JURIST Guest Columnist Sascha-Dominik Bachmann, of Bournemouth University in the UK, discusses the present use of incendiary weapons within its legal framework and why the use of such weapons is most likely to continue, as a response to Human Rights Watch’s call to end incendiary weapon use in Ukraine and Syria …

“Incendiary weapons, as the term is understood in international humanitarian law (IHL) describes weapons that act mainly through fire and heat. Napalm and white phosphorous are probably the best known incendiary substances used in incendiary weapons.”

Incendiary weapons as well as phosphorous munitions is one of the inventions of twentieth century warfare: from the flame thrower in WWI and WWII, carpet bombing in WWII, the use of Napalm in South East Asia during the Vietnam War and to the well reported use of white phosphorous by Israel during Operation Cast Lead in Gaza in 2009. Incendiary weapons were developed and have been used mainly due to their ‘effectiveness’ in combat: they destroy biological tissue while sparing hard surfaces and the infrastructure. Incendiary weapons can also used defensively, e.g., as a smoke screen (white phosphorous) or offensively in mortar bombs, rockets and artillery ammunition.

Some legal considerations on the use of incendiary weapons
The 1981 Certain Conventional Weapons (CCW) Convention, together with the 2008 Convention on Cluster Munitions and the 1997 Anti-Personnel Mine Convention aim to protect civilian non-combatants by limiting the use of certain weapons. Article 1 of Protocol III of the CCW defines an incendiary weapon 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.” It excludes from this definition certain types of multipurpose munitions which have only incidental and/or additional incendiary effect: battlefield illumination and smoke as examples for the first category and armor piercing projectiles and so called combined effect munitions when used solely against military target as an example for the second category.

Article 2 clarifies that any direct targeting of civilians or the use of air delivered incendiary weapons against military targets which are situated in civilian settlement areas are prohibited under Protocol 3 of the CCW. Israel’s use of white phosphorous against Hamas targets in Gaza during the 2009 Operation Cast Lead would constitute such a violation if the criterion of distinction was not met —if one was to assume that it was used for offensive and not defensive purposes such as a smoke screen etc.

White Phosphorous:
Due to the lethality of white phosphorous for humans —”it causes deep burns through muscle and down to the bone, continuing to burn until deprived of oxygen. It can contaminate other parts of the body, or even people treating the injuries, poisoning and irreparably damaging internal organs” [PDF]. Its offensive use would qualify as indiscriminate and hence prohibited under international humanitarian law when directed against civilians deliberately outside the military context of smoke camouflage, signaling or battlefield illumination.

Incendiary Weapons and International Humanitarian Law
Any direct targeting of civilians or indiscriminate use of air delivered incendiary weapons would not only constitute a breach of Protocol III of the CCW but also a violation of International Humanitarian Law, the jus in bello. Protocol Additional to the Geneva Conventions of 12 August 1949 [PDF], and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 protect in general the civilian population and individual civilians from any indiscriminate attacks. The use of incendiary weapons in such instances would violate the specific safeguards of Arts. 51(4)(b) and (c); 51(5); and 57(2)(a)(ii) of the Protocol I. Such violations could lead to individual criminal responsibility for war crimes committed by using certain prohibited weapons, projectiles, and material and methods of warfare under Article 8(2) (b) (xx) of the 1998 Rome Statute [PDF] of the International Criminal Court.

Amendment of CCW III
In November 2014, Human Rights Watch and Harvard Law School’s International Human Rights Clinic called on all nations and especially CCW states to publicly condemn the use of incendiary weapons, express support for reviewing CCW Protocol III on incendiary weapons and work toward developing stronger protections for civilians [PDF]. The memorandum calls for adopting a broader definition of prohibited incendiary weapons by including said multipurpose munitions and also reiterates any use in civilian areas, regardless of the mode of delivery. The call is important and will hopefully contribute to the existing initiatives to outlaw the use of such weapons and to maintain public pressure on policymakers.

Future Outlawing and non proliferation
In addition to agreeing on a binding international legal regime which outlaws the use, production, transfer and stockpiling of any type of incendiary weapon including small arms ammunition, an effective system of control and enforcement would be needed. Using the example of Nuclear Non Proliferation with its various approaches to such measures one has to look into the various aspects of verification of disarmament at the State Party level, the related approaches to industrial non—proliferation and state sanctioned territorial exclusion zones as future steps towards an incendiary weapons free battlefield of the future.

Problem is the asymmetry of 21st century conflict
In addition to a comprehensive ban of incendiary weapons it would need a generation long, holistic approach by the main State parties to ensure that new proliferation of incendiary weapons and the use of existing stockpiles will come to an end—something which I feel amounts to ‘wishful thinking’ as we see the number of asymmetric and conventional conflicts increasing.

The lethality of incendiary weapons when targeting humans which translates into effectiveness in terms of any military use makes it highly unlikely that the use of incendiary weapons will come to an end anytime soon. However it is this lethality and its dual use capacity (offensive/defensive) which makes the use of incendiary weapons so ‘attractive’ when fighting insurgencies as the examples of its use as weapons in asymmetric conflict scenarios show: the U.S. used incendiary weapons in Vietnam, the Russians in Chechnya in 1994, the US Marines during the battle of Fallujah in Iraq in 2004 and the now reported use in Syria and in Ukraine .

Sascha-Dominik Bachmann is an Associate Professor in International Law at Bournemouth University in the UK. He possesses a State Exam in Law (Ludwig-Maximilians Universität, Munich), Assessor Jur, LL.M (Stellenbosch University in South Africa), LL.D (University of Johannesburg in South ). In addition, he is a Lieutenant Colonel in the German Army Reserves and had multiple deployments in peacekeeping missions in operational and advisory roles as part of NATO/KFOR from 2002 to 2006. During that time he was also an exchange officer to the 23rd US Marine Regiment. He wants to thank Noach Bachmann for his input.

Suggested citation: Sascha-Dominik Bachmann, Why Incendiary Weapons are Here to Stay , JURIST – Academic Commentary, Dec. 22, 2014, http://jurist.org/academic/2014/12/sascha-dominikbachmann-incendiary-weapons.php.