White phosphorus sometimes can be lawfully employed as an anti-personnel weapon…but should it ever be used that way?  (Probably not, but maybe.)

Recently, the Washington Post carried a story which reported, “U.S. forces are using white phosphorus munitions in their fight against the Islamic State based on pictures and videos posted online by the Pentagon, but it is unclear exactly how the controversial armament is being employed.”

Col. Joseph Scrocca, the public affairs director for the U.S.-led coalition against the Islamic State, told the Post the munitions are used for “screening and signaling.”  Scrocca added: “Coalition forces use these rounds with caution and always in accordance with the Law of Armed Conflict.  When M825A1 [white phosphorus] rounds are employed, they are done so in areas free of civilians and never against enemy forces.”

That last sentence may be the coalition’s policy, but it isn’t dictated by international law, at least in the U.S.’s view.

In this respect, the Post’s claim that “[i]nternational humanitarian law stipulates that white phosphorus munitions should only be used in areas devoid of civilians” is not quite right, although this following statement is dead on: “Even using it against enemy combatants has raised concerns, given that the munitions can cause horrific injuries.”

It is absolutely true that white phosphorous can cause truly horrible burns because of the nature of its chemistry. These “weapons are particularly nasty,” experts say, “because white phosphorus continues to burn until it disappears.  If service members are hit by pieces of white phosphorus, it could burn right down to the bone.”

Interestingly, despite its “chemical” properties, white phosphorus is not usually categorized as a banned chemical weapon.  Although not without controversy, the better view in my opinion is expressed in the Israeli Manual on the Rules of Warfare (2006), which explains:

A chemical weapon is a weapon intended to work on the systems of life and is constituted from a substance that causes a chemical reaction in the body expressed in such symptoms as asphyxiation, burning, weeping, etc., whereas phosphorous is an element in nature which reacts to the oxygen in the air by catching fire.  In that respect, phosphorous is no different from petrol (gasoline) reacting to a lighted match, and what differentiates it from chemical weapons is that its reaction is not directed against the human physiology in particular, it will burn whatever it touches.

Protocol III of the Convention on Certain Conventional Weapons (CCW) does have various limitations on the use of incendiary weapons (but does not find them illegal).  In what seems to be the provision to which the Post article alludes, the CCW says that:

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.

The U.S., which is a party to the CCW, nevertheless has a significant reservation as to this provision:

The United States of America, with reference to Article 2, paragraphs 2 and 3, reserves the right to use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons, but in so doing will take all feasible precautions 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.”

One can imagine the application of reservation to a situation where, for example, the enemy has a deadly biological weapons facility that can only be definitively destroyed by employing an incendiary weapon.  Such weapons might need to be used notwithstanding the fact that the facility is located in an area where there is a concentration of civilians.

However, does the CCW apply to white phosphorous munitions?  Protocol III defines the devices within its purview 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.” (Italics added).

Moreover, the CCW also says that incendiary weapons do not include munitions “[that] may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems.”  Accordingly, as the DoD Law of War (LoW) Manual points out (§ 6.14.1.3), white phosphorous munitions are not “incendiaries” because they are “intended primarily for marking or illuminating a target or masking friendly force movement by creating smoke.”  (Note that some other nations take a different view of white phosphorous.)

The U.S. position is that the LoW does not necessarily preclude the use of white phosphorous munitions against belligerents in an armed conflict.  The key, I think, is that they are not “primarily” designed as anti-personnel weapons – not that they can never be employed as such.  The LoW Manual states:

6.14.2.1 Use of Non-Incendiary Weapons to Set Fire to Objects or Cause Burn Injury to Persons. The use of non-incendiary weapons to set fire to objects or to cause burn injury is technically not subject to the additional restrictions described in § 6.14.3 (Restrictions on the Use of Incendiary Weapons).  For example, white phosphorus may be used as an antipersonnel weapon.  However, such use must comply with the general rules for the conduct of hostilities, including the principles of discrimination and proportionality.  In addition, feasible precautions to reduce the risk of harm to civilians must be taken. (citations omitted; underlining added).

Here’s an important observation in the LoW Manual which explains why the use of white phosphorous as an anti-personnel weapon is rare:

As a practical matter, however, it may be more effective to attack enemy combatants through other means, rather than seeking to cause them burn injury.

The LoW Manual does provide this (rather insensitive but explanatory) footnote (fn. 365, p. 382) as to how white phosphorous was actually used in combat against insurgents:

For example, Captain James T. Cobb, First Lieutenant Christopher A. LaCour, and Sergeant First Class William H. Hight, After-Action Review (AAR) for the Battle of Fallujah, ¶9b, reprinted in FIELD ARTILLERY 23, 26 (Mar.-Apr. 2005) (“White Phosphorous [WP]. WP proved to be an effective and versatile munition.  We used it for screening missions at two breeches and, later in the fight, as a potent psychological weapon against the insurgents in trench lines and spider holes when we could not get effects on them with HE [High Explosives].  We fired ‘shake and bake’ missions at the insurgents, using WP to flush them out and HE to take them out.”).

It is understandably disturbing to think about such a gruesome way to attack an enemy, but the tragic fact is that there are many terrible ways to die in war.  In the 1991 Gulf War, U.S. troops used plows fitted on tanks to bury – alive – entrenched Iraqi troops who continued to fight and who refused to surrender.  One witness to the aftermath said “What you saw was a bunch of buried trenches with people’s arms and legs sticking out of them.”

In its 1991 article about the incident, the New York Times said the Army told them that:

[The] tactic spared the lives of American soldiers who would have had to leave the safety of their armored vehicles and fight Iraqi troops hand to hand in the trenches.

“People somehow have the notion that burying guys alive is nastier than blowing them up with hand grenades or sticking them in gut with bayonets,” said Col. Lon Maggart. “Well it’s not.”

The Times also noted that a Pentagon official pointed out that the tactic “did not violate the Geneva Conventions on the conduct of warfare,” adding, “I don’t mean to be flippant, but there’s no nice way to kill somebody in war.”  Indeed.

No one relishes the idea of inflicting terrible pain on another human being, even when that person is an enemy in war.  And there are limits, as the LoW prohibits “means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering.”  Thus, even though white phosphorous munitions might theoretically be lawfully used as anti-personnel weapons in some selected situations, that hardly means they could be legitimately used for that purpose in every circumstance.

Still, it is not utterly unimaginable that situations could arise where the use of a white phosphorous munition as an anti-personnel weapon would, for example, generate such a debilitating psychological effect on an enemy that, when considered against the larger strategic landscape of a conflict, lives – combatant and civilian alike – could, overall, be saved.

In this regard, the U.S. military has long considered white phosphorous as a “legitimate military tool” and has insisted “U.S. forces have never used white phosphorous to target innocent civilians […and] have taken great pains to avoid doing so.”  Speaking in 2005, then-Chairman of the Joint Chiefs of Staff General Peter Pace noted:

“A bullet goes through the skin even faster than white phosphorous does.  So I would rather have the proper instrument applied at the proper time as precisely as possible to get the job done in a way that kills as many of the bad guys as possible and does as little collateral damage as possible,” the chairman said.  “That is just the nature of warfare.”

Thus, while it might be said that in the vast majority of circumstances the use of white phosphorous as an antipersonnel weapon would be manifestly unwise or even illegal, it is still better to insist upon strict adherence to the fundamentals of the LoW than to demonize or ban it (or almost any munition).  Why?  Because out of the enormous vagaries of war, circumstances could appear where it is, in a specific instance, the “proper instrument” to battle the enemy in a way that “does as little collateral damage as possible” and which otherwise complies with the LoW.

In modern war especially, we simply cannot foresee every possible combat scenario.  As such, we should not peremptorily and unnecessarily handcuff our warfighters, particularly when a hitherto unforeseen situation arises when a usually repugnant means unexpectedly becomes the best and, ultimately, most humane way to protect the innocent and helpless, yet still accomplish mission objectives.

At the same time, the discussion about white phosphorous is a very grim reminder that there is no such thing as ‘antiseptic’ war; it will always involve misery, pain, and death.  That sobering reality is something for decision-makers to ponder in connection with any proposed use force.