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HCJ dismisses petition demanding the military cease use of white phosphorous

Petition dismissed after military pledges to stop using white phosphorus, with two classified exceptions

Bombing of UNRWA School in Beit Lahiya, Jan 17th.Photo: Muhammad al-Babaהפצצת Bombing of UNRWA School in Beit Lahiya, Jan 17th.Photo: Muhammad al-Baba

On 9 July 2013, the High Court of Justice (HCJ) dismissed a petition demanding that the Israeli military cease all use of white phosphorous in civilian areas. The petition was dismissed after the State announced that use of white phosphorous would be significantly reduced. Despite dismissing the petition, the justices demanded that the military reconsider its use of the substance. The petition was filed by Advocates Michael Sfard and Emily Schaeffer on behalf of 117 petitioners, including human rights organizations.

The harmful effects of white phosphorous were discovered during Operation Cast Lead. Phosphorous burns everything it touches and causes severe burns when it comes into contact with the human body. Phosphorous injuries are particularly horrific as the substance continues to burn as long as it is exposed to oxygen. This results in burns that penetrate deep body's tissues. Even if the burned tissues are medically removed, the phosphorus is still absorbed into the blood stream and poisons internal organs. Ghadah Abu Halima, one of Gaza's phosphorous victims, died of her injuries weeks after she gave B'Tselem her testimony about the incident in which five of her relatives were killed by a phosphorous shell.

In May 2009, four months after Operation Cast Lead ended, the military published the results of its inquiry into the use of white phosphorous during the operation. The military concluded that albeit use of this substance during the operation had been lawful, nevertheless, it would stop using shells containing phosphorous. However, the military decided it would continue its practice of using shells containing white phosphorous to achieve camouflaging smokescreens.

The petition against the use of white phosphorous was filed in May 2011. Following the filing of the petition, the State announced that although there were no legal impediments to continued use of white phosphorous, the military would, for the present, stop doing this use in built-up areas, with the exceptions of two instances which were presented only to the justices.

In the court’s ruling, Justice Edna Arbel rejected the State's argument that the court had no jurisdiction to review questions of munitions. Justice Arbel wrote, "Clearly, when there are allegations that military measures have been used in a manner that contravenes the laws of war, the court must go 'to the battle ground' and examine the arguments presented to it". She emphasized that the court would not intervene in such matters, unless "exceptional and special cases justify doing so, when there is concern that established legal norms have been breached", such as the present case.

Considering the State’s new position, which was presented to the court after the petition was filed, the justices decided to dismiss the petition. Justice Arbel found that the two conditions in which the State declared it would continue to use white phosphorous were exceptional and that they "render use of white phosphorous an extreme exception is highly particular circumstances".

That said, Justice Arbel emphasized that the State’s position does not amount to new directives prohibiting the use of white phosphorous. She maintained that the military ought to conduct a “thorough and comprehensive examination” of the use of this substance, which would form the basis for permanent directives.

The pledge by the military to cease using white phosphorous, with two classified exceptions, is a step in the right direction. However, given that under international humanitarian law the use of white phosphorous in the present setting of the Gaza Strip is unlawful, and considering the horrific results of the substance, B'Tselem demands that the military immediately compose clear and unequivocal directives that ban all use of white phosphorous in densely populated civilian areas, such as the Gaza Strip. The current situation, whereby prohibition of use of the substance exists only as a pledge to the court, and is not backed by formal military orders, is unwelcome and leaves the open a possibility of further use.