At the Fourth Review Conference of the Convention on Conventional Weapons (CCW)[1]in November 2011, 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.[3]

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 opened the door for 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 year and a half, 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, actors ranging from a high-tech military power to a non-state armed group used white phosphorus in Afghanistan, while in Libya, weapons depots containing napalm and white phosphorus were left unsecured.

To minimize the harm to civilians from the use of incendiary weapons, Human Rights Watch and Harvard Law School’s International Human Rights Clinic (IHRC) call on CCW states parties to agree, at their November 2012 annual meeting, 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 and practices 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 and highlights their willingness to consider ways to strengthen existing international law. In addition, it lays out the current threats posed by incendiary weapons, focusing on recent use and stockpiling of incendiary munitions in Afghanistan and Libya, and identifying states that have produced the weapons. The memorandum concludes that, building on the Review Conference’s Final Document, 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.

 


[1]The full title of the CCW is the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects.

[2]See CCW Third Review Conference Final Document, CCW/CONF.III/11 (Part II), Geneva, November 7-17, 2006, http://www.unog.ch/80256EDD006B8954/%28httpAssets%29/84E7CBDD66F28699C12...$file/CCW+CONF.III+11+PART+II+E.pdf (accessed April 12, 2012), p. 12; CCW Second Review Conference Final Document (Part II), CCW/CONF.II/2, Geneva, December 11-21, 2001, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G02/602/61/IMG/G0260261.pdf?O... (accessed April 12, 2012), p. 17; CCW First Review Conference Final Document (Part I), CCW/CONF.I/16, Geneva, 1996, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G96/617/03/PDF/G9661703.pdf?O... (accessed April 12, 2012),  p. 40.

[3]CCW Fourth Review Conference Final Document ( Part II), CCW/CONF.IV/4/Add.1, Geneva, November 14-25, 2011, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/652/03/PDF/G1165203.pdf?O... (accessed April 12, 2012), p. 9

[4]Human Rights Watch and the Harvard Law School International Human Rights Clinic, Memorandum to Convention on Conventional Weapons Delegates: The Human Suffering Caused by Incendiary Munitions, March 2011, https://www.hrw.org/sites/default/files/related_material/2011_arms_incend....

[5]Letter from Valentin Zellweger, Director for International Law, Swiss Federal Department of Foreign Affairs, to Human Rights Watch, March 22, 2011.

[6]Human Rights Watch and the Harvard Law School International Human Rights Clinic, Memorandum to Convention on Conventional Weapons Delegates: The Need to Re-Visit Protocol III on Incendiary Weapons, November 2010,

https://www.hrw.org/en/news/2010/11/22/memorandum-ccw-delegates.

[7]For further discussion of these recommendations, see Human Rights Watch and the Harvard Law School International Human Rights Clinic, Strengthening the Humanitarian Protections of Protocol III on Incendiary Weapons: Memorandum to Convention on Conventional Weapons Delegates, August 2011, https://www.hrw.org/news/2011/08/22/strengthening-humanitarian-protection....