Exploring the legal loopholes surrounding a devastating weapon
In ancient Greek, phosphorus (phosphoros) means light-bringer or an element that brings light. The irony lies in the usage of phosphorus to bring dark times in war-torn countries. White phosphorus, which started as a household element to be used in matchsticks, has been gradually embraced in the military for its munitions by governments that have been politically and economically dominant throughout history. No longer is it simply a tool for household tasks, but it holds the position of being a dreadful chemical weapon deployed with lethal intentions.
White phosphorus is a substance that ignites on contact with air and becomes a terrifying weapon when deployed in war zones. The foggy white layer formed reacts with moisture in the air or in people’s lungs to create phosphoric acid resulting in burns or electrolyte imbalances, primarily kidney damage, hypocalcemia and even death in extreme cases. In munitions, it manifests in the form of shells, bombs or a grenade emitting thick white smoke which hinders vision but more importantly, causes deep-rooted humanitarian damage. Phosphorus has chemical properties allowing it to stick to such surfaces as skin and cloth, burning fiercely at temperatures higher than 800°C and continuing to smoulder until starved of oxygen.
In real-time battles, it is set alight to produce a smokescreen or to signal positions but because of its sinister nature, it has become a notorious incendiary weapon. The unspeakable fear comes not from the nearby fire but from the torture upon realising that the material can self-ignite days after exposure. This means the after-effects of the weapon’s usage endure long after the war concludes.
The question at hand is whether the use of white phosphorus is protected under the glamours of international law or if countries have wrongfully utilised it on a mere technical glitch. Under the Convention on Certain Conventional Weapons, there is a non-inclusion of white phosphorus under the use of incendiary weapons in civilian or residential areas. Meanwhile, in the Convention on Chemical Weapons, white phosphorus does not fulfil the required toxicity standards.
Despite being involved in various international conventions, its regulation remains ambiguous, allowing powerful countries to exploit loopholes. Historical instances, such as the US in Fallujah and Israel in Gaza, demonstrate its continued and controversial use. Through uncovering history and examining health hazards, an argument can be formed for a total ban on white phosphorus, emphasising that current international laws are insufficient to prevent its misuse and the resultant human suffering.
History
White phosphorus was first used way back in the 19th century by Irish nationalists, or Fenians, in arson attacks during warfare. “Fenian fire,” as it was colloquially known, was created by mixing carbon disulphide and phosphorus. Upon the solvent evaporating, the phosphorus would ignite. Later, Australia employed the same chemical formula for similar purposes.
The historical use of white phosphorus is not limited only to modern warfare. It was also a matter of labour exploitation and human rights. At the end of the 19th century, the Matchstick Girls’ Rebellion took place in London. Women and girls working at this factory were affected by the toxic substance employed in the process of matchmaking. They developed a disease called phossy jaw, whereby the bone of the jaw degenerates painfully, overtaken by deformity, infection, and sometimes death. Despite the inauspicious consequences suffered by the employees, the factory owners remained unmoved, blinded by revenues gained.
It was not until August 1888 that the match girls went on strike to protest that their conditions were vile. They demanded that matchsticks made with white phosphorus be prohibited. This aroused the public conscience. It showed how dangerous the work was and at the same time educated others on workers’ rights and the immoral practices of industries that cared more about product manufacturing than about the lives of the people producing them.
This rebellion is also consistent with a historical pattern of how the Global North denied the lethal impact of white phosphorus when it was useful to industries or the military. It is disheartening to realise that just like the matchgirls of London, the worst-affected victims of phosphorus weaponry in the modern world are the marginalised. The resistance of these workers echoes in modern critiques of white phosphorus use in warfare, pointing to a persistent disregard for the human cost of its application.
Later, with the advent of the world wars, white phosphorus became normalised as an incendiary weapon. Heavily inspired by Fenian Fire, Britain developed the No. 76 grenade during World War 2 in preparation for a possible German invasion. White phosphorus played a central role in weakening German attacks on the ground. The usage of white phosphorus shells was responsible for disabling German tanks by blinding their crews, causing them to abandon vehicles.
In the 20th century, the United States became a master of white phosphorus usage. US forces employed white phosphorus in interventionist armed conflicts like the Vietnam War, specifically to destroy Viet Cong tunnel complexes. After the US restricted the use of white phosphorus following the Vietnam War in 1983, it made a comeback in the 2004 attack on Fallujah, Iraq, led by the US military.
Despite 2013 Israeli claims that it would not use white phosphorus in densely populated places, it has liberally used it in the recent attacks on Gaza, which has an estimated population of over 2.3 million people stretched over just 365 square kilometres. This airburst of white phosphorus munitions is said to have caused “excruciating burns and lifelong suffering” both physically and mentally.
Surprisingly, the US continues to use white phosphorus in an Alaska estuary, resulting in the deaths of various birds and animals due to the exposure despite the nation being a signatory to various conventions relating to the conservation of wildlife. It was also discovered that the effects of the chemical, 50 years after its use, are still rampant in the area. There have even been claims about the Russians using white phosphorus on civilians during the Ukraine war, as reported by the Associated Press and Ukrainian authorities.
Effects on Human Health
During the clash of the battle, white phosphorus floats down like ghastly snow, quickly replaced by death when the substance sticks to flesh and turns skin to charcoal. To the people who are submerged under its ruthless downpour, it becomes hell on Earth that lasts well beyond when the rain has stopped pouring. The phosphorus penetrates through the skin, muscles and bones as if famished. It does not discriminate between targets, whether it be a young one or the elderly. Once the storm begins, it is difficult to cease. Flame consumes the human body, charring the victims alive from the outside while water cannot put the fire out.
The agony is unimaginable—pain that reaches deep into the soul as white-hot embers burrow into the skin, leaving deep, festering wounds that often kill long before any help can arrive. When it is in contact with oxygen, white phosphorus can burn—producing intense heat of up to 815C/1500F. It can sear through human flesh and bones, reaching the bloodstream. It is also known to have caused severe bodily injuries and photophobia, along with respiratory and eyesight damage. Furthermore, the injuries sustained during war or combat contained more TBSA (total body surface area) of burns. Their bodies are haunted by the remains of war.
All that is left with the survivors is physical and psychological trauma and possibly a ruined life. Houses get turned into mass graves, families get separated, and communities are left to dwell on the effects of this weapon. After that, people remember and get outraged, briefly, as the events fade into history while the victims remain in pain, testifying to the inhumanity of war.
Fallujah is an unfortunate example of the ramifications of white phosphorus usage on the public health of civilians. In September 2009, 170 children were born at Fallujah General Hospital, 24% of whom died within 7 days, 75% of those exhibited deformities including children born with two heads, no head, a single eye in their foreheads or missing limbs.
The Centre for Disease Control and Prevention, as per a 2012 study, stated that while it has not been proven that phosphorus can cause birth defects or the ability to have children, there is a direct correlation between the two. They studied the effects of white phosphorus in the Gaza Strip and found that 14 out of every 10,000 births suffered from structural birth defects due to exposure to the lethal chemical.
An effective way of removing white phosphorus from a human body is the usage of copper sulphate on burnt areas. However, while testing on animals, copper sulphate has proven to be lethal. On human beings, it has shown adverse effects and in some cases even death. The treatment for burn victims has proved to be even trickier due to the lack of resources in war-inflicted areas. It is crucial to note that the injuries are not just caused to the civilians but also to the medical personnel when dealing with cases of white phosphorus injuries. In the treatment of removing particles of white phosphorus, nurses have been shown to sustain burn injuries on their necks while assisting the doctor.
Even though the war ends, white phosphorus remains a grave threat which continues to wreak havoc as illustrated by the number of lives it has torn apart. As is the case with many war survivors, they never get to lay down their arms after the war is over. The burns are stubborn and painful and do not heal without leaving behind sore and infected oozing sores. The skin grafting and the surgeries provide small relief. Phosphorus has a unique ability to reignite when in contact with air, adding to the extinguishing hope of recovery.
The horrors of the war are not only relevant to the soldiers’ actions but also to families forced to deal with the horror after the war is over. Family members turn into carers and sometimes all they can do is stand by and watch their loved ones suffer in ways that no person should ever have to. Just as deep, is the emotional trauma left in people’s minds: the living nightmares of a survivor who saw his world engulfed in fire. Not only does white phosphorus wreak havoc in the short term, but it continues to haunt those attacked in the years that follow—in each step, in each breath, they are reminded of the fact that, for them at least, some wounds never heal.
Inadequacy in International Conventions
While discussing regulations for the weaponisation of white phosphorus, the question of whether it should be completely banned from usage remains unanswered, buried within the fog. White phosphorus munitions include artilleries, smoke-creating agents, and bombs and are also used for illuminating purposes. The question of liability depends on the purpose of usage and the intent of manufacturing.
According to the ISS ESG Controversial Weapons Research, a report to assess companies who are involved in the manufacturing process of incendiary weapons under Protocol III of the Convention on Chemical Weapons, it can be seen that the companies which invest in or manufacture weapons with the use of phosphorus are at least 7.3% of the companies taken into account for calculation. However, this expansion of liability is usually criticised because, in the end, the intent and the use might be on opposite sides.
The Convention on Chemical Weapons does not consider white phosphorus as a chemical weapon as it does not fulfil the ‘toxicity’ standard that has been set and because white phosphorus is not a weapon on its own. According to the convention, stockpiling, manufacturing and usage of chemical weapons are strictly prohibited and violation of the same by member states amounts to a war crime. The toxicity standard suggests that the chemical should be unnatural and the repercussions must be deadly and severe. White phosphorus does not exist naturally and is used with the help of military science. Typically, according to the convention, a chemical weapon is a toxic weapon which results either in death, or temporary or permanent incapacitation to animals or humans.
Article II(9)(c) of the convention states that a weapon not dependent on the toxic property of the chemical used for a military purpose, will not be prohibited. If the weapon is used for illumination, a smoke screen or for setting up a target through white phosphorus, it is not illegal. Retracing the horrific aftermath of exposure to white phosphorus, it subjects both people and their offspring to birth defects and diseases. However, following the technicalities of the law, it is a multi-purpose chemical—the sole reason for usage is not simply to cause lethal damage to civilians.
Regardless of how honest militaries are when they profess innocent reasons for using white phosphorus, the fact remains that they can always claim that they were utilising the white phosphorus for some other reason. Through strategically navigating around the nitty-gritty aspects of these laws, countries hush out their phosphorus usage to the press and escape from answering to other states.
This goes to show the limits of current international statutes in preventing humanitarian catastrophes. Even after employing a progressive judicial interpretation, the existence of the toxicity standard makes banning white phosphorus a difficult proposition. The convention is thus limited in scope and is not enforced considering the high standard for fulfilling the criteria.
Moving on, the Convention on Certain Conventional Weapons does not prohibit any weapons but as a general declaration bans/restricts any weapons that are causing unnecessary or unjustifiable suffering to combatants/civilians. Protocol III of the convention defines an incendiary weapon as any weapon primarily designed to set fire to objects or to cause burn injury to person(s) or forests and any other kind of plant covers, through heat or flame. White phosphorus does not fall under the ambit of incendiary weapons as it has a multi-purpose spectrum unless the only purpose white phosphorus was used was to use it as an incendiary weapon directly against civilians.
Besides these conventions, there exists customary law. Customary laws constitute the overarching legal framework delineating the principles and regulations governing the equitable and just conduct of armed conflicts. Hence, they should be certainly applied to the context of the use of white phosphorus.
Perhaps the most important doctrine in armed conflict is the principle of distinction, which delineates a clear demarcation between civilians and combatants. It dictates that no act of aggression or conflict should imperil civilian lives and may only be directed towards military personnel and non-combatants. Similarly, nations engaged in warfare are bound by the principle of proportionality, stipulating that any offensive action resulting in accidental incidental civilian casualties or harm, considered excessive to the anticipated military gain, is forbidden and thus classified as unlawful.
The Rome Statute of the International Criminal Court defines a war crime as a deliberate attack on civilians causing loss of life or injury, or causing unwarranted damage to civilian property to achieve military advantage. However, the interpretation of this principle is extensive, as different countries ascribe diverse meanings to the concept of military advantage, rendering it inherently subjective.
Moreover, the Convention on Environmental Modification proscribes attacks on crucial institutions, including schools, religious sites, and hospitals.
The additional protocol of the Geneva Convention, Article 55 states that the countries should protect the natural environment against long-term, severe and widespread damage. It should be ensured that acts causing harm to the health or survival of the population are prohibited, along with attacks on the environment as a reprisal. Chemical weapons, oil spills, deforestation, and airstrikes are all examples as they permanently damage natural resources. Severe environmental damage poses a public health hazard to civilians, prejudicing their survival.
Considering the diverse set of laws trying to define the limits of what a war crime is, legal institutions ultimately struggle to come to a consensus on whether an entire weapon should be completely banned based on the reasoning that it has been used to commit war crimes in the past. Here, the law needs to be more assertive in calling out an act for what it is.
All these different laws governing war crimes seem to have a fundamental base in common: they aim to reduce widespread damage to civilians and their property. The overarching principle above all of these is the principle of military necessity, prohibiting the flow of superfluous injury and unnecessary suffering. The technicalities may differ, but the principle of customary law governing them is the same. Compiling data and statistics from the previous ventures of white phosphorus usage in Gaza and Fallujah in the past 20 years, the intermittent suffering cannot be denied.
International humanitarian law frequently faces criticism of being a “weak law” due to the non-binding nature of the same. There is no central authority and there is a lack of effective sanctions for non-compliance. Even in this situation, the statement stands. The laws are for the people who follow them, and most countries in war zones are not member states for the conventions mentioned. For example, Israel has not ratified Protocol III of the Convention on Certain Conventional Weapons prohibiting incendiary weapons.
The poetic justice of the controversy is that Palestine, however, has ratified the Protocol III of the convention. Irrespective of whether they have ratified the Protocol or not, most states escape liability using the loopholes causing unjustified civilian casualties. Committing war crimes and escaping scot-free is against humanity’s general welfare and interest.
Moving Forward
The metaphysics of war has never given much importance to the “lesser experiences” of wartime and the causality of white phosphorus is one such example where international human rights law is not of much help. The lesser-known experiences of wartime are the quiet, often invisible burdens that ripple through lives long after the front lines have shifted. While the horrors of battle and crimes against humanity are seared into the collective consciousness, the everyday struggles of civilians and refugees in the quieter moments are just as devastating, though less spoken of. It ranges from the rationing of food that barely sustains a family to the painful choice between fleeing home or staying in danger. Children live under the constant threat of violence, hunger, and public health hazards. Lastly, there is the invisible psychological trauma of war, seldom addressed.
There are little to no mandates within the law that are humane enough to address the day-to-day concerns of civilians beyond simply the bare minimum of dealing with major crimes.
International laws should not be in a bystander position when injustices continue to grow. The law cannot maintain its position at a distance, assisting only when necessary. International humanitarian law should centre around the welfare of civilians, not the military. The hellfire caused by white phosphorus should be considered a powerful weapon of destruction, and its usage, manufacturing and stockpiling should be completely prohibited rather than just named controversial. There should be a decisive statement by an international body pronouncing the banning of white phosphorus instead of letting it dwell under the pretence that it can be regulated, giving states the legroom to argue that their usage of white phosphorus is ethical and legal.
Enforcement mechanisms against war crimes must be strengthened so that legal institutions can make bold statements against white phosphorus. Rather than passive tolerance, there should be a process for automatic sanctions for any widespread civilian casualty caused by using white phosphorus. Universal jurisdiction may additionally be used. This would encourage more countries to adopt laws that allow their courts to try individuals for war crimes, crimes against humanity, and genocide committed elsewhere, filling the enforcement gaps where international courts may lack jurisdiction or authority. Strengthening mechanisms for impartial investigations of war crimes caused due to white phosphorus, irrespective of a country's power or influence, would build trust in the system.
It is well known that the non-existence of a law to govern does not mean it is barred by law, and with the context of white phosphorus, it was in use before, it is in use today and it will be in use tomorrow too if the laws do not strictly stop it.
This continued lack of recognition and ignorance of the abhorrent effects of white phosphorus is simply a never-ending cycle of countries singing “We didn't start the fire; it was always burning since the world’s been turning”.
Edited by Thenthamizh SS and Ananya Karthikeyan
Eshal (she/her) is a student of law at the National Law University Odisha, and Assistant Copyeditor at Political Pandora.
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