White Phosphorus is a Perfectly Legal Weapon


I came across this short Human Rights Watch (HRW) video while researching my last blog post. In the video, HRW Arms Director Steve Goose argues that white phosphorus and other incendiary weapons should be banned.

I repost the video because it’s commonly believed in US military and antiwar circles alike that white phosphorus is banned for use as an antipersonnel weapon. Leftist antiwar folks (like George Monbiot in my previous post) tend to additionally believe that white phosphorus is classified as a chemical weapon because “when deployed against people, phosphorus meets the [Chemical Weapons Convention’s] definition of ‘any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm.'”

The former notion is plainly incorrect. The latter requires us to adopt a loose definition of “chemical action on life processes” that conflates direct chemical effects as when Sarin causes the diaphragm muscle to contract, leading to asphyxiation, with chemical action that indirectly affects life processes as when white phosphorus reacts to oxygen by combusting which indirectly harms life processes through related burns.

Peter Kaiser, spokesman for the international body that oversees the Chemical Weapons Convention, commented on the issue after the US battle in Fallujah:

“No it’s not forbidden by the CWC if it is used within the context of a military application which does not require or does not intend to use the toxic properties of white phosphorus. White phosphorus is normally used to produce smoke, to camouflage movement.

“If on the other hand the toxic properties of white phosphorus, the caustic properties, are specifically intended to be used as a weapon, that of course is prohibited, because the way the Convention is structured or the way it is in fact applied, any chemicals used against humans or animals that cause harm or death through the toxic properties of the chemical are considered chemical weapons.”

My take on this framework is that white phosphorus could only be classified as a chemical weapon if personnel were forced to ingest it for the sake of poisoning them. Chemical reactions leading to combustion are covered separately under Protocol III of the Convention on Certain Conventional Weapons (PDF):

1. It is prohibited in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons.

2. It is prohibited in all circumstances to make any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons.

3. It is further prohibited to make any military objective located within a concentration of civilians the object of attack by means of incendiary weapons other than air-delivered incendiary weapons, except when such military objective is clearly separated from the concentration of civilians and all feasible precautions are taken with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.

HRW even argues that white phosphorus, due to its utility for incendiary, screening, and illumination, is possibly exempt from CCW regulation at all:

Article 1 of Protocol III provides a loophole for such munitions in two ways: it encompasses only munitions “primarily designed” to set fires or cause burn injuries, and it provides exceptions for munitions with incendiary effects that are “incidental.” This definition allows multi-purpose, and widely used, incendiary munitions such as white phosphorus to escape regulation. For example, because producers and militaries describe M825E1 155mm artillery projectile rounds as smoke munitions, Protocol III could be read to exclude them from its purview. These rounds have caused harm to civilians when used in or near populated areas.

Furthermore, Article 2’s restrictions on the use of incendiary weapons, however defined, are insufficiently rigorous.  They include exceptions that too often permit attacks that could endanger civilians. While the article prohibits attacks in populated areas with air-delivered incendiary weapons, it permits the same kinds of attacks with ground-launched models under certain circumstances.

Incendiary weapons like white phosphorus are banned only as antipersonnel weapons in geographic areas where civilians are likely to be present. They are perfectly legal as antipersonnel weapons against enemy combatants.

The hair-splitting is important because if folks want to see white phosphorus banned from military use (which, to be clear, would be no skin off my nose), they’re going to have to join HRW in advocating for a ban on incendiary weapons.

On an unrelated note, if anyone has any contacts at HRW’s Arms Division, I’d love to be put in touch with someone for an informational interview. The skills I developed as an infantryman and an intelligence section leader in the Marine Corps make me very much cut out for writing reports of the type HRW released today.

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