempt to
maintain objectivity, this article will refer to Hamas as an
"organization" and people fighting with Hamas as
"militants." However, it is
worth nothing that Hamas is considered a terrorist organization by the
governments of Israel, the United States, Canada, and the European
Union. See U.S. Department of State, Foreign Terrorist Organizations: FTO's: Fact
Sheet, Oct. 11, 2005, available at
http://www.state.gov/s/ct/rls/fs/37191.htm ; Public Safety Canada, Currently Listed Entities, available at http://www.publicsafety.gc.ca/prg/ns/le/cle-en.asp ;
Council Decision 2007/445, 2007 O.J. (l
169) 58, 62 (EC), available at http://eur-lex.europa.eu/LexUriServ/
site/en/oj/2007/l_169/l_ 16920070629en0058 0062.pdf .
[46] Scott Wilson, Hamas Sweeps Palestinian Elections, Complicating Peace Efforts in
Mideast, The Washington Post, Jan. 27, 2006, at A01, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/01/26/AR20
0601260 0372.html .
[47] Fatah was initially established as a
militant Palestinian Organization, aimed at "liberating" all the land
that is today the state of Israel.
Currently, Fatah is considered one of the more moderate Palestinian
political parties in its attitudes towards peace with Israel. See
generally Dennis Ross, The Missing Peace 38 (Farrar, Straus and
Giroux 2004); Palestinian Rivals: Fatah
& Hamas, BBC News, June
17, 2007, available at http://news.bbc.co.uk/2/hi/middle_east/5016012.stm .
[48] See
Steven Erlanger, Hamas Seizes Broad
Control in Gaza Strip, New York Times,
June
14, 2007, at A1,
available at http://www.nytimes.com/2007/06/14/world/middleeast/14mideast.html .
[49] For ease of reading, when this article
refers to "qassams" it
should be understood to refer to all improvised rockets and mortars fired from Gaza at Israel by Palestinian militant organizations.
[50] See
BICOM, Rockets from Gaza: Facts and
Figures,
http://www.bicom.org.uk/newsletter-latest-from-bicom/rockets-from-gaza--facts-and-figures ,
Feb.21, 2008 (last visited Oct. 13, 2009) (see
Annual distribution of rocket and mortar shell fire Graph at http://www.bicom.org.uk/
files/graph-large.gif ). See also Israel Ministry of Foreign Affairs, The Hamas Terror War Against Israel, available at http://www.mfa.gov.il/MFA/Terrorism+Obstacle+to+
Peace/Palestinian+terror+since+2000/Missile+fire+from+Gaza+on+Israeli+civilian+targets+Aug+2007.htm
(noting that from mid-August 2005 to mid-June 2007, 1, 826 missiles were fired
by Palestinian militants into Israel).
[51]See
Charles Levinson, Gaza's Kids Collect a Different Sort of
Shell, Mail & Guardian Online, May 29, 2006, http://www.mg.co.za/article/2006-05-29-gazas-kids-collect-a-different-sort-of-shell
(last visited Oct. 13, 2009) (reporting that Israel had fired over 5,100 shells
aimed at qassam rocket launch areas
in Gaza between March 31, 2006 and May 29, 2006). See also Ali Waked, IAF
Strike Kills Top PA Official, Ynet
News, June 9, 2006, http://www.ynetnews.com/
articles/0,7340,L-3260670,00.html (last visited Oct. 13, 2009) (reporting on an
Israeli air-force strike in Gaza which killed a Palestinian militant and newly
Hamas appointed government official).
[52] 2990 qassam rockets and other missiles
launched from Gaza by Palestinians hit Israel between January
1, 2006
and January 31, 2008. See BIOCOM, Rockets from Gaza, Facts
and Figures, supra
note 50. In addition to frequent artillery barrages and
air assaults, Israel launched three major
ground incursions: Operation Summer Rains in June 2006, Operation Autumn Clouds
in November 2006, and Operation Warm Winter in February 2008. See generally Globalsecurity.org ,
Military: Operation Summer Rains, http://www.globalsecurity.org/military/world/
war/intifada2_ summer-rains.htm (last visited Oct. 13, 2009); Hanan Greenberg, Operation Completed: IDF leaves Beit Hanoun,
Ynet News, Nov. 7, 2006, http://www.ynetnews.com/articles/0,7340,L-3324714,00.html
(last visited Oct. 13, 2009); Hanan Greenberg, IDF Operation in Gaza End, Soldiers Leaving Strip, Ynet News, March 3, 2008, http://www.ynet.co.il/
english/articles/0,7340,L-3514012,00.html (last visited Oct. 13, 2009).
[53] Intelligence and Terrorism Info. Ctr. at
the Isr. Intelligence Heritage & Commemoration Ctr, The Six Months of the Lull Arrangement, Intelligence and Terrorism Info. Ctr. Dec. 2008 at 2, available at http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/pdf/hamas_e017.pdf .
[54] During the entire six month period, only
329 rockets and mortar shells were launched at Israel by Palestinians in the Gaza strip, compared to the 2,278 rockets and
mortar shells launched the preceding six-months by Israel.
Similarly, Gazans enjoyed relative calm because of significantly reduced
Israeli attacks against targets in Gaza and a significant reduction of border
crossing closures. Id.
at 2, 36.
[55] See
James Hider, Hamas Says it will not Renew
Ceasefire, Times Online, Dec.
19, 2008, http://www.timesonline.co.uk/tol/news/world/middle_east/article5367679.ece
(last visited Oct. 13, 2009).
[56] See
Roni Sofer, Israel in Favor of Extending
Gaza Lull, Ynet News, Dec. 13,
2008, http://www.ynet.co.il/english/articles/0,7340,L-3637877,00.html (last
visited Oct. 13, 2009) ("Israel supports the continuation of the ceasefire in Gaza - if Hamas
adheres to the conditions.").
[57]See
id. See also Amos Harel, et al., Hamas
Declares End to Ceasefire, Israeli Gov't Sources Fear Violence is Unavoidable,
Haaretz, Dec. 21, 2008, available at http://www.haaretz.com/hasen/spages/1048055.html
("'The lull we agreed to under Egyptian auspices on June
19, which expires on December 19, has exhausted itself, since the enemy has not
honored its commitments,' said Ayman Taha, a Hamas spokesman in Gaza.").
[58] See
Nidal al-Mughrabi, Flare-up Dims
Truce Hopes Along Israel-Gaza Border, Reuters,
Dec. 24, 2008, available at http://www.reuters.com/article/topNews/idUSTRE4BM
2ZP20081224 (noting both the launch of 60 rockets and mortar shells at Israel
by Palestinian militants and the killing of 3 Hamas gunmen by Israeli forces); Israel Reopens Gaza Crossings, New York Times, Dec. 26, 2008, available at http://www.nytimes.com/2008/12/27/world/middleeast/27briefs-ISRAELREOPEN_BRF.html?_r=2
("Despite the movement of relief supplies, militants fired about a dozen
rockets and mortar shells from Gaza at Israel on Friday [December 26].").
[59] See,
e.g., Kassam Rocket Hits Sderot Home,
JTA, Dec. 21, 2008, available at http://jta.org/news/article/2008/
12/21/1001713/kassam-rocket-hits-sderot-home (reporting on a Sderot home hit by
a qassam rocket after the end of the
cease-fire).
[60] See,
e.g., More Than 60 Kassams Strike
Israel, JTA, Dec. 24, 2008, available
at http://jta.org/news/article/2008/ 12/24/1001793/more-than-60-rockets-mortars-strike-israel
(reporting that two Grad rockets struck near a youth cultural center in
Ashkelon in the days after the end of the cease-fire).
[61]Id. (reporting that a rocket struck next to
a playground in Netivot in the days after the end of the cease-fire).
[62] Western Negev communities and Kibbutzim struck by
rockets during the cease-fire include Kibbutz Sha'ar Hanegev and Kibbutz Sdot
Negev. See id.
[63] After the start of Israeli Operation
Cast Lead on December 27, 2008, missiles fired by Palestinians struck
numerous other cities and towns including, Beer-Sheva, Ashdod, Gedera, Kiryat Gat, and many Western
Negev Kibbutzim and Moshavim. See, e.g.,
The Jewish Virtual Library, Number of
Daily Rocket Attacks on Israel During Operation Cast Lead, http://www.jewishvirtuallibrary.org/jsource/Peace/tablerocketattacks.html
(last visited Oct. 11, 2009).
[64] See
Yaakov Katz, A Year's Intel Gathering
Yields 'Alpha hits', Jerusalem Post,
Dec.
28, 2008, available at http://www.jpost.com/servlet/Satellite?cid=1230111714969&pagename=JPost%2FJPArticle%2FShowFull .
[65] This is the first reported ground
incursion.
[66] See
Hanan Greenburg, IDF Enters Gaza; 2
Soldiers Seriously Hurt, Ynet News, Jan.
4, 2009, http://www.ynetnews.com/articles/0,7340,L-3649729,00.html
(last visited Sept. 29, 2009).
[67] In order to maintain objectivity, the
word "militants" is used to refer to all members of Hamas and its
allied organizations involved in combat.
[68] See
Israel Declares Ceasefire in Gaza, BBC
News, Jan. 18, 2009, available
at http://news.bbc.co.uk/2/hi/middle_ east/7835794.stm.
[69] See id.
[70] See
generally Israel Ministry of Foreign Affairs, The Operation in Gaza:
Factual and Legal Aspects (2009), http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Hamas+war+against+Isreal/
Operation_Gaza_factual_and_legal_aspects_use_of_force_complaints_ab
out_IDF_5_Aug_2009.htm (last visited
Oct. 15, 2009); see also,
Globalsecurity.org , Military: Operation Cast Lead, http://www.globalsecurity.org/military/systems/munitions/wp.htm
(last visited Oct. 12, 2009).
[71] See
David Weissbrodt, Joan Fitzpatrick
& Frank Newman, International
Human Rights: Law, Policy, and Process 2 (3rd ed. 2001)
("Concepts of human rights can be traced to antiquity-e.g. the Ten Commandments, the Code of Hammurabi's approach to law
as a means of preventing the strong from oppressing the weak, and Rights of
Athenian Citizens. Early efforts often came in response to atrocities of war
and refugee problems.").
[72] Id. at 3.
[73]
Id.
[74] Id.
[75] Maria Trombly, Geneva Conventions, A
Reference Guide: A Brief History of the Laws of War (2003), available at http://www.genevaconventions.org .
[76] See
Weissbrodt, supra note 71, at 6. See also Malcolm
N. Shaw, International Law 253 (5th ed. 2003).
[77]
See ICRC, International
Humanitarian Law - Treaties and Documents, http://www.icrc.org/ihl.nsf/CONVPRES?OpenView
(last visited Oct. 15, 2009).
[78] See
id. (listing numerous international
treaties and instruments of international humanitarian law).
[79] Protocol
for the Prohibition of the Use in War of Asphyxiating, Poisonous or other
Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571,
69 L.N.T.S. 65, available at http://www.icrc.org/ihl.nsf/FULL/280?OpenDocument
[hereinafter
Geneva Gas Protocol].
[80] Convention
on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction, Sep. 3, 1992, S. Treaty Doc. No.
103-21, 1974 U.N.T.S. 45, available at http://www.icrc.org/ihl.nsf/FULL/553?OpenDocument
[hereinafter CWC].
[81] The Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to
be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, S. Treaty Doc. No. 103-25, 1342 U.N.T.S.
137, available at http://www.icrc.org/ihl.nsf/FULL/500?OpenDocument
(amended Dec. 21, 2001) [hereinafter CCW].
[82] Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of
War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, available at http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument
[hereinafter GCIV].
[83] Geneva Gas Protocol, supra note 79.
[84] Id.
[85] Id.
[86]
See ICRC, International
Humanitarian Law - State Parties / Signatories: Protocol for the Prohibition of
the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological
Methods of Warfare, Geneva, 17 June 1925, http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=280&ps=P
(last visited Oct. 12, 2009) (listing the signatories to the Geneva Gas
Protocol).
[87]
See ICRC, Geneva
Protocol 1925 - Israel reservation text: Protocol for the Prohibition of the
Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods
of Warfare, Geneva, 17 June 1925, http://www.icrc.org/ihl.nsf/NORM/C6ACE9DC61C8A47EC1256402003F73D1?OpenDocument
(displaying Israel's reservations to the Gas Protocol) (last visited Oct. 12,
2009).
[88] Geneva Gas Protocol, supra note 79.
[89] See
infra pp. 13-14.
[90] See Government of the United States, Written Observations on the Request by the General Assembly for an
Advisory Opinion, 7 Crim. L.F. 401, 417 (1996) ("[The Geneva Gas Protocol] was intended to apply to weapons that are designed to kill
or injure by the inhalation or other absorption into the body of poisonous
gases or analogous substances. This prohibition was not intended to apply, and has not been
applied, to weapons that are designed
to kill or injure by other means, even though they may create asphyxiating or
poisonous by-products. Once again, the Protocol does not prohibit conventional
explosives or incendiary weapons, even though they may produce asphyxiating or
poisonous by-products . . . .") (emphasis added).
[91] Legality of the Threat
or Use of Nuclear Weapons, 1996 I.C.J. 226, 248 (Jul. 8) ("The Court will observe that
the Regulations annexed to the Hague Convention IV do not define what is to be
understood by 'poison or poisoned weapons' and that different interpretations
exist on the issue. Nor does the 1925 Protocol specify the meaning to be given
to the term 'analogous materials or devices'. The terms have been understood,
in the practice of States, in their ordinary sense as covering weapons whose
prime, or even exclusive, effect is
to poison or asphyxiate.") (emphasis added).
[92] See id.; see also James
D. Fry, Contextualized Legal Reviews for
the Methods and Means of Warfare: Cave Combat and International Humanitarian
Law, 44 Colum. J. Transnat'l L. 453, 502 (2006).
[93] See
U.S. Army Center for Health Promotion and Preventative Medicine, supra note 18.
[94] For example, human exposure to even low
levels of sarin gas may result only seconds later in chest tightness, blurred
vision, diarrhea, weakness, nausea, vomiting, changes in blood pressure, and
confusion. See Centers for Disease
Control and Prevention: Emergency Preparedness and Response: Facts About Sarin,
http://www.bt.cdc.gov/agent/sarin/basics/facts.asp . Though sarin is not specifically banned by
the Geneva Gas Protocol, the CWC identifies sarin as a "high risk" chemical and
is therefore by its nature banned for purposes of the Geneva Gas Protocol. See CWC,
supra note 80, at 265-66.
[95] See
Toxicity of Military Smokes and
Obscurants, supra note 21, at
24. ("Relatively little information has been reported on human responses
to inhalation of WP smoke.").
[96] See
U.S. Army Center for Health Promotion and Preventative Medicine, supra note 18.
[97] See
id. It is important to note that the
inhalation of large amounts of any forms of smoke, including smoke emanating
from conventional bomb explosions and fires, is deadly. See generally, Government of the United States, supra
note 90 (stating conventional weapons "may" produce asphyxiating smoke or
poisonous byproducts). However, there is no authority that seriously contends
that all forms of munitions that produce large amounts of smoke violate the
Geneva Gas Protocol, because these munitions' primary effect is not necessarily
to asphyxiate or poison. See, e.g., id.
Therefore it would be somewhat illogical if white phosphorus were illegal
pursuant to the Geneva Gas Protocol solely because it produces smoke that, when
inhaled in large enough quantities, could
be fatal.
[98] See
Stotsky, supra note 10.
[99] See
The State of Israel,
supra note 5.
[100] The HRW report lists a few instances of
people "choking" because of white phosphorus smoke flowing into their
apartments. See Human Rights Watch, supra note 13 at 38, 54.
However, there is no conclusive proof that this smoke came from white
phosphorus and not other sources. See id.
Furthermore, there is no evidence (and it is not alleged) that Israel
targeted the white phosphorus at these enclosed areas, and if the allegations
prove true, the smoke was caused not by ground-bursting white phosphorus
weapons, but by errant felt wedges of white phosphorus that unfortunately and
unintentionally fell near or into enclosed areas. See Stotsky, supra note 10.
Furthermore, it is once again important to note that the fatal effects of
extremely large amounts of smoke produced from certain munitions does not, by
itself, render those certain munitions illegal under the Geneva Gas Protocols. See,
e.g., Government of the United States, supra
note 90.
[101] It is also significant that neither HRW
in their report nor the ICRC allege that Israel's use of white phosphorus violated the
Geneva Gas Protocol. See Human
Rights Watch, supra note 13 at
2.
[102] See
Organization for the Prohibition of Chemical Weapons, Chemical Weapons
Convention: About the Convention: Genesis and History Development, http://www.opcw.org/chemical-weapons-convention/about-the-convention/genesis-and-historical-development
(last visited Oct. 23, 2009).
[103] See
ICRC, International Humanitarian Law - State Parties/Signatories:
Convention on the Prohibition of the Development, Production, Stockpiling and
use of Chemical Weapons and on their Destruction, Paris 13 January 1993, http://www.icrc.org/IHL.nsf/(SPF)/party_main_treaties/$File/IHL_and_other_related_Treaties.pdf
(last visited Oct. 30, 2009).
[104] See
CWC, supra note 80, at art. I(1).
[105] Id.
[106] Id. at art. II(1).
[107] Id. at art. II(2).
[108] Id. at art. II(9).
[109] See
Tessier, supra note 25, at 333-34
(noting that the Annex Schedules are frequently misinterpreted as an exhaustive
list of chemical weapons banned by the CWC).
[110] Id.
[111] CWC, supra
note 80, at art. II(2).
[112] It can also be argued that the language
of section (b) is dependent on the chemical not being used for "purposes
not prohibited under this convention" meaning that if a weapon is not a
chemical weapon under section (a), then it cannot be a chemical weapon under
section (b), since the language in this section refers specifically to Munitions
and devices specifically designed to cause death or other harm through the
toxic properties of those toxic chemicals specified in paragraph (a). See id. at art II(1).
[113] Id. at art. II(9)(c).
[114] This is in reference to the
waxy-substance, not the smoke produced
by white phosphorus.
[115] U.S. Army Center for Health Promotion
and Preventative Medicine, supra note
18.
[116] See
Defense Update: Israelis Use of White Phosphorus Airburst Smoke Screening
in Gaza, http://defense-update.com/newscast/0109/analysis/analysis_080109_phosphorous.html
(last visited Oct. 9, 2009) ("'The round so far specified as being
fired are the M825A1 which is purely an air-burst white phosphorous smoke
projectile . . . It's construction and function is highly elaborate and I would
say deliberately so to make it inappropriate for anti-personnel use' . . .
[I]ts principal use is to produce smoke to protect troops.'") (citing an IHS
Jane's Weapons Technology Analyst).
[117] CWC, supra
note 80, at art. II(9).
[118] See
Defense Update, supra note 116. See also GlobalSecurity.org , Military:
M825 155mm Projectile, http://www.globalsecurity.org/military/systems/munitions/m825.htm
(last visited Oct. 9, 2009) ("The M825 is a 155mm Smoke
projectile used to provide screening or marking smoke.").
[119] Major R. Craig Burton, Recent Issues with the Use of Matchking
Bullets and White Phosphorus Weapons in Iraq, 2006-AUG Army Law. 19, 21 (2006) ("White phosphorus, on the other hand, is not deployed for
its toxic effects, but rather for its thermal effects.").
[120] Organization for the Prohibition of
Chemical Weapons, Chemical Warfare Agents: An Overview of Chemical Defined as
Chemical Weapons, http://web.archive.org/web/20080118035535/http://www.opcw.org/resp/html/cwagents.html (last visited Oct. 9, 2009). See
also, CWC, supra note 80, at art.
II(9).
[121] Human rights Watch, supra note 13.
[122] Amnesty
International, The Conflict In Gaza: A Briefing on Applicable Law,
Investigations, and Accountability (2009), available at http://www.amnesty.org/en/library/info/MDE15/007/2009/en .
[123] B'Tselem
- The Israeli Information Center for Human Rights in the Occupied Territories,
Guidelines For Israel's Investigation into Operation Cast Lead: 27 December
2008 - 18 January 2009 (2009), available
at http://www.btselem.org/Download/200902_Operation_Cast_Lead_Position_paper_Eng.pdf .
[124] ICRC,
Phosphorous Weapons- The ICRC's view, (Jan. 17, 2009), available
at http://www.icrc.org/Web/eng/siteeng0.nsf/html/weapons-interview-170109 .
[125] See
ICRC, supra note 103. Israel has an official internal military policy
of following the CWC although these laws are not binding on any part of the
Israeli government. This is strong evidence of Israel's conscious effort to generally wage war
within the bounds of international humanitarian law.
[126]
The United Nations Office at Geneva, Disarmament: Convention on Certain
Conventional Weapons, http://www.unog.ch/80256EE600585943/(httpPages)/44F0DEF093B4860B4C1257180004B1B30?OpenDocument
(last visited Oct. 10, 2009).
[127] ICRC, International Humanitarian Law:
State Parties / Signatories: Convention on Prohibitions or Restrictions on the
Use of Certain Conventional Weapons Which May be Deemed to be Excessively
Injurious or to Have indiscriminate Effects. Geneva, 10 October 1980, http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=500&ps=P
(last visited Oct. 10, 2009).
[128] The United Nations Office at Geneva, Disarmament: Convention on Certain
Conventional Weapons, http://www.unog.ch/80256EE600585943/(httpPages)/3CE7CFC0AA4A7548C12571C00039CB0C?OpenDocument
(last visited Oct. 16, 2009).
[129] Id.
[130] Id.
[131] JSSNews.com, IDF Response Regarding Human Rights Watch Report, L'Actue Vue par JSS-Worldwide News According to
JSS, Mar. 29, 2009, http://jss.over-blog.com/article-29602281.html
(last visited Oct. 16, 2009).
[132] Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons
(Protocol III), art. I, opened for
signature Apr.
10, 1981, S. Treaty Doc. No. 105-1, 1342
U.N.T.S. 171 [hereinafter "Protocol III"], available at http://www.icrc.org/ihl.nsf/FULL/515?OpenDocument .
[133] Id. (emphasis added).
[134] Id. art. II.
[135] Id. art. I(1).
[136] See
D'Amato, supra note 31;
GlobalSecurity.org, Military: Napalm, http://www.globalsecurity.org/military/systems/munitions/napalm.htm
(last visited Oct. 17, 2009).
Napalm is the model example of an "incendiary weapon." Napalm
is a man-made, highly flammable, fuel-gel mixture that is specifically designed
to stick to objects in order to ensure the maximum amount of burn damage to any
object with which the Napalm comes in contact.
See Id.
[137] See
D'Amato, supra note 31.
[138]
See Defense Update, supra note 116. HRW comes to the
incorrect and unsupported conclusion that white phosphorus is an incendiary
weapon without any citations, references, or explanations as to how they
arrived at this conclusion. See Human Rights Watch, supra note 13, at 63 ("White phosphorus is an incendiary
weapon.").
[139] See
Defense Update, supra note 116 ("The
primary function of the M825A1 [the white phosphorus munition used by Israel in Gaza] is
for the rapid creation of a highly effective, but short lived visible and
infrared smoke screen.").
[140] Protocol III, supra note 132, at art. 1(1)(b)(i) ("Incendiary weapons do not
include [m]unitions which may have incidental incendiary effects, such as
illuminants, tracers, smoke or signaling systems.").
[141] See
FAS, Military Analysis Network: LUU-2 Flare, http://www.fas.org/man/dod-101/sys/dumb/luu2.htm
(last visited Oct. 13, 2009).
[142] See
FAS, Military Analysis Network: M18 Colored Smoke Grenade, http://www.fas.org/man/dod-101/sys/land/m18.htm
(last visited Oct. 13, 2009).
[143] See
U.S. Army Field
Manual No. 3-50, supra note 22.
[144] See
ICRC, Phosphorus Weapons - The ICRC's View, January 17, 2009, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/weapons-interview-170109?opendocument
(last visited Oct. 13, 2009).
[145] See
id.
[146] Id.
(This understanding of
the ICRC's views is taken from a construction of the statements made by Peter
Herby on January 17, 2009. Even if this is an improper
interpretation of the ICRC's approach to categorizing incendiary weapons under
the CCW, the ICRC's actual approach would most likely follow the approach,
analyzed above, requiring an investigation into the "primary design"
of the munition. No matter the analysis used, the white phosphorus munitions
used by Israel in Gaza do not fall under the CCW's definition
of an "incendiary weapon.").
[147]See
Yaakov Katz, IDF Probe: White Phosphorus Use Legal,
Jerusalem Post, (Apr. 22, 2009), available
at http://www.jpost.com/servlet/Satellite?cid=1239710758789&pagename=JPost%2FJPArticle%2FShowFull .
[148] Id.
[149] However, under the literal
interpretation of Protocol III, this use would
not come under the CCW's definition of an "incendiary weapon"
because all the evidence available has shown that the only white phosphorus
munitions Israel used during the war were all designed primarily as either a
smoke obscurant or a marking illuminant.
See Defense Update, supra note 116. Even though Israel used the white phosphorus to burn away
brush, the white phosphorus munitions that were used for this purpose were not primarily
designed for this purpose. Therefore, under the strict interpretation of
the text, the white phosphorus Israel used to burn away the brush is not an
"incendiary weapon" under Protocol III of the CCW.
[150] In the instance where
Israel's use of white phosphorus as an "incendiary" under Peter
Herby's test, the white phosphorus weapon was aimed at "clearing
brush" in furtherance of a military objective. Because it was not aimed at
the civilian population or civilian objects, this use of white phosphorus did not
violate Article 2(1). Furthermore, this
white phosphorus was not "air-delivered," and is thus did not violate
Article 2(2). Finally, this white
phosphorus incendiary weapon (as defined under Peter Herby's "use"
test), was used on a military target located in an open area. Because the white
phosphorus was not used within a civilian concentration, it did not violate
Article 2(3). Finally, because the white phosphorus was used to burn brush and
shrubbery that was being used to "cover, conceal, or camouflage . . . a
military objective," this use of white phosphorus did not violate Article
2(4) of Protocol III. This all shows that even if the white phosphorus munitions
used by Israel to burn brush are considered incendiary weapons under Peter
Herby's "use" test, their use in this circumstance did not violate
any of the prohibited uses of incendiary weapons under the CCW. For the factual
background behind this one specific instance see Katz, supra note 147.
[151] Protocol III, supra note 132, at art. 2(2) ("It is prohibited in all
circumstances to make any military objective located within a concentration of
civilians the object of attack by air-delivered incendiary weapons.").
[152] Id.
[153] Id.
[154] Id.
[155] This reasoning can also be better
understood by substituting the synonymous word "target" for the
phrase "object of attack." When a military makes a weapons storage
facility the "target" of a bombing, but the bomb's guidance mechanism
fails and the bomb mistakenly hits the civilians, the civilians are not understood
to have been "targeted."
Rather, it is understood that the weapons storage facility was the
"target" and the civilian's were the mistakenly attacked
"non-target," (known in military terms as "collateral damage"
or "unintended casualties").
[156] Black's
Law Dictionary 1102 (8th ed. 2004) (also defining "object" as
"an end, goal, or purpose")
[157] Answers.com: Object, http://www.answers.com/topic/object
(last visited Oct. 13, 2009).
[158] Id.; Answers.com:
Intention, http://www.answers.com/topic/intention (last visited Oct.
13, 2009) (emphasis
added).
[159] See
Protocol III, supra note 132,
art. 2(1).
[160] See
'IDF White Phosphorus Use Not Illegal',
Jerusalem Post, Jan. 13, 2009, available at http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/ShowFull&cid=1231866575577
("'[The IDF] wishes to reiterate that it uses
weapons in compliance with international law, while strictly observing that
they be used in accordance with the type of combat and its
characteristics.'").
[161] See,
e.g., Human Rights Watch, supra note 13; Amnesty International, supra
note 122; B'Tselem, supra note 123 (all failing in their
reports to present any evidence in their reports of Israel having "made
the civilian population the object of white phosphorus attacks."). These
organizations could have theoretically proved that Israel made the civilian
population the object of white phosphorus attacks by presenting evidence of
internal government/military memos showing that the government intended to use
the white phosphorus to attack the civilian population or civilian objects, or
evidence of subordinate officers (or commanders) admitting that the commanders
ordered the civilian population to be targeted for white phosphorus attacks.
Although the internal government memos would be understandably hard to find or
receive, the plethora of subordinate Israeli soldiers willing to admit the
wrongdoing of their commanders over the years seems to indicate that this type
of evidence would not be difficult to obtain by using minimal investigative
efforts. However, all of the NGOs' investigations
of the Israeli use of white phosphorus in Gaza failed to present any of this kind of
evidence that would prove the contention that Israel made the Gazan civilian population the
object of white phosphorus attacks.
[162] See
Human Rights Watch, supra note 13, at 64; Amnesty International, supra note 122, at 13.
[163] See
infra Appendix A.
[164]
See Human
Rights Watch, supra note 13, at 64; Amnesty International, supra note 122, at 13.
[165] Id.
[166] Under the assumption that white
phosphorus is an incendiary, it is not necessarily prohibited under the CCW to
make enemy combatants (as opposed to civilians) the object of incendiary
attacks. See Protocol III, supra note 132, art. 1 (3-4). This point
is moot, however, since there is no evidence showing the Israeli military to
have actually made the combatants an object of attacks with white phosphorus.
[167] See
Human Rights Watch, supra note 13; Amnesty International, supra
note 122; B'Tselem, supra note 123.
[168] Again, as has already been mentioned,
all the white phosphorus shells found or known to have been used were of the
M825 155mm projectile type, the mortar-type shells (presumably 120mm Mortar
Smoke Cartridge), and 76mm shells used by the navy solely for marking purposes.
See Human
Rights Watch, supra note 13, at 12 (specifying the 155
mm shells found, but not the specifics of the 120 mm shells found); Katz, supra note 147. These shells are all
specifically designed for two types of smoke operations or for illuminant
marking purposes. See GlobalSecurity.org:
Military: M825 155mm Projectile, supra
note 118; GlobalSecurity.org : Military, XM929/XM929E1 120mm Mortar Smoke (White
Phosphorus) Cartridge, http://www.globalsecurity.org/military/systems/munitions/m929.htm
(last visited Oct. 13, 2009).
The designed uses of these munitions are consistent with the evidence of
Israel's use of white phosphorus solely as an
obscurant and illuminant.
[169] Protocol III, supra note 132, at art. 1(2)
[170] See
Human Rights Watch, supra note 13.
[171] "Air-delivered" means delivery
by aircraft. See FAS: Military
Definitions: Air-Delivery, http://www.fas.org/news/reference/lexicon/dea.htm
(last visited Oct. 13, 2009) (referring only to delivery of
munitions or supplies by aircraft).
[172] As the next section points out, making
civilian populations the object of attack of non-air delivered white phosphorus
munitions, such as the artillery delivered white phosphorus used by Israel in the 2009 Gaza operations, is prohibited by the CCW
(assuming that white phosphorus is an
incendiary). However, the significant difference in treatment between
air-delivered incendiaries and non-air-delivered incendiaries is that
militaries are wholly prohibited from making military targets located within a
concentration of civilians the object of an air-delivered incendiary attack,
while militaries are not prohibited
from making military targets located within a concentration of civilians the
object of non-air-delivered incendiary attacks as long as the military target is "clearly separated from the
concentration of civilians and all feasible precautions are taken with a view
to limiting the incendiary effects to the military objective and to avoiding,
and in any event to minimizing, incidental loss of civilian life, injury to
civilians and damage to civilian objects." See Protocol III, supra note
132, at art. 2(3). In any case, it has already been shown that there is no
evidence to support a conclusion that the Israeli military made anything (other than the ground brush in
one instance) the object of white phosphorus attack. Because Israel used white phosphorus only to obscure
its troops (or illuminate or "mark" shell trajectories), and not to make combatants or non-combatants
the object of a white phosphorus attack, the Article (2)(3) prohibitions and
exceptions are not relevant to Israel's use of white phosphorus.
[173] Protocol III, supra note 132, at art. 2(3).
[174] Of course, this does not include the one
exception of Israel's use of white phosphorus to "burn
brush." See Katz, supra note 147.
[175] Protocol III, supra note 132.
[176] Id.
[177] GCIV, supra note 82.
[178]See ICRC, Geneva Conventions of 12
August 1949, http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P
(last visited Oct. 14, 2009).
[179] See
id.; GCIV, supra note 82 at Part I, art. 2.
[180] Restatement (Third) of
Foreign Relations Law § 102(2) (1987). See also Statute of the International Court of Justice,
Art. 38(1)(b), available at http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0 .
[181] See, e.g., Siderman
v. Argentina,
965 F.2d 699 (9th Cir. 1993) (citing The Paquete Habana, 175 U.S. 677 (1900) (noting that "the
customs and usages of civilized nations . . . and as evidence of these . . .
the works of jurists and commentators" should be resorted to in order to
determine customary international law).
[182] See
generally ICRC, The ICRC its Mission
and Work, http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0963/$File/ICRC_002_0963.PDF
(last visited Nov. 11, 2009). Vociferous objectors are exempt from
particular normally binding international laws, to the extent that they have
objected to a particular law throughout that law's period of development and
maturation. See Restatement (Third) of
Foreign Relations Law § 102, cmt. d (1987). There is no indication Israel is a vociferous objector to
any laws relevant to the use of white phosphorus in Gaza. See
generally ICRC, Geneva Conventions of 12 August 1949: Israel Reservation/Declaration text, http://www.icrc.org/ihl.nsf.NORM/35D52356F487FC85C1256402003F9563?OpenDocument (last visited Nov. 10, 2009) (not stating any specific reservation regarding the use of white
phosphorous).
[183] See
ICRC, Phosphorus Weapons, supra note
144 ("The use of weapons containing white phosphorous is, like the use of
any other weapon, regulated by the basic rules of international humanitarian
law. These require parties to a conflict to discriminate between military
objectives on the one hand and civilians and civilian objects on the
other.").
[184] Jean-Marie Henckaerts, Study on Customary International Law: A
Contribution to the Understanding and Respect for the Rule of Law in Armed
Conflict, 87 Int'l Rev. Red Cross
175, 199 (Mar. 2005), available at
http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0860/$File/ICRC_002_0860.pdf .
[185] See
Human Rights Watch, supra note 13, at VI.
[186] See id. ("Israel has not asserted that
it used white phosphorus as a weapon . . . ").
[187] See
Major Ernest Harper, A Call for a
Definition of Method of Warfare in Relation to the Chemical Weapons Convention,
48 Naval L. Rev. 132, 159 (2001).
[188] See
id. at 154-55.
[189] See
id. at 156, 158.
[190] See
id. at 156-57.
[191] Id.
[192] Captain James T. Cobb, First Lieutenant
Christopher A. LaCour & Sergeant First Class William H. Hight, TF2-2 in FSE AAR:
Indirect Fires in the Battle
of Fallujah, Field Artillery, Mar.-Apr. 2005, at 26.
[193]
See generally Israel
Ministry of Foreign Affairs, supra note
70.
[194] See
Major Harper, supra note 187.
[195] Israel Ministry of Foreign Affairs, Operation Cast Lead Expanded, http://www.mfa.gov.il/MFA/Governmetn/Communiques/2009/Second_stage_Operation_Cast_Lead_beings_3-Jan-2009.htm
(last visited Nov. 10, 2009).
[196] Henckaerts, supra note 184.
[197] See
Major Harper, supra note 187.
[198] Henckaerts, supra note 184.
[199] See
Aron Heller, Pilot: I Aborted
Missions to Avoid Hitting Civilians, Jerusalem Post (Jan.
14, 2009), available at http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArticle%2FShowFull&cid=12319508
49061 .
[200] Henckaerts, supra note 184.
[201] Id.
[202] See
Israel Ministry of Foreign Affairs, supra
note 195.
[203] See Terrorism-Info.org.il, The
Intelligence and Terrorism Information Center, Civilians as Human Shields:
Operational sketches seized during Operation Cast Lead show Hamas locates
firing positions, anti-tank positions and IEDs in military compounds situated
in the heart of densely-populated neighborhoods in the northern Gaza Strip,
http://www.terrorism-info.org.il/malam_multimedia/English/eng_n/html/hamas_e046.htm ;
Israel Ministry of Foreign Affairs:
Hamas Exploitation of Civilians as Human Shields: Photographic Evidence, http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Hamas+war+against+Israel/Hamas+exploitation+of+civilians+as+human+shields+-+Photographic+evidence.htm?DisplayMode=print (last visited 19 Oct. 2009).
[204] Henckaerts, supra note 184, at 200.
[205] The rule specifies that a military must
warn civilians of attacks which may affect the civilian population. Id. An advance warning that there "will
be" an attack would seem the satisfy the requirement of this rule and
there is no reason to believe that the advance warnings of an attack must
include every single weapon, munition, and method that will be utilized in the
attack. In light of the ever-changing and unpredictable circumstances of war, a
rule that legally required a military to warn civilians of all the weapons,
munitions, and methods of warfare that will be employed during an impending
battle would be necessarily be aspirational as it would be nearly impossible to
abide by this rule.
[206] See
generally Steven Erlanger, A Gaza War
Full of Traps and Trickery, New
York Times
(Jan.
10, 2009), available at http://www.nytimes.com/2009/01/11/world/middleeast/11hamas.html
(noting the Israeli practice of firing non-explosive missiles at empty corners
of rooftops in order to warn the civilians to leave the building). Although
this practice has been reported and criticized as illegal psychological warfare
being used to "frighten" civilians, it is in fact used as a final
warning device in an attempt to get civilians out harm caused by Israel's
operations against military targets); Israel Ministry of Foreign Affairs: IDF
Issues Warnings to the Civilians of Gaza, http://www.mfa.gov.il/MFA/Government/Communiques/2009/IDF_warns_Gaza_population_7-Jan-2009.htm
(last visited Oct. 10, 2009); Abraham Rabinovich, Israel Phones in Warning to Flee Gaza Strip Strike, The Australian
(Dec. 30, 2009), available at http://www.theaustralian.news.com.au/story/0,25197,24853989-15084,00.html .
[207] However, in HRW's (and other NGO's)
attempts to marshal evidence showing Israel's disregard for international law, they
far fall short of proving any misconduct by Israel rising to the level of international
humanitarian law violations.
[208] See
Henckaerts, supra note 184.
[209] See
id. at 198-200.
[210] For an example of white phosphorus being
used to reduce civilian casualties, see discussion
supra p. 31.
[211] See
Federation of American Scientists, White Phosphorus Fact Sheet, http://www.fas.org/programs/ssp/bio/factsheets/whitephosphorusfactsheet.html
(last visited Oct. 11, 2009) (noting the low lethality of white
phosphorus when used as a smoke obscurant, incendiary, or tracer).
[212] See
U.S. Army Center for Health Promotion and Preventative Medicine, supra note 18. (Also mentioning that
ingestion or inhalation of actual pieces of white phosphorus can cause harm, as
opposed to the smoke produced by white phosphorus).
[213] See
Federation of American Scientists, White Phosphorus Fact Sheet, supra note 211.
[214] Lisandro Irizarry: Incendiary Agents,
White, http://emedicine.medscape.com/article/833585-overview (last visited Oct.
10, 2009).
[215]Id.
[216] Monahan, supra note 24.
[217] One especially strong criticism of Israel's use of white phosphorus in Gaza in 2009 was their failure to use other
available smoke munitions that allegedly offer the same obscuring potential as
white phosphorus smoke munitions without the harmful effects on civilians. An
analysis of all the positives and negatives of the use of the numerous and
varying smoke munitions is beyond the scope of this paper. However, most
of the arguments favoring these alternative smoke munitions' benefits lack any
merit. For instance, Human Rights Watch suggests that Israel should have used "155mm smoke
shells" instead of white phosphorus. See
Human Rights Watch, supra note 13, at 1. However, the
only widely available "155mm smoke shells" that do not utilize white
phosphorus, are the M116 and M116A1/B1. See
GlobalSecurity.org , Military: Smoke Projectiles, http://www.globalsecurity.org/military/systems/munitions/smoke.htm (last
visited Oct. 17, 2009).
The only difference between these shells and the 155mm M825 white
phosphorus shells that were used by the Israeli military is that the M116 type
shells release smoke canisters instead of white phosphorus soaked felt wedges. See GlobalSecurity.org , Military:
M116A1/B1 155mm Projectile, http://www.globalsecurity.org/military/systems/munitions/m116.htm
(last visited Oct. 17, 2009); See
also GlobalSecurity.org , Military; Smoke Projectiles, http://www.globalsecurity.org/military/systems/munitions/smoke.htm
(last visited Oct. 17, 2009). However, M116 type shell smoke
canisters (which HRW suggests as a "safer" alternative to white
phosphorus shells) all contain "HC" which is hexachloroethane.
GlobalSecurity.org, Military: M416 WP 105mm, http://www.globalsecurity.org/military/systems/munitions/m416.htm
(last visited Oct. 17, 2009).
HC has been shown to cause liver cancer in laboratory rats, and the
Department of Health and Human Services has recognized HC as carcinogenic in
humans. See ASDR.cdc.gov ,
ToxFaqs for Hexachloroethane, http://www.atsdr.cdc.gov/tfacts97.html
(last visited Oct. 17, 2009). Recognizing that HC smoke may not be
as effective for certain operations as white phosphorus smoke, and that HC
smoke is carcinogenic (while the actual smoke of white phosphorus is relatively
harmless), there is no reason to believe that using the 155mm M116 HC smoke
shells would be any less harmful to the civilian population than using 155mm
white phosphorus shells. See
GlobalSecurity.org , Military: White Phosphorus (WP), http://www.globalsecurity.org/military/systems/munitions/wp.htm
(last visited Oct. 17, 2009).
[218] See
generally Alan J. Levine, The
Strategic Bombing of Germany: 1940-1945 (Praeger
1992).
[219] See
generally Human rights Watch, Troops
in Contact: Airstrikes and Civilian Deaths in Afghanistan (2008).
[220] See
Harper, supra note 187, at 157-59.
[221] See
id.
[222] RCA's have a lethality rate of 0.5%. See Fry, supra note 91, at 507.
[223] Id. at 506-07.
[224] See Harper, supra note 187, at 156
(noting the effective usefulness of RCAs to recover downed air-crews in hostile
territory). See also id. at 155-56 ("[I]t is entirely consistent
with the CWC . . . to employ riot control agents in armed conflict as an
effective and morally acceptable alternative to deadly force in situations
where civilians and combatants are intermixed, in downed aircrew/passenger
rescue missions, and in situations involving escaped prisoners.") (quoting
Memorandum, Secretary of Defense, to Assistant to the President for National
Security Affairs, subject: Riot Control Agents and the Chemical Weapons
Convention (Apr. 4, 1994)).
[225] See
CWC, supra note 80, at art. I(5)
("Each State Party undertakes not to use riot control agents as a method
of warfare."). The meaning of "method of warfare" is not agreed
upon, however it is generally accepted that the use of RCA's as a
force-multiplier or as a method of increasing enemy casualties, is illegal
under the CWC. See Harper, supra note 187, at 152.
[226] See Harper, supra note 187, at 151
("General Carl Mundy, U.S. Marine
Corps (retired), Commandant of the Marine Corps from 1992-1996, recalls that
the RCA issue [of the CWC] centered on the premise that
use of RCA's could send a dangerous signal that chemical
agents had been employed.").
[227] Id. ("Even if the RCA is recognized for its true nature, its employment
invites the use of lethal chemical
weapons, by its mere presence on the battlefield.").
[228] CWC, supra
note 80.
[229] Eli Ashkenazi, et al., Hamas Launches
First Phosphorus Rocket at Negev, Haaretz, Jan. 16, 2009, available at http://www.haaretz.co.il/hasen/spages/1055561.html .
[230] Qassam
rockets are, by their nature, indiscriminate, and are always intentionally
fired at civilian populations for the express purpose of causing fear and death
in the civilian population. See Henckaerts,
supra note 184, at 198-200.
[231] See
Robin Collins, The Shadow Campaign:
Cluster Bombs and Explosive Remnants of War, Peace Magazine, July-Sept. 2002, available at (suggesting that weapons with lingering effects that
put civilian populations in danger after the ending of hostilities should be
against international humanitarian law).
[232] See
Convention on Cluster Munitions, available
at http://www.clusterconvention.org/index.php [hereinafter the
"CCM"]. However, as of October 10, 2009, the CCM is only in force in
22 states.
[233] Id.
at art.1(1).
[234] Id.
at art. 2(2).
[235] See
id. at art. 2(5).
[236] See
'Circle of Impact' Report on the Human Impact of Cluster Bombs, Handicap
international, May 16, 2007,
available at http://en.handicapinternational.be/Circle-of-Impact-,-report-on-the-human-impact-of-cluster-bombs_a467.html
("Ninety-eight percent of cluster submunitions casualties are civilians
killed and injured while returning home in the aftermath of conflict or while
going about their daily tasks to survive.").
[237]
See Circle
of Impact: The Fatal Footprint of Cluster Munitions on People and Communities:
Executive Summary (2007), http://en.handicapinternational.be/Circle-of-Impact-,-report-on-the-human-impact-of-cluster-bombs_a467.html
(last visited Oct. 17, 2009).
[238] See
GlobalSecurity.org , Military: M825 155mm Projectile, supra note 118;
GlobalSecurity.org : Military: White Phosphorus, supra note 8.
[239] See
GlobalSecurity.org : Military: White Phosphorus, supra note 8.
[240] See
Mohit Joshi, White Phosphorus Widely Used
in Gaza, Fact-finding Team Says, Top News, January 21, 2009, available at http://www.topnews.in/white-phosphorus-widely-used-gaza-factfinding-team-says-2113179 .
[241] Id.
[242]See Human
Rights Watch, supra note 13.
[243]It could be argued that if it is already
well-known that the use of white phosphorus will have this type of detrimental
effect on the civilian population, then already existing international
humanitarian law would prohibit the use of white phosphorus. One possible
source of support for this argument is Article 35 of the Protocol Additional to
the Geneva Conventions (Protocol 1). This provision states in general terms
that, "It is prohibited to employ weapons, projectiles and material[s] and
methods of warfare of a nature to cause superfluous injury or unnecessary
suffering." Protocol Additional to
the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts (Protocol I), art. 35(2), June 8,
1977, available at http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument
[hereinafter GCIV Protocol 1]. This may prohibit the use of white phosphorus
because of its lingering effects on the civilian population, however, because
of the ambiguous nature of the terms "superfluous injury" and
"unnecessary suffering," this provision is susceptible to being
interpreted in a fashion that would render it, more or less, toothless.
Furthermore, GCIV Protocol 1 is not binding on all the parties to the GCIV, but
is only binding on the states that are parties specifically to the first
additional protocol. Only 168 states are parties to the GCIV Protocol 1 (as
opposed to 194 states parties to the GCIV). ICRC, 1949 Conventions &
Additional Protocols, http://www.icrc.org/ihl.nsf/CONVPRES?OpenView
(last visited Oct. 10, 2009). Because
Article 35(2) of GCIV Protocol I contains such amorphous standards and
is only binding on 168 countries (not including Israel), this law does not seem
strong enough or clear enough to assure
that white phosphorus munitions will not
be used to harm civilians. Finally, although some may argue that the misuse of
white phosphorus munitions as obscurants and illuminants is prohibited by
customary international humanitarian law, this paper has explained why this may
not be so. In any case, a White Phosphorus Convention completely banning the
use of all white phosphorus munitions (similar in tone and clarity to the CCM)
would provide a currently non-existent bright-line rule and the potential for
this clear rule to become customary international law.
[244] This article's recommendation for a
White Phosphorus Convention banning all
uses of white phosphorus, is not meant to imply that Israel's use of white
phosphorus violated international humanitarian laws or standards presently in place. Condemning Israel on
moral grounds for its use of white phosphorus is an individual prerogative, and
not the subject of this article. However, no country (or person, for that
matter) can be expected to follow laws that do not exist, and, far from
ignoring international humanitarian norms, this article has shown that Israel
went to great lengths to abide by those laws. If a White Phosphorus Convention,
as envisioned in this article, were to come about and become international law,
then any future Israeli use of white phosphorus would deserve condemnations for failing to follow international
humanitarian laws. However, this is pure
speculation, and Israel's past observance of international humanitarian laws as
they applied to the use of white phosphorus seems to imply that were a White
Phosphorus Convention to become international law, that too would be followed
by Israel in any future military operations.
[245] See Human Rights Watch, supra note 13.
[246] See
Eyewitness Report from Gaza: Tel Al-Hawa:
The Invasion and Then After, Palestinian Solidarity Project, January 19,
2009, http://palestinesolidarityproject.org/2009/01/19/eyewitness-report-from-gaza-tel-al-hawa-the-invasion-and-then-after
(noting the 24 hour Israeli military presence in Tel Al-Hawa the day of the
Al-Quds hospital fire); Gaza Pounded Amid
Push for Truce, BBC News, January 15, 2009, available at http://news.bbc.co.uk/2/hi/middle_ east/7829912.stm
(noting that the Tel Al-Hawa neighborhood was "the scene of heavy
fighting" on the date of the Al-Quds hospital fire); Posting of Gilads to
the Israel Military Forum: Israel National Security: Israel Military Discussion
Forum, http://www.israelmilitary.net/showthread.php?p=39502 (Jan. 25, 2009,
10:18 p.m.) (giving an Israeli first person account of the heavy fighting in
Tel Al-Hawa) (citing an article from the Israeli military magazine,
"BaMachane."); Alex Safian, Update:
Destroyed Al Quds Hospital Back to Normal in a Few Days, Camera, January 22, 2009, available at http://www.camera.org/index.asp?x_context=2&x_outlet=2&x_article=1599
("A deafening cacophany (sic) of tank shells, missiles, artillery,
helicopter gunships and automatic rifles filled the air as battles unfolded
less than 300 metres (yards) from the facility beneath a thick pall of smoke.
Palestinian fighters met the advancing troops with mortar and anti-tank
rockets. Tanks fired shells on the ground and planes hit the area with missiles
from above. Armed Hamas fighters dressed in blue and black uniforms, one of
them carrying the green flag of his Islamist movement, ran down a street 100
metres from the hospital, firing Kalashnikov rifles.") (citing an AFP
report from January 15, 2009).
[247] See
Defense Update, supra note 116
("[S]moke screens were activated at higher elevation, thus eliminating
much of the risk of collateral damage to non combatants.").
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