The Encyclopedia is a project of the Geneva Academy of International Humanitarian Law and Human Rights launched on 2 December 2013. The Enyclopedia aims to provide accurate, up-to-date information on weapons, the effects of their use, and their regulation under public international law, in a format that is accessible to non-specialists.+ Find out more
The 1980 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons was adopted on 10 October 1980 and entered into force on 2 December 1983. The Protocol places restrictions on the use of incendiary weapons as a means or method of warfare during an international armed conflict. It also applies to non-international armed conflict if a state party has ratified the 2001 amendment to the 1980 Convention on Certain Conventional Weapons (CCW).
During the 1970s, the International Committee of the Red Cross (ICRC) convened a series of governmental expert meetings on the reaffirmation and development of international humanitarian law (IHL).Meetings were held at Geneva in 1971 and 1972, at Lucerne in 1974 and at Lugano in 1976. These meetings were held against the background of widespread use of napalm and other incendiary weapons in Vietnam and elsewhere, and the humanitarian consequences of the use of incendiary weapons were one of the main subjects of discussion. Concern about napalm and other incendiary weapons was also raised in UN reports and UN General Assembly resolutions adopted in the 1970s.In 1972, the UN General Assembly adopted a resolution characterising incendiary weapons as ‘a category of arms viewed with horror’, and in 1973, the UN Secretary-General issued a detailed report on ‘Napalm and other Incendiary Weapons and all Aspects of their Possible Use’, which called for the prohibition of napalm and other incendiary weapons. For a more detailed overview of diplomatic initiatives dealing with napalm and other incendiary weapons in the early 1970s, see Department of Political and Security Council Affairs, The United Nations and Disarmament 1970-1975, United Nations, New York, 1976, Chapter X.
Between 1974 and 1977, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts was held in Geneva. The Conference adopted Additional Protocol I to the Geneva Conventions in 1977, which sets out general rules of IHL on the conduct of hostilities, but does not contain rules on specific weapons that may be of a nature to cause unnecessary suffering or have indiscriminate effects. For this reason, the Conference recommended that a another conference of governments be convened with a view to reaching agreements on prohibitions or restrictions of the use of specific conventional weapons, including incendiary weapons. Resolution 22 (IV), entitled 'Follow-up regarding prohibition or restriction of use of certain conventional weapons', adopted by the Conference on 9 June 1977 noted the efforts devoted ‘to the further narrowing down of divergent views on the desirability of prohibiting or restricting the use of incendiary weapons, including napalm’. This conference was held under the auspices of the UN in Geneva from 10 to 28 September 1979 and from 15 September to 10 October 1980 and led to the adoption, in 1980, of the Convention on Certain Conventional Weapons (CCW) and three initial protocols, including Protocol III on incendiary weapons.
Article 2 of CCW Protocol III places a number of restrictions on the use of incendiary weapons, as defined in its Article 1. Article 2(1) applies the prohibition under general rules of IHL, of attacks on civilians, including by way of reprisals, to incendiary weapons:
It is prohibited in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons.
Pursuant to Article 2(2)
It is prohibited in all circumstances to make any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons,
where a ‘concentration of civilians’ means 'any concentration of civilians, be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages, or as in camps or columns of refugees or evacuees, or groups of nomads'. (Article 1(2))
The launching of incendiary weapons from the ground or from the sea into an area in which there is a concentration of civilians is, hence, not prohibited. However, such attacks are permissible only when the targeted military objective ‘is clearly separated from the concentration of civilians’ and ‘all feasible precautions are taken with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects’. (Article 2(3)) The first sentence echoes the prohibition under general IHL on area bombardment. The second sentence reflects precautionary obligations under IHL with respect to the choice of means and methods of attack.See 1977 Additional Protocol I, Arts. 51(5)(a) and 57(2)(a)(ii).
Upon expression of consent to be bound by CCW Protocol III, the United States of America (USA) reserved ‘the right to use incendiary weapons against military objectives located in concentrations of civilians’ under certain conditions. A number of states objected to this reservation, arguing that it was incompatible with the object and purpose of the Protocol.The US reservation reads: ‘The United States of America, with reference to Article 2, paragraphs 2 and 3, reserves 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, but in so doing will take all feasible precautions with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.’ France, for instance, considered the ‘reservation to be contrary to the object and purpose of the Protocol since, 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.’ Generally, on reservations, see Guide to Practice on Reservations to Treaties, International Law Commission, 2011, and the detailed commentaries thereto.
Finally, pursuant to Article 1(4),
It is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives.
This provision reflects concern about effects of attacks on the natural environment, and applies the IHL requirement that attacks are limited strictly to military objectives.See 1977 Additional Protocol I, Arts. 35 and 52(2). It has been noted that this provision is heavily compromised by an explicitly broad notion of military objectives, such that it would not find the use by the USA of incendiary weapons in Vietnam in breach. J. Wyatt, ‘Law-making at the intersection of international environmental, humanitarian and criminal law: the issue of damage to the environment in international armed conflict’, International Review of the Red Cross, vol. 92, no. 879 (2010), note 90.
CCW Protocol III does not regulate the production, transfer or stockpiling of incendiary weapons, and it does not contain a provision on its temporal scope of application. In keeping with Article 2 of the CCW to which it is annexed, the Protocol applies in situations of an international armed conflict, referred to in Article 2 common to the 1949 Geneva Conventions, including any situation described in paragraph 4 of Article 1 of 1977 Additional Protocol I to these Conventions. For States Parties to Protocol III who are bound by the CCW, as amended on 12 December 2001, the Protocol also applies in relation to non-state actors that are parties to a non-international armed conflict.
CCW Protocol III, thus, does not outlaw incendiary weapons, but places constraints on their use for the conduct of hostilities, notably in populated areas. Aside from the absolute prohibition on using air-delivered incendiary weapons to attack a military object within a concentration of civilians, these constraints go little beyond the requirements of the general rules of IHL on the conduct of hostilities.
In recent years concern has been raised that other than air-delivered use of incendiary weapons in concentrations of civilians can raise similar humanitarian concerns, and thus should be subject to the same restrictions.See, in particular, Human Rights Watch and Harvard Law School International Human Rights Clinic, 'Strengthening the Humanitarian Protections of Protocol III on Incendiary Weapons', Memorandum to Convention on Conventional Weapons (CCW) Delegates, August 2011. Notably, ground-launched incendiary weapons that are set to explode in the air above a target can have an area effect similar to that of air-launched incendiary weapons. Several states have objected to treating treating air-delivery of incendiary weapons differently from other modes of delivery. France declared upon consent to be bound by CCW Protocol III:
The French Republic accepts the provisions of article 2, paragraphs 2 and 3, insofar as the terms used in these paragraphs do not lead to the assumption that an attack using incendiary weapons launched from an aircraft would involve any greater risk of indiscriminate hits than one launched by any other means.
A similar declaration was made by The United Kingdom:
The United Kingdom accepts the provisions of article 2 (2) and (3) on the understanding that the terms of those paragraphs of that article do not imply that the air-delivery of incendiary weapons, or of any other weapons, projectiles or munitions, is less accurate or less capable of being carried out discriminately than all or any other means of delivery.
CCW Protocol III does not constrain the use of incendiary weapons against combatants, although such use could, under general rules of IHL, be deemed to cause superfluous injury or unnecessary suffering. In addition, civilian harm caused by the use of incendiary weapons and of weapons with incendiary effects falling outside of the Protocol’s scope, including within concentrations of civilians, has recently prompted renewed debate about the humanitarian benefit of CCW Protocol III and given rise to calls for a review of its provisions.The 2012 Meeting of High Contracting Parties to the CCW noted that ‘concerns had been raised by some High Contracting Parties under Protocol III about the offensive use of white phosphorous against civilians, including suggestions for further discussion on this matter. The Meeting noted that there was no agreement on various aspects of this matter.’ Final Report, UN doc. CCW/MSP/2012/9, §24. See also, Human Rights Watch and Harvard Law School International Human Rights Clinic, ‘Strengthening the Humanitarian Protections of Protocol III on Incendiary Weapons’, Memorandum to Convention on Conventional Weapons (CCW) Delegates, August 2011.
Last updated on: 07 December 2015