White Phosphorus - Arms Control Status and Military Regulations

Arms Control Status and Military Regulations

There are multiple international laws that could be seen to regulate white phosphorus use. Article 1 of Protocol III of the Convention on Certain Conventional Weapons defines an incendiary weapon as 'any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target'. The same protocol prohibits the use of said incendiary weapons against civilians (already forbidden by the Geneva Conventions) or in civilian areas.

However, the use against military targets outside civilian areas is not explicitly banned by any treaty. There is a debate on whether white phosphorus should be considered a chemical weapon and thus be outlawed by the Chemical Weapons Convention (CWC) which went into effect in April 1997. The convention is meant to prohibit weapons that are "dependent on the use of the toxic properties of chemicals as a method of warfare" (Article II, Definitions, 9, "Purposes not Prohibited" c.).

The convention defines a "toxic chemical" as a chemical "which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals" (CWC, II). An annex lists chemicals that fall under this definition and WP is not listed in the Schedules of chemical weapons or precursors.

In an 2005 interview with RAI, Peter Kaiser, spokesman for the Organisation for the Prohibition of Chemical Weapons (an organization overseeing the CWC and reporting directly to the UN General Assembly), questioned whether the weapon should fall under the convention's provisions:

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 that is the purpose for which the white phosphorus is used, then that is considered under the convention legitimate use.

If on the other hand the toxic properties of white phosphorus 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".

Kaiser was a staff spokesman for the Organisation for the Prohibition of Chemical Weapons. The OPCW, using member votes, creates Schedules of chemical weapons or dual-use chemicals of concern and white phosphorus is not in any of these schedules.

The Convention on Certain Conventional Weapons, not the Chemical Weapons Convention, goes on, in its Protocol III, to prohibit the use of all air-delivered incendiary weapons against civilian populations, or for indiscriminate incendiary attacks against military forces co-located with civilians. However, that protocol also specifically excludes weapons whose incendiary effects are secondary, such as smoke grenades. This has often been read as excluding white phosphorus munitions from this protocol, as well. Several countries, most notably Israel, are not signatories to Protocol III.

The legal position however, is not the only consideration in any war. For instance, concerning the U.S. use of white phosphorus in Iraq, the British Liberal Democrat foreign affairs spokesman Sir Menzies Campbell, said

"The use of this weapon may technically have been legal, but its effects are such that it will hand a propaganda victory to the insurgency. The denial of use followed by the admission will simply convince the doubters that there was something to hide".