Promoting Civilian Protection: Time to Strengthen Norms on Incendiary Weapons

Sophie Timmermans, Emerging Expert, Forum on the Arms Trade

As states gather in Geneva for the Meeting of High Contracting Parties to the Convention on Certain Conventional Weapons (CCW) on November 16-18, 2022, it is crucial to once again underscore the failings of one of its protocols on an incredibly cruel weapon: incendiary weapons. While Protocol III seeks to regulate these weapons, the current framework has multiple loopholes that prevent it from adequately protecting civilians. States parties dedicated to humanitarian disarmament must come together and endeavor to change the status quo.

Harm and Suffering Caused by Incendiary Weapons

Incendiary weapons set fire to objects or burn people through flames, heat, or a combination thereof generated by a chemical reaction. They can take a variety of forms, which are air-dropped or ground-launched and which contain different substances, such as napalm and thermite.

Incendiary weapons are a brutal means of warfare, inflicting excruciating burns and long-term injuries, both physical and psychological, on its victims. These severe burns can even penetrate to the bone. Moreover, they cause respiratory damage, organ failure, shock, and infections. Besides the direct effects on humans, they also destroy civilian property and critical infrastructure, kill livestock, and damage crops. They are described as “area weapons” because they affect a wide area, causing massive destruction to the environment and infrastructure since the fire that is produced is not easily predicted or contained. These weapons cause lifelong disabilities, loss of property, and high costs for medical care, leading to negative socioeconomic impacts.

Past use, including in Palestine, Afghanistan, Iraq, Syria, Yemen, and Ukraine, and allegations of use in other countries have highlighted the horrendous effects of these weapons.

Incendiary weapons being used in the city of Donetsk, Ukraine on March 25, 2022. Credit: Private, 2022.

Protocol III: An Inadequate Legal Framework

The only international instrument that specifically regulates incendiary weapons is Protocol III of the CCW. Besides prohibiting attacks with incendiary weapons against civilians, civilian objects, and the civilian population as such, the protocol also restricts their use on concentrations of civilians and forests or other kinds of plant cover. While Protocol III of the CCW regulates some uses of incendiary weapons, it is plagued by two major loopholes.

First, the definition of incendiary weapons in Article 1 is too narrow. It excludes multipurpose munitions, like those containing white phosphorus, because it is based on the purpose for which they are “primarily designed” rather than on their effects. White phosphorus can be used to create a smokescreen, but also causes deep burns that can reignite when in contact with oxygen. This issue is further exacerbated by the exclusion of munitions with incidental incendiary effects from the scope of the protocol under Article 1(b)(i). Illuminants, tracers, or smoke and signaling systems are not included, and the current definition does not consider the secondary incendiary effects that these munitions may have. Such a purpose-based definition is dangerous and arbitrary, since the conclusion of whether a certain munition falls within the scope of the protocol may depend on the purpose defined by the producer, manufacturer, or user. Even those munitions that are primarily designed for other purposes, for example to produce smokescreens for the concealment of troop movements, cause horrific civilian harm. Using an effects-based definition instead would solve this issue.

Second, there is an unjust distinction based on the mode of delivery. Article 2 of the protocol prohibits the use of air-delivered incendiary weapons on military objectives that are located within a concentration of civilians, but allows ground-launched attacks when the military objective is separated from the concentration of civilians and if feasible precautions are taken to minimize harm to civilians and damage to civilian objects. This provision is insufficient since civilians can still be harmed when they experience the weapons’ wide area effects or when the weapons miss their target. Ground-launched incendiary weapons are covered by weaker regulations than their air-delivered counterparts, while nevertheless causing the same harm.

Moving Past the Status Quo

These fundamental inadequacies of the legal framework require a thorough review and reevaluation of the protocol that starts from the humanitarian imperative to address the harm caused by incendiary weapons.

Political will to strengthen the legal regime has been increasing. At the Sixth Review Conference of the CCW in 2021, Ireland proposed to hold informal consultations on Protocol III, and it was backed by many states that believe in the need to amend the protocol or those willing to discuss the growing concern around incendiary weapons. Because of the consensus mechanism in the CCW, however, Russia and Cuba were able to block this proposal, resulting in widespread criticism.

The Meeting of High Contracting Parties offers a new chance for states to make progress on the issue of incendiary weapons. States parties should condemn all uses of such weapons, call for a review of Protocol III to strengthen the provisions that have proven to be problematic, and adopt a mandate to hold informal consultations. Realistically, certain states could continue to block discussions on Protocol III, which will impede progress within the CCW framework. Therefore, states should be open to discussing this issue outside of the CCW and consider how to strengthen the international standards, through a political declaration, for example. Such a process would not be impeded by a consensus requirement.

Ideally, states should advocate for a complete ban on incendiary weapons in the process to strengthen the norms. It would further stigmatize use and pressure states to stop using them and would have the biggest humanitarian impact. As an absolute minimum, states should endeavor to close the aforementioned loopholes by adopting an effects-based definition and eliminating the distinction between ground-launched and air-delivered incendiary weapons.

The CCW has been in force for almost 40 years, and it is high time to do what it takes to revise the legal framework and deliver on its promise of protecting civilians.

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