26-Oct-2023-Editorial

THE LEGALITY OF USING WHITE PHOSPHORUS

The use of white phosphorus in armed conflicts has sparked controversy, particularly in cases like the recent accusations against Israel for employing such munitions in Gaza. Examining the legal dimensions of white phosphorus usage reveals complexities within international humanitarian law and arms control treaties.

Properties of White Phosphorus

Physical Characteristics: White phosphorus is a waxy substance with a yellowish-to-clear coloration.

Odor: It emits a pungent, garlic-like odor.

Combustibility: Highly combustible, it burns rapidly and brightly upon exposure to air.

Chemical Reaction: Its chemical reaction with atmospheric oxygen generates intense heat (approximately 815°C), light, and smoke.

Military Uses of White Phosphorus

1) Dense Smoke Screens

Purpose: White phosphorus is employed to create dense smoke screens in combat situations.

Function: The smoke screens hinder visibility, providing effective cover for military movements and maneuvers

2) Incendiary Devices

Purpose: White phosphorus is utilized in incendiary devices employed by military forces.

Function: These devices, including grenades and artillery shells, cause persistent and intense fires upon impact. This capability makes them effective against personnel, equipment, and structures.

Legal Framework and International Accusations

United Nations Board of Inquiry

Allegations in Gaza War (2008-2009): Accusations against the Israel Defense Forces (IDF) using white phosphorus in the Gaza Strip during the 2008-2009 Gaza War raised concerns about compliance with international humanitarian law.

UN Secretary General’s Findings: The UN Secretary General’s report asserted that the IDF’s targeting of certain UN facilities was inadequately precautionary, highlighting potential violations.

Goldstone Report (2009): The UN Fact Finding Mission condemned the IDF’s use of white phosphorus in civilian areas, contributing to international outrage.

Legal Framework on White Phosphorus

Convention on Certain Conventional Weapons (CCW)

Incendiary Weapons Protocol (Protocol III): This protocol addresses incendiary weapons, including white phosphorus munitions.

Definition and Exceptions: While white phosphorus is primarily intended for illuminating and smokescreen effects, it falls within exceptions outlined in Protocol III’s definition of an “incendiary weapon.”

Chemical Weapons Convention (CWC)

Comprehensive Ban on Chemical Weapons: The CWC bans the use of chemical weapons, but white phosphorus, when utilized as an incendiary weapon, falls under the regulations of Protocol III of the CCW rather than the CWC.

Strengthening Legal Mechanisms

Ambiguities in Protocol III:

• Multi-purpose Munitions: Protocol III inadequately regulates multi-purpose munitions, like those containing white phosphorus, which can cause harm similar to incendiary weapons.
• Advisory Opinion and Additional Protocol I: Consideration of legal opinions, such as the Advisory Opinion on nuclear weapons, and Additional Protocol I of the Geneva Conventions, can guide the assessment of specific weapon legality.

Importance of Strengthening Protocol III:

• Binding Agreement: Strengthening Protocol III would establish a binding agreement preventing states from exploiting legal loopholes in the use of white phosphorus.
• Enforcement Facilitation: Clearer rules in Protocol III facilitate enforcement by making violations more easily identifiable, emphasizing the significance of upholding international law.

Conclusion

The legal implications of employing white phosphorus underscore the critical need for adherence to international law, treaties, and protocols. Breaches can lead to global condemnation, investigations, and potential prosecution for war crimes. Strengthening Protocol III would enhance legal clarity, reducing ambiguity and ensuring more effective enforcement against the misuse of white phosphorus in armed conflicts.