Note from the Foreign and Commonwealth
Office
The use of white phosphorus in international law
IS THE
USE OF
WHITE PHOSPHORUS
MUNITIONS IN
CIVILIAN AREAS
A BREACH
OF INTERNATIONAL
LAW?
White phosphorus munitions are primarily used
to create smokescreens or as illuminants. It can however also
be used in bombs, artillery and mortars. A Protocol to the Convention
on Certain Conventional Weapons, the Protocol on Prohibitions
or Restrictions on the Use of Incendiary Weapons (Protocol III)
may catch white phosphorus if its use falls within the definition
of "incendiary weapon" meaning "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 a
combination thereof, produced by a chemical reaction of a substance
delivered on the target". The United Kingdom is a party to
the Protocol but does not use white phosphorus as incendiary weapons.
Protocol III provides that incendiary weapons do not include "munitions
which may have incidental incendiary effects such as illuminants,
tracers, smoke or signalling systems" as well as "munitions
designed to combine penetration, blast or fragmentation effects
with an additional incendiary effect... in which the incendiary
effect is not specifically designed to cause burn injury to persons,
but to be used against military objectives...".
USE OF
WEAPONS
The use of white phosphorus is governed by international
humanitarian law. The use of weapons is governed by certain important
principles which are relevant to their use in civilian areas.
The first is that the use of means and methods of warfare which
are of a nature to cause superfluous injury or unnecessary suffering
is prohibited. The second is that the use of weapons which are
by nature indiscriminate is prohibited. These are principles of
customary international law and apply to all states. Protocol
III, Article 2 adds specific rules to do with civilians in respect
of incendiary weapons but these only apply to parties to the Protocol.
It is prohibited in all circumstances to make the civilian population
as such, individual civilians or civilian objects the objects
of attack by incendiary weapons. It is prohibited in all circumstances
to make any military objective located within a concentration
of civilians the object of attack by air-delivered incendiary
weapons. It is further prohibited to make any military objective
located within a concentration of civilians the object of attack
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 minimizing
incidental loss of civilian life, injury to civilians and damage
to civilian objects.
TARGETING CIVILIANS
The rules on Protocol III draw on some general
principles to do with targeting which are to be found in Additional
Protocol I 1977 to the Geneva Conventions 1949 and apply to those
States which are parties to it such as the United Kingdom. Some
of these principles are also principles of customary international
law and apply to all states including those not party to Additional
Protocol I (API). The principle that the civilian population and
individual civilians shall not be the object of attack and that
acts or threats of violence, the primary purpose of which is to
spread terror among the civilian population is both reflected
in API, Article 51.2 and represents customary international law.
The rule that attacks shall be limited strictly to military objectives
and insofar as objects are concerned, military objectives are
limited to those objects which by their nature, location, purpose
or use make an effective contribution to military action and whose
total or partial destruction, capture or neutralisation, in the
circumstances ruling at the time, offer a definite military advantage
is both reflected in Article 52(2) and is a rule of customary
international law.
Likewise, the prohibition on indiscriminate
attacks which are those which are not directed at a specific military
objective or which employ a method of means of combat which cannot
be directed at a specific military objective or those which employ
a method or means of combat the effect of which cannot be limited
and in each case are of a nature to strike military objectives
and civilians or civilian objects (such as cities, towns and villages)
without distinction is to be found in API, Article 51(4) and is
reflected in customary international law. The prohibition on attacks
by bombardment which treat as a single military objective a number
of clearly separated and distinct military objectives located
in a city, town, village or other area containing a similar concentration
of civilians or civilian objects is both to be found in API, Article
51.5 and in customary international law.
On the other hand, the principles that in the
conduct of military operations, constant care must be taken to
spare the civilian population, civilians and civilian objects
and all feasible precautions must be taken to avoid, and in any
event to minimise, incidental loss of civilian life, injury to
civilians and damage to civilian objects which appear in API,
Article 57(1) and 57(2a) less clearly reflect customary international
law. Equally the principle in API (Article 51.5) that an indiscriminate
attack includes one which may be expected to cause incidental
loss of civilian life, injury to civilians, damage to civilian
objects or a combination thereof, which would be excessive in
relation to the concrete military advantage anticipated is thought
by some not to be customary international law. Likewise there
is no definition in customary international law of "direct
participation in hostilities" in the principle that civilians
are protected against attack unless and for such time as they
take a direct part in hostilities which is found in API Article
51.3. The principle that each party to the conflict must give
effective advance warning of attacks which may affect the civilian
population unless circumstances do not permit (API, Article 57.2(c))
probably also does not amount to customary international law;
State practice is not definitive. Likewise, API Article 57(3)
which provides that where a choice is possible between several
military objectives for obtaining a similar military advantage,
the objective to be selected shall be that the attack on which
may be expected to cause the least damage to civilian lives and
to civilian objects probably does not amount to customary international
law.
CONCLUSION
Customary international law consists of legally
binding rules which have been created by widespread state practice
coupled with a belief on the part of the State concerned that
it has the right to act or is obliged to act in a certain way
under international law. It has been indicated above that some
key rules to do with weapons and targeting civilians form part
of customary international law as well as being part of API. It
is clear from these that the use of weapons and the methods of
war in relation to civilians is limited by the principle of distinction,
which separates combatants from non-combatants and legitimate
military targets from civilian objects. Civilians may not take
a direct part in hostilities and while they do not do so, they
cannot be attacked. The other key principle, that of proportionality
requires that civilian casualties resulting from a military action
should not be excessive in relation to the expected military advantage.
There is an obligation when choosing the weapons and methods of
attack to choose those which will cause the least incidental damage
commensurate with military success. Unavoidable incidental civilian
casualties and damage which may result from legitimate attacks
upon military objectives are lawful but an indiscriminate attack
causing excessive collateral damage would be unlawful.
Whether the use of white phosphorus munitions
in civilian areas is or is not a breach of international law depends
on the facts. The facts may indicate that a principle outlined
above has not been complied with. The question then is whether
the principle concerned is a principle derived from API or from
customary international law. If the principle which a State is
accused of breaching derives from API, the State may be in breach
of API, depending on the facts. But if it is not a party to API,
it will only be bound by a rule of customary international law,
relevant rules of which have been indicated above. Israel and
Hamas are not parties to API (or to Protocol III of the Convention
on Certain Conventional Weapons). Israel will be bound by rules
of customary international law. Hamas is not a State but we would
expect it to comply with international humanitarian law.
At present there is no firm, conclusive and
certain evidence of how white phosphorus was used in Gaza. But
the Human Rights Council of the United Nations will be undertaking
a fact-finding mission, the Office of the High Commissioner for
Human Rights is compiling a report and there will be information
gathering exercises by various Special Rapporteurs. Until the
facts are clearly established, it is not possible to form a definitive
view as to whether the alleged use of white phosphorus in Gaza
is, or is not, in breach of international law. At this stage,
it is only possible to indicate rules of international law which
may be relevant.
BIBLIOGRAPHYCustomary
International Humanitarian Law: Volume 1: Rules (ICRC).
Perspectives on the ICRC Study on Customary International
Humanitarian Law.
The Joint Service Manual of the Law of Armed Conflict.
Fight it Right: Model Manual of the Law of Armed
Conflict for Armed Forces.
Handbook on the Law of War for Armed Forces (ICRC).
10 February 2009
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