Memo to Convention on Conventional Weapons Delegates
March 31, 2011
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Although the drafters of Protocol III to the Convention on Conventional Weapons (CCW) sought to reduce the human suffering associated with incendiary munitions, armed forces continue to use them at great cost to civilians. In a November 2010 memorandum to CCW delegates, Human Rights Watch and Harvard Law School's International Human Rights Clinic (IHRC) called on states parties to revisit Protocol III to address this concern. States parties should amend the protocol's language to make it more effective in addition to ensuring compliance with its rules and increasing efforts to universalize the protocol.[1]  This memorandum supplements the November one by elaborating on the facts motivating our call for better law: incendiary munitions cause horrific injuries and death and have been used repeatedly since the adoption of Protocol III in 1980.

Protocol III allows ongoing use of incendiary munitions in ways harmful to civilians due to definitional loopholes and narrow regulations. Its definition, which looks only at the primary design of a munition, fails to cover some incendiary munitions, such as white phosphorus, that are not "primarily designed" as weapons yet cause unacceptable civilian harm.  In addition, the protocol's key regulations apply only to use in populated areas and are weaker for ground-launched than for air-dropped models.[2]

Regardless of their type, targeting, and delivery mechanism, however, incendiary munitions cause cruel and lasting injury to people as well as start fires that can destroy property. The munitions produce exceptionally painful thermal and respiratory burns, which can lead to complications such as shock, infection, and asphyxiation.  People who survive often suffer long-term physical and psychological damage.

While more than 180 models of incendiary weapons exist,[3] the effects of those with two types of chemical substances-napalm[4] and white phosphorus-exemplify the specific humanitarian problems this class of weapons presents. This memorandum details the harm they cause and examines cases of past use. A sticky substance, napalm spreads and continues to burn as victims try to wipe it off their skin and their clothing. Despite Protocol III, which was largely a response to the horrors of napalm in the Vietnam War and other conflicts, states and non-state armed groups continue to use it. Argentina, El Salvador, Libya, Russia, Serb nationalists, and Turkey, among others, have reportedly used napalm since adoption of the protocol. These cases highlight the need for a stronger protocol that better stigmatizes the munitions as well as for renewed universalization efforts. 

The most controversial incendiary munitions today are those containing white phosphorus. These munitions often have a broad area effect, which increases the risk of their being used indiscriminately. They also cause particularly severe injuries, including burns that penetrate to the bone and can reignite days later, and produce poisoning that leads to organ failure and death. Armed forces have defended certain white phosphorus munitions as necessary items for battlefield obscuring, marking and signaling, and illuminating. White phosphorus used in Afghanistan, Gaza, Iraq, Lebanon, and Somalia, however, has killed and seriously injured numerous civilians.

Treaties generally impose regulations or bans on munitions for one of two reasons. The munitions may cause serious injury and unnecessary suffering, that is they are excessively cruel to humans. Alternatively, or in addition, they may be indiscriminate, that is they fail to distinguish between combatants and civilians. When reviewing Protocol III, states should take into account the humanitarian concerns incendiary munitions raise under each of these categories and consider how best to address them.

[1] Human Rights Watch and Harvard Law School International Human Rights Clinic (IHRC), Memorandum to Convention on Conventional Weapons Delegates: The Need to Re-Visit Protocol III on Incendiary Weapons, November 2010, http://www.hrw.org/en/news/2010/11/22/memorandum-ccw-delegates.

[2] In their November 2010 memorandum, Human Rights Watch and IHRC presented several options for amending Protocol III including adopting an effects-based definition and banning or more strongly regulating the weapons. Ibid., pp. 9-10.

[3] See generally Leland S. Ness and Anthony G. Williams, eds., Jane's Ammunition Handbook 2007-2008 (Surrey, UK: Jane's Information Group Limited, 2007); and Duncan Lennox, ed., Jane's Air Launched Weapons (Surrey, UK: Jane's Information Group Limited, 1999).

[4] This paper is using the term napalm to refer to weaponized flammable liquids, which will be described in more detail below.

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