Loopholes in International Law on incendiary weapons

The Chemical Weapons Convention (CWC) Treaty The Chemical Weapons Convention (CWC) Treaty © Organisation for the Prohibition of Chemical Weapons (OPCW)

This article is a presentation of a report by Human Rights Watch on the human cost of incendiary weapons and the shortfalls of international law

A recent report published by Human Rights Watch (HRW) and Harvard Law School’s International Human Rights Clinic (IHRC) illustrates the horrific human cost of incendiary weapons, demanding that governments revise the international treaties governing their use. Documenting the harrowing accounts of victims in Afghanistan, Gaza and Syria, the report details the extensive use of incendiary weapons, including white phosphorous (WP), in warfare today, describing their immediate and long-term effects to civilians, and sheds light on the failures of international law as a humanitarian instrument which is intended to protect them. 

Over the past decade, incendiary weapons, including white phosphorus, have been used extensively by parties in recent conflicts in Afghanistan, Gaza, Syria, and elsewhere. White phosphorus – also referred to in the military as “Whiskey Pete” or “Willy Pete” since its use in Vietnam – is a toxic chemical substance that ignites on contact with oxygen. Its fire is difficult to extinguish, and when in contact with the skin it can melt the flesh to the bone, causing severe burns, serious damage to internal organs, and in many cases, death. 

Due to the incendiary nature of white phosphorus, mortar bombs, shells, rockets and grenades containing this chemical fall within the ambit of Protocol III to the 1980 Convention on Certain Conventional Weapons (CCW), the only legal instrument which regulates the use of incendiary weapons. But the protocol’s efficacy as a humanitarian instrument is limited. CCW Protocol III defines incendiary weapons as: “any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on the target.” According to this definition, any munition containing white phosphorus and that is primarily designed to set fire to objects or to cause burn injury is covered by the protocol’s provisions. Hence, aerial delivery, in the conduct of hostilities, of incendiary weapons containing WP within a concentration of civilians is prohibited. However, this definition presents two major loopholes. The design-based criterion arguably excludes from the definition of an incendiary weapon, and, hence, from the scope of the protocol, certain multipurpose munitions with incidental incendiary effects. White phosphorous is often used on battlefields to create smoke screens, generate illumination and mark targets, and as such, is not covered by the definition, despite its devastating, and often fatal, effects to civilians caught in the crossfire. The second loophole concerns the delivery of the incendiary weapons. The protocol has weaker restrictions for ground-launched incendiary weapons than air-dropped versions, even though the harm caused is the same.

White phosphorus is notorious for the severity of the injuries it causes and almost all States Parties to the Convention on Conventional Weapons have voiced their concern and are calling for the review and strengthening of CCW Protocol III, expressing their desire for dedicated discussions at international level. This growing support for revisiting Protocol III led to its inclusion on the agenda of the CCW’s Meeting of States Parties in 2017. However, because the CCW’s annual meetings operate by consensus, a small number of states, most notably Russia and the United States, have blocked progress and the topic was eventually dropped from the 2019 and 2020 agendas.

The next Review Conference of the CCW will take place in late 2021. It provides a crucial opportunity, the HRW concluded, to assess the adequacy of Protocol III as a humanitarian instrument, in a bid to begin a process to close the protocol’s loopholes. Through their joint report, HRW and IHRC urge governments to carry out the necessary groundwork on incendiary weapons now, in preparation to take concrete action at the 2021 CCW Review Conference. But for any discussions to take place at all, the member states will first need to agree at their next meeting to include Protocol III on the Review Conference’s agenda, still a contentious topic among CCW States Parties.

 

To read more, please visit:

https://www.hrw.org/report/2020/11/09/they-burn-through-everything/human-cost-incendiary-weapons-and-limits 

 

Author: Giulia Ferrara

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