Bottom line as a law of war matter on white posphorous:
White phosphorous is not a chemical weapon and does not fall under the prohibitions of the Chemical Weapons Convention. Nor is it a substance prohibited under the 1925 Geneva Protocol. It is not prohibited by III Protocol of the Convention on Certain Conventional Weapons (and in any case the United States is not a party to the III Protocol). It is not prohibited by any treaty to which the United States is a state party.
Nor is white phosphorous prohibited as a weapon by customary international law of war.
Deliberately targeting civilians with it is prohibited, as is indiscriminate use which does not attempt to distinguish between civilian and military targets - but this is true of all weapons, bullets included; there is nothing special in that about white phosphorous or anything else.
I have been struck by the general lack of attention to the subject by the serious human rights/law of war monitors. Perhaps I have missed something, but I don't see anything on the Human Rights Watch website on the issue - one might have thought that it ought to offer its view on whether the Italian state television report was credible, given the enormity of the charges - one might have thought that it should have investigated the credibility of the factual reporting as well as opining on the actual state of the law. Its silence is not helpful on charges as strong as these, made in an important media venue. Amnesty International is much less expert or credible than HRW in laws of war matters, but one might have thought that merely the appearance of evenhandedness would urge it to investigate and correct, as necessary, factual and legal aspects of a story so momentous. But I, at least, can't find anything on its website about it. (If there is something on either website about this that I can't find, I'll be happy to stand corrected.)
The deeply honorable exception to this tendency, among groups generally aligned with the human rights movement, has been Anthony Dworkin at the the Crimes of War Project. His article on the white phosphorous controversy is measured, accurately researched, and straightforward about the law, including areas where the law is unsettled. I do not always agree with the legal analysis presented at Crimes of War.org - unsurprising, since there is plenty of room for disagreement and interpretation within this field. But I believe Anthony Dworkin sets the standard in this article for a balanced, transparent, and sober discussion of controversial charges. The article is here. It should be widely circulated and read by anyone following this story.
Text of article (Anthony, hope I'm not violating your copyright!):
November 17, 2005
The Use of White Phosphorus in Fallujah: Was it Against the Law?
By Anthony Dworkin
The Pentagon has admitted that U.S. forces used white phosphorus as an offensive weapon during their attack on the Iraqi city of Fallujah in November 2004, reversing earlier claims by the U.S. government that phosphorus had only been used sparingly for illumination purposes. The acknowledgement follows the discovery and circulation on the internet of accounts by U.S. soldiers in which they describe the use of white phosphorus munitions against enemy positions.
The apparent reversal of the U.S. government has given added impetus to criticism of the American use of white phosphorus. A central point of contention is whether the use of shells containing white phosphorus against enemy fighters -- or their use in areas where civilians may be affected -- should be seen as an unlawful use of chemical weapons. Much discussion of the white phosphorus issue -- whether from ill-informed U.S. spokesmen or internet commentary -- has been confusing. This article will attempt to describe the different provisions of the laws of war that are relevant and sketch out the ways in which they might apply.
The latest charges against the U.S. army spring from a documentary broadcast by the Italian TV station Rai24 last week. The documentary entitled Fallujah: The Hidden Massacre which contained allegations that U.S. forces used massive amounts of white phosphorus in a way that caused large numbers of civilian deaths. The documentary includes an interview with one soldier, Jeff Englehart, who says he served in Fallujah and knows that white phosphorus was used there. Englehart describes white phosphorus as "without a shadow of a doubt" a chemical weapon.
Since the documentary was released there have been numerous articles in the international press and on the internet. One of the most prominent pieces was by George Monbiot in The Guardian on November 15. Under the headline "The US used chemical weapons in Iraq -- and then lied about it," Monbiot claims that white phosphorus "becomes a chemical weapon as soon as it is used directly against people."
There is no question that white phosphorus shells were used to target locations in Fallujah where insurgent fighters were believed to be hiding. An account by US soldiers in the army journal Field Artillery published in March 2005 describes their use in detail: "WP proved to be an effective and versatile munition. We used it for [smoke]screening missions at two breeches and, later in the fight, as a potent psychological weapon aginst the insurgents in trench lines and spider holes when we could not get effects on them with HE [high explosive]. We fired 'shake and bake' missions at the insurgents, using WP to flush them out and HE to take them out."
Another report that has been widely quoted over the last few days was written by a journalist from the North County Times embedded with marines during earlier fighting in Fallujah. He describes marines sending a mixture of burning white phosphorus and high explosives into buildings where insurgents have been sighted.
This week Pentagon spokesman Lt. Col. Barry Venable said that "U.S. forces used white phosphorus both in its classic screening mechanism and...when they encountered insurgents who were in foxholes and other covered positions who they could not dislodge in any other way."
The fact that the United States has had to take back earlier claims about the use of white phosphorus has been a public relations disaster. However that does not mean that the use of these weapons was illegal. In fact, most of the arguments made to support the idea that the use of white phosphorus munitions was a violation of the law are highly questionable.
White phosphorus munitions have been a regular part of the arsenal of contemporary military forces, including those of the United States and United Kingdom. They have not been regarded as chemical weapons but (at least when used against enemy positions) as incendiary weapons, which work by spreading fire.
Although white phosphorus has never been classed as a chemical weapon, some recent commentary has suggested that it should be regarded as a chemical weapon when used directly against enemy fighters. This argument is based on the fact that the Chemica Weapons Convention which came into effect in 1997 bans the use of any weapon that is designed to cause death or other harm through the toxic properties of a chemical that "through its chemical action on life processes can cause death, temporary incapacitation or permanent harm."
Although white phosphorus is a chemical compound, its primary effect on victims appears to be through the generation of heat (white phosphorus burns fiercely from contact with air and can continue to burn even when embedded in flesh). The smoke produced by white phosphorus does not seem to cause significant harm through chemical action on immediate exposure (although scientific studies have shown that longer exposure, while not lethal, may cause medical problems). For these reasons, the effects of white phosphorus weapons -- while undeniably unpleasant -- do not appear to bring it within the scope of laws governing chemical weapons.
Incendiary weapons like white phosphorus are governed by another treaty -- the 1980 Protocol III to the Convention on Conventional Weapons. This defines incendiary weapons as primarily designed "to set fire to objects or to cause burn injury to persons through the action of flame, heat or a combination thereof, produced by a chemical reaction of a substance delivered on the target." (The fact that heat or flame is produced by a chemical reaction does not make them chemical weapons, since it is not a case of a substance that causes death or injury by chemical action on the victim's "life processes")
Tthe United States is not a party to the Incendiary Weapons Protocol -- but in any case, the treaty adds little to existing law, except a blanket restriction on dropping incendiary weapons from the air against military objectives "located within a concentration of civilians" (as was done in the fire-bombing of German cities like Dresden in World War II). Since the weapons used in Fallujah were shells, not bombs, this provision would not in any case be relevant.
The tests that should therefore be applied to the U.S. use of white phosphorus munitions are the standard rules provided in the laws of war for the use of any weapon. First, it is always unlawful to use force directly against civilians, or to carry out an attack where the expected level of harm to civilians is excessive in proportion to the military advantage expected. Secondly, it is forbidden to use weapons that cause "superfluous injury or unnecessary suffering." That would probably cover the use of white phosphorus in some weapons -- e.g. anti-personnel bullets -- but the United States could plausibly argue that the use of white phosphorus munitions to flush insurgents out of hiding places is militarily justifiable and therefore not unlawful.
The recent British Manual of Military Law says that white phosphorus may be used "to set fire to targets such as fuel or ammunition dumps" or "to create smoke," but that it "should not be used directly against personnel." Using white phosphorus munitions against locations in which personnel are hiding falls between these two cases. If it is lawful to use WP in such cases, the army that wishes to use it must be able to meet a high threshold of demonstrating that no other less destructive weapon could have been used instead.
There is every reason to believe that U.S. forces will continue to employ white phosphorus as part of their arsenal in urban warfare. Although the weapon is undeniably unpleasant, it is unlikely to be given up entirely. Those concerned with promoting the humane standards enshrined in the laws of war would be better off questioning whether its use in particular circumstances meets legal rules on discrimination, proportionality and humanity -- rather than making implausible claims that it can never be used against enemy positions.
Related chapters from Crimes of War: What the Public Should Know:
La Strage Nacosta (The Hidden Massacre)
Rai 24 News
(Contains links to video of the documentary in Italian, English and Arabic)
Did the United States Use "Illegal" Weapons in Fallujah?
U.S. Department of State
January 27, 2005
Wednesday, November 30, 2005
Bottom line as a law of war matter on white posphorous: