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Isabel Kershner wrote last week in the New York Times that the Israeli Defense Force (IDF) plans to discontinue the use of white phosphorus munitions, adding that
Israeli and international human rights organizations accused Israel of using white phosphorus munitions improperly during Israel’s three-week military offensive against Hamas and other militant groups in Gaza in the winter of 2008-9. Such munitions are not prohibited under international law, but they are not supposed to be used in civilian areas, because white phosphorus is highly flammable and, like napalm, it can burn flesh. Israel maintained that its use of shells containing phosphorus did not violate international law.
Human rights organizations “accused” Israel, Kershner wrote, as though this was merely an unproven accusation and not a well-documented, indisputable fact. The “accusation” is that Israel used white phosphorus “improperly”, Kershner’s euphemism for “illegally”. The munitions are “not prohibited under international law, but they are not supposed to be used in civilian areas”, meaning that the use of white phosphorus in civilian areas is prohibited under international law. Finally, Israel maintains it “did not violate international law.”
The question one might find oneself asking after reading this is: Did Israel use the munitions in civilian areas, or not? We know the answer. So, then, why cannot Kershner bother herself to tell her readers that there is no question that Israel did in fact use the munitions in civilian areas? Why does she decline to point out to her readers that, by doing so, it is an incontrovertible fact that Israel violated international law with its use of white phosphorus?
Kershner also didn’t mention that Israel initially denied its use of white phosphorus, which would be an behavior had its use of the munitions been legal. The London Times reported on January 5, 2009 that despite Israel’s denials, “the tell-tale shells could be seen spreading tentacles of thick white smoke to cover the troops’ advance.” On January 8, The Times reported again that photographic proof of Israel’s use of white phosphorus munitions had emerged, “despite official denials” by the IDF. The Times had identified munitions bearing the designation M825A1, made in the USA. Confronted with the evidence, an IDF spokeswoman lied, “This is what we call a quiet shell—it is empty, it has no explosives and no white phosphorus. There is nothing inside it”.
By January 10, Human Rights Watch called upon Israel to “stop using white phosphorus in military operations in densely populated areas of Gaza”, including Gaza City. “White phosphorous can burn down houses and cause horrific burns when it touches the skin,” said Marc Garlasco, senior military analyst at HRW. Noting that when white phosphorus munitions burst in the air, they spread “116 burning wafers over an area between 125 and 250 meters in diameter”, HRW added that “the use of white phosphorus in densely populated areas of Gaza violates the requirement under international humanitarian law to take all feasible precautions to avoid civilian injury and loss of life.” The IDF continued to deny that it was using white phosphorus, HRW also pointed out, despite the fact that the distinctive air-bursting munitions had been photographed being used over populated areas of Gaza.
“I can tell you with certainty that white phosphorus is absolutely not being used”, an IDF spokesperson had initially lied. Several days later, and two days after the HRW report, after photographs of the weapon being used in Gaza had appeared widely in the media, the official Israeli position became: “Any munitions that Israel is using are in accordance with international law. Israel does not specify the types of munitions or the types of operations it is conducting.”
Kershner perhaps took her cue from earlier reporting. CNN at the time likewise characterized Israel’s use of white phosphorus as merely an accusation with the headline “Group accuses Israel of firing white phosphorus into Gaza”. The characterization came despite the fact that the article was accompanied online with an image of the weapon in use, clear photographic proof that the HRW “accusation” was true and that Israeli officials were lying.
In a similar fashion, the caption of a photograph on a BBC report unmistakably showing white phosphorus munitions bursting over populated areas read “Human Rights Watch says pictures like this point to white phosphorus use, but Israel denies this”. The BBC article disingenuously added, “There is no way independently to explain the contradiction between the Israeli military’s denial” and the reports that Israel had been using the weapon. Unimaginatively, the BBC failed to realize the simplest and most obvious explanation: that Israeli officials were lying—a fact proven beyond any reasonable doubt by the very photograph the BBC included with the article.
The Israeli human rights organization B’Tselem observed that under international law, “such [incendiary] weapons may only be used against military objects. When the military object is located within a civilian area, the use of phosphorus is absolutely prohibited.” While Israel had not signed the Additional Protocols to the Geneva Conventions, the specific prohibition was nevertheless “based on two customary principles of international law, which are binding on Israel. The first is the prohibition on using weapons that cannot distinguish between combatants and civilians, and the second is the prohibition on using weapons which by their nature cause unnecessary suffering.”
An ICRC official also confirmed to the Associated Press that Israel was in fact using white phosphorous munitions. His comments made headlines in the U.S. because he had also said, “But it’s not very unusual to use phosphorus to create smoke or illuminate a target. We have no evidence to suggest it’s being used in any other way.” The widely published AP article was misleadingly titled “ICRC: Israel’s use of white phosphorus not illegal”, despite the fact that the official quoted, Peter Herby, hadn’t actually said that. Rather, he had indicated that additional information was required before a judgment could be made as to whether Israel’s use of the weapon was legal or not. The AP report noted in the third to last paragraph that Herby had also “said evidence is still limited because of the difficulties of gaining access to Gaza”, but the distinction was no doubt lost upon many readers, even among those who actually read past the false headline.
Apparently, Herby had not seen any of the numerous photographs that had already appeared in the media or spoken with the credible witnesses of the weapons being used over heavily populated residential areas, and thus illegally. In another example, the Christian Science Monitor repeated Herby’s comments to the AP under the headline, “Red Cross: No evidence Israel is using white phosphorus illegally”, despite its own admission that “Monitor staff writer Robert Marquand reported yesterday that human rights groups have witnessed white phosphorus munitions exploding over populated area [sic] of Gaza” (emphasis added). The headline was made even more egregious given the fact that in a separate article published the same day, Marquand reported (emphasis added):
Marc Garlasco has been on the northern border of Gaza for the past five days watching what he says are white phosphorus munitions exploding over a crowded refugee camp. Mr. Garlasco, a senior military analyst for New York-based Human Rights Watch (HRW), says that the way Israel is using the incendiary device is illegal…. “The IDF acts only in accordance with what is permitted by international law and does not use white phosphorus,” IDF Chief of Staff Gabi Ashkenazi told Israel’s Foreign Affairs and Defense Committee on Tuesday in response to a query. But Garlasco says that phosphorus is clearly being used in the Jabaliya refugee camp, one of the most crowded areas in Gaza. “I can see them; we are very certain, whatever the Israeli Defense Forces may say, that white phosphorus is being used….”