Practice Relating to Rule 85. The Use of Incendiary Weapons against Combatants

No data.
ILA Draft Convention for the Protection of Civilian Populations against New Engines of War
Articles 6 and 8 of the 1938 ILA Draft Convention for the Protection of Civilian Populations against New Engines of War provide:
Art. 6. The use of … incendiary … weapons as against any State, whether or not a party to the present convention, and in any war, whatever its character, is prohibited.
The application of this rule shall be regulated by the following … articles.
Art. 8. The prohibition of the use of incendiary weapons shall apply to all projectiles specifically intended to cause fires except when used for defence against aircraft. The prohibition shall not apply:
I. to projectiles specially constructed to give light or to be luminous;
II. to pyrotechnics not normally likely to cause fires;
III. to projectiles of all kinds which, though capable of producing incendiary effects accidentally, are not normally likely to produce such effects;
IV. to incendiary projectiles designed specifically for defence against aircraft when used exclusively for that purpose;
V. to appliances, such as flame-projectors, used to attack individual combatants by fire. 
Draft Convention for the Protection of Civilian Populations against New Engines of War, adopted by the International Law Association, Fortieth Conference, Amsterdam, 29 August–2 September 1938, Articles 6 and 8.
Australia
Australia’s Commanders’ Guide (1994) states, with reference to the 1980 Protocol III to the Convention on Certain Conventional Weapons: “There are no prohibitions on the use of incendiary weapons against combatants.” 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 935.
Belgium
Belgium’s Law of War Manual (1983) states: “The use of [incendiary] weapons against persons is prohibited because they cause unnecessary suffering, but their use against military objectives, such as bunkers, tanks, depots, etc. is permitted.” 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 38.
Canada
Canada’s LOAC Manual (1999) states: “The use of incendiary weapons against combatants is not prohibited unless such use results in superfluous injury or unnecessary suffering.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 5-4, § 35.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Restrictions on the use of weapons”: “The use of incendiary weapons against combatants is not prohibited unless such use results in superfluous injury or unnecessary suffering.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 521.3.
Colombia
Colombia’s Basic Military Manual (1995) prohibits the use of weapons which
cause unnecessary and indiscriminate, widespread, long-term and severe damage to people and the environment. This includes, inter alia: … incendiary weapons, whose production, importation, possession and use are also prohibited by Article 81 of the National Constitution. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, pp. 49–50.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders): “The use of incendiary weapons against combatants is not prohibited unless that use entails superfluous injury or unnecessary suffering.” 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 55.
Israel
Israel’s Manual on the Rules of Warfare (2006) states: “Phosphorus is permitted for use, as long as its use is directed against combatants and not against civilians.” 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 50.
(emphasis in original)
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
New Zealand
New Zealand’s Military Manual (1992) states:
There are no provisions on the use of incendiaries against combatants in [the 1980 Protocol III to the Convention on Certain Conventional Weapons]. The use of incendiary weapons to cause unnecessary suffering is prohibited. A value judgement must be made in particular circumstances to determine whether or not the suffering caused is unnecessary. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, §§ 513(7) and 620(7).
The manual also recalls that:
The UN Conference which negotiated the [1980 Protocol III to the Convention on Certain Conventional Weapons] was unable to agree on any requirement to protect combatants from the effects of incendiary weapons. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 510(f), footnote 49 and § 617(f), footnote 37.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
3. Means and Methods of Warfare
Several specific weapons are governed by specific treaties. These treaties establish two categories of weapons, to wit[:]
- Weapons of which the use is totally prohibited; and
- Weapons of which the use is permitted under certain conditions.
Weapons of which the use is Permitted under Certain Conditions:
- Incendiary Weapons (Geneva Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons dated 10 October 1980)
Definition.
“Incendiary weapon” means any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat or a combination thereof, produced by a chemical reaction of a substance delivered on the target.
- Examples. Incendiary weapons can take the form of flamethrowers, shells, rockets, grenades, mines, bombs or other containers of incendiary substances (also Napalm, phosphorous bombs).
- The following are not considered to be incendiary weapons:
- Munitions which may have incidental incendiary effects, such as illuminants[,] tracers, smoke or signalling systems; or
- Munitions designed to combine penetration, blast or fragmentation effects with an additional incendiary effect, such as armour[-]piercing projectiles, fragmentation shells, explosive bombs and similar combined effects munitions in which the incendiary effect is not specifically designed to cause burn injury to persons, but to be used against military objectives such as armoured vehicles, aircraft and installations or facilities.
- Conditions for Permitted Use (Geneva Protocol III Article 2):
[-] Incendiary weapons which are not air delivered may be used[:]
- When the military objective is clearly separated from any concentration of civilian persons; and
- Subject to precautions to limit incendiary effects to the military objective when the tactical situation permits. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 3, pp. 174, 176 and 178–179.
[emphasis in original]
The manual further states:
Targeting Considerations and Means and Methods of Air Warfare
- During armed conflict, enemy military aircraft and missiles may be attacked and destroyed in airspace anywhere outside of neutral jurisdiction.
- Attack against aircraft may be made by any method or weapon, not otherwise prohibited, including air-to-air or ground-to-air missiles, and explosive or incendiary projectiles.
- The use of incendiary projectiles, limited in some uses on land, was expressly recognised as not prohibited against aircraft by the 1923 Draft Hague Rules of Air Warfare. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 4, pp. 217–218.
Sweden
Sweden’s IHL Manual (1991) states:
[The 1980] Protocol III [to the Convention on Certain Conventional Weapons] contains restrictions applying where incendiary weapons are used.
At the same time it must be noted that it has not been possible to reach agreement on a rule that would also afford combatants protection against these weapons.
There is a need to supplement the present Protocol III so that the agreement constitutes a complete prohibition of incendiary weapons. In this way, protection of civilians could be further enhanced, and this should be extended to cover combatants. For, in fact, the latter also experience injury from incendiary weapons as unnecessary suffering. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 3.3.2, pp. 81–83.
[emphasis in original]
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “The use of flame throwers when directed against military targets is lawful. However, their use against personnel is contrary to the law of war in so far as it is calculated to cause unnecessary suffering.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 110, footnote 1.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
6.12.1. Although [incendiary weapons] can cause severe injury to personnel, their use is lawful provided the military necessity for their use outweighs the injury and suffering which their use may cause.
6.12.6. Use of weapons such as napalm and flame-throwers against combatant personnel is not dealt with specifically in the Conventional Weapons Convention or any other treaty. Such uses are governed by the unnecessary suffering principle so that they should not be used directly against personnel but against armoured vehicles, bunkers and built-up emplacements, even though personnel inside may be burnt. The same applies to white phosphorous, which is designed to set fire to targets such as fuel and ammunition dumps or for use to create smoke, and which should not be used directly against personnel. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 6.12.1 and 6.12.6.
United States of America
The US Field Manual (1956) states:
The use of weapons which employ fire, such as tracer flame-throwers, napalm and other incendiary agents, against targets requiring their use is not a violation of international law. They should not, however, be employed in such a way as to cause unnecessary suffering to individuals. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 36.
United States of America
The US Air Force Pamphlet (1976) states:
Incendiary weapons, such as incendiary ammunition, flame throwers, napalm and other incendiary agents have widespread uses in armed conflict. Although evoking intense international concern, combined with attempts to ban their use, state practice indicates clearly they are regarded as lawful in situations requiring their use. Conventional incendiary weapons are normally employed against materiel targets and combatants in the vicinity of such targets, such as pill boxes, tanks, vehicles, fortifications, etc. Use in ground support of friendly troops in close contact with enemy troops is an important use. Such uses are justified by the military effectiveness of incendiary weapons demonstrated during World War I, Word War II, Korea, Vietnam and other conflicts. Controversy over incendiary weapons has evolved over the years partly as the result of concern about the medical difficulties in treating burn injuries, as well as arbitrary attempts to analogise incendiary weapons to prohibited means of chemical warfare … Additionally, incendiary weapons must not be used so as to cause unnecessary suffering. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 6-6(c).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
No data.
China
Upon signature of the 1980 Convention on Certain Conventional Weapons, China stated:
The Protocol [to the Convention on Certain Conventional Weapons] on Prohibitions or Restrictions on the Use of Incendiary Weapons does not stipulate restrictions on the use of such weapons against combat personnel. 
China, Declaration made upon signature of the Convention on Certain Conventional Weapons, 14 September 1981, § 3.
Denmark
At the Preparatory Conference on the Convention on Certain Conventional Weapons in 1978, Denmark and Norway presented a proposal prohibiting, inter alia, making military personnel as such the object of attack by incendiary weapons except when “the personnel is engaged or about to engage in combat or being deployed for combat engagement” or “the personnel is under armoured protection, in field fortifications or under similar protection”. 
Denmark and Norway, Draft proposal on incendiary weapons submitted to the Preparatory Conference on the Convention on Certain Conventional Weapons, UN Doc. A/CONF.95/PREP.CONF./L.12, 13 September 1978.
Indonesia
At the Preparatory Conference on the Convention on Certain Conventional Weapons, Indonesia submitted a draft proposal, which developed the proposal submitted during the CDDH. 
See Indonesia, Proposal concerning incendiary weapons submitted to the Ad Hoc Committee on Conventional Weapons established by the CDDH, Official Records, Vol. XVI, CDDH/IV/223 within CDDH/IV 226, 21 April 1977, p. 578.
Indonesia proposed a prohibition of the use of incendiaries, except against “military objects other than personnel” and “against combatants holding positions in field fortifications such as bunkers and pillboxes where the use of alternate weapons will inevitably render more casualties”. 
Indonesia, Draft proposal on incendiary weapons submitted to the Preparatory Conference on the Convention on Certain Conventional Weapons, UN Doc. A/CONF.95/PREP.CONF./L.13, 22 March 1979.
Italy
In 2005, in reply to a question concerning the use of chemical weapons in Iraq, the Italian Under-Secretary of State for Defence stated:
[T]he operational procedures regarding the employment of man-portable and detachment arms envisage the possibility to space out some tracer cartridges, which have on the bottom of the bullet the quantity of phosphorus needed to show a trace in order to verify the shots’ destination and to proceed to the adjustment of the selective fire, which is necessary to prevent the undesired effects of the fire. Such employment is absolutely consistent with international law provisions.  
Italy, Chamber of Deputies, Statement by the Under-Secretary of State for Defence, 1 December 2005, published in Italian Yearbook of International Law, vol. XV, 2005, pp. 381–382.
Jordan
With reference to a press conference by the King of Jordan in 1967, the Report on the Practice of Jordan states: “The Jordanian army was constantly bombarded with napalm bombs throughout the 1967 War. Jordan condemned officially the use by Israel of this horrible weapon.” 
Report on the Practice of Jordan, 1997, Chapter 3.5, referring to press conference by his Majesty the King of Jordan, 19 June 1967.
Norway
Norway submitted a “Draft Protocol Relative to the Prohibition of the Use of Incendiary Weapons” to the Ad Hoc Committee on Conventional Weapons established by the CDDH which read, inter alia, as follows:
Article 1 – Field of application
The present Protocol shall apply in the situations referred to in articles 2 and 3 common to the Geneva Conventions of August 12, 1949 for the Protection of War Victims.
Article 3 – General prohibition
With the further limitations spelled out in the present Protocol and subject to the provisions of [the 1977 Additional Protocol I], incendiary weapons may only be used against objects that are military objectives in the sense of article 47, paragraph 2 of the said Protocol, including in close support of friendly forces.
The use of incendiary weapons against personnel is prohibited.
Nevertheless, the presence of combatants or civilians within or in the immediate vicinity of legitimate targets as described in this article does not render such targets immune from attacks with incendiary weapons.
Article 5 – Precaution in attack
Any use of incendiary weapons is subject to article 50 of [the 1977 Additional Protocol I].
In addition, it is prohibited to launch an attack with incendiary weapons except when:
(a) the location of the target is known and properly recognized, and
(b) all feasible precaution is taken to limit the incendiary effects to the specific military objectives and to avoid incidental injury or incidental loss of lives. 
Norway, Draft protocol relative to the prohibition of the use of incendiary weapons submitted to the Ad Hoc Committee on Conventional Weapons established by the CDDH, Official Records, Vol. XVI, CDDH/IV/207 within CDDH/IV/226, pp. 567–569.
Norway
At the Preparatory Conference on the Convention on Certain Conventional Weapons in 1978, Denmark and Norway presented a proposal prohibiting, inter alia, making military personnel as such the object of attack by incendiary weapons except when “the personnel is engaged or about to engage in combat or being deployed for combat engagement” or “the personnel is under armoured protection, in field fortifications or under similar protection”. 
Denmark and Norway, Draft proposal on incendiary weapons submitted to the Preparatory Conference on the Convention on Certain Conventional Weapons, UN Doc. A/CONF.95/PREP.CONF./L.12, 13 September 1978.
Poland
At the Preparatory Conference on the Convention on Certain Conventional Weapons in 1979, during the general debate on the second proposal made by Australia and the Netherlands, Poland stated that it hoped that
the extensive debate on the total prohibition of the use of such weapons in inhabited areas would eventually lead to the elimination of at least the most drastic and indiscriminate weapons in that category, and might help to restrict the use of incendiaries against military personnel when they inflicted unnecessary suffering. 
Poland, Statement at the Preparatory Conference on the Convention on Certain Conventional Weapons, UN Doc. A/CONF.95/PREP.CONF/II/ SR.28, 18 April 1979, p. 2, § 2.
United Kingdom of Great Britain and Northern Ireland
In 2008, in response to a question in the House of Commons, the UK Secretary of State for Defence wrote regarding operations in Afghanistan: “In accordance with the UN third convention on conventional weapons [i.e. Protocol III to the Convention on Certain Conventional Weapons], UK training in the use of white phosphorus emphasises that it should … not [be used] as an anti-personnel weapon.” 
United Kingdom, House of Commons, Written Statement by the Secretary of State for Defence, Hansard, 23 February 2009, Vol. 488, Written Statements, col. 18W.
Union of Soviet Socialist Republics
In 1969, in the context of the adoption of UN General Assembly Resolution 2444 (XXIII), the USSR stated:
For the purpose of crushing the resistance of the Arabs [in the territories occupied by Israel], the aggressors from Israel are continuing to use napalm, which is forbidden by international law.
The criminal, inhuman acts of the imperialist States are a shameful violation of international law, and also of the resolutions of the International Conferences of the Red Cross. 
USSR, Reply dated 30 December 1969 to the UN Secretary-General regarding the preparation of the study requested in paragraph 2 of General Assembly Resolution 2444 (XXIII), annexed to Report of the Secretary-General on respect for human rights in armed conflicts, UN Doc. A/8052, 18 September 1970, Annex III, p. 120.
United Kingdom of Great Britain and Northern Ireland
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, the United Kingdom emphasized that incendiary weapons must not be used to create unnecessary suffering and recommended further study of this issue. 
United Kingdom, Reply sent to the UN Secretary-General, reprinted in Report of the Secretary-General on napalm and other incendiary weapons and all aspects of their possible use, UN Doc. A/9207/rev.1 add.1, 11 October 1973.
United States of America
At the Preparatory Conference on the Convention on Certain Conventional Weapons in 1979, the United States explained that it could not accept a restriction on the use of incendiaries against combatants for two reasons. First, “troops in or near the targets attacked with incendiaries would inevitably be killed, and commanding officers would risk being charged with violating the antipersonnel restriction”. Second, “the establishment of any rule embodying a comprehensive set of exceptions would not change present practices and its effect would be purely cosmetic”. 
United States, Statement at the Preparatory Conference on the Convention on Certain Conventional Weapons, UN Doc. A/CONF.95/PREP.CONF/II/ SR.28, 18 April 1979, pp. 2–3, §§ 5–6.
United States of America
Course material from the US Army War College, which is also used by the US Marine Corps, states: “a) Incendiaries are lawful when utilized for the purpose(s) for which they were designed. b) There is NO prohibition on the use of napalm or flame-throwers against enemy personnel.” 
United States, Marine Corps, Reference Material for Marine Corps Law of Warfare Course, Army War College Selected Readings, Advanced Course Law for the Joint Warfighter, Vol. II, Second edition, 1989, p. 256.
(emphasis in original)
UN General Assembly
In a resolution adopted in 1974, the UN General Assembly condemned “the use of napalm and other incendiary weapons in armed conflicts in circumstances where it may affect human beings”. 
UN General Assembly, Res. 3255 (XXIX), 9 December 1974, § 1, voting record: 108-0-13-17.
UN General Assembly
In a resolution adopted in 1976 on incendiary and other specific conventional weapons which may be the subject of prohibitions or restrictions of use for humanitarian reasons, the UN General Assembly:
Invites the Diplomatic Conference [on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts] to accelerate its consideration of the use of specific conventional weapons, including any which may be deemed to be excessively injurious … and to do its utmost to agree for humanitarian reasons on possible rules prohibiting or restricting the use of such weapons. 
UN General Assembly, Res. 31/64, 10 November 1976, § 2, adopted without a vote.
No data.
Preparatory Conference for the Convention on Certain Conventional Weapons
Towards the end of the Preparatory Conference for the Convention on Certain Conventional Weapons in 1979, Austria, Egypt, Ghana, Jamaica, Mexico, Romania, Sweden, Venezuela, the Socialist Federal Republic of Yugoslavia and Zaire, which had earlier sponsored a proposal which called for a total ban, submitted a proposal which restricted the ban on the use of incendiary weapons to use against civilians and against “combatants except when they are in, or in the vicinity of, armoured vehicles, field fortifications or other similar objectives”. 
Draft protocol on incendiary weapons submitted to the Conference on the Convention on Certain Conventional Weapons by Austria, Egypt, Ghana, Jamaica, Mexico, Romania, Sweden, Venezuela, Socialist Federal Republic of Yugoslavia and Zaire, UN Doc. A/CONF.95/ CW/L.1, 26 September 1979, pp. 1–2.
No data.
No data.
Human Rights Watch
In 1994, in a report on the arms trade and violations of IHL in Angola, Human Rights Watch stated that UN officials had accused the Angolan Government of systematically bombing UNITA-controlled areas with incendiary bombs in 1992. 
Human Rights Watch, Angola: Arms Trade and Violations of the Laws of War Since the 1992 Elections, New York, November 1994, p. 77.
Ofcansky and Berry
It has been reported that in the context of the conflict in Ethiopia, “the Ethiopian armed forces had used napalm and cluster bombs against separatists in Eritrea and Tigray”. 
Thomas P. Ofcansky and LaVerle Berry (eds.), Ethiopia: A Country Study, Government Printing Office, Washington D.C., Fourth edition, 1993, p. 328.