Government Positions on Protocol III on Incendiary Weapons

International support for strengthening existing law on incendiary weapons is growing. At the Fourth Review Conference of the Convention on Conventional Weapons (CCW)^[1]in November 2011, states parties approved a document that opened the door for discussions on incendiary weapons in that forum. In addition, almost 25 states have made statements or written letters expressing a willingness to take up the issue, and representatives of other states have articulated similar positions in private conversations. Human Rights Watch and Harvard Law School’s International Human Rights Clinic (IHRC) are calling on CCW states parties to build on this momentum by establishing in November 2012 a group of governmental experts that can hold discussions on incendiary weapons over the course of 2013.

At the Fourth Review Conference, states parties actively took on the issue of incendiary weapons for the first time since the adoption in 1980 of CCW Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons. While the final documents from the first three Review Conferences merely “note[d] the provisions” of Protocol III,^[2]the Fourth Review Conference’s Final Document stated:

The Conference notes the concerns raised during the discussions on Protocol III by some High Contracting Parties about the offensive use of white phosphorus against civilians, including suggestions for further discussion on this matter. The Conference further notes that there was no agreement on various aspects of this matter.

With this language, CCW states parties raised concerns about the harmful effects of white phosphorus munitions, an issue that could be addressed under Protocol III on incendiary weapons. Moreover, states specifically noted the possibility of further discussion about strengthening prohibitions or restrictions on incendiary weapons, including white phosphorus, under the protocol.

As the Fourth Review Conference’s Final Document suggests, Protocol III is ripe for reexamination. The protocol has failed to live up to its promise of protecting civilians from the effects of incendiary weapons, which cause horrific burns, permanent disfigurement, and death.^[4]States adopted Protocol III “in order to assure complete protection of civilians from incendiary weapons”^[5]; however, loopholes and inconsistent restrictions have limited its effectiveness.^[6]

Over the past two years, the situation has taken on increasing urgency in the international community. States have voiced their concerns about the dangers of incendiary weapons and the inadequacy of the protocol in letters to Human Rights Watch and in statements at CCW meetings. In addition, recent use of weapons with incendiary effects has posed an ongoing threat to civilians, while continued production and stockpiling raise concerns about potential civilian casualties from future use. In 2011, the United States and non-state armed groups used white phosphorus in Afghanistan, while in Libya weapons depots containing napalm and white phosphorus were left unsecured as Gaddafi’s forces fled.

To minimize the harm to civilians from the use of incendiary weapons, Human Rights Watch and IHRC urge CCW states parties to agree to a mandate for further discussions on Protocol III. These discussions, held in a Group of Governmental Experts, should then lead to a mandate to amend the protocol. A comprehensive ban on the weapons would have the most far-reaching humanitarian benefits. But at a minimum, states should address the key shortcomings of the instrument by:

1. Adopting a broader, effects-based definition of incendiary weapons that encompasses multipurpose munitions with incendiary effects, such as white phosphorus ones, and
2. Prohibiting the use of all incendiary weapons in civilian areas, regardless of whether they are air or ground launched.^[7]

This memorandum details government positions regarding incendiary weapons, which have bolstered the argument for revisiting Protocol III. It analyzes the concerns of states as well as those of the International Committee of the Red Cross (ICRC) about the humanitarian harm from these weapons. It also illuminates states’ openness to strengthening existing international law. The memorandum concludes that states should initiate formal discussions as soon as possible with an eye to eliminating the flaws of the protocol and the harmful effects of white phosphorus and other incendiary weapons.