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.