White phosphorus munitions

No treaty deals specifically with ‘white phosphorus', ‘white phosphorus weapons’, or ‘white phosphorus munitions’ as a means of warfare, but several treaties regulate munitions containing white phosphorus (WP).

Owing to the incendiary effects of WP, munitions containing WP can fall within the ambit of the 1980 Protocol on Incendiary Weapons (Protocol III to the 1980 Convention on Certain Conventional Weapons). The Protocol defines incendiary weapons as

any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target. Art.1(1).

In keeping with this definition, any munition, including improvised devices, containing WP and that is ‘primarily designed’ to set fire to objects or to cause burn injury to persons is covered by the Protocol’s provisions. Consequently, aerial delivery, in the conduct of hostilities, of incendiary weapons containing WP within a concentration of civilians is prohibited.Article 1(2) of the Protocol, a 'concentration of civilians' means 'any concentration of civilians, be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages, or as in camps or columns of refugees or evacuees, or groups of nomads.'

Excluded from the definition of an incendiary weapon under Protocol III, and, hence, from the scope of the Protocol, are munitions with ‘incidental incendiary effects’, and combined effects munitions ‘in which the incendiary effect is not specifically designed to cause burn injury to persons’. The use of munitions containing WP that are primarily designed to illuminate or obscure rather than to harm through fire or heat are not regulated by the Protocol on the grounds that their incendiary effects are considered incidental .

It is not settled when the use of munitions containing WP in a particular instance is covered by the Protocol’s provisions, that is to say, when it should be considered use of an ‘incendiary weapon’. For instance, munitions containing WP may be described as illuminants or obscurants by producers or users are not regulated by the Protocol even if they foreseeably have significant incendiary effects and cause severe humanitarian harm in practice has in recent years led to renewed debate about the appropriateness of the Protocol’s scope. Human Rights Watch, for example, believes that the language of Protocol III allows the serious humanitarian impacts of munitions containing white phosphorus, used as obscurants, to escape regulation. (Human Rights Watch and Harvard Law School International Human Rights Clinic, The Need to Re-Visit Protocol III on Incendiary Weapons, Memorandum to CCW Delegates, November 2010) MacLeod and Rogers consider that if an incendiary effect is intended during military deployment of a weapon containing WP, then such an effect cannot be considered to be incidental and it would, hence, be difficult to justify excluding these munitions from the scope of the Protocol solely as a result of their categorization as tracers, illuminants or similar. (I. J. MacLeod and A. P. V. Rogers, ‘The Use of White Phosphorus and the Law of War’, 10(2007) Yearbook of International Humanitarian Law, 93). The UN Fact-Finding Mission on the Gaza Conflict concluded with a view to the toxic and incendiary effects of WP that ‘serious consideration should be given to banning the use of white phosphorous as an obscurant.’ Report of the UN Fact-Finding Mission on the Gaza Conflict, UN doc. A/HRC/12/48, 25 September 2009, §901.

It should be kept in mind that even when munitions containing WP fall meet the definition of an ‘incendiary weapon’ under Protocol III, their use is not prohibited by the Protocol. Protocol III only prohibits attacks on ‘any military objective located within a concentration of civilians 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 to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects’.Art. 2(3). Consonant with general international humanitarian law (IHL), attacks on civilians or civilian objects with incendiary weapons are prohibited under the Protocol, as are attacks on forests or other kinds of plant cover by incendiary weapons except when such natural elements are used for military purposes or are themselves military objectives.Art. 2(4).

There is also potential for munitions containing WP to be considered chemical weapons, which are prohibited under the 1992 Chemical Weapons Convention (CWC). The Convention defines chemical weapons as:

(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes;

(b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released as a result of the employment of such munitions and devices; (Art.II(1) in relevant parts)

Where ‘Toxic Chemical’ means:

Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere. (Art. II(2))

And ‘Precursor’ means:

Any chemical reactant which takes part at any stage in the production by whatever method of a toxic chemical. This includes any key component of a binary or multicomponent chemical system. (Art. II(3))

It is generally not disputed that WP itself is toxic, causes chemical burns and by absorption into the body can result in multiple organ failure and death. Due to this, WP is generally considered a toxic chemical (and/or a precursor of toxic chemicals produced through chemical reaction of WP with water or oxygen). Disagreement relates mostly to the question whether a particular use of a WP munition should be considered use of a chemical weapon.

With respect to Art. II(1)(b) cited above, WP munitions are not ‘specifically designed’ to cause death or other harm through the toxic properties of WP, and they are therefore not captured by that provision. The debate turns around whether WP munitions should be considered chemical weapons on the basis of Art. II(1)(a), or whether, in contrast, the use of WP is ‘intended for purposes not prohibited under this Convention’, namely,

Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare Art. II(9)(c).

Law enforcement including domestic riot control purposes  Art. II(9)(d).

In relation to the purposes referred to in Art. II(9)(c), the majority view holds that when WP munitions are used for military purposes such as screening or illuminating, they are not dependent on the use of the toxic properties of WP, and are, hence, not to be considered chemical weapons. The claim that toxic properties are in fact relied upon has in particular arisen in connection with so-called ‘shake-and-bake’ missions and other anti-personnel use of WP munitions. For an overview of the debate, see S. N. Christensen, Regulation of White Phosphorus Weapons in International Law, Master Thesis, University of Oslo, Faculty of Law, 2011. For a summary, see D. Fidler, ‘The Use of White Phosphorus Munitions by U.S. Military Forces in Iraq’, ASIL Insight, 6 December 2005. MacLeod and Rogers conclude that because even anti-personnel uses of white phosphorus munitions rely on the incendiary and smoke producing rather than on the toxic properties of WP, the CWC fails to prohibit munitions containing WP. For different views, see, R. Reyhani, ‘The Legality of the Use of White Phosphorus by the United States Military During the 2004 Fallujah Assaults’, 10(2007) Journal of Law and Social Change, 1-45; J. D. Tessier, ‘Shake & Bake: Dual-Use Chemicals, Contexts, and the Illegality of American White Phosphorus Attacks in Iraq’, 6(2)(2007) Pierce Law Review, 323-363. Jurek notes that in the absence of guidelines a concrete assessment cannot be made whether types and quantities are consistent with a purpose not prohibited under the Convention. (M. Jurek, ‘White Phosphorus – an outlawed weapon?’, 21(2008)Humanitäres Völkerrecht (Deutsches Rotes Kreuz), 253.)

Pursuant to Article II(9)(d), use of toxic chemicals for law enforcement, including domestic riot control, is not prohibited under the Convention. However, it is prohibited under the Convention to ‘use riot control agents as a method of warfare’.Art. I(5). The CWC defines ‘Riot Control Agent’ as:

Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.Art. II(7).

In the view of some, smoke produced by WP munitions would be captured by this definition. In particular use of WP munitions in so-called ‘shake-and-bake’ missions to ‘flush out’ enemy combatants from their hiding places and attack them with explosive weapons, WP smoke is used as an irritant against enemy combatants, and thus constitutes use of a riot control agent as a method of warfare. On this line of argument, see, for example, R. Reyhani, ‘The Legality of the Use of White Phosphorus by the United States Military During the 2004 Fallujah Assaults’, 10(2007) Journal of Law and Social Change, 58. Note that there are differing views among States Parties to the CWC about how the Convention applies to riot control agents and whether these are ipso facto toxic chemicals under the Convention. See the entry on Chemical weapons for more detail. WP munitions could arguably also fall within the prohibition on ‘the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices’ established by the 1925 Geneva Protocol, as well as under 1899 Hague Declaration concerning Asphyxiating Gases, prohibiting ‘the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases’. See the section on customary IHL below. See also, e.g., The Law Of Land Warfare, Department of the Army, FM 27-10, Appendix A - iv: ‘The use in war of smoke and incendiary materials is not prohibited or restricted by the Geneva Protocol of 1925.'

Weapons containing WP can also qualify as ‘incendiary weapon or device’ under the 1997 International Convention for the Suppression of Terrorist Bombings. The Convention applies to any ‘explosive or incendiary weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage’; or a weapon that has these effects through toxic chemicals, biological agents, toxins, or radiation.Art. 1(3).

Under the Convention it is an offence for any person to deliver or detonate an ‘incendiary weapon or device’ ‘into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility’ with intent to cause death, serious bodily injury, or extensive destruction.Art. 2(1). Note, however, that the Convention does not cover the activities of armed forces during an armed conflict which are governed by IHL.Art. 19.

The use of any munition containing WP as a means or a method of warfare must comply with the rules of IHL governing the conduct of hostilities. As a rule of customary IHL, 

the use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited.

The ICRC found that state practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. ICRC, Customary IHL study, Rule 70.

Especially the toxic and incendiary effects of WP munitions raise concerns that they may cause injury or suffering beyond that necessary to put an enemy combatant hors de combat. The use of incendiary weapons has been cited in practice as causing superfluous injury or unnecessary suffering in some or all circumstances.See ICRC, Practice in relation to Rule 70. The prohibition under IHL on causing superfluous injury or unnecessary suffering applies in international and non-international armed conflicts. See also, UN doc. S/2009/537, §489. Already the 1868 Saint Petersburg Declaration reflects concern that the injuries and the suffering caused by certain projectiles ‘charged with … inflammable substances’ used against persons would ‘uselessly aggravate their sufferings of disabled men, or render their death inevitable’.

As a result of the suffering and injury they can cause, WP munitions may also be subject to more specific restrictions under customary IHL. To the extent that a WP munition can be considered a chemical weapon, its use is prohibited under customary international law.According to the ICRC, state practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. ICRC, Customary IHL Study, Rule 74.

Depending on the interpretation given to the term ‘poisoned weapon’ under international law, weapons containing white phosphorus could also be prohibited on this account. According to the ICRC, state practice establishes the prohibition on poison and poisoned weapons as a norm of customary international law applicable in both international and non-international armed conflicts, and which exists independently of the prohibition of chemical weapons. However, as the International Court of Justice noted, there is no definition of 'poisoned weapon', respectively, of ‘asphyxiating, poisonous or other gases’, and ‘The terms have been understood, in the practice of States, in their ordinary sense as covering weapons whose prime, or even exclusive, effect is to poison or asphyxiate.’ Considering the important incendiary effects of WP, poisoning may rarely be the prime or exclusive effect in practice.See ICRC, Customary IHL Study, Rule 72; International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, §55.

To the extent that a weapon containing WP can be considered an incendiary weapon, its use against combatants is prohibited, unless it is not feasible to use a less harmful weapon to render a person hors de combat, in the determination of the ICRC.ICRC, Customary IHL Study, Rule 85 and Practice relating to Rule 85. See also, 'Phosphorous weapons – the ICRC's view', Interview with P. Herby, 17 January 2009. Some national military manuals explicitly prohibit the use of white phosphorus against combatants, others do not. (See section ‘National’ below.) The existence of less harmful alternatives to WP munitions was underlined by the UN Fact Finding Mission on the Gaza Conflict: ‘The Mission understands the need to use obscurants and illuminants for various reasons during military operations and especially in screening troops from observation or enemy fire. There are, however, other screening and illuminating means which are free from the toxicities, volatilities and hazards that are inherent in the chemical white phosphorous. The use of white phosphorous in any from in and around areas dedicated to the health and safety of civilians has been shown to carry very substantial risks. The Mission therefore believes that serious consideration should be given to banning the use of white phosphorous as an obscurant.’ UN doc. A/HRC/12/48, 25 September 2009, §901.

Use of any munition containing white phosphorus (whether it is an ‘incendiary weapon’ under international law or not) must comply with the prohibition on indiscriminate attacks, including the prohibition on area bombardment, and the legal requirement to take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event o minimizing, incidental harm to civilians.ICRC, Customary IHL study, Rules 12, 13, 15 in particular.

To the extent that the use of a WP munition is considered use of an 'incendiary weapon', it also needs to comply with the norm of customary IHL applicable in both international and non-international armed conflicts, pursuant to which if 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.ICRC Customary IHL study, Rule 84.

Concern about the protection of civilians from the effects of WP munitions under this rule, and the more general prohibitions on indiscriminate and disproportionate attacks, arise, in particular, when WP is spread across a wide area in or near a civilian populated area. Indiscriminate area-effects may be due to air-bursting of land-launched WP munitions or air-dropped WP bombs, as well as due to the spread of fire ignited by the use of WP munitions.See, e.g., the 1956 ICRC Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, which contained a prohibition on the use ‘of weapons whose harmful effects - resulting in particular from the dissemination of incendiary, chemical, bacteriological, radioactive or other agents - could spread to an unforeseen degree or escape, either in space or in time, from the control of those who employ them, thus endangering the civilian population.’ According to Human Rights Watch, the use of WP by Israel in densely populated areas of Gaza in January 2009 violated the requirement under IHL to take all feasible precautions to avoid civilian injury and loss of life. ‘This concern is amplified given the technique evidenced in media photographs of air-bursting white phosphorus projectiles. Air bursting of white phosphorus artillery spreads 116 burning wafers over an area between 125 and 250 meters in diameter, depending on the altitude of the burst, thereby exposing more civilians and civilian infrastructure to potential harm than a localized ground burst.’ (Human Rights Watch, Israel: Stop Unlawful Use of White Phosphorus in Gaza, 10 January 2009) For a different perspective, see The State of Israel, The Operation In Gaza, 27 December 2008 – 18 January 2009: Factual And Legal Aspects, July 2009, §§405-30.

As WP continues to burn when exposed to oxygen until the chemical substance is depleted (or the oxygen supply is cut off), remnants of WP munitions pose a continuing threat of injury for several days, even weeks, after the use of the munition. This accentuates concerns that attacks with weapons containing WP may have indiscriminate and/or disproportionate effects on civilians in violation of IHL.WP remnants may also pose a longer-term health and environmental hazard, potentially bringing into play customary IHL rules protecting the natural environment (ICRC Customary IHL Study, Rules 43, 44, 45) and the prohibition on the use of herbicides as a method of warfare (ICRC Customary IHL Study, Rule 76).

Use of munitions containing WP in or near people poses a high risk to the lives and physical and mental integrity of suspected offenders and bystanders alike. The use of WP weapons would generally appear to be incompatible with international standards governing the use of force for law enforcement purposes, including the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Following use by Burmese security forces of WP smoke munitions to disperse protesters at the Letpadaung hills copper mine in November 2012 (see 'History' section) the non-governmental organization Asian Legal Resource Centre, in a statement to the UN Human Rights Council stated: ‘Under the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), the general rule that applies without exception is that, "Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms" (principle 4), and use them against persons only "in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives" (principle 9). Where the use of firearms is unavoidable, officers are required to exercise restraint, minimize injury, render medical aid promptly and notify relatives of the injured (principle 5). In the assessment of the Asian Legal Resource Centre, the police in Letpadaung failed on all of these counts. ALRC, ‘Myanmar: Police who attacked peaceful protestors must be prosecuted’, 22 May 2013.

Miguel Castro-Castro Prison case (IAmCtHR)

A Judgment by the Inter-American Court of Human Rights (IAmCtHR) of 25 November 2006 concerns an attack carried out by state security forces from 6 to 9 May 1992 on mostly female inmates accused or convicted of crimes of terrorism or treason (in connection with the internal armed conflict in Peru), in the Miguel Castro-Castro maximum security prison (near Lima, Peru), causing the death of at least 42 inmates, injuring at least 185 inmates, and otherwise harming over 300 others. (See also the entry on this case.)

The attack involved the use of weapons containing WP, among other weapons. The Court found, inter alia with reference to ‘the intensity of the attack, which implied the use of weapons of war’ and to ‘the magnitude of the damages produced’, that Peru had violated the right to life (Art. 4 of the American Convention) of the dead inmates.

In connection with the seriousness of the injuries and the suffering caused the Court mentioned white phosphorus gas bombs specifically. The Court referred to the following expert witness statements:

In what refers to the use of white phosphorous gas bombs, the expert witness Peerwani indicated that when this chemical product comes into contact with human tissue, “it causes very severe burns”. In his experience as a forensic expert he has observed that these burns penetrate human tissue “until [they reach t]he bone.” Likewise, these white phosphorous bombs produce a lot of smoke, which “is very dangerous”, and their use “is not recommended within closed environments.” The witness Gaby Bálcazar referred to the effect caused by these bombs, stating “that they could not even breath, you felt you body burning, like if your body wanted to leave you,” and she referred to the measures they were forced to adopt due to that … The witness Raúl Basilio Gil Orihuela indicated that when said chemical comes into contact with the human body it produces a burning sensation in uncovered areas, the nasal cavities, as well s asphyxia and chemical “burning” of internal organs and skin …. (§282)

The Court concluded that the types of injuries and the seriousness of the suffering caused by them, and the wider circumstances of the attack, including lack of medical assistance, caused psychological and emotional suffering to the inmates who died and to injured and uninjured survivors that ‘constituted a psychological torture’ in violation of Arts. 5(1) and 5(2) of the American Convention, and Arts. 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture. (§293)

Israel

Israel’s Manual on the Rules of Warfare (2006) states the following:

Phosphorous. Is phosphorous a banned weapon? Despite the accepted myths on the subject, phosphorous is not banned under the rules of warfare, because it is not considered to be a chemical weapon. A chemical weapon is a weapon intended to work on the systems of life and is constituted from a substance that causes a chemical reaction in the body expressed in such symptoms as asphyxiation, burning, weeping, etc., whereas phosphorous is an element in nature which reacts to the oxygen in the air by catching fire. In that respect, phosphorous is no different from petrol (gasoline) reacting to a lighted match, and what differentiates it from chemical weapons is that its reaction is not directed against the human physiology in particular, it will burn whatever it touches.’ In addition, the manual states: ‘Phosphorus is permitted for use, as long as its use is directed against combatants and not against civilians.’ Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, cited in ICRC, Customary IHL study, Practice relating to Rule 84. 

During ‘Operation Cast Lead’ (December 2008 – January 2009), the Israeli Defence Forces used two types of weapons containing white phosphorus: exploding munitions and ‘smoke projectiles’. According to an official report by the Israeli government, ‘although not required under international law, it was decided as a precautionary measure, in order to minimise the risk to civilians that the IDF would cease to use such exploding munitions during the Gaza Operation. IDF forces fighting in Gaza were instructed to act accordingly’. With regard to ‘smoke projectiles’, a ‘safety buffer of several hundred metres from sensitive sites’ was established.The State of Israel, The Operation In Gaza, 27 December 2008 – 18 January 2009: Factual And Legal Aspects, July 2009, §§408, 419.

In a decision of 9 July 2013, the Israeli Supreme Court sitting as the High Court of Justice dealt  with a petition for order nisi brought by Yoav Hess and others v. Chief of Staff (Case no. HCJ 4146/11) concerning the use, by the Israeli Defence Forces, of white phosphorus in populated areas. The petitioners had asked the Court to instruct the 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 white providing a similar military advantage. 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 between military targets and civilians.The UN Fact Finding Mission on the Gaza Conflict investigated several instances involving the use of white phosphorous in populated areas, and concluded (§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 any practical implications in view of newly adopted IDF instructions that prohibit the 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 the use of white phosphorus which should include the consideration of alternatives and analyze the 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 No 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.

United Kingdom

In relation to ‘incendiary weapons’ (section 6.12), the British Joint Service Manual of the Law of Armed Conflict (JSP 383, 2004) notes that incendiary weapons ‘should not be used directly against personnel’. It specifies: ‘The same applies to white phosphorous, which is designed to set fire to targets such as fuel and ammunition dumps or for use to create smoke, and which should not be used directly against personnel.’ (§6.12.6)

United States of America

A textbook of the US Army Command and General Staff College, Fort Leavenworth from 2000, notes in relation to ‘burster-type white phosphorus’: ‘It is against the law of land warfare to employ WP against personnel targets.’ More recent US military publications do not appear to reflect this position.Battle Book, Student Text 100-3, U.S. Army Command and General Staff College, Fort Leavenworth, Kansas, 1 July 2000, 7-23; Whilst recognizing that this may be considered problematic by some states, there is a reference to ‘WP munitions used in isolated instances to achieve anti-personnel effects’ in Air Force Operations & The Law, The Judge Advocate General’s School, 2009 (3^rd ed), 331.

The Final Declaration adopted by the Fourth Review Conference of the CCW (2011) noted concerns raised by some High Contracting Parties ‘about the offensive use of white phosphorous against civilians’ and further ‘that there was no agreement on various aspects of this matter.’CCW, Final Document of the Fourth Review Conference, Geneva, 14–25 November 2011, UN doc. CCW/CONF.IV/4/Add.1.

The UN Fact-Finding Mission on the Gaza Conflict made the following legal finding regarding the ‘Actions by Israel in Gaza in the context of the military operations of 27 December 2008 to 18 January 2009’, with respect to ‘Precautions in launching attacks’:

The Mission finds that in a number of cases Israel failed to take feasible precautions required by customary law reflected in article 57 (2) (a) (ii) of Additional Protocol I to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects. The firing of white phosphorus shells over the UNRWA compound in Gaza City is one of such cases in which precautions were not taken in the choice of weapons and methods in the attack, and these facts were compounded by reckless disregard for the consequences. UN Doc. A/HRC/12/48, 25 September 2009, §1919. Christensen points out that the Human Rights Council and the UN General Assembly endorsed this report, including its recommendations.(S. N. Christensen, Regulation of White Phosphorus Weapons in International Law, Master Thesis, University of Oslo, Faculty of Law, 2011, 50-51).

The Independent Fact-Finding Committee on Gaza to the League of Arab States found ‘that white phosphorous was used as an incendiary weapon in densely populated areas’, that ‘weapons used by the IDF, particularly white phosphorous …, caused superfluous and unnecessary suffering’. The Committee concluded that ‘While white phosphorus and flechettes are not expressly prohibited by humanitarian law, it is highly arguable that their use in densely-populated civilian areas constitutes an indiscriminate attack and hence a war crime.’ UN Doc. S/2009/537, 14 October 2009, §§ 9, 22, 472. See also §§ 488-9.

In a combined report, several UN special rapporteurs concluded with regard to the use by Israel of WP artillery shells: ‘(e) Unlawful use of incendiary weapons (white phosphorous artillery shells): the use of white phosphorous during a military offensive may be permissible where it is intended to provide cover for troop movements. There are, however, reports that Israel used such weapons in densely populated civilian areas, with severe consequences for residents.’ Combined report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the Special Representative of the Secretary-General for Children and Armed Conflict, the Special Rapporteur on violence against women, its causes and consequences, the Representative of the Secretary-General on the human rights of internally displaced persons, the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, the Special Rapporteur on the right to food, the Special Rapporteur on extrajudicial, summary or arbitrary executions, the Special Rapporteur on the right to education and the independent expert on the question of human rights and extreme poverty, UN doc. A/HRC/10/22, 29 May 2009, p. 28.