Palestinians Claim Israel Uses White Phosphorus in Gaza

Palestinians interviewed in Gaza claim that “Israeli soldiers are firing rounds of a noxious substance that burns skin and makes it hard to breathe,” according to a Jan. 12, 2009 NY Times article.[1]  Marc Garlasco, a military analyst with Human Rights Watch, identified white phosphorus on a piece of metal casing bearing the identifying number M825A1 shown to him by a resident of southwest Gaza City on January 12.[2]  White phosphorus ignites when exposed to air and can rain down flaming chemicals that cling to anything they touch if packed into an artillery shell.[3]  However, as the NY Times indicated, white phosphorus is typically used for signaling, smoke screen, and destroying enemy equipment.[4]

The NY Times reported that “experts and rights advocates have argued over whether [white phosphorus’] use to intentionally harm people violates international conventions.”[5]  However, according to Jane’s Ammunition Handbook, metal casing with the identification number M825A1 is a white phosphorus smoke-producing projectile.  Protocol III of the Convention on Certain Conventional Weapons defines incendiary weapons are “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 the target.”[6]  White phosphorus , when designed and used as a smoke munition, does not meet this definition as it is “primarily designed to be used as a smoke screen or illuminant.”[7]  Additionally, Protocol III states that prohibited incendiary weapons do not include “munitions which may have incidental incendiary effects, such as illuminants, tracers, smoke, or signaling systems.”[8]  Thus, as Major R. Craig Burton has concluded, “white phosphorus may be used lawfully . . . as long as it is not used in a manner calculated to cause unnecessary suffering” and does not violate other treaty obligations.[9]

 

[1] Taghreed El-Khodary & Sabrina Tavernise, U.N. Warns of Refugee Crisis in Gaza Strip, N.Y. Times, Jan. 12, 2009, available at http://www.nytimes.com/2009/01/13/world/middleeast/13mideast.html?scp=1&sq=White%20Phosphorous&st=cse (last visited Jan. 14, 2009).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] 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) (emphasis in original).

[7] Id.

[8] Convention on Certain Conventional Weapons, Protocol III, art. 1(1)(b)(i), 10 Oct. 10, 1980  available at http://www.ccwtreaty.com/KeyDocs/protocol3.html (emphasis added).

[9] Burton, supra note 6, at 22.  Cf. Joseph D. Tessier, Shake & Bake: Dual-Use Chemicals, Contexts, and the Ilegality of American White Phosphorus Attacks in Iraq, (conceding legality of w.p. used for smoke) 6 Pierce L. Rev. 323, 325 (2007).