December 2, 2020

Incendiary Weapons Through a Humanitarian Disarmament Lens

Posted by Erin Shortell JD'21

On August 26, 2013, 18-year-old Muhammed Assi stood in the courtyard of a Syrian school talking with five classmates. Suddenly, an incendiary bomb landed in the middle of the group of students, immediately killing all but Muhammed.

“The intensity of the explosion threw me a distance of about three to four meters from where the missile struck,” Muhammed said. “We were surrounded by the fire. I used my hands to hit my head to try to snuff out the fire.” Other students screamed in horror, many badly burned and calling out for help, and dead bodies lay in the schoolyard. Muhammed recalled, “Time seems to stop when these things happen to you… [W]ords can’t describe my feelings, but I saw the fire completely surrounding me from everywhere, and when the breeze blew, it fed oxygen into the incendiary substance and made it burn even stronger.”

In a new report entitled, “They Burn Through Everything”: The Human Cost of Incendiary Weapons and the Limits of International Law, Human Rights Watch (HRW) and the Harvard Law School International Human Rights Clinic (IHRC) detail the human suffering inflicted by incendiary weapons. These weapons produce heat and fire through the chemical reaction of a flammable substance. Protocol III to the Convention on Conventional Weapons (CCW) imposes some restrictions on the use of incendiary weapons, but it has failed to adequately protect civilians like Muhammed. While CCW states parties have expressed concerns about the use of incendiary weapons for years, the report urges them to formalize these discussions at their Review Conference next year and to strengthen Protocol III.

Cover of Incendiary Weapons report featuring a long streak of fire through the night sky over a city.

By detailing and emphasizing the immediate and long-term physical, psychological, and socioeconomic effects of incendiary weapons, the HRW-IHRC report frames the issue in humanitarian disarmament terms. A people-centered approach to governing weapons, humanitarian disarmament focuses on alleviating civilian suffering more than advancing national security. Within the past 25 years, humanitarian disarmament treaties have banned antipersonnel landmines, cluster munitions, and nuclear weapons and obliged states to address the harms of past use by assisting victims and clearing remnants of war. Three hallmarks of the humanitarian disarmament approach are particularly relevant to the incendiary weapons debate and underscore the need for CCW states parties to revise Protocol III.

First, humanitarian disarmament seeks to regulate weapons that cause unacceptable harm. The argument for strengthening Protocol III rests on the human costs of incendiary weapons use. These weapons inflict severe burns that require extensive and excruciating treatment. Inhaling the gases they release can also lead to respiratory damage and organ failure. Survivors often experience chronic pain, scarring, and disabilities as well as psychological harm, such as anxiety, depression, and post-traumatic stress disorder. Although not injured physically, a teacher who witnessed the 2013 attack at the Syrian school had nightmares every night for the first year after the attack. “It hurts my brain every time I return to the story,” he recently told Human Rights Watch. Finally, the lifelong physical and psychological injuries from incendiary weapons can result in social withdrawal and exclusion.

Second, humanitarian disarmament aims to reduce human suffering through the establishment and implementation of international norms. CCW Protocol III contains two loopholes. It only governs weapons “primarily designed” to cause fires and burn people, thus excluding multipurpose munitions like white phosphorus, which causes the same incendiary effects and can reignite when exposed to oxygen during or after treatment. The protocol also limits the use of ground-launched incendiary weapons in concentrations of civilians less strictly than the use of air-dropped ones. The HRW-IHRC report documents the impact of these loopholes. For example, in 2009 white phosphorus burned Razia, an 8-year-old Afghan girl, down to the skull. Razia survived despite suffering burns on 40 to 45 percent of her body, but her scars remain to this day. In recognition of the human suffering incendiary weapons inflict, states should strengthen the relevant legal norms, as they did with landmines, cluster munitions, and nuclear weapons. Specifically, they should adopt an effects-based definition of incendiary weapons and prohibit the use of all incendiary weapons in populated areas.  A complete ban would have the greatest humanitarian impact.

Third, humanitarian disarmament processes have traditionally included and valued survivors’ voices. In the HRW-IHRC report and an accompanying video, the survivors of incendiary weapon attacks and the medical professionals who treated them speak indirectly to governments. Muhammed urged an end to the use of “weapons banned by conventions for use against civilians, schools, and hospitals.” The teacher at Muhammed’s school remarked, “I totally respect the United Nations … but what is the job of the United Nations? It should be protecting people…. [I]t’s a great organization, but still, we need actions, actions to [help] not only Syrians but also other people around the world who really suffer from war.” The then U.S. Air Force critical care nurse who spent months treating Razia recently said in her personal capacity, “With those types of weapons, there has to be some kind of control. Absolutely, 100 percent.”

When diplomats reconvene at the United Nations, they should adopt a humanitarian disarmament approach to incendiary weapons. Heeding the voices of survivors, witnesses, and medical personnel, states should recognize these weapons’ unacceptable cruelty and strengthen existing international law accordingly. As Muhammed said, “Human beings have a right to live with dignity.” Closing Protocol III’s loopholes would mark a powerful step toward advancing the humanitarian disarmament agenda and protecting the dignity of all humans.

This post originally ran on the Humanitarian Disarmament website.

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