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Legal Status of Incendiary Weapons

The use of flame weapons, such as Fougasse, the M202A1 Flash, white phosphorous, thermobaric, and other incendiary agents, against military targets is not a violation of current international law. They should not, however, be employed to just cause unnecessary suffering to individuals.

All US weapons, weapons systems, and munitions must be reviewed by the service Judge Advocate General for legality under the law of war. (DoD Instr. 5000.2, AR 27-53, AFI 51-402 and SECNAVINST 5711.8A.) A review occurs before the award of the engineering and manufacturing development contract and again before the award of the initial production contract. (DoD Instr. 5000.2)

The rights of belligerents to adopt means of injuring the enemy is not unlimited. The customary law of war places limits on the exercise of a belligerent's power and requires that belligerents refrain from employing any kind or degree of violence which is not actually necessary for military purposes. The Law of Armed Conflict rests on fundamental principles of military necessity, unnecessary suffering, proportionality, and distinction (discrimination) which will apply to targeting decisions.

  1. The principle of military necessity justifies those measures not forbidden by international law, and which are indispensable for securing the complete submission of the enemy as soon as possible.
  2. The principle of unnecessary suffering forbids the employment of arms, projectiles, or material calculated to cause unnecessary suffering. This concept also extends to unnecessary destruction of property.
  3. The principle of proportionality requires that the anticipated loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained.
  4. The principle of discrimination requires that combatants be distinguished from non-combatants, and that military objectives be distinguished from protected property or protected places. Parties to a conflict must direct their operations only against combatants and military objectives.

Customary international law prohibits the launching of attacks (including bombardment) against either the civilian population as such or individual civilians as such. Defended places are permissible objects of attack (including bombardment). In this context, defended places include a fortified place; a place that is occupied by a combatant military force; or a city or town surrounded by detached defense positions, if under the circumstances the city or town can be considered jointly with such defense positions as an indivisible whole. The loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained.

Reprisals are acts of retaliation in the form of conduct which would otherwise be unlawful, resorted to by one belligerent against enemy personnel or property for acts of warfare committed by the other belligerent in violation of the law of war, for the purpose of enforcing future compliance with the recognized rules of civilized warfare. For example, the employment by a belligerent of a weapon the use of which is normally precluded by the law of war would constitute a lawful reprisal for intentional mistreatment of prisoners of war held by the enemy.

Incendiary Munitions and the Incendiary Weapons Protocol

The 1980 Protocol III of the Convention on Certain Conventional Weapons deals specifically with the Use of Incendiary Weapons, and their use against civilians. The United States is not a party to this Protocol. Weapons as high-explosive munitions and blast or fragmentation weapons are not covered by this protocol, even though they may have secondary burn effects on persons exposed or cause secondary fires. Similarly, laser weapons are not covered even if their primary effect is to set fire to objects or cause burn injuries, since they do not deliver burning substances on the target.

Paragraph 1 of Article 2 states that the civilian population as such and individual civilians or civilian objects may not be made the object of attack with incendiary weapons -- a principle that applies to all weapons under customary international law. Paragraph 2 prohibits making of any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons, such as napalm. This paragraph does not restrict the use of other types of incendiary weapons, such as White Phosphorus delivered by artillery. Paragraph 3 prohibits uses of incendiaries against military objectives located within concentrations of civilians, except when the target is clearly separated from the concentration of civilians and all feasible precautions are taken to limit the incendiary effects to the targe and minimize civilian casualties.

The Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III or the Incendiary Weapons Protocol) is annexed to the Convention on Prohibitions or Restriction on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (the Convention). The Convention, including Protocol III, as well as two additional protocols, was concluded at Geneva on October 10, 1980. The United States ratified the Convention and expressed its consent to be bound by its Protocol II on Mines, Booby-traps and Other Devices, as well as its Protocol I on Non-Detectable Fragments, on March 24, 1995.

President Clinton, in submitting the Convention to the Senate for consideration in 1994, recommended that the United States exercise its right to ratify the Convention accepting only the first two Protocols and not the Incendiary Weapons Protocol. As the President's transmittal message to the Senate indicated, there were concerns about the acceptability of certain of its restrictions from a military point of view that required further examination. After very careful study, a condition was developed that made the Protocol acceptable to the US Government from a broader national security perspective. The proposed reservation of the United States would revise the legal obligations of Article 2 on the United States so that the test of whether the use of an incendiary weapon is permitted in such circumstances would depend on whether it is judged that such use would cause fewer civilian casualties and less collateral damage than alternative weapons.

According to an analysis by the US Department of Defense's office for Arms Control Implementation and Compliance, "incendiary weapons have significant potential military value, particularly with respect to certain high-priority military targets. Incendiaries are the only weapons which can effectively destroy certain counter-proliferation targets such as biological weapons facilities which require high heat to eliminate bio-toxins. To use only high explosives would risk the widespread relase of dangerous contaminants with potentially disastrous consequences for the civilian population. Certain flammable military targets are also more readily destroyed by incendiaries. For example, a fuel depot could require up to eight times the bombs and sorties to destroy using only high explosives rather than incendiaries. Such an increase means a significantly greater humanitarian risk of collateral damage. The United States must retain its ability to employ incendiaries to hold high-high priority military targets such as these at risk in a manner consistent with the principle of proportionality which governs the use of all weapons under existing law."

Incendiary Munitions and the Chemical Weapons Convention

The contracting parties to the 1899 Hague Conventions declared their agreement to abstain from the "use of projectiles, the sole object of which is the diffusion of asphyxiating or deleterious gases". Their intentions unfortunately proved futile. The rules of warfare agreed at the Hague Conference and its successor (the 1899 and 1907 Hague Regulations) prohibited the use of poisoned weapons. Nonetheless, chemical weapons were used on a massive scale during World War I, resulting in more than 100,000 fatalities and a million casualties. The use of chemical weapons prompted a strengthening of the earlier prohibitions in the form of the 1925 Geneva Protocol. This Geneva Protocol prohibited use in war of asphyxiating, poisonous, or other gases. The US reserved the right to respond with chemical weapons to a chemical attack by the enemy.

The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (CWC). The Convention aims to eliminate an entire category of weapons of mass destruction by prohibiting the development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons by States Parties. States Parties, in turn, must take the steps necessary to enforce that prohibition in respect of persons (natural or legal) within their jurisdiction. All States Parties have agreed to chemically disarm by destroying any stockpiles of chemical weapons they may hold and any facilities which produced them.

A United Nations report from 1969 defined chemical warfare agents as " ... chemical substances, whether gaseous, liquid or solid, which might be employed because of their direct toxic effects on man, animals and plants ... ". Chemical agents mainly used against people may also be divided into lethal and incapacitating cathegories. A substance is classified as incapacitating if less than 1/100 of the lethal dose causes incapacitation, e.g., through nausea or visual problems. The limit between lethal and incapacitating substances is not absolute but refers to a statistical average. In comparison, it may be mentioned that the ratio for the nerve agents between the incapacitating and lethal dose is approximately 1/10.

In March 1978 the Geneva Disarmament Conference decided to establish an ad hoc working group on chemical weapons, which was required to "define, through substantive examination, issues to be dealt with in the negotiations" on the Chemical Weapons Convention. The Conference on Disarmament adopted the draft text on 3 September 1992 and transmitted it in its Report to the UN General Assembly. The Convention entered into force on 29 April 1997.

The Convention defines the term "chemical weapon" in Article II, paragraph 1, which states that the term "chemical weapons" means:

together or separately:
(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes;
(b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released as a result of employment of such munitions and devices;
(c) Any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b).

Article II, paragraph 9 attempts to add further clarity to the objective element by defining "purposes not prohibited" as including: (c) Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare;

A "toxic chemical" is also defined separately as [a]ny chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals... (Article II, paragraph 2).

According the to the US Defense Department, a chemical agent is a chemical substance intended for use in military operations to kill, seriously injure, or incapacitate a person through its physiological effects. By definition, riot control agents, chemical herbicides, smoke, and flame munitions are excluded.

The Organisation for the Prohibition of Chemical Weapons (OPCW) is the treaty-implementing body for the Chemical Weapons Convention. The Organization's website notes:

Incendiary agents such as napalm and phosphorus are not considered to be CW agents since they achieve their effect mainly through thermal energy. Certain types of smoke screen may be poisonous in extremely high concentrations but, nonetheless, smoke ammunition is not classed as a chemical weapon since the poisonous effect is not the reason for their use. [SOURCE]

Incendiary Munitions and the Laws and Customs of War on Land

Incendiaries, to include napalm, flame-throwers, tracer rounds, and white phosphorous, are not illegal per se or illegal by treaty. The only US policy guidance is found in paragraph 36 of FM 27-10 which warns that they should "not be used in such a way as to cause unnecessary suffering."

The use of weapons which employ fire, such as tracer ammunition, flamethrowers, napalm and other incendiary agents, against targets requiring their use is not violative of international law. They should not, however, be employed in such a way as to cause unnecessary suffering to individuals. What weapons cause "unnecessary injury" can only be determined in light of the practice of States in refraining from the use of a given weapon because it is believed to have that effect. The prohibition certainly does not extend to the use of explosives contained in artillery projectiles, mines, rockets, or hand grenades. Usage has, however, established the illegality of the use of lances with barbed heads, irregular-shaped bullets, and projectiles filled with glass, the use of any substance on bullets that would tend unnecessarily to inflame a wound inflicted by them, and the scoring of the surface or the filing off of the ends of the hard cases of bullets.

The principal provision relating to the legality of weapons is contained in article 23e of the Annex to Hague Convention IV Respecting the Laws and Customs of War on Land of 18 October 1907, which prohibits the employment of "arms, projectiles, or material of a nature to cause superfluous injury." In some law of war treatises, the term "unnecessary suffering" is used rather than "superfluous injury." The terms are regarded as synonymous. To emphasize this, article 35, paragraph 2 of the 1977 Protocol I Additional to the Geneva Conventions of August 12, 1949, states in part that "It is prohibited to employ weapons [and] projectiles ... of a nature to cause superfluous injury or unnecessary suffering." Although the United States has made the formal decision that it will not become a party to Protocol I, U.S. officials have stated that the language of article 35(2) of Protocol I as quoted is a codification of customary international law, and therefore binding upon all nations.

The terms "unnecessary suffering" and "superfluous injury" have hot been formally defined within international law. In determining whether a weapon or projectile causes unnecessary suffering, a balancing test is applied between the force dictated by military necessity to achieve a legitimate objective, vis-a-vis suffering that may be considered superfluous to that intended objective. The test is not easily applied. For this reason, the degree of "superfluous" injury must be disproportionate to the intended objectives for development of the weapon, that is, it must outweigh substantially the military necessity for the weapon system.

The fact that a weapon causes suffering does not lead to the conclusion that the weapon causes "unnecessary suffering," or is illegal per se. Military necessity dictates that weapons of war lead to death, injury, and destruction; the act of combatants killing or wounding enemy combatants in combat is a Iegitimate act under the law of war. In this regard, there is an incongruity in the law of war in that while it is legally permissible to kill an enemy combatant, incapacitation must not result inevitably in unneccessary suffering. What is prohibited is the design (or modification) and employment of a weapon for the purpose of increasing or causing suffering beyond that necessity. In conducting the balancing test necessary to dekrmine a weapon's legality, the effects of a weapon cannot be viewed in isolation. They must be examined against comparable weapons in use on the modem battlefield, and the military necessity for the weapon under consideration.

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