Statement on Incendiary Weapons, CCW Group of Governmental Experts Meeting

Thank you Mr. Ambassador,

Protocol III on incendiary weapons exists because incendiary weapons cause particularly cruel injuries to human beings—civilians and combatants alike. Furthermore, incendiary weapons are prone to being indiscriminate, starting fires and causing casualties over a large area without distinguishing between soldiers and civilians. These are not contested facts. They are the realities that led to the adoption of the protocol.

However, Protocol III has failed to address adequately the serious and ongoing harm of incendiary weapons. Incendiary weapons have continued to be used at great human cost in conflicts from Africa to Asia, Latin America, and the Middle East.

We are calling upon states parties to Protocol III to revisit the text of the protocol and to amend its 30-year-old provisions to address more comprehensively the problems of incendiary weapons. At the CCW Review Conference in November 2011, states parties should agree upon a mandate to review and amend Protocol III, with a view to adopting amendments by the end of 2012.

Earlier this week, Human Rights Watch and the Harvard Law School International Human Rights Clinic distributed a memorandum to delegates on this subject. This is the third memorandum we have produced for delegates. The first made the case for why the protocol needs to be amended.[1]The second focused on the humanitarian harm caused by the weapons.[2]This most recent memo laysout a series of possible amendments that would increase Protocol III’s effectiveness, and my intervention today is based on that.

We believe states parties should amend the overly narrow, design-based definition of “incendiary weapon” in order to ensure that the protocol covers the most problematic modern incendiary munitions, such as those using white phosphorus. We also believe states parties should bolster the protocol’s restrictions on the use of incendiary weapons. A complete ban would have the most humanitarian benefits. Alternatively, states could amend the protocol to prohibit all use of incendiary weapons in civilian areas and to require additional precautions in cases where they are used elsewhere. A prohibition on the use of incendiary weapons as antipersonnel weapons, even if they are targeted at military personnel, should also be considered. Let’s look at each of these options in a bit more detail.

First, the positive humanitarian impact of Protocol III would be increased greatly by broadening its definition to cover all incendiary munitions. The current narrow definition fails to cover certain munitions that cause cruel injuries and indiscriminate harm to civilians.

As written, Protocol III defines an incendiary weapon as a munition “primarily designed” to set fire to objects or to cause burn injuries to persons. This primary design test is too restrictive and allows certain munitions that produce incendiary effects, such as artillery shells containing white phosphorus, to escape regulation. States parties should therefore amend Protocol III to define an incendiary weapon in terms of its effects, rather than in terms of the purpose for which the munition was primarily designed.

Protocol III does not consider “munitions which have incidental incendiary effects, such as illuminants, tracers, smoke or signaling systems” to be incendiary weapons. This clause could be read to exclude such munitions even if their incidental incendiary effects are substantial. It could also be understood to allow for the intentional use of such munitions as incendiary weapons, so long as they are not primarily designed for that purpose. In an amended protocol, states parties should make clear that smoke-screening, illuminating, and other similar munitions may escape regulation only when their incendiary effects are both minimal and incidental. In addition, states parties should clarify that munitions that fall under the new exclusion cannot be used intentionally as incendiary weapons. The proposed amendments would allow military commanders to retain the ability to use certain illuminants, tracers, and smoke systems as long as the munitions had limited incendiary effects on people and property and were not used deliberately as incendiary weapons.

The purpose of CCW is to protect human beings from weapons that are excessively injurious or that have indiscriminate effects. Accordingly, the language of Protocol III should focus on how incendiary weapons actually affect people—the cruel nature of the injuries they cause and their tendency to injure soldiers and civilians without distinction—regardless of the purpose for which weapons are primarily designed. It should not matter, for example, if a white phosphorus munition is labeled as a smoke-screen shell. Such a munition should clearly fall under a new definition of incendiary weapon because when a weapon causes substantial incendiary effects, its use should be restricted.

Second, turning to increased restrictions on use. As written, Protocol III bans only use of air-dropped incendiary weapons in “a concentration of civilians.” It imposes weaker regulations on the use of surface-launched incendiary weapons. These rules, especially with respect to surface-launched weapons, have proved inadequate to prevent the cruel injuries and indiscriminate harm of incendiary weapons.

An outright prohibition on the use of incendiary weapons would give civilians and combatants the strongest protection under international law. A significant number of states have expressed support for a blanket ban in recent years and even decades, including Sweden. 

A blanket ban would best protect civilians from the horrible injuries caused by incendiary weapons, would be easier to apply, would protect military personnel from unnecessary suffering, could reduce stockpiles, and would reinforce the stigma against use. Our memorandum elaborates on each of these benefits of a blanket ban.

If it is not possible to secure an outright prohibition on the use of incendiary weapons in the CCW forum, there are three other options that could have positive impact: first, prohibit use of all models of these weapons in civilian areas; second, impose strict standards for when incendiary weapons may be used even outside of civilian areas; and, third, prohibit antipersonnel use of incendiary weapons. Let’s look at each of these.

Article 2(2) of the Protocol already prohibits the use of air-delivered incendiary weapons against targets within a concentration of civilians. States should at least amend this provision to apply the same restriction to all incendiary weapons, including surface-launched models. These models have proven to be just as problematic as air-launched. Some states, such as Germany and France, already prohibit the use of all incendiary weapons in civilian areas regardless of the weapons’ delivery mechanism.

Next, the presumption of illegality. Even outside of civilian concentrations, the indiscriminate nature of incendiary weapons makes them prone to injuring civilians and damaging civilian property. In order better to protect civilians, states could adopt a presumption that the use of incendiary weapons outside of civilian concentrations is disproportionate and thus illegal except where states can show that expected military advantage substantially outweighs risk to civilians.

Such a presumption of illegality would compel commanders to investigate the civilian consequences of striking possible targets thoroughly before authorizing the use of incendiary weapons. Because the humanitarian harm resulting from the use of incendiary weapons is foreseeable and severe, commanders should have to present extraordinarily strong military reasons for using them, if they are allowed to use them at all. Narrowing the range of permissible attacks would decrease the number of cases in which incendiary weapons are actually used, reducing the associated human suffering.

Finally, a prohibition on antipersonnel use. In light of the terrible effects of incendiary weapons on human beings, states could also amend Protocol III to prohibit the targeting of military personnel and other combatants as such. Protocol III already prohibits states from targeting civilians. It does not address use on combatants, however.

Because such weapons are prone to causing extreme pain, disability, and disfigurement, states parties should consider adopting a clear prohibition on using such weapons against military personnel as well as civilians.

Prohibiting the targeting of combatants will also reinforce the general norm against the use of incendiary weapons, making all kinds of use less likely. Narrowing the range of circumstances under which states could permissibly use incendiary weapons would reduce the reasons to stockpile such weapons in the first place. Sending the message that incendiary weapons are so cruel that they cannot be used even on soldiers could further reinforce the stigma associated with the weapons.

Belgium has prohibited antipersonnel use of incendiary weapons in its national military manual. The United Kingdom has similarly stated in its military manual, “[W]eapons such as napalm and flamethrowers…are governed by the unnecessary suffering principle so that they should not be used directly against personnel.” In addition, according to a 2009 statement, while the UK government does not consider white phosphorus unlawful, it is “very clear that it should not be used as an anti-personnel weapon and certainly not in a civilian environment.” An amendment to Protocol III would make such positions binding at the international level.

In conclusion, Mr. Chairman, with the approaching Review Conference states parties have the opportunity to revisit the protocol to put in place measures to fulfill the humanitarian objectives of the CCW.

By adopting a more comprehensive definition of incendiary weapons, states can ensure that Protocol III covers all such weapons that are likely to cause excessively injurious or indiscriminate incendiary effects. Expanding the definition is key to bringing de facto incendiary weapons, such as white phosphorus shells, within the ambit of the CCW. 

States should also reduce the harm incendiary weapons cause by imposing stronger restrictions on their use. A total prohibition on the use of these weapons will maximize the protection of civilians. If such a prohibition is not possible within the CCW forum at this point, states should, at the very least, adopt measures to prohibit use of all incendiary weapons in civilian areas. They should also seriously consider a presumption that the use of incendiary weapons is unlawful, even outside of civilian concentrations, and a prohibition on antipersonnel incendiary attacks. Only by amending the text of Protocol III to address its weaknesses can real progress be made in preventing future suffering from incendiary weapons.

We again urge states to given consideration to Protocol III at the Review Conference, with the objective of agreeing to a mandate to review and amend the protocol.

Thank you.