Israel Admits Using White Phosphorus Against Hezbollah

Sticking with the munitions theme, Israel reversed course today and admitted that the Israeli Defense Forces have used white phosphorus against Hezbollah military targets. Previously, Israel had claimed that the IDF had used the weapon only to mark targets or territory, uses generally pemitted by international humanitarian law (IHL). Israel continues to deny allegations — made repeatedly by the President of Lebanon — that it has used white phosphorus against civilians; its admission today emphasized that the IDF “made use of phosphorous shells during the war against Hizbollah in attacks against military targets in open ground,” which Israel claims is consistent with IHL.

The rules of IHL governing the use of white phosphorous as an offensive weapon remain unsettled. Those interested in the subject should consult an excellent ASIL insight that David Fidler wrote regarding the U.S.’s controversial use of the weapon in Fallujah. Fidler concluded that IHL most likely does not prohibit the use of white phosphorus, even as an incendiary weapon, against military targets that are not located within a concentration of civilians. Here is a snippet of his analysis:

The use of WP munitions in Fallujah has also been challenged as a violation of Protocol III to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons. Protocol III deals with Prohibitions or Restrictions on the Use of Incendiary Weapons…

[snip]

Protocol III prohibits in all circumstances (1) making the civilian population, individual civilians, and civilian objects the object of attack by incendiary weapons; and (2) any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons (Articles 2.1 and 2.2). There is no indication that the use of WP munitions in Fallujah constituted an intentional attack on civilian populations or civilian objects, even if such use may have resulted in civilian deaths, injuries, and collateral damage to civilian property. In addition, even if the WP munitions were used against a military objective within a concentration of civilians, the after-action report from Fallujah indicated that ground forces delivered the WP munitions, which means they were not air-delivered weapons.

Protocol III also prohibits the making of “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, minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects” (Article 2.3). The rule in customary international law is similar, according to the International Committee of the Red Cross (ICRC): When incendiary weapons are used, “particular care must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.”

[snip]

The ICRC states that, under customary international law for both international and non-international armed conflict, “[t]he anti-personnel use of incendiary weapons is prohibited, unless it is not feasible to use a less harmful weapon to render a person hors de combat.” The “shake and bake” missions were directed at insurgent forces and thus could be considered anti-personnel use of an incendiary weapon….

From the perspective of the customary rule as stated by the ICRC, it is not clear whether the WP munitions were being used to render insurgents hors de combat. The stated purpose of the anti-personnel deployment of the WP munitions was to dislodge them from trenches and spider holes and thus to expose them to high explosive ordinance. Whether less harmful weapons were on hand to achieve the stated objective is not clear. Dislodging weapons with potentially less harmful direct effects than WP munitions, such as RCAs, are banned from being used as a method of warfare by the CWC. Further investigation would be required to reach a more definitive assessment under customary international law on this issue…

The ICRC’s position that white phosphorus cannot be used for anti-personnel purposes against even a military target is interesting. If correct, the IDF’s use of white phosphorus might still violate IHL; unlike the U.S., Israel has not yet claimed either that it used the munitions for a reason other than rendering Hezbollah soldiers hors de combat or that no less harmful weapon was available.