White phosphorus petition (Israeli High Court of Justice)

Against the backdrop of use of munitions containing white phosphorus during Operation Cast Lead, the petitioners had asked the Court to instruct the Israeli Defence Forces (IDF) to refrain from using white phosphorus in populated areas and other civilian locations and to prohibit the use of any weapon containing white phosphorus whenever there is an alternative that would pose less risk to civilians while providing a similar military advantage.Case no. HCJ 4146/11. The petitioners argued that the use of bombs containing white phosphorus in Gaza had caused extensive harm to civilians and that the nature of white phosphorus did not allow a distinction to be made between military targets and civilians.The UN Fact Finding Mission on the Gaza Conflict investigated several instances involving use of white phosphorous in populated areas, and concluded that (§48): 'while accepting that white phosphorous is not at this stage proscribed under international law, finds that the Israeli armed forces were systematically reckless in determining its use in built-up areas. Moreover, doctors who treated patients with white phosphorous wounds spoke about the severity and sometimes untreatable nature of the burns caused by the substance. The Mission believes that serious consideration should be given to banning the use of white phosphorous in built-up areas'. See also §901, UN doc. A/HRC/12/48 of 25 September 2009 (the 'Goldstone report').

The Court dismissed the petition on the basis that it did not raise an issue that had practical implications in view of recently adopted IDF instructions that prohibit use of white phosphorus in populated areas. According to the Court, the IDF's policy of non-use contains two exceptions that were not publicly disclosed, but which the Court deemed to be extremely limited in their applicability. The Court nevertheless recommended that the IDF conduct an extensive examination of use of white phosphorus, which should include consideration of alternatives and analyse de facto use of white phosphorous by the IDF. The Court also said that the state should notify the petitioners if the IDF's policy of non-use were to change in the future, in which case it would be possible to submit a petition to the Court again.The decisions, in Hebrew, is available on the Court's website. For a discussion of this case in English, see I. Rosenzweig et al., 'High Court of Justice Rejects Petition against IDF Use of White Phosphorus', Terrorism and Democracy, Issue 56, August 2013; B'tselem, 'HCJ dismisses petition demanding the military cease use of white phosphorous', 14 July 2013; HRW, 'Israel: High Court Rejects Legal Ban on White Phosphorus', 12 July 2013; 'Human Rights Organisations Condemn Israeli Supreme Court’s Reply Concerning Israeli Forces’ Use of White Phosphorous in Built-up Areas', ReliefWeb, 23 July 2013.

Last updated on: 08 August 2017