The Use of Munitions Containing White Phosphorous / Israel's Formal Investigation

(a) The Use of Munitions Containing White Phosphorous and Flechettes

405 The IDF uses only weapons and munitions defined as legal under international law and authorised as such by the relevant IDF authorities, including MAG officers. In this regard, the IDF complies strictly with the applicable restrictions governing the use of certain weapons and munitions. Furthermore, all weapons and munitions are employed in accordance with the general rules of International Humanitarian Law such as distinction and proportionality. Of the many types of munitions employed by IDF forces during the Gaza Operation, international organisations have largely focused their criticism on munitions containing white phosphorous and flechettes.

(i) Use of Munitions Containing White Phosphorous

406 During the Gaza Operation, IDF forces used munitions containing white phosphorous, which is in common use by militaries worldwide. In particular, IDF used two different types of munitions containing white phosphorous – exploding munitions and smoke projectiles.
407 Exploding munitions containing white phosphorous. A small number of exploding munitions containing white phosphorous were used by the IDF during the Operation as mortar shells fire by ground forces and as rounds from naval vessels. These munitions were fired only at open unpopulated areas and were used only for marking and signalling rather than in an anti-personnel capacity. In one single incident, in an open uninhabited area, ammunition containing phosphorous was used by ground forces to uncover tunnel entrances that served for terrorist purposes. No exploding munitions containing white phosphorous were used in built-up areas of the Gaza Strip or for anti-personnel purposes. The restrictions on the use of incendiary weapons under Protocol III (relating to Incendiary Weapons) to the Convention on Certain Conventional Weapons (“CCW Protocol III”)(277) were observed at all times, even though Israel is not a party to the Protocol (for further elaboration, see below).
408 None of the instances in which exploding munitions containing white phosphorous were used by the IDF during the Gaza Operation has given rise to particular criticism. Still, on 7 January 2009, 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.(278)
409 Smoke projectiles containing white phosphorous. The second and main type of munitions containing white phosphorous employed by the IDF during the Gaza Operation was smoke screening projectiles. In the course of the ground manoeuvre, the IDF used smoke shells containing felt wedges dipped in white phosphorous. These shells contained relatively small amounts of white phosphorous and were used exclusively to create smoke screens for military requirements, such as camouflaging armoured forces from anti-tank squads deployed by Hamas in Gaza’s urban areas. Smokescreens are an indispensable tool in ground manoeuvres and were extremely effective during the Gaza Operation in protecting IDF forces from Hamas’ anti-tank capabilities.
410 In fact, these smoke-screening projectiles are designed to create a protective smoke screen for battlefield purposes, and were used exclusively for this purpose by the IDF during the Gaza Operation. The smoke projectiles may, on occasion, produce incidental incendiary effects, but this does not make them incendiary weapons for purposes of international law.
(a) International Law Applicable to the Use of Incendiary Weapons

411 The use of munitions containing white phosphorous is not prohibited by any international treaty, including CCW Protocol III. Article I of CCW Protocol III defines “incendiary weapon” 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.” Article I further expressly excludes from its purview: “…Munitions which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems.”
412 Accordingly, although Israel is not a party to CCW Protocol III, it is clear that the use of munitions containing white phosphorous as a smokescreen is not regulated nor prohibited by it.
413 The fact sheet on white phosphorous by the Federation of American Scientists rates the lethality of white phosphorus as “low” and notes its current status as being “in use around the world,” including by the U.S. and other military forces, for a variety of purposes.(279) Although certain NGOs criticised use of weapons containing white phosphorous by U.S. forces in Iraq, senior U.S. officials made clear that U.S. use was consistent with international law and State practice.(280)
414 Although the use of weapons containing white phosphorous for smoke-screening purposes is not prohibited by any international treaty, it is still subject to the applicable norms of the Law of Armed Conflict, including the principles of distinction and proportionality, which regulate the employment
(b) Compliance With the Principle of Distinction

415 The obscurant smoke shells were used by the IDF for military purposes only (e.g. camouflaging armoured forces from anti-tank squads deployed by Hamas in Gaza’s urban areas), and were not aimed at civilians. The use of smoke obscurants proved to be highly effective at cloaking IDF forces and obstructing enemy lines of sight. At no time did IDF forces have the objective of inflicting any harm on the civilian population.
416 Some have suggested that air-burst white phosphorous munitions are by nature indiscriminate because they are designed to scatter over a wide area and therefore cannot be targeted precisely at a military objective. However, smoke projectiles are not designed or intended to be lethal or destructive, and as a result they are not used for targeting purposes. Rather, they are intended to disorient and neutralise the enemy by creating obscuration of the enemy’s field of view (and therefore the objective in using them depends to a large degree on achieving a wide area of effect). Indeed, white phosphorous smoke screen projectiles worked well in serving their intended objective of protecting Israeli troops during the conflict. Therefore, smoke obscurants containing white phosphorous were not used for targeting purposes and cannot be classified as an indiscriminate weapon; otherwise, any smoke-screening means would be prohibited, in contrast to the well-established practice of militaries worldwide.
(c) Compliance With the Duty to Minimise the Risk to Civilians

417 During the Gaza Operation, the IDF used smoke-screening projectiles containing white phosphorous in a manner corresponding with its duty to minimise the risk to civilians. Abstaining from using smokescreens in densely populated areas of Gaza, i.e. precisely in those areas where Hamas deployed most of its forces, would undoubtedly have compromised the safety of Israeli troops and would increase the risk for civilians, as a result of cross-fire. Indeed, in one incident during the combat in Tel al-Hawa on 15 January, IDF forces came under fire from both anti-tank and small arms fire, and an IDF armoured bulldozer suffered a direct hit from an anti-tank weapon. The attack was possible because no white phosphorous smokescreen had been deployed. In cases where smoke obscurants were used, they proved to be a very effective means of protecting Israeli forces and in many cases prevented the need to use explosive munitions whose impact would have been considerably more dangerous.
418 Some have suggested that IDF could have used less harmful munitions, or used the munitions in a less harmful manner, to achieve the same military objective, for example, by using smoke munitions without white phosphorous or by firing the munitions as ground-burst rather than air-burst projectiles. However, neither of these alternatives provides the same military advantages

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