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10 J.L. & Soc. Change 1 (2007)
The Legality of the Use of White Phosphorus by the United States Military during the 2004 Fallujah Assaults

handle is hein.journals/hybrid10 and id is 7 raw text is: THE LEGALITY OF THE USE OF WHITE PHOSPHORUS BY THE UNITED STATES MILITARY DURING THE 2004 FALLUJAH ASSAULTS ROMAN REYHANI* ABSTRACT The assaults on Fallujah by the United States military in April and November of 2004 involved the use of white phosphorus. White phosphorus has extremely damaging effects on the health of victims, including severe burns and irritation of the respiratory system. This article examines whether the use of white phosphorus was a violation of the Chemical Weapons Convention, Protocol III to the Convention on Conventional Weapons and international humanitarian law. It concludes that the use of white phosphorus was illegal because it is arguably a chemical weapon, riot control agent, or incendiary weapon. Furthermore, the methods and means of its use in Fallujah violated the laws of war. I. INTRODUCTION If we fight a war and win it with H-bombs, what history will remember is not the ideals we were fighting for but the methods we used to accomplish them. - Hans A. Bethel As this quotation by Nobel Prize winner Hans A. Bethe suggests, methods and means of warfare have long-lasting effects on a war's legacy. Although using certain weapons and tactics may achieve some level of military success, their use must be tempered with humanitarian principles. Throughout most of the Iraq war, the media has glossed over the impact and legality of weapons and tactics used by Coalition forces. One issue that deserved wider public discussion is the use of certain controversial weaponry by the US military during the Fallujah assaults of 2004, and in particular the use of white phosphorus. Although a number of news outlets described it as a chemical weapon, little detailed discussion of its legal status was undertaken. This paper aims to examine whether the use of white phosphorus was a violation of international law. Part One will outline the background to the US assault in Fallujah as well as the various allegations of white phosphorus use. Part Two will discuss how the alleged use fits into the legal framework banning chemical weapons use. Part Three will discuss whether the use of white phosphorus could also be considered a breach of the various rules governing * LL.M., Public International Law, Leiden University, The Hague, Netherlands; LL.B., B.A., University of Auckland, New Zealand; The Diplomatic Academy of the Ministry of Foreign Affairs of the Russian Federation, Moscow, Russia. I would like to express my deepest gratitude to Professor John Dugard and Lisa Tabassi for their invaluable assistance and supervision in the research and writing of this article. The article is based on my LL.M. thesis with Leiden University. 1 HANS A. BETHE, THE ROAD FROM Los ALAMOS 17 (1991).

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