Article 36 delivered the following statement on incendiary weapons during discussions within the United Nations Convention on Certain Conventional Weapons. The statement supports the call by Human Rights Watch for states to address the inadequacies of Protocol III of the CCW on incendiary weapons. The statement also echoes the ICRC’s call for states to consider and share information on their mechanisms and procedures for determining the legality of new weapons.

Statement by Article 36 to the Convention on Certain Conventional Weapons

August 25, 2011, Geneva, Switzerland, delivered by Thomas Nash, Director, Article 36

Thank you Mr. President-designate,

Article 36 would like to support the call from HRW for states to look again at Protocol III in order to address its inadequacies in preventing humanitarian harm caused by weapons with incendiary effects. As HRW and ICRC have pointed out, there is particular concern over the use and impact of white phosphorous munitions in populated areas. These weapons have caused civilian suffering as a result of their use in Fallujah in Iraq in 2004 and in Gaza in 2009 as well as sporadic ongoing use by non-state armed groups in Afghanistan and into Israel.

It has been pointed out that weapons with incendiary effects pose problems under both of the criteria for considering weapons within the CCW framework: they have indiscriminate effects and they cause unnecessary suffering. However, Protocol III as it stands does not provide the required protections for either civilians or combatants.

Incendiary weapons generally have area effects, meaning that they strike civilians and combatants alike when used in populated areas – or “areas of civilian concentration” to use the Protocol’s language. The Protocol’s existing prohibition on the use of certain types of incendiary weapons in certain contexts is an acknowledgement of precisely this problem, but the prohibition is not broad enough to cover, for example, the white phosphorous munitions used in recent conflicts.

The shortcomings of Protocol III were further compounded by the reservation that the US made upon ratification of the Protocol, a reservation which reduces the protections afforded by the Protocol even further. We were pleased to see 17 states parties registering their concerns with the US reservation. This engagement from states should indicate that there is some appetite for multilateral work to strengthen the prohibitions and restrictions applied to weapons with incendiary effects.

Briefly, a definition of incendiary weapons based on their effects rather than simply their design is much needed and the prohibitions on use in populated areas should be strengthened. The Human Rights Watch and Harvard Law paper provides some very useful options for addressing both these areas.

There is already a strong stigma against the use of incendiary weapons. The image of the young girl fleeing a napalm strike on Trang Bang in the south of Vietnam in 1972 has become one of the most recognized images associated with conflict around the world. More recently, the use of white phosphorous in recent conflicts has been met with a strong outcry in the media and in the public eye. Article 36 looks forward to contributing to discussions amongst states and organizations to reinforce this stigma and to strengthen the rules on this important area of humanitarian concern.

Finally, very briefly, we also support the ICRC’s recommendation for states to consider and share information on their mechanisms and procedures for determining the legality of new weapons. In our view this is certainly an area where humanitarian protection could be enhanced by strengthening transparency.

Thank you Mr. President-designate.


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