Thursday, June 06, 2024

Human Rights Watch issued another report accusing Israel of violating international law by using white phosphorus in Lebanese towns.

White phosphorus is a chemical substance dispersed in artillery shells, bombs, and rockets that ignites when exposed to oxygen. Its incendiary effects inflict death or cruel injuries that result in lifelong suffering. It can set homes, agricultural areas, and other civilian objects on fire. Under international humanitarian law, the use of airburst white phosphorus is unlawfully indiscriminate in populated areas and otherwise does not meet the legal requirement to take all feasible precautions to avoid civilian harm.

... Lebanon should promptly file a declaration with the International Criminal Court (ICC), enabling the investigation and prosecution of grave international crimes within the court’s jurisdiction on Lebanese territory since October 2023.

The wording is carefully chosen . WP is not an incendiary weapon nor is it a chemical weapon, which have very specific definitions under international law. It is a legal weapon used by major militaries including the US. But HRW makes sure to use the words "incendiary" and "chemical" to give the impression that white phosphorus is an illegal weapon.

HRW counts 17 alleged incidents of Israel using WP in populated areas. Yet, it admits, "Human Rights Watch did not obtain evidence of any burn injuries resulting from the use of white phosphorus munitions but heard accounts indicating possible respiratory damage."

If white phosphorus' main problem is that it can burn people, and not one case of anyone being burned was found, then it appears that Israel is using the weapon responsibly (if indeed this is white phosphorus and not a similar smokescreen.)

Unlike Human Rights Watch, the Lieber Institute at West Point goes into detail on the legality of using white phosphorus, and finds that it is quite legal, as long as it is not used to violate other laws of war like the principle of proportionality.. In fact, its legal use is far more expansive than HRW claims. Israel uses it for smokescreen and marking; but international law allows it to be used to directly attack enemy militants. 
There is no per se prohibition on the use of white phosphorous. For instance, a March 2009 HRW report notes that “[w]hen used properly in open areas, white phosphorous munitions are not illegal.” A 2017 article in the New York Times likewise noted that “it is not illegal under international law for militaries to possess and use white phosphorus.” The military manuals of several States indicate that it may be used lawfully, even as an anti-personnel weapon, in certain circumstances (e.g., United States (§, Canada (para. 521.3.), France (p. 20-21), Germany (paras. 453-458), and Australia (paras. 4.30-31)). The question, then, is whether the use of white phosphorous munitions is restricted by weapons treaty law or the law of armed conflict rules governing the conduct of hostilities.
....[E]ven if white phosphorous munitions did qualify as “incendiary weapons,” Protocol III would not ban their use. Rather, it regulates the use of incendiary weapons by parties to the instrument for the purpose of protecting civilians.

The US Army War Manual says "[W]hite phosphorus may be used as an antipersonnel weapon. However, such use must comply with the general rules for the conduct of hostilities, including the principles of discrimination and proportionality.In addition, feasible precautions to reduce the risk of harm to civilians must be taken." 

Israel says it only uses shells with WP in urban areas under very specific (undisclosed) circumstances that have been approved by Israel's High Court. While the specific use cases are secret, we could get some clues from the footnotes in the US Army Manual, which says the army used white phosphorus in urban areas in Fallujah directly against terrorists: "We used it for screening missions at two breeches and, later in the fight, as a potent psychological weapon against 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.

The Lieber article quotes the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, which says that even as an incendiary weapon, it is permitted "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 to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.

The Lieber article concludes, "The application of the law of armed conflict to the use of white phosphorus munitions must be done on a case-by-case basis. Like the use of any munition in combat, whether the use of white phosphorous munitions is lawful depends on the attendant circumstances." HRW cannot point to any illegal use of WP in Lebanon, and says that it does not know if there were any Hezbollah military targets in the areas where it was used. Even the implication that Israel would use WP without any Hezbollah targets - meaning, aiming it at civilians or using it indiscriminately  - is slanderous and nonsensical, not to mention that it shows that HRW knows nothing about the layers of review the IDF goes through in making decisions on types of weapons used in targeting. 

HRW's report can be summarized as "we cannot find that Israel did anything wrong, but it's Israel, so they must have."

There is a further irony here. The same day that HRW released this report, there are major forest fires in Israel's north sparked by Hezbollah weapons. If Hezbollah deliberately tried to set these fires and used munitions designed for that purpose, they would be violating the same prohibition on incendiary weapons HRW pretends Israel is violating. The same Protocol mentioned earlier says, "It is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives."

Palestinians have deliberately set Israeli forests and fields on fire from the 1920s to today.. Some believe the current wildfires were purposefully set. The amount of damage to civilian property in Israel from fires dwarfs that from WP in Lebanon. 

But you can be very sure that Human Rights Watch is not going to write a report accusing Hezbollah of violating the same protocol they accuse Israel of violating. 

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Elder of Ziyon - حـكـيـم صـهـيـون

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