US Covering up War Crimes?

Shameless BBC: When Misinformation means War Crimes: "The same BBC News website, in the article “Iraq probes US phosphorus weapons” reads:

“Washington is not a signatory to an international treaty restricting the use of the substance against civilians.”

I asked Karen Parker, Chief Counsel of the Association of Humanitarian Lawyers based in San Francisco to comment on what the BBC reports.

Question: Karen, how do you comment on what the BBC writes?

Answer: The comment “Washington is not a signatory to an international treaty restricting the use of the substance [WP] against civilians.” assumes that therefore civilians may be targeted by WP weapons. This is an outrageous assumption because civilians may NEVER be the target of military operations -- whether using bows and arrows or white phosphorous, or any other weapon. This rule is not dependent on specific treaties but is a fundamental part of the laws and customs of war. Protocol III relating to incendiary weapons (of the Convention on Prohibitions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (1983)) makes all this clear by reinforcing this. While this treaty mainly sets out rules relating to WP in regards to combatants, it also reinforces the rule against targeting civilians.

There seems to be some controversy about whether WP might be a chemical weapon or a poisonous gas weapon and hence prohibited by treaties ratified by the US relating to these types of weapons. While a technically interesting question, it deflects attention from the fact that the US forces targeted civilians with WP and other weapons, both illegal and legal in Falluja. The debate about what category of weapons WP weapons are is irrelevant to THAT issue. What is important is to focus on the deliberate targeting of civilians or using weapons against a legal military target when there is a substantial likelihood of serious and numerous civilian casualties. Such targeting is a grave breach of the Geneva Conventions, especially due to the nature of the weapons such as those containing WP used against them.

While the US may not have ratified certain weapons conventions, this does not mean that therefore the US may legally use the weapons that are the subject of such treaties. This is because weapons may be otherwise banned by operation of existing humanitarian law. Under these rules, a weapon may be considered banned if: (1) it cannot be contained to the legal field of battle; (2) it cannot be stopped or cleaned-up when the war is over; (3) it causes "undue suffering" or "superfluous injury" (terms from The Hague Conventions of 1899 and 1907 -- echoed in the "Conventional Weapons Treaty"); or (4) it unduly harms the environment. The nature of WP makes it difficult to control, so it cannot be contained to legal military targets. In this sense, it could be banned by operation of international law in urban areas, as it cannot be sufficiently controlled to the legal field of battle. Note that the Incendiary Weapons Protocol was intended to limit the use of these weapons even against combatants because of the "excessively injurious" issue.

Most specific weapons treaties have provisions that provide for "similar, but unnamed weapons" that are "analogous" to the names ones. For example, the 1925 Protocol on Gases has such clauses. WP weapons fit this rule as either "chemical" or "gases" by analogy.

Q. The US government has just admitted to have used WP in Fallujah as a weapon. What’s your comment on this?

A. It is very disturbing that the US lied for a number of months about the use of WP in Falluja, and only came forward with an admission of use after clear evidence. While combatant forces are allowed to withhold certain information from the general public at certain times, the US apparently lied to US Members of Congress and other officials. This is especially disturbing because the use of WP in urban areas is prohibited by operation of law. In this sense, the US was covering up war crimes.