The Phosphorus Question, Revisited

Gershom Gorenberg

I’m glad that Haim brought up the ethics of the Gaza war. Because the news cycle has a ferociously short-term memory, the elections pushed the war and its unanswered questions out of the headlines. But we shouldn’t wait 25 years for an animated documentary to get us to have a conversation that should be going on now.

One very specific issue that lingers in my mind is the use of white phosphorus in Gaza, especially the question of whether the IDF fired that fearsome substance at civilians.

The government, I’ll note, did not deny that the army used phosphorus in Gaza. Rather, an Foreign Ministry statement on January 28 carefully said, “there was no illegal use of phosphorus or any other material.” The operative word here is “illegal.” In other words, if white phosphorus was used, the use was legal. And actually, if it wasn’t used at all, the spokesperson would have been happy to tell us that. Ergo, what’s at dispute is the legality.

So far, the most direct testimony of use of phosphorus that I’ve seen comes from a UN school in Beit Lahiya that served as a shelter during the war. This YouTube clip is a report from British correspondent Jonathan Miller. The actual footage of the school being hit, according to Miller, comes from a worker’s cellphone. Israeli policy during the war was to prevent both foreign and Israeli journalists frome entering the Strip, which makes it more difficult for the government to complain now that footage comes from local sources. Miller’s tone here isn’t exactly an exemplar of balance – but the tone of the commentary, in itself, doesn’t disprove the validity of the footage. I suppose it’s wildly possible that this was really filmed in Iraq or elsewhere, or on a set someplace.  The simplest explanation, however, is that the correspondent, entering Gaza after the fighting, got the video from someone who took it at the site he visited. Conspiracies are just so much more difficult to pull off.

I also received an email originating from a Palestinian activist, Omar Barghouti, with a series of pictures from the Beit Lahiya school.  The digital information in the pictures says the rights belong to AFP. To avoid copyright problems, I’m not putting the pictures in, frustrating as that is. Again, I leave it to people getting paid salaries to check such things to weigh in on the provenance of the photos. For now, let’s presume they’re AFP shots, by a local photographer, from the school.

For the opinion of someone who is neither Israeli nor Palestinian, I sent the pictures to someone who is a retired US Army officer, a three-time combat veteran.  I got this answer:

Yes that is WP. The lawyers would argue that since it was an “air burst” several hundred meters above the target, they were not “targeting civilians.” It is a rhetorical fine line, but that is most likely the argument.

WP is not illegal to use against combatants; while there are limits on some flame weapons, most can be used. The main argument is whether there were Hamas guys shooting out of the UNRWA school or using it for some other reason. In that case, the IDF had the right to self-defense. However, in the US Army I always taught that you have to use appropriate force. For example, if you have a sniper shooting at you from a mosque, you use a counter-sniper to get him, not an artillery barrage.

According to the Red Cross, actually, the lawyers would have a tougher case to make. An ICRC explanation of international law states [emphasis in the original]:

…the basic rules of international humanitarian law… require parties to a conflict to discriminate between military objectives on the one hand and civilians and civilian objects on the other. The law also requires that they take all feasible precautions to prevent harm to civilians and civilian objects that can result from military operations. Attacks which cause “disproportionate” damage to civilians and to civilian objects are prohibited.

…The use of such white phosphorous weapons against any military objective within concentrations of civilians is prohibited unless the military objective is clearly separated from the civilians. The use of air-dropped incendiary weapons against military objectives within a concentration of civilians is simply prohibited. These prohibitions are contained in Protocol III of the Convention on Certain Conventional Weapons.

In addition, customary international humanitarian law, which is applicable to all parties to any conflict, requires that particular care must be taken when attacking a military target with incendiary weapons containing white phosphorous, in order to avoid harm to civilians and damage to civilian objects. If this substance is used against fighters, the party using it is obliged to assess whether a less harmful weapon can be used to put the fighters out of action.

If munitions containing white phosphorous are used to mark military targets or to spread smoke then their use is regulated by the basic rules of international humanitarian law.

The ICRC statement, issued during the war, carefully avoids taking a public stance on whether illegal use was made of white phosphorus. (The statement may have been written before the Beit Lahiya incident.)

However, if the Beit Lahiya evidence is trustworthy, then it would be a weak defense that civilians weren’t “targeted.” On the face of it, a lawyer trying to prove that the use of white phosphorus here was legal would have a very difficult job. I leave as totally opaque the question of who gave the order for the alleged use, and how high up the chain of command that person was, and whether the Foreign Ministry received accurate information before it issued its statement.

But leave aside law. Even according to the more lenient views of Asa Kasher, as Haim quotes them, it’s hard to make a case that using white phosphorus in Beit Lahiya was ethical.

All of this is provisional. I await, unhappily, all the long investigations and histories and even the documentary film that will come out 25 years from now. In the meantime, I am troubled, and I don’t think the election should stop the discussion about what happened in Gaza.

22 thoughts on “The Phosphorus Question, Revisited

  1. You described WP as a “fearsome substance”. WP fired from helicopters isn’t exactly what people imagine when they imagine war. But just because people aren’t familiar with it doesn’t mean people fear it. Gazan kids were playing with that stuff (which they shouldn’t have) after it hit the ground so I don’t think they “feared” it.

  2. This is all very interesting, and good to know. The discussion on morality and ethical matters should definitely take place. (But will it take place? In the Israeli society that just now elected Lieberman to parliment?). The legal argument is a little silly to me, but I’m happy with anything that might wake up their Israelis from their moral slumber. If international trials are needed, so be it.

    Anyway, that’s not what I wanted to say. I just wanted to note that if I understand correctly, Israel never ratified The Convention on Certain Conventional Weapons, and is unbound by it. See more in Efi Fuchs’ blog (in Hebrew):
    http://effifuks.blogli.co.il/archives/733

  3. Interesting analysis at first glance, but not quite robust. First Israel and the USA are notparties to the 1980 Geneva Protocol III Prohibitions, but assuming that they are…

    1. Lets look at the definition of Incendiary weapons in the link you provide and how it does not fit.

    “Incendiary weapon” means 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.”

    The white phosphorous used by the Israeli army is not primarily designed to “to set fire to objects or to cause burn injury to persons.” It is primarily designed to illuminate areas at night. If each shell had enough white phosphorous to burn dozens people, then they would meet the definition, or if the Israelis had used hundreds of shells that exploded on the ground in a small area, but this did not happen.

    Let’s also look at what your expert said

    “it was an “air burst” several hundred meters above the target, they were not “targeting civilians.”

    How could anyone argue with a straight face that that an air burst several hundred meters above a target was (per the definition of Incendiary Weapon above) “primarily designed to set fire to objects or to cause burn injury to persons.” If you are trying to burn someone with weapons, you fire it at them not hundreds of yards above them with the hope that a bit of it does not burn out by the time it reaches the ground and with luck hits someone.

    2. Now lets look at the way in which incendiary weapons are made illegal–via your link.

    “to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons.”

    You argue thus “However, if the Beit Lahiya evidence is trustworthy, then it would be a weak defense that civilians weren’t “targeted.” On the face of it, a lawyer trying to prove that the use of white phosphorus here was legal would have a very difficult job.”

    This is a conclusion, not an argument. First, all the video shows is some smoke. There is no evidence what the smoke is or where it is coming from. The shell that allegedly “hit” the school after the smoke (according to the report) was “artillery” not white phosphorous. There is also no evidence that ANY shell even hit the school as the video ends after a high-pitched sound. For all anyone knows the sound could have been a rocket being launched. Even if it was an Israeli shell, we have no idea where it actually landed.

    **Especially, since the UN itself said the school was NOT hit by the Israelis.**
    http://www.washingtonpost.com/wp-dyn/content/story/2009/02/06/ST2009020603409.html

    3. Now lets look at the ICRC quotes you put up
    “The use of air-dropped incendiary weapons against military objectives within a concentration of civilians is simply prohibited”

    Again, you need to look at the definition of Incendiary Weapon. Were white phosphous shells being shot at Hamas members to “to set fire to objects or to cause burn injury”? Clearly not, otherwise it was the most ineffective, bumbling use of incendiary weapons in the history of warfare.

    And this statement “customary international humanitarian law, which is applicable to all parties to any conflict, requires that particular care must be taken when attacking a military target with incendiary weapons containing white phosphorous.”

    For, the sake of argument, I will accept that that this is as close to black letter customary international law as one can get (despite no citations), but can anyone actually argue the Israeli army was “attacking” Hamas with white phosphorous? If the Israeli army were really using it as a weapon, wouldn’t there have been hundreds of deaths attributed to white phosphorous by the Palestinians and not just a handful? Especially considering the notorious use of exaggeration by Palestinians when it comes to casualties (i.e. 5000 dead in Jenin.).

  4. “It is primarily designed to illuminate areas at night.”

    Addendum: it is also primarily used to make smoke clouds.

  5. I agree that it would be hard to defend this instance of WP use. The photos alone, while they don’t tell the whole story, are pretty damning. We see numerous WP munitions directly striking the school and the courtyard. We see many civilians, but no fighters.

    I was particularly interested by this quote from the US Army officer you corresponded with, “However, in the US Army I always taught that you have to use appropriate force. For example, if you have a sniper shooting at you from a mosque, you use a counter-sniper to get him, not an artillery barrage.”

    Assuming the IDF is being entirely truthful and there were fighters at the school, it makes little sense to attack them with air burst WP munifitions. They’re indiscriminate weapons which affect a wide area. They’re much more likely to hurt civilians than a small number of well-hidden, mobile fighters (I believe Hamas militants operate that way).

    It reminds me of the case of Dr Izzeldeen Abuelaish. The IDF stated that they shelled his home because they saw “suspicious” movement inside, and assumed it to be a spotter for a sniper. Again, assuming the IDF is being truthful, it would appear that troops are expected to fight in a highly disproportionate and inefficient way, most likely in an attempt to avoid IDF casualties. In a place like Gaza, these tactics will inevitably cause appalling destruction and civilian casualties.

  6. Dave, are you saying if I took my trusty kitchen knife and stabbed someone, I couldn’t be charged with assault with a dangerous weapon (or whatever the legalese is), because kitchen knives are designed as tools?
    It doesn’t matter what those particular WP shells were designed for, what counts is how they were used. It’s not controversial that shells designed for illumination or smoke screens are still capable to burn people and objects, if not quite as effectively as napalm. If you want to use them for illegal purposes however, the big difference you hope for is plausible deniability.

    Gershom, how did your army officer arrive at the figure of “several hundred meters above the target”? Is that visible in the photos?

    I don’t know how long the pieces of phosphorus burn or how far they could descend, burning, from an airburst, but it’s obviously not the case, as Dave suggests, that most of it had burned out by the time it reached the ground. One could imagine these shells being (mis)used in the fashion of cluster bombs – not to target a particular person but an entire area.

  7. What I am saying is that there is no evidence that it was used for illegal purposes. There is no evidence is was used (from the 3rd protocol language) “to set fire to objects or to cause burn injury”? There is no requirement that it be 100% safe otherwise any civilian ever hurt in a war would be a war crime. It’s a tragedy that some people were burned by it, but it clearly was not intentional nor a war crime.

  8. Several people have raised several points. I believe the use of white phosphorous in an urban area with a high volume of civilians to be morally dubious. It creates an increased degree of risk to everyone in the combat area, combatant and civilian alike. It can be argued whether its use is necessary. I don’t have enough technical military knowledge to know how necessary WP is, so I will not undertake that argument myself, but I do wish to leave it open for others to do so and so I make mention of it. So I agree, on a moral level, with Mr. Gorenberg. It is difficult to justify the use of WP in Gaza on a moral/ethical level.

    The legal issue is much more complicated. The ‘international law’ quoted by the Red Cross is, sadly, largely imaginary. The most active military powers in the world (the United States, Israel, China, and Russia) have not signed the agreement which forms the basis of the Red Cross’s argument for illegality. It is entirely legitimate to condemn the governments of all four countries for not signing the agreement and to question why they have not done so. However, it should be pointed out that a treaty is like a contract: it is not legally valid to hold a non-signatory to an agreement in which they are not a party. There is a great passion for doing so in the UN these days, but this kind of treaty-based international law is simply not ‘law’ in the proper meaning of the word. It is a contractual agreement, which one cannot breach if one did not sign.

    Technical statements about the intended purpose of white phosphorous (illumination and smoke) appear to be backed up by the number and accidental seeming nature of the WP casualties described in statistics. That does not make the use of WP, however, responsible or moral. Nor does legality make something responsible or moral.

    I believe the moral and utilitarian aspects of this debate to be the most important: is it either morally right or practically desirable to make use of such a dangerous tool in an urban area with a high population density and a large civilian population? I don’t believe it is.

    I will revisit the issue of war crimes more briefly. All wars are crimes. ‘War crimes’ are political tools by which the winners punish the losers, or by which one sign gains propaganda victory over another. Neither side is ever innocent of the kind of crimes against humanity which naturally occur in armed conflict. Degree, motive, and effect may vary and might be important. Yet it is inappropriate to entirely morally condemn one side and to morally uplift the other in proportion to that condemnation.

  9. Some of you people could have defended Hitler if you had a mind to
    …”they didn’t fear it “…”First Israel and the USA are notparties to the 1980 Geneva Protocol III Prohibitions”…

  10. I’m also a bit skeptical of the footage portrayed in this report. I see smoke and some burning shrapnel — is this what WP looks like? Can your army friend tell us a bit more about what he sees in such a short video that suggests WP?

    And not to lay it on too thick with your American friend but I couldn’t help but rebut his spurious ‘proportionate force’ remark with this little gem from Iraq: http://www.youtube.com/watch?v=mmFoRtX06aE

    Proportionate, indeed!

  11. It’s not about ‘defense.’ It’s about fact. Treaties are contracts that legally bind the signatories. An agreement does not bind anyone who did not sign it.

    That doesn’t make something right, but it can make it legal.

    The Gaza operation was misconceived in many ways, too many to list, and has been a failure to boot. Hamas is already firing rockets at Israel again.

    But ‘illegal’ has a specific meaning, and an act banned by treaty is only illegal if committed by the signatories of the treaty banning said act.

  12. The cellphone video is perfectly ambiguous and unclear.

    Miller uses too many journalistic tricks to be trustworthy. Most egregious is his use of anonymous quotes about what ‘Gazans believe’, the ‘world believes’ and the old man in front of the school. Miller forgot to mention that the old man might be a Hamas operative. And in any case, does not have the right of free speech to contradict Hamas.

    A full investigation is not possible because it would require the IDF to reveal methods an techniques it needs to keep to itself.

    In the Miller report, the boy with the sutures has some injuries, but we see no evidence that they came from the phosphorus smoke shells Israel used. And we see no evidence that Israel used any WP other than phosphorus smoke shells.

    If the IDF wanted to create civilian casualties, everybody at the school would be dead. All of them.

    You could take the same video and narrate it to show that Hamas is addicted to Human Shields. That is, the video has almost no evidence, the story is all in the narration.

    Watch the video with the sound off a few times and you’ll see almost nothing useful.

  13. The merits of the international law regarding WP notewithtanding, the ethical problem here is clear: israel and its armed forces have displayed absolutely no regard for palestinian lives. That’s the definitive conclusion one CAN draw from watching the assault on gaza and its citizens unfold in real time. That this was a clear cut case of collective punishment is beyond doubt. It’s enough to look at the devastated infrastructure, even forgetting for a moment the hundreds of dead children. By the evidence will israel’s army be condemned, as will its government and the 90% of the citizens who wholeheartedly approved of the slaughter.

    back to WP – ask yourselves this: would israeli police have used it against say, some non arabs? think of some armed rioters or even a mafia hold out, or better yet, a posse of settlers run amock?

    We know the answer to this question. What else do we need to know? that DIME weapons were also used against civilians? that it was done purposefully? that it had devastating effects on lives and limbs?

    For many of us, when we next meet an israeli who was in the reserves – or on duty as a soldier in time to participate in the gaza carnage, we will shrink as one would from an accused serial killer. maybe this particular person was a ‘good soldier’ (whatever that is exactly in the idf context). Unfortunately for israelis, as long as their citizen army continue behave (on government orders) as thugs, they will all so be tagged. Which is of course unfair to many, but what are those of us, that saw the tapes- and photos – of the merry kibitzers in their lawn chairs cheering every “hit”, to think?

  14. ” israel and its armed forces have displayed absolutely no regard for palestinian lives. That’s the definitive conclusion one CAN draw from watching the assault on gaza and its citizens unfold in real time.”

    If that were true there would be 25,000 dead civilians not 250. There is only one group to blame for civilian deaths and that is Hamas who fires rockets from the middle of them and then uses them as human shields.

  15. dave,

    Actually, there were well OVER 700 civilian casualties. unless, of course, you consider any male to be a combatant, by definition – AND – you believe the IDF numbers, which are somewhat suspect – having every reason in the world to whitewash casualty figures.

    The sad truth is that the casualty numbers could well have been 10 or 50 times higher had there not been a well-founded fear of even greater public outcry. Surely, you don’t believe that the IDF – or the majority of israelis – really care all that much about just how many dead palestinians there are. If you don’t believe this, you must not have been listening to the tenor of the public discourse in israel.

    But then, I strongly suspect you are part of that discourse, and have a feint suspicion as to what side you’re on. Especially when it comes to attributions of human characteristics to palestinians.

  16. Isnt phosphorus a component of bones? Someone told me that bones were mostly calcium phosphate, with some proteins added. So whats the big deal about phosphorus-how toxic could it be since our bodes contain a lot of it?

  17. Nimrod, phosphorus is also a component of some insecticides, herbicides, and chemical weapons (Sarin, Soman, VX are essentially esters of phosphonic acid). OTOH phosphorus is a component of many essential biomolecules like DNA and ATP. It’s the specific compound that’s toxic or not, not the element itself.
    Among the allotropes of elementary phosphorus white phosphorus (P4) is very toxic indeed, while red and black phosphorus are not. The latter have also much higher flash points and won’t normally self-ignite.

  18. “However, in the US Army I always taught that you have to use appropriate force. For example, if you have a sniper shooting at you from a mosque, you use a counter-sniper to get him, not an artillery barrage.”

    As an enlisted I was taught the same line in US Army Basic Training, however, clearly things changed.

    http://news.bbc.co.uk/2/hi/americas/4442988.stm

    “…[P]ublished by the US Army’s Field Artillery Magazine in its issue of March/April this year. The article, written by a captain, a first lieutenant and a sergeant, was a review of the attack on Falluja in November 2004. “WP proved to be an effective and versatile munition. ..We fired “shake and bake” missions at the insurgents, using WP to flush them out and HE to take them out,” the article said. ”
    …a reported US army document from 1991 which refers to WP as a chemical weapon. The document reports the possible use of WP by Iraq against the Kurds who rose up after the Gulf War. It says: “Iraq has possibly employed phosphorous chemical weapons against the Kurdish population.” …the United States has not signed up to a convention covering incendiary weapons which seeks to restrict their use.

    Agreed in 1980, its Protocol III covers “Prohibitions or Restrictions on use of Incendiary Weapons.”…This prohibits WP or other incendiaries (like flamethrowers) against civilians or civilian objects and its use by air strikes against military targets located in a concentration of civilians. It also limits WP use by other means (such as mortars or direct fire from tanks) against military targets in a civilian area. Such targets have to be separated from civilian concentrations and “all feasible precautions” taken to avoid civilian casualties.

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