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Court Case Investigates Israel's Use of Phosphorus in Gaza

A petition brought by human rights organizations to the Supreme Court has drawn attention to allegations of the IDF using phosphorus bombs during Operation Cast Lead.
A white phosphorous shell explodes on target during the Lien Yung annual joint forces exercises in Pingtung County, southern Taiwan, June 7, 2012. REUTERS/Pichi Chuang (TAIWAN - Tags: MILITARY) - RTR337VR

Operation Cast Lead, December 2008: The view over Gaza was stunning. The skies were lit up with fireworks, just like on Independence Day. There was, however, one big difference. The “fireworks” were heading in the opposite direction, from the sky to the ground, right at the people who lived there. The explosions looked just like some heavenly octopus, stretching its long tentacles out with a dazzling white light. Few of the people who witnessed this spectacle realized that what they were actually seeing were phosphorus bombs being dropped by Israeli air force fighter jets.

This week [May 13] the Supreme Court held a hearing over a petition submitted by the Yesh Gvul movement in May 2011. It turns out that Israel does not deny using weapons of this sort during the fighting in Gaza. Yesh Gvul was joined in its appeal to the court by 101 other petitioners, including human rights and peace organizations (such as Yesh Din, Doctors for Human Rights, Rabbis for Human Rights, Peace Now, Gush Shalom, etc.)Yoav Hess is the chairman of Yesh Gvul and the person who initiated the petition. In an interview with Al-Monitor he said: As soon as I saw the fireworks, I immediately understood what they meant. A friend of mine was injured in the army by this kind of bomb and almost lost an eye. I know what they can do. After a brief investigation I learned that civilians were indeed injured by these bombs, including a baby who suffered from burns. I will never forget that image. We slowly began to hear reports of medical teams that were injured after treating people who were struck by phosphorus. What the medical teams failed to realize is that they were unknowingly harming themselves whenever they came into contact with the material. I therefore decided that I had to do something. It is inconceivable that Israel would use weapons of this sort, which are banned by international law.”

The petitioners recruited human rights attorney Michael Sfard to represent them. Though the petition was submitted to the court two years ago, the first hearing in the matter was only held this week. In response, Israel informed the court that it would no longer make use of these weapons, except in two exceptional cases, which were provided to the chief justices but which remained confidential for security reasons.

As far as the petitioners are concerned, the state’s response is only a partial success. Attorney Michael Sfard told Al-Monitor that the petition was only submitted after it was determined beyond any shadow of a doubt that the IDF was making extensive use of armaments containing white phosphorus.

What exactly is a phosphorus bomb?

“White phosphorus,” Sfard explained, “is a substance that is incorporated into two types of illegal munitions: the first is ‘incendiary weaponry’; the second is ‘indiscriminate weaponry.’” 

Sfard then went into greater detail. ''Incendiary weapons burn everything that comes into contact with them. White phosphorus starts burning as soon as it comes into contact with oxygen. If it lands on your hand, it will start to burn and continue burning, sometimes for several days. There are documented cases from Gaza that even after the ceasefire, when the civilian population returned to those areas it had fled from, they discovered phosphorus particles there, which were still burning. There have even been cases of phosphorus particles getting covered by sand. Then, when someone stepped on them, they started to burn again. Particles like that can even sink to the bottom of a puddle of water. As soon as the water evaporates, the particles are reactivated.''

Experts who helped to put together the case say that the phosphorus bombs used by Israel during Operation Cast Lead consisted of 155 mm shells containing pieces of felt, which were dipped in phosphorus. The shells explode in the air, causing that same “amoeba”-like shape described by Palestinians during the fighting as an octopus with dozens of tentacles reaching down to the ground.

Michael Sfard adds: “I checked the ordinances of other militaries regarding the use of white phosphorus. While they don’t go into much detail, they do include explicit instructions that it must not be used in the field. I was also told by experts that the Americans did use phosphorus to some degree or other in Fallujah, Iraq.”

Sfard goes on to reveal an interesting detail. Those military experts he mentioned comprise a small community, unique in that it tackles the issue from a human rights perspective. “When they saw the footage from Operation Cast Lead on TV, they immediately began exchanging urgent phone calls. The question that kept coming up was, ‘Have those Israelis lost their minds?’”

The other category in which phosphorus bombs are listed is “indiscriminate weaponry,” i.e., inaccurate weapons, which cannot be controlled or made to strike only at military targets. In the case of white phosphorus, even if it is fired at a military target deemed legitimate by all the rules of warfare, the wind can still carry the particles to civilian population centers. That, in turn, is no longer legitimate.

In response to Yesh Gvul’s petition, the IDF argued that the case was not a suitable one for a court to hear. In other words, the court is forbidden to intervene in questions of what type of weapons should be selected during wartime.

Sfard responds that such an argument may have been effective in the 1970s and 1980s, but with the increasing role played by war crimes tribunals today, it is absolutely incumbent on local courts to discuss these matters first. Should they fail to do so here, other courts will take up the matter, including the International Court of Justice in The Hague. “The most important rule in the laws of warfare is the obligation to distinguish between civilians and fighting forces. Weapons that fail to distinguish between them are considered inaccurate weaponry. ...”

The IDF’s second argument before the Supreme Court was that phosphorus is not an incendiary weapon, since it is not designed to be used as such. The fact that it is incendiary is only a secondary outcome of its original use.

Having studied the issue of phosphorus weapons, Yoav Hess discovered an inherent paradox in the use of these kinds of weapons. When they were first designed, he explains, they were actually intended to save lives in battlefield conditions. One instance of this is when one side in the fighting wants to evacuate its wounded. It would then deploy these kinds of weapons to create a “smoke screen.” According to him, Israel used phosphorus bombs with a different end, as a means of assaulting the enemy.

The Supreme Court has yet to rule on the case. Nevertheless, once the hearing was over, the petitioners felt that they had made some headway. They were pleased with the state’s response, even before the Supreme Court issued its ruling: “The army declared unequivocally that it would no longer use white phosphorus. Nevertheless, it has made no commitment to adjust its policy.”

Hess, who initiated the case, adds: “Israel frequently prides itself that the IDF is one of the most ethical armies in the world. If they hope to continue wearing this title as an emblem of pride, I suggest that the IDF will announce that it has stopped using white phosphorus in areas occupied by civilians. There are plenty of other weapons they can use.”

Shlomi Eldar is a contributing writer for Al-Monitor’s Israel Pulse. For the past two decades, he has covered the Palestinian Authority and especially the Gaza Strip for Israel’s Channels 1 and 10, and has reported on the emergence of Hamas. In 2007, he was awarded the Sokolov Prize, Israel’s most important media award, for this work.

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