Banning white phosphorus with the exception of undisclosed 'extreme cases'

Israel has informed the High Court of Justice that the Israeli army will halt the use of white phosphorus in civilian areas, following a petition from various human rights organisations which have long clamoured for a ban. However, the Israeli army reserves the right to use white phosphorus in two ‘extreme cases’ which have been heard behind closed doors.

Deemed a ‘conventional weapon’ by advocates, white phosphorus is not considered illegal under international law when used as a smokescreen to conceal troop movements. The lack of an adamant assertion against illegality has been used by Israel as a bargaining point to defend the documented use of white phosphorus, particularly in relation to Operation Cast Lead in 2008 and 2009. The munitions caused horrific injuries to Palestinians, prompting verbal protest and condemnations from international human rights organisations. Despite being confronted with evidence, the Israeli army insisted upon denying the military’s use of white phosphorus in Gaza. “Any munitions that Israel is using are in accordance with international law.”

Using munitions according to international law is a phrase which has been recycled incessantly by many perpetrators of human rights violations. However, Israel’s use of generalised statements to counter any direct question cannot justify the attacks on community buildings and refugee camps. The gradual shift from outright denial to sanctioned use of chemical weapons also reveals a shift in rhetoric which gives rise to questions such as the reasoning behind prohibiting the use of a weapon which has been allegedly used within the restrictive parameters. It is yet another example of how Israel successfully evades responsibility for inflicted atrocities by agreeing to a partial solution without repercussions years after violations occur.

The international media’s ambiguous reports during Operation Cast Lead aided Israel’s lack of accountability – while posting photos of white phosphorus blasting over civilian areas, reports were reluctant to confront Israel’s ambiguous rhetoric. Photos became an allegation, whilst official discourse remained the source of ‘clarification’. Destruction, death and injury were described as an unfortunate circumstance which Hamas hostilities had forced upon Israel with regard to retaliation – a more articulate manner of expressing collateral damage.

The petitioners, which included Israeli organisation Yesh Gvul, insisted upon a total ban of the weapon, while judges implored them to withdraw their appeals, stating that the undisclosed reasons sanctioning the use of white phosphorus were ‘unusual and extreme’. The reconciliation tactic earned a rebuttal from Yesh Gvul’s attorney Michael Sfard. ‘The army’s decision is a step in the right direction, but we are not aware of a legal exception that allows for the use of white phosphorus shells in populated areas.’

Impunity has once again shielded Israel from accountability. Partly as a strategy to ensure security, legal issues have become a privileged point of reference. Despite having ‘violated the customary international law requirement to take all feasible precautions’, civilians are now expected to remain silent about legal dynamics and repercussions which have the potential to assault their lives again, under extremely unusual circumstances. Considering Israel’s extravagant variations of aiding ‘terrorism’ which makes it a crime to even flaunt the Palestinian flag, the assumption of Israel manipulating definitions to avail itself of legal loopholes makes the decision subject to further, disputed uncertainties.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.