[Excerpt] “On November 29, 2005, in a Department of Defense press conference with Secretary of Defense Donald Rumsfeld and Gen. Peter Pace, Chairman of the Joint Chiefs of Staff, General Pace stated that white phosphorus “is a legitimate tool of the military,” and can be used for illumination, smoke, and incendiary purposes. Incredibly, the Department of Defense released an addendum to the press conference clarifying that white phosphorus was not used as an incendiary weapon. According to General Pace, “it was well within the law of war to use white phosphorus . . . for marking and screening.” This was the last official statement on white phosphorus. The chemical’s legality as an anti-personnel weapon within the laws of war or the Chemical Weapons Convention was not discussed.
Despite the Pentagon’s claim that white phosphorus has only been used for legitimate purposes (illumination and smoke) in Iraq, there have been numerous allegations and accounts by members of the U.S. military, war correspondents, and Iraqi civilians that white phosphorus has been used as an anti-personnel weapon against Iraqi combatants and civilians within urban areas. This note examines: (1) “Shake & Bake”: the use of white phosphorus to flush out combatants from fortified positions so they can be killed with conventional munitions; (2) the direct use of white phosphorus illumination mortars against human targets; and (3) the use of improvised phosphorus bombs to clear insurgents out of buildings.
White phosphorus is an example of a “dual-use” chemical. As with most dual-use chemicals, there are lawful and prohibited purposes. It is an especially legally precarious chemical because there are both legitimate and potentially improper military purposes. Peter Kaiser, spokesman for the Organization for the Prohibition of Chemical Weapons (OPCW) (the international body responsible for implementation of the Chemical Weapons Convention) has described the prohibited uses of white phosphorus as those military purposes that are dependent on the chemical’s toxicity. Thus, the central question of this article asks whether the legality of the United States’ intended use of anti-personnel white phosphorus depends on the chemical’s toxic properties. This note analyzes the legal implications of the cited examples of white phosphorus use by looking at the following: (1) general principles of international humanitarian law and the necessity defense, (2) the Zyklon B case, and (3) the Chemical Weapons Convention and the Chemical Weapons Convention Implementation Act of 1998.”
Joseph D. Tessier, Shake & Bake: Dual-Use Chemicals, Contexts, and the Illegality of American White Phosphorus Attacks in Iraq, 6 Pierce L. Rev. 323 (2007), available at http://scholars.unh.edu/unh_lr/vol6/iss2/8