JURIST Guest Columnist Bonnie Docherty of Human Rights Watch discusses the need to strengthen existing international law on incendiary weapons …

Incendiary weapons inflict almost unrivaled cruelty on their victims. Photos taken after an incendiary weapon attack on a Syrian school show the charred bodies of children, who must have experienced unimaginable agony. The weapons cause excruciatingly painful burns, and treatment for survivors requires sloughing off dead skin, which has been likened to being flayed alive. While individuals often react to accounts of such suffering with horror, government efforts to minimize the harm from these weapons by strengthening international law have been unacceptably slow.

Many countries have expressed outrage at the use of incendiary weapons over the past five years, including at meetings of the Convention on Conventional Weapons (CCW), the treaty that regulates the weapons. The voices of these countries are crucial and they should continue to raise the issue. But it is time to move from condemnation to concrete action. A major disarmament conference scheduled for next year presents an excellent opportunity for progress.

Incendiary weapons produce heat and fire through the chemical reaction of a flammable substance. They can be designed to burn people or materiel, serve as smokescreens or provide illumination. People who survive attacks with incendiary weapons not only experience physical injuries, but also frequently endure psychological trauma, permanent disfigurement and difficulties reintegrating into society.

Over the past two years Human Rights Watch has documented new use of incendiary weapons in Syria and Ukraine, and it is investigating allegations of use in Libya and Yemen in 2015. A report [PDF] recently released by Human Rights Watch and Harvard Law School’s International Human Rights Clinic provides evidence of these attacks, along with a five-year review of developments on the issue and recommendations for next steps.

Existing international law has failed to prevent the harm caused by incendiary weapons. Protocol III of the Convention on Conventional Weapons, adopted in 1980, restricts use of incendiary weapons in “concentrations of civilians.” As of December 2015, 112 countries had joined the protocol.

But two key shortcomings have limited its effectiveness. First, it defines “incendiary weapon” as being “primarily designed to set fires to objects or to cause burn injury to persons.” As a result some countries maintain that it excludes munitions with incendiary effects, such as those containing white phosphorus. Although primarily designed to function as smokescreens these weapons inflict suffering comparable to other incendiary weapons. White phosphorus burns through flesh to the bone and can reignite when bandages are removed and the substance is exposed to oxygen.

The protocol also makes an arbitrary distinction between air-dropped and ground-launched incendiary weapons, creating exceptions for certain uses of ground-launched weapons. The delivery system is irrelevant to the victims, however, and ground-launched models have become increasingly common and accessible even to non-state armed groups.

The solution to these problems is legally, if not politically, quite simple. Protocol III should be amended to define the weapons based on their effects rather than their design. And it should at a minimum prohibit the use of all incendiary weapons in concentrations of civilians, regardless of their delivery system. An absolute ban would have the greatest humanitarian benefit.

Over the past five years about three dozen countries, along with the International Committee of the Red Cross, the UN secretary-general and independent groups, have spoken out about this issue at meetings of the Convention on Conventional Weapons and other UN bodies, and in letters to Human Rights Watch. Most have highlighted the humanitarian impact of incendiary weapons in general or condemned recent use. Many have urged treaty members to strengthen Protocol III or said they are willing to discuss the adequacy of the protocol.

At the most recent meeting of the states parties, held at the UN in Geneva in November, momentum continued to grow. About 15 countries publicly addressed the incendiary weapons issue, more than in previous years, and others privately expressed support for reviewing Protocol III. A majority of these countries called for closing the protocol’s loopholes while others said they wanted to revisit existing rules. Six countries commented on incendiary weapons for the first time in this forum, demonstrating the increasing recognition of the problem and need to take action. The meeting’s final report included a reference to concerns about incendiary weapons for the fifth consecutive year. Such developments are encouraging.

But amending international law is a slow process and there will be hurdles to success. At the November meeting Russia said the proposal to pursue formal discussions on incendiary weapons would be “counterproductive.” Given that the treaty’s rules require decisions to be made by consensus, Russia alone could block further progress. Russia’s statement on the issue was its first in a meeting of this treaty, however, meaning that at least it takes the calls for change seriously.

The treaty’s Fifth Review Conference—a meeting held every five years—is scheduled for next December and will be an important opportunity for countries to take action. There treaty members will reflect on developments since the last review conference in 2011 and make plans for the next five years. Review conferences have historically been pivotal in the evolution of the treaty and its protocols.

In the coming months countries should ensure that incendiary weapons are placed on the agenda for the review conference. At the conference itself they should continue to express their concerns and agree to a new mandate that sets aside time to discuss the implementation and adequacy of Protocol III. The goal should be to negotiate the amendments needed to strengthen the protocol.

When Protocol III was adopted in 1980, some countries criticized its regulations of incendiary weapons as inadequate. They contended that there had been strong support for a ban but that compromise had watered down the final product. Several held out hope that the protocol’s failings would one day be addressed and recommended that the instrument be improved at a future review conference.

Thirty-five years later that has yet to happen, but it is not too late. The horrendous suffering incendiary weapons have caused civilians in recent years and the growing international opposition mean that the time has come to act. Countries should seize the opportunity presented by the 2016 review conference and take tangible steps to increase the protection of civilians from incendiary weapons.

Bonnie Docherty is a senior researcher in the Arms Division at Human Rights Watch and a lecturer on law at Harvard Law School’s International Human Rights Clinic.

Suggested citation: Bonnie Docherty, Unrivaled Cruelty: The Horror of Incendiary Weapons and Need for Stronger Law, JURIST – Professional Commentary, December 17, 2015, http://jurist.org/hotline/2015/12/bonnie-docherty-incendiary-weapons.php.