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Philip C. Winslow: Weapons of War in Gaza: Israel and International Law

February 14, 2009

Philip C. Winslow

Israel’s use of white phosphorus munitions in the Gaza Strip in January was one of the most intensely debated issues of the hyper-violent 22-day war, in which 13 Israelis and 1,300 Palestinians died. Dramatic photographs showed Israeli shells bursting over a United Nations school in northern Gaza as Palestinians ran for cover and others frantically tried to extinguish burning lumps amidst the smoke.

Israel’s phosphorus shells–and Hamas’s rockets aimed at Israeli civilians–are only part of a disturbing picture of modern warfare. The use of phosphorus deserves a closer look, because of its particular danger to civilians and because of its relevance to what is legal in warfare.

White phosphorus shells, delivered by artillery or mortar, each contain 100 or more phosphorus-drenched pads, which ignite on contact with the air and stream to earth, burning at about 1,500 degrees Fahrenheit until either fuel or oxygen is depleted. Phosphorus rounds are conventionally used as a battlefield “obscurant,” to create troop-shielding smoke, or as incendiary weapons against military targets. When the burning wedges contact human flesh they cause appalling burns that are difficult to treat. Phosphorus-related casualty figures in Gaza have not yet been established.

Although white phosphorus is not a banned weapon, its different military functions are regulated. If used as an incendiary in areas where military objectives cannot be clearly separated from civilian concentrations, it is prohibited under Protocol III of the 1980 Convention on Certain Conventional Weapons, known as the CCW. If fired to mark targets or create smoke, but in populated areas, white phosphorus falls under the customary rules of international humanitarian law (IHL), also called the law of war. In either instance, as in all military operations, “all feasible precautions” must be taken to safeguard civilians.

Israel did not ratify the 1980 CCW Protocol, but is still bound, as is any party to armed conflict, by international humanitarian law. Hamas, Israel’s enemy, is equally obliged. Its habitual indiscriminate rocketing of Israeli towns is plainly prohibited. But attacks by one side, however intolerable, do not grant the other side unlimited military means to respond.

Israel says that its forces use their weapons systems in accordance with international law. The results on the ground do not always square with the claims. Artillery pieces are area weapons, and are notoriously inaccurate. Guidance systems malfunction, target coordinates are entered incorrectly, or–sometimes, according to past testimony of many soldiers–weapons are fired indiscriminately.

Conventional munitions such as aerial bombs and high explosive tank, artillery and mortar shells–and unconventional weapons such as human suicide bombs–cause catastrophic effects on increasing numbers of civilians, whether in Gaza, Israel, Iraq, Sri Lanka or Afghanistan. The rampant use of small arms and light weapons by non-state militias and ragtag rebel groups, in places such as Darfur and Congo, adds to the growing mayhem.

The terrible destructive power of heavy weapons practically guarantees widespread casualties and unnecessary destruction in dense urban areas. Of the estimated 1,300 Palestinians who died in Gaza, about half were civilians and more than 400 were children, according to Palestinian health officials. In addition, 5,300 were wounded and tens of thousands were displaced.

Facing international criticism, Israeli officials promised to investigate the army’s use of white phosphorus and some other incidents that claimed civilian lives.

Investigations should be done. But Israel, along with all states and non-state belligerents, must go further and review the weapons they use and how they use them.

After the war, one Israeli army officer, frustrated at the criticism filling the newspapers, asked: How, then, do you expect us to fight in such areas?

The answer, in the negative anyway, is not with heavy weapons in areas where military targets cannot be separated from civilian objects. The prohibitions and other requirements to protect civilians are spelled out in the laws of war and the Geneva Conventions, carefully forged over more than 100 years and promoted by the International Committee of the Red Cross.

The rules (all are available on the ICRC Web site) are eloquent, fully relevant to today’s conflicts, and still evolving. Treaties gradually take hold and become universally accepted: antipersonnel land mines now are prohibited (although the U.S. and Israel did not sign the 1997 Ottawa Treaty), and strenuous efforts are ongoing to regulate cluster munitions and other explosive remnants of war.

The devastation in Gaza again points to the urgent need for a political solution to this agonizing conflict. The task is not impossible. Israel and the Palestinians need not live in a state of permanent war.

In the meantime, Israel and Hamas should reflect on their obligations and immerse themselves in the elegant clarity of humanitarian law and the Geneva Conventions. In these long-established and compelling documents, Palestinians, Israelis and those trying to mediate will find much on which they can agree and should observe.

Philip C. Winslow is the author of Victory For Us Is to See You Suffer: In the West Bank with the Palestinians and the Israelis. Winslow has been a journalist and foreign correspondent for more than twenty years; he has worked for the Christian Science Monitor, the Toronto Star, Maclean’s magazine, ABC radio news, CTV News, and CBC radio. He also served in two United Nations peacekeeping missions and spent nearly three years living in the West Bank.

Copyright 2009 Philip C. Winslow

This piece also appeared on Beacon Broadside.

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