U.S. Incendiary-Weapons Policy Rebuffed

Jeff Abramson

• Excerpt From CCW Protocol III
• U.S. Consent to be Bound

In a rare step, 17 European countries objected in February to conditions the United States put on its decision to be bound by an international arms control protocol.

At the broadest level, the controversy revolves around Washington’s stance that incendiary weapons can be used when they would cause less harm than other weapons. So far the disagreement has drawn little attention, but some hope the objections will prevent what they see as efforts to weaken the Convention on Certain Conventional Weapons (CCW).

On Jan. 21, 2009, the United States deposited its consent to be bound by the third protocol to the CCW, which bans the use of incendiary weapons against civilian targets (see sidebar). By protocol definition, incendiary weapons, such as flamethrowers, are “primarily designed to set fire to objects or cause burn injury to persons…by a chemical reaction of a substance delivered on the target.”

In its depositary notification, the United States made a reservation that allowed for “the right to use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons.” In a clarification to the reservation, Washington stated that those responsible for the use of incendiary weapons could be judged only on the basis of information they had at the time, not on information acquired afterward (see sidebar).

The notification sent to the United Nations in 2009 did not contain additional arguments that incendiary weapons were needed to destroy certain targets, such as biological weapons facilities, although that has long been a U.S. position. In prepared remarks at an April 15, 2008, Senate Foreign Relations Committee hearing that discussed the protocol, Charles Allen, deputy general counsel for international affairs at the Department of Defense, reiterated that “incendiary weapons are the only weapons that can effectively destroy certain counterproliferation targets such as biological weapons facilities, which require high heat to eliminate biotoxins.” (See ACT, October 2008.) Although not included in the final reservation language, those arguments are repeated as part of the understanding for the reservation in the committee’s report on the protocol.

Between Feb. 1 and Feb. 5, 17 countries expressed objections to the U.S. reservation. According to a European diplomat, the EU body charged with overseeing issues related to the treaty raised concerns about the reservation only in December, resulting in a “whirlwind of correspondence between EU countries whilst they tried to figure out how to respond.”

Under the Vienna Convention on the Law of Treaties, countries are considered to have accepted a reservation if they have not objected within 12 months. The UN-issued depositary notification for the U.S. reservation is dated Feb. 5, 2009.

Varied Reasons

The 17 objecting countries gave a variety of reasons for their actions. Many simply stated that they found the U.S. reservation to be against the object and purpose of the treaty. The French objection noted that, “despite the assurances given by the United States of America, it cannot guarantee the protection of civilians, which is the raison d’être of the Protocol.” The German objection argued that the U.S. position was unacceptable because it “would leave the decision of whether or not the respective norms of the Protocol should be applied to the discretion of a military commander.”

Only a few of the objections specifically mentioned the possibility of justifying weapons use in the narrow circumstances of targeting biological weapons facilities or other counterproliferation targets. Denmark acknowledged U.S. intentions to “provide greater protection for the civilian population” and expressed “its willingness to engage in any further dialogue, which may serve to settle differences in interpretation.” The British objection offered to consider the U.S. position as not counter to the object and purpose of the treaty if it could be interpreted narrowly enough.

All the objections, with the exception of Denmark’s, include a statement that allows the protocol to enter into force between their country and the United States. Marie-Louise Overvad, Denmark’s ambassador to the UN in Geneva, said in a March 23 e-mail to Arms Control Today that her country “has not expressed any intention precluding the entry into force of Protocol III.”

Diplomats contacted by Arms Control Today expressed different views on the legal meaning of those statements. One interpretation is, as the Swedish objection put it, that the United States is bound by the protocol without “benefiting from its reservation,” meaning that the reservation does not apply but the protocol does. The United States does not agree with that view, insisting that it is bound only to the extent that it has expressed its consent.

One European diplomat downplayed the impact of the objections, saying that they were raised “purely on legal grounds.” Another European diplomat indicated that the U.S. reservation “means that use of incendiary weapons in civilian areas is not completely forbidden anymore.” The second diplomat said, “Therefore we fear that such a reservation could weaken the CCW and its Protocol III.”

In a Feb. 16 e-mail, Stephen Goose, director of the arms division at Human Rights Watch, expressed hope that the objections to the reservations will have “a big impact on how the United States may use incendiaries in the future, and also have an impact on those who may want to make weakening reservations to any CCW protocol in the future.”

In 2004 and 2005, the United States faced accusations of improper use of white phosphorus in civilian areas in Iraq, as has Israel for operations in Lebanon and Gaza in 2006 and 2008-2009, respectively. (See ACT, May 2008.) A material that is often used for illumination, white phosphorus burns readily against the skin and can cause severe burns and death if used as an incendiary weapon. In his 2008 prepared Senate statement, Allen reiterated U.S. claims that white phosphorus “does not fit the definition of incendiary weapon in the protocol…. White phosphorous [sic] is a lawful weapon used for target marking and limited antipersonnel purposes against military objectives and enemy combatants.”

Possible Steps

Thus far, the United States has not responded to the recent objections. One possible next step will be for Washington to correspond with the secretary-general of the UN, which is the depositary of the treaty, with reaction and clarifications. States-parties may raise the issue at the regular annual meeting for the CCW in Geneva November 25-26. However, the issue may wait to be resolved until 2011, when the CCW holds a more thorough five-year review conference, likely in November of that year.

Objecting states, the ones most likely to raise the issue at the meetings, include Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Ireland, the Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, and the United Kingdom.

On Jan. 21, 2009, the first full day of Barack Obama’s presidency, the United States deposited its consent to be bound not only to the protocol on incendiary weapons, but also two other protocols and an amendment to the 1980 CCW. The CCW has five separate protocols that, in order, encompass weapons with fragments undetectable by x-rays; landmines and booby traps; incendiary weapons; blinding lasers; and explosive remnants of war. A 2001 amendment expands the treaty to cover conflicts within states. The unamended treaty only applies to conflicts between states. Prior to the 2009 deposits, the United States had accepted the treaty and the first two protocols. (See ACT, October 2008.)