Practice Relating to Rule 85. The Use of Incendiary Weapons against Combatants
In 1973, in response to Resolution 2932 A (XXVII) in which the UN General Assembly asked States to comment on the report of the UN Secretary-General on napalm and other incendiary weapons and all aspects of their possible use, Mexico stated that it was in favour of the total prohibition of the use of incendiary weapons, including napalm, to be achieved by an international agreement.
In 1975, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, the representative of Mexico stated:
33. … The ban on incendiary weapons should, in fact, be a total one.
34. He expressed satisfaction that the United Nations General Assembly had reflected the wishes of international opinion regarding the prohibition of incendiary weapons.
In 1976, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Mexico, with respect to the draft protocol relative to the prohibition of the use of incendiary weapons submitted by Norway (see infra), stated:
The actual content of the Norwegian proposal … was discouraging in so far as it appeared to constitute a further attempt to restrict the use of incendiary weapons on the basis of the targets attacked, whereas negotiations thus far had been directed towards the total prohibition of incendiary weapons, or at least of some of them. The extensive information considered at previous meetings of the Committee and at the two sessions of the Conference of Government Experts showed that incendiary weapons were particularly cruel and caused wounds which were difficult to treat. The same sources also showed that the military effectiveness of such weapons was limited, that their tactical value lay mainly in the terror which fire inspired in everyone except trained troops, and that substitutes could be used in practically all the circumstances for which incendiary weapons were employed. Moreover, such weapons were par excellence
weapons which caused superfluous injury. [The prohibition to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering] was absolute. To accept restrictions on the use of incendiary weapons on the basis of the targets attacked would entail the acceptance of one of two assumptions: either incendiary weapons did not cause superfluous injury and therefore did not fall within the meaning of the absolute prohibition laid down in article 33, paragraph 2; or else the Ad Hoc Committee was going to limit the scope of what had already been approved in Committee III. His delegation could accept neither of those assumptions.
At the Preparatory Conference for the Convention on Certain Conventional Weapons in 1978, Mexico stated that its earlier proposal on the prohibition of incendiary weapons ought to be a base for the future treaty.
Mexico proposed the following:
Art. 1. It is prohibited to use incendiary weapons …
Art. 2. The prohibition referred to in the foregoing article shall apply to the use of any munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame and/or heat produced by chemical reaction of the substance delivered on the target. Such munitions include flame-throwers, incendiary shells, rockets, grenades, mines and bombs.
Art. 3. The prohibition referred to in article 1 above shall not apply to munitions which may have secondary or incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems.