The High Court of Justice on Sunday recommended the IDF cease all use of white phosphorus (WP) for creating smoke screens during military operations.
The recommendation was non-binding, however, as the court recognized that the IDF’s current commitment to eliminate its use in the urban warfare context and to reduce its general use moved the Army’s position significantly toward that of petitioners, NGO Yesh Gvul. While the petitioners sought a blanket prohibition, rather than a recommendation, in view of this shift the court formally dismissed the petition.
Yet even without a blanket prohibition, the limitation is a major change in military tactics.
Israel’s use of WP munitions during the 2008-2009 Operation Cast Lead drew international criticism and received special scrutiny in the Goldstone Report.
While WP can be used under armed conflict laws to mask troop movements on battlefields, Goldstone and many human rights groups have criticized the IDF for using the substance in Gaza because it poses significantly increased fire risks in such a densely-populated environment.
In a 2012 Human Rights Watch report on the issue, the organization said WP has killed and injured civilians and destroyed infrastructure both in Gaza and when used by the US in Afghanistan.
Exposure to the substance can have particularly grisly effects – including chemical burns down to the bone and wounds that can reignite days later when the bandages are removed, said HRW.
In the 2009 Gaza war, white phosphorus caused accidental damage to a UN facility and in one instance its misuse lead the IDF to discipline one of its commanders.
Following the wave of international criticism and the petition to the High Court filed by attorney Michael Sfard representing the NGO Yesh Din, the IDF decided in May “to go beyond what is required by the law” and voluntarily “limit” its future use of WP as a smokescreen tactic.
The Army has previously noted that it is developing a new munition that should have the same masking abilities, but without the potential side-effects.
In the May hearing before the High Court, the state said that the IDF was already voluntarily limiting the use of white phosphorus. It said the chemical would only be allowed to be used in two very limited cases, which it declined to specify, due to confidentiality regarding the rules of engagement.
Sfard and attorney Emily Schaeffer fought hard to go beyond the IDF’s new “limited” use policy and pushed the court to prohibit the IDF from using it on the basis that it is too dangerous, indiscriminate and uncontrollable once it is used.
Sfard told The Jerusalem Post that he “praises the IDF’s change in policy,” which he believed was at least partly a result of pressure from the petition, and said that the military would likely “not use white phosphorus... in future hostilities to the extent it did during Operation Cast Lead.”
But, he said, the IDF’s exception to the policy was too broad.
As soon as “hostilities broke out again,” Sfard said, the IDF was likely to decide to return to the use of WP, and that it would be both practically impossible and too emotionally charged to try and go to court to get the IDF to stop and “tie its hand in the middle of combat.”
Based on that prediction, he said, it was “important for the High Court to prohibit white phosphorus now when things are relatively calm.”
Sfard was pressed by the Post as to how he could demand a complete prohibition when no international convention formally prohibits the use of white phosphorus and when the substance is not explicitly prohibited by many Western militaries.
He responded that while they do not explicitly prohibit WP, many Western militaries do prohibit weapons with “indiscriminate” impacts, adding that he believes few militaries would actually use it today.
Sfard added that even when the US made use of the chemical, it was not in the same manner as the IDF.
Unlike the US, he said, the IDF used WP from the air, which renders it even less accurate and more indiscriminate.
The court indicated that what Sfard was asking for went beyond what the law requires. It added that it believed the exceptional circumstances specified by the IDF were seriously limited.
Sfard could not comment on this, as only the court was privy to the new top-secret rules of engagement.
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