May 4, 2012

Incendiary Weapons: Growing Support for Stronger Protections

Posted by Michael Jacobson, JD '13, and Patricia Villa Berger, LLM '13, Fletcher School of Law and Diplomacy At Tufts University

Support is growing for strengthening regulations of incendiary weapons, according to a new paper published by the International Human Rights Clinic and Human Rights Watch. In addition to analyzing countries’ positions, the paper highlights recent use, stockpiling, and production of incendiary weapons, which demonstrate the urgent need for better international law.

The Clinic and Human Rights Watch urge states to open diplomatic discussions on incendiary weapons as soon as possible and to move towards amending current international law with the goal of enhancing humanitarian protection.

An IHRC team found this white phosphorus munition at one of Qaddafi’s abandoned weapons depots in Libya in March.

The law in question is the Convention on Conventional Weapons (CCW), an international treaty regulating weapons that cause unnecessary suffering or have indiscriminate effects. Incendiary weapons pose a significant threat to civilians, causing severe burns, asphyxiation, and, in some cases, death. States adopted CCW Protocol III to regulate the weapons in 1980.

But according to the Clinic and Human Rights Watch, the protocol has multiple loopholes; for example, it does not cover use of dual-purpose weapons with incendiary effects, like white phosphorus munitions, which have been used since 2003 in Afghanistan. Protocol III also establishes inconsistent regulations for weapons that produce the same harm.

In letters as well as statements during meetings of the CCW, about 20 countries have expressed their concerns about the harm caused by incendiary weapons and the inadequacy of the protocol. A few states have already explicitly called for amendments, while many others have indicated openness to considering the issue in the CCW forum. Australia and Germany have called for a group of experts to begin discussions on strengthening the protocol, which would be the first step toward legal change.

The paper recently released by the Clinic and Human Rights Watch is the latest contribution to a joint campaign that advocates for greater regulation of incendiary weapons. In earlier papers, the team outlined the shortcomings of Protocol III, described the humanitarian suffering produced by incendiary weapons, and outlined various options for strengthening Protocol III.

The need for change is pressing. Over the past year, both the United States and insurgents have used white phosphorus in Afghanistan, endangering civilians there. In addition, the Clinic and Human Rights Watch separately documented white phosphorus shells abandoned after the recent conflict in Libya. These shells pose a high risk to civilians because they have been left unsecured and could also easily detonate in the summer heat, setting off a chain reaction of nearby weapons.

The Clinic and Human Rights Watch recommend that states adopt a definition of incendiary weapons that encompasses all weapons with incendiary effects. In addition, they argue that a ban on such weapons would have the greatest humanitarian benefits. At a minimum, states should eliminate the false distinction between ground- and air-launched incendiary weapons, as well as consider establishing a presumption that use is unlawful and prohibiting the targeting of combatants.

Michael Jacobson, JD ’13, Harvard Law School, and Patricia Villa Berger, LLM ’12, The Fletcher School of Law & Diplomacy at Tufts University, compiled and analyzed the recent statements by parties to the CCW, researched current use and stockpiling of incendiary weapons in conflict zones, and drafted the paper that was presented and distributed at a conference of CCW States parties in Geneva in late April. Senior clinical instructor Bonnie Docherty supervised the project.

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