The military use of munitions containing white phosphorous for a range of purposes, including the protection of combat forces by providing a smokescreen, is accepted practice in the IDF and in other armies around the world (including the US, the UK and many other countries). International law permits the use of munitions containing white phosphorous for the purpose of smoke screening, subject to compliance with the general principles of the Laws of Armed Conflict.

On 9 July 2013, the Supreme Court of Israel (sitting as the High Court of Justice) dismissed a petition to ban the use of smoke screening shells containing white phosphorous in urban areas. The Court’s reasoning hinged on the current IDF policy reducing such use, upon which basis it deemed the petition superfluous.

Below is a brief outline regarding the petition and the subsequent decision to dismiss, as well as a brief review of the legality of the military use of white phosphorous.

Background

A.   White Phosphorous and its use by militaries around the world

White phosphorous is a substance with properties which allow it to burn relatively easily, and by doing so to create thick smoke. As a result, armies around the world use munitions containing white phosphorous for a range of operational needs, such as creating a screen of smoke (“smoke screening”), marking, illumination and combustion. Inter alia, munitions containing white phosphorous were used by the armies of the US, the UK and many other countries, including within the framework of NATO operations.

International law does not prohibit the use of munitions containing white phosphorous, but requires that any such use must be subject to certain conditions. The conditions of use will vary according to the design purpose of the type of munitions in question. Thus, for example, the conditions of use for munitions which were primarily designed to produce smokescreens will be different from the conditions of use for munitions which were primarily designed to ignite objects (incendiary purposes).

B.   Using munitions containing white phosphorous for smoke screening in urban areas

The petition that was filed with the High Court of Justice regarded specifically the use for smoke screening in urban areas. The prevailing position in the international community (which is also the stance taken by the State of Israel) is that the use of white phosphorous for smoke screening is permitted, also when employed in urban areas. As there is no designated international treaty that provides specific requirements regarding the use of white phosphorous for this purpose, only the general norms of the Laws of Armed Conflict will apply. Although smoke screening munitions may, on occasion, produce incidental incendiary effects, they are not considered “incendiary weapons” under international law (as smoke screening, rather than the incendiary effect, is the munitions’ primary purpose).

In recent years many countries and organizations have explicitly expressed, on a number of occasions, the legality of the use of munitions containing white phosphorous for the purpose of smoke screening. For example, forces operating under the framework of NATO have used white phosphorous, and the position of the International Security Assistance Force (ISAF) operating in recent years in Afghanistan, led by NATO, is that the use of white phosphorous for smoke screening is legal.[1] The US has also used munitions containing white phosphorous for smoke screening purposes in recent years, and official US representatives have supported its legality.[2] Similarly, representatives of the British Government have also consistently stated its legality.[3] Italian officials have stated that the Italian army has used munitions containing white phosphorous, and that such use is accepted and standard in “all armies“.[4] Denmark has used munitions containing white phosphorous in combat in Afghanistan and has made statements that indicate the legality of its use for smoke screening.[5] Also the head of the Arms Unit of the International Committee of the Red Cross has expressed that the use of white phosphorous for smoke screening is generally permissible subject to the basic rules of the Laws of Armed Conflict (and not to the specific rules governing incendiary weapons).[6] These statements refer to the overall legality of the use of white phosphorous munitions for smoke screening, and do not make mention of any unique limitations on such use within urban areas.

Furthermore, initiatives to impose stricter legal restrictions on the use of munitions containing white phosphorous for smoke screening have been discussed within relevant international conferences, but have failed to gain support.[7]

C.   The use of white phosphorous for smoke screening by the IDF

As previously declared by the State of Israel, the IDF has several types of artillery shells containing white phosphorous that serve different purposes.[8] The current petition dealt specifically with the 155mm caliber artillery shell M825A1 (a standard smoke screen shell produced in the US and in use by its military). After the shell is fired, at a certain height above the ground it disperses 116 felt wedges that have been dipped in white phosphorous, which flare up upon exposure to the air, and while burning on their way to the ground produce dense white smoke.

The IDF employs these shells solely for smoke screening purposes (as required under an obligatory directive of the IDF), primarily to protect troops during combat, in accordance with international law. The IDF’s use of smoke screening shells during combat activity (such as the Operation in Gaza, which took place between December 2008 and January 2009) was found to be very effective in protecting and preserving the lives of IDF soldiers.[9]

Nevertheless, as a matter of policy, and although not legally obligated to do so, the IDF decided for a variety of reasons to significantly reduce its usage of these smoke screening shells in urban areas. As part of this policy, it was decided that such shells would not be used in urban areas, apart from two exceptions (which cannot be detailed publicly for operational reasons). This policy decision was introduced by the Deputy Chief of the General Staff before the current petition was filed, and was not made in connection to the petition. At the same time, as previously published on the IDF website,[10] the IDF currently intends to develop smoke shells that will not contain white phosphorous. Depending on the outcome of this development process, the new shells are intended to gradually replace the current smoke shells as the primary means employed by the IDF for screening purposes – again, even though such a measure is not required under the law.

Petition before the High Court of Justice

A.   Arguments of the parties to the petition

In the petition that was filed with the High Court of Justice, the petitioners argued that the use by the IDF of smoke screening shells containing white phosphorous, in urban areas during abovementioned Operation in Gaza  , caused extensive damage to civilians as a result of exposure to the incendiary effects of the munitions (despite the fact that the petitioners themselves admitted in the petition that “it was not possible to determine decisively that the burns […] were indeed caused by the phosphorous”).

On this basis, the petitioners argued that the use of the smoke screening shells containing white phosphorous in inhabited areas is prohibited under the Laws of Armed Conflict in international law, and requested the Court to set a universal precedent by prohibiting such use. The petitioners contended that even if the shells are primarily intended for smoke screening purpose, and are used for this intended purpose, their primary property is incendiary and therefore they should fall under the legal definition of “incendiary weapons“. On this assumption, the petitioners argued that Protocol III of the Convention on Certain Conventional Weapons (CCW), which regulates the use of incendiary weapons, sets a presumption which prohibits the use of such shells in places where civilians are present (and additionally had to argue that although Israel is not a party to the Protocol, it is still bound by its provisions, as they reflect customary international law).

In the alternative, the petitioners argued that even if the shells are not defined as “incendiary weapons“, their use in inhabited areas violates the basic principles of the Laws of Armed Conflict, including the principles of distinction, proportionality, and the obligation to take precautions that minimize incidental civilian harm.

The State of Israel requested the Court to summarily dismiss the petition for a number of reasons:

(1)  Traditionally, the Court has been very cautious before intervening in military commanders discretion regarding choices between different means of warfare and the exact manner in which such means are deployed (in this regard, the State of Israel referred to the case Physicians for Human Rights v. OC Southern Command (HCJ 8990/02), which dealt with the legality of the use of “flechette” shells, and Physicians for Human Rights v. The Minister of Defense (HCJ 3261/06), regarding safety ranges for artillery fire in the Gaza Strip).

(2)  The current policy of the IDF, which was introduced prior to filing of the petition, significantly reduces the use of smoke screening shells containing white phosphorous in urban areas (during the hearing the State of Israel clarified that in accordance with this policy, IDF forces should refrain from such use, subject to the two exceptions).

(3)  On the merits, the use by the IDF of the smoke screening shells containing white phosphorous is not contrary to the Laws of Armed Conflict, also when used in urban areas, and is accepted practice by militaries of other countries. The State added, briefly and beyond what was required for the  discussion in its view, that there is no explicit prohibition in the Laws of Armed Conflict, in any convention or custom, of such use; that it is not obligated by the provisions of Protocol III of the Convention on Certain Conventional Weapons (CCW), since Israel is not a party to the Protocol and it does not reflect customary international law, and that in any event, the provisions of the Protocol do not apply to munitions which were not primarily designed for incendiary purposes; and additionally, clarified that as the munition in question is legal per se, its use is generally subject to the basic principles of the Laws of Armed Conflict, whose implementation is dependent on concrete circumstances of concrete use and subject to the broad discretion of the military commander – and therefore, it cannot be argued that the mere use of munitions containing white phosphorous in urban areas is illegal in principle.[11]  

 

B.   Hearing and Judgment of the Petition

During the course of the hearing of the petition in the Court on 13 May 2013, the justices focused on the directive introduced by the Deputy Chief of the General Staff, which sets the current IDF policy for the use in urban areas of the smoke screening shells considered in the petition. The policy itself was presented in its entirety before the Court ex parte, due to its operational sensitivity. Subsequently, the State made a declaration before the Court and the petitioners regarding the restrictive policy it currently adopts in relation to the use of such shells.

In its decision, the Court restated its traditional approach, which limits its intervention in issues of weapon choice by the military commander. In doing so, the Court outlined a three-stage test when assessing whether to intervene in questions of this nature. According to the test, the first step is to assess whether the petition prima facie raises questions of a legal nature that would allow for the Court to examine them without intervening with the clear professional discretion of military authorities. If the answer is affirmative, the Court will continue to the second stage of the test, where it will consider whether the petition’s foundations establish, prima facie, any legal harms caused as a result of the weapon or military action, and in doing so, will consider whether the weapon is still being used by the IDF. If the answer is affirmative to the second stage, the Court will continue to the third stage, which involves examining the claims made by the parties, in light of the Laws of Armed Conflict and the basic principles of Israeli law.

On the basis of the application of the above test, the Court dismissed the petition (while in its judgment the Court occasionally employed a generalized description of the munitions in question, referring to “munitions containing white phosphorus”, it should be noted again, that the judgment concerned smoke screening shells only – being the shells to which the parties were referring in their arguments). The Court relied on the abovementioned IDF policy directive and the State’s declaration during the hearing, and decided that in light of the restrictions the IDF currently employs regarding use of such munitions, there was no need for further hearing on the matter.

The Court rejected the argument of the petitioners, who claimed that since the policy allowed for exceptions where smoke screening shells containing white phosphorous could be used in urban areas, the petition was still not completely superfluous.

In response to the petitioners’ argument concerning the difficulty of relying on a policy that the State did not commit to refrain from changing in the future, the Court added two comments:

(1)  It would be appropriate for the IDF to undertake a comprehensive examination regarding the use of munitions containing white phosphorous, including the damages and risks involved in such use, and to examine possible alternatives – so as to decide whether to make permanent the current policy or to change it.

(2)  It would be appropriate for the State to notify the petitioners’ counsel in the event that the policy is changed, so as to allow the petitioners to return and bring their claims before the Court.

In conclusion, as stated, the Court dismissed the petition without hearing the merits of the arguments made by the petitioners.

Following the Supreme Court’s decision, on 1  January 2014, the State Attorney’s Office sent a letter to the petitioners which included a clarification, intended to remove any doubt, that the Court’s judgment and the statements made by the State’s representative during the course of proceedings, were limited to the use of artillery shells containing white phosphorous for smoke screening purposes during combat in urban areas, and not to munitions containing white phosphorous designed and intended for other purposes (such as illumination, marking and combustion). The letter also clarified, further to a comment made by the Court in its judgment, that insofar as there exists a need, during hostilities, for the IDF to alter its policy in regard to the use of the abovementioned munitions, it would be impracticable to update the petitioners as to the modification in real-time. Furthermore, the letter informed the petitioners that in a meeting held by the Deputy Chief of the General Staff following the judgment, it was decided to reaffirm the current IDF policy regarding the use of munitions containing white phosphorus for smoke screening purposes during combat in urban areas (subject to two changes which did not alter the basic policy as presented to the Court).

[Last updated on 23 April 2014]     




[1] See the reports citing the General Staff spokeswoman for the ISAF in Afghanistan www.information.dk/265810; www.information.dk/265811. For further information regarding the use of white phosphorus by NATO forces, see, for example, the following quotes by official representatives of the US Army: www.defense.gov/News/NewsArticle.aspx?ID=54294.

[2]  See, for example, the statement of the Chairman of the Joint Chiefs of Staff, General Peter Pace, from 29 November 2005: www.defense.gov/transcripts/transcript.aspx?transcriptid=1492

[3] www.publications.parliament.uk/pa/ld200506/ldhansrd/vo051201/text/51201w03.htm (Statement by a representative of the British Government, Lord Dyson, on 1 December 2005); www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090721/text/90721w0020.htm (Statement by the British Defence Secretary Mr. Bob Ainsworth, on 21 July 2009); www.publications.parliament.uk/pa/ld201212/ldhansrd/text/120208w0001.htm#12020841000474 (Statement by a senior member in the Ministry of Defence of Britain, Lord Astor of Hever, on 8 February 2012).

[4]  As stated by Mr. Gianfranco Conte, State Under-Secretary to the Presidential Council of Ministers in Italy, in response to parliamentary questions on 20 January 2006. The statement is quoted in Diplomatic and Parliamentary Practice, 16 Italian Y.B. Int’l L. 333, 363 (2006).  

[5] As stated by a military lawyer of the Danish Army, Rolf Verge, in the following report: www.information.dk/265810.

[6] www.icrc.org/eng/resources/documents/interview/weapons-interview-170109.htm.

[7]   In recent years Human Rights Watch has lead a campaign, particularly during annual meetings of state parties to the Convention on Certain Conventional Weapons (CCW), to amend Protocol III of the CCW, that deals with incendiary weapons, so that munitions containing white phosphorus and used for smoke screening purposes would be included in the definition of incendiary weapons; however, this initiative did not gain any significant support from states and has been unsuccessful. Even at the time of the original negotiations concerning the drafting of Protocol III, this issue was specifically drawn to the attention of the representatives of the participating States and it was agreed to explicitly exclude from the Protocol smoke munitions whose incendiary effect is incidental. See:  William Hays Parks, Conventional Weapons and Weapon Review, 8 YIHL 55, 78 (2005); William Hays Parks, The Protocol on Incendiary Weapons, 30 IRRC 535, 543-544 (1990).

[8]  “The Operation in Gaza – Factual and Legal Aspects”, page 145 (the “Gaza Operation“): www.mfa.gov.il/mfa/foreignpolicy/terrorism/pages/operation_in_gaza-factual_and_legal_aspects.aspx#

[9]  The Gaza Operation, page 146.

[10] http://www.idf.il/1283-18901-en/Dover.aspx (accessible also at .

[11]  As to the manner in which the basic principles of the Laws of Armed Conflict are applied in relation to the use of munitions containing white phosphorus for the purpose of smoke screening, see the official Israeli position issued following the Gaza Operation in 2008-2009: The Gaza Operation, pages 146-151.