FPJ — 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, TheTimes 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….”
From inside Gaza, Palestinian New York Times correspondent Taghreed El-Khodary reported that large numbers of Gazans were “fleeing their homes for makeshift shelters in schools, office buildings and a park as the Israeli Army continues to press its military campaign deeper into Gaza City.” Israel continued to drop “leaflets to warn families to leave areas where they planned to operate”, but, she added, citing the Israeli shelling at a school in Jabaliya that had killed 43 people as an example, “the shelters are not completely safe”. Palestinians interviewed also “cited another reason for their flight: Israel [sic] soldiers, they said, are firing rounds of a noxious substance that burns skin and makes it hard to breathe.” A resident from Gaza City showed reporters the source of the “noxious substance”, a “metal casing with the identifying number M825A1”. Her report concluded:
When exposed to air, it ignites, experts say, and if packed into an artillery shell, it can rain down flaming chemicals that cling to anything they touch. Luay Suboh, 10, from Beit Lahiya, lost his eyesight and some skin on his face Saturday when, his mother said, a fiery substance clung to him as he darted home from a shelter where his family was staying to pick up clothes. The substance smelled like burned trash, said Ms. Jaawanah, the mother who fled her home in Zeytoun, who had experienced it too. She had no affection for Hamas, but her sufferings were changing that. “Do you think I’m against them firing rockets now?” she asked, referring to Hamas. “No. I was against it before. Not anymore.”
What the Times didn’t mention was that the M825A1 white phosphorus munitions were, of course, supplied to Israel by the U.S.
More proof still was needed, however, for El-Khodary’s colleague Ethan Bronner to report that Israel was using white phosphorus. The only instance in which it received any mention from Bronner occurred two days after the above piece was published, in an article where Bronner wrote that ICRC president Jakob Kellenberger had said that during his own visit to Gaza, “he had seen no evidence of the use of white phosphorus, an obscurant used in military conflicts that can be dangerous for civilians under certain circumstances”—such as when their homes or places of shelter are targeted with it. “Palestinians say Israel is using it in Gaza,” Bronner added (emphasis added). All of the relevant facts Bronner saw fit to sweep down the memory hole, to be replaced by a meaningless citation of one individual who happened not to have himself personally witnessed white phosphorus being used and by the characterization that its use by Israel was nothing more than a baseless Palestinian claim. The repeated statements from human rights organizations like HRW and B’Tselem condemning its documented use, the photographic proof published in media outlets around the world, his own colleague’s reporting from on the ground in Gaza of the finding of shells marked “M825A1”, etc.—none of this did Bronner consider relevant in what can only have been a deliberate attempt, assuming his competence as a reporter, to mislead his readers into mistakenly believing that Israel’s use of the weapon was somehow in doubt. (These were the only two articles from the Times that mentioned Israel’s use of white phosphorus during its entire military operation in Gaza.)
On January 15, the main UNRWA compound in Gaza City was targeted with white phosphorus munitions, causing a fire that destroyed a workshop and the main warehouse where hundreds of tons of humanitarian supplies were being stored and 700 Palestinians were taking refuge. The Gaza Director of Operations John Ging told a news conference about Israel’s use of white phosphorus against the UNRWA compound, while Israel continued to deny its use. “It looked like phosphorous, it smelled like phosphorous and it burned like phosphorous, so that’s why I’m calling it phosphorous,” he said. “The place went up in flames. Our workshop was the part that was hit most severely. It went on fire, as did part of the warehouse. Of course, we had to take cover until we got reassurances that there wouldn’t be further firing.” He added that the fire service was delayed because of the fighting in the area and by the time they got there, “Unfortunately, it was too late to save the warehouse where we had hundreds of tons of food and medicine that were to be dispatched today to our centers, the health centers and food centers.” While Israel claimed it had responded to Hamas fire from the vicinity of the UNRWA compound, Ging emphasized that no militants had fired from the compound and questioned why Israeli liaison officers never reported to U.N. officials that Hamas militants were in the area, despite having been in constant contact. “They should tell us if there are militants operating in our compound or in our area. The fact that they don’t, we take as indicative of the fact that there wasn’t,” he said. “Their credibility is hanging in rags.” UNRWA spokesman Christopher Gunness said that the IDF had privately acknowledged that the alleged source of fire was several hundred yards away from the UNRWA compound. Under-Secretary-General for Humanitarian Affairs and United Nations Emergency Relief Coordinator John Holmes condemned the use of white phosphorus in civilian areas, saying that Israel’s disproportionate use of force was unjustified and in violation of international humanitarian law.
On January 17, Israel hit another UNRWA-run school in Beit Lahiya with white phosphorus. Secretary General Ban Ki-moon condemned the attack, which had occurred two days after Israeli leaders had apologized and given him their assurances that U.N. sites would be respected. He demanded an investigation and “punishment of those who are responsible for these appalling acts.” John Ging reported that two brothers, aged five and seven, had been killed, and fourteen others were wounded. Christopher Gunness said,
Where you have a direct hit on an UNRWA school where about 1,600 people had taken refuge, where the Israeli Army knows the coordinates and knows who’s there, where this comes as the latest in a catalogue of direct and indirect attacks on UNRWA facilities, there have to be investigations to establish whether war crimes have been committed.
One of the first Western journalists to get into Gaza following the ceasefire, photographer Bruno Stevens reported, “What I can tell you is that many, many houses were shelled and that they used white phosphorus…. It appears to have been indiscriminate.”
An Amnesty International fact-finding team arrived in Gaza and reported finding evidence of the widespread use of white phosphorus munitions, including still-burning wedges of phosphorus, in heavily populated areas. Amnesty took the unprecedented step of calling for the U.S. to suspend its military aid to Israel. “Israeli forces used white phosphorus and other weapons supplied by the USA to carry out serious violations of international humanitarian law, including war crimes,” said the head of Amnesty’s fact-finding mission to southern Israel and Gaza, Donatella Rovera.
Human Rights Watch issued a report documenting “Israel’s extensive use of white phosphorus munitions”. HRW concluded that the IDF “repeatedly exploded white phosphorus munitions in the air over populated areas, killing and injuring civilians, and damaging civilian structures, including a school, a market, a humanitarian aid warehouse and a hospital”, all in violation of international law. In the case of the attack on the UNRWA headquarters, “the IDF kept firing white phosphorus despite repeated warnings from U.N. personnel about the danger to civilians.” The “circumstances demand the independent investigation of the use of white phosphorus and, if warranted, the prosecution of all those responsible for war crimes.” HRW pointed out that if the IDF’s aim had been to create a smoke screen, it could have used the 155mm smoke projectiles in its inventory, “which produce the equivalent visual screening properties without the incendiary and destructive effects”, and “with no risk of fires or burns to civilians.” Israel’s choice of white phosphorus “strongly suggests that the IDF was not using the munition for its obscurant qualities, but rather for its incendiary effect.” Additionally, HRW “found no evidence of Hamas using human shields in the vicinity at the time of the attacks.” Doctors had described patients that had been burned to the bone with chemical burns. All of the white phosphorus shells that HRW had seen had been provided to Israel by the U.S.
Israel claimed that the burning down of the UNRWA warehouse during Operation Cast Lead was “the unfortunate result of the type of warfare that Hamas forced upon the IDF”, while failing to explain why the IDF had chosen to use white phosphorus munitions in that attack, or elsewhere over densely populated areas. The IDF claimed that its “forces did not intend, at any stage, to hit a U.N. facility.” It offered no further explanation for how, if Israel had not intended to hit the compound, which the IDF knew the precise GPS coordinates of, it then ended up taking numerous direct hits, or why, then, Prime Minister Olmert had asserted that Israel had targeted U.N. compound because “Hamas fired from the UNRWA site”, why he had lied, “It is absolutely true that we were attacked from that place.”
A U.N. inquiry found “no evidence” that any fire had originated from within the compound and stressed that, contrary to Israel’s claim that Hamas had fired from the vicinity, the U.N. staff “stated that they heard no gunfire from within the compound or from the immediate area”. The report found that Israel’s decision to use white phosphorus in its attack on the compound “was grossly negligent, amounting to recklessness.” It drew similar conclusions with regard to Israel’s attack using white phosphorus munitions on the UNRWA Beit Lahiya Elementary School on January 17.
The subsequent report of the U.N. Fact-Finding Mission on the Gaza Conflict, more popularly known as the Goldstone Report, found that the IDF had also been “systematically reckless” in using white phosphorus munitions and negligent in its use of inherently indiscriminate flechettes in populated areas. The Mission found that Israel’s attacks on the UNRWA compound on January 15 using white phosphorus, which had continued for “over several hours despite [the IDF] having been fully alerted to the risks they created”, violated international law. During the “sustained shelling” of the compound, it took direct hits from three high explosive shells and at least seven white phosphorous container shells that discharged their contents “completely or very substantially in the confines of a very limited space around particularly vulnerable areas of the UNRWA compound.” UNRWA officials had made numerous calls to Israeli officials. John Ging, who was in Jerusalem at the time, had made “a total of 26 calls” to the IDF’s Humanitarian Coordination Center (HCC) in Tel Aviv “to demand that the shelling be stopped”. He was met with assurances that it would be, “but it was clear when he relayed this message back to Gaza that shelling was continuing.” The Mission rejected Israel’s justification for the attack, that the IDF had “not anticipated” that the compound would be hit, on the simple and obvious grounds that “[t]he Israeli armed forces were told what was happening. It no longer had to anticipate it.” The Mission also noted that Prime Minister Olmert had claimed that the IDF had struck the location deliberately because Palestinian militants had fired from within the compound, but that Israel subsequently changed its story, claiming that the alleged fire had instead come from nearby. UNRWA staff had said “that they were unaware of any sustained fire” by Palestinian militants in the area at the time, but even giving Israel the benefit of the doubt, Israel’s choice of white phosphorous munitions “could not be deemed proportionate”. The IDF had shown “reckless disregard” in the means by which it responded to the alleged anti-tank fire, which was further compounded by its “decision to continue using the same means” even after having been notified of the consequences. The report concluded that Israel’s attack on the compound “violated the customary international law requirement to take all feasible precautions” to avoid civilian casualties and damage to civilian objects.
Israel had also attacked the al-Quds hospital on January 15 with white phosphorus munitions and at least one high explosive shell. The Mission had addressed questions to Israel about this attack “but received no reply.” The circumstances of the attack led to the conclusion that the hospital “could not be described in any respect at that time as a military objective”, but had nevertheless been “the object of a direct attack” by the IDF, in violation of Article 18 of the Fourth Geneva Convention. “Even in the unlikely event that there was any armed group present on hospital premises,” the report noted, the attack was made without warning, in violation of Article 19 of the Convention.
Israel continued to declare that the IDF’s use of white phosphorus munitions “was consistent with Israel’s obligations under international law.” With regard to its attacks on the UNRWA compound on January 15, Israel claimed that the IDF “needed” to use white phosphorus munitions “to protect Israeli forces” and that their use “complied with the requirements of proportionality” under international law. No explanation was offered for how, if “aimed at military targets”, multiple rounds managed instead to hit the U.N. compound, including white phosphorus shells that burned down the warehouse, which bombardments continued even after the IDF had been repeatedly informed that it was hitting the compound. Israel also self-contradictorily stated that the damage to the U.N. site “was more extensive than the IDF had anticipated”, thus tacitly admitting that the IDF knew its bombardments were hitting the compound.
Human rights organizations rejected the findings of Israel’s self-investigations. Amnesty International issued a statement describing Israel’s response as “totally inadequate”, blasting it for leaving critical questions about the IDF’s conduct “not credibly addressed”, including its “use of white phosphorus in densely-populated areas”.
Human Rights Watch issued a report titled “Turning a Blind Eye: Impunity for Laws-of-War Violations during the Gaza War”, which pointed out that Israel’s self-investigations “have fallen far short of international standards”. Israel had also failed to investigate culpability among the political and military leadership who authorized policies “that may have led to violations of the laws of war”, including the use of white phosphorus.
But never mind the actual facts. All New York Times readers need to know, in the minds of Isabel Kershner and her editors, is that Israel was “accused” of using white phosphorus “improperly”, but that Israel has maintained that its use of the munitions did not violate international law but will discontinue their use anyway. That is it. That is all you need to know. To report that Israel’s use of white phosphorus amounted to war crimes just would not serve the purpose of manufacturing consent for the U.S. policy of financially, militarily, and diplomatically supporting Israel’s violations of international law, and so this fact must be deliberately obfuscated.
This article was adapted from excerpts of a book the author is currently writing about the U.S. role in the Israeli-Palestinian conflict.
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