Practice Relating to Rule 84. The Protection of Civilians and Civilian Objects from the Effects of Incendiary Weapons
Switzerland’s Basic Military Manual (1987), with reference to the 1980 Protocol III to the Convention on Certain Conventional Weapons, states: “It is forbidden to use incendiary weapons against civilian objects or against a military objective that is not clearly separated from a concentration of civilians.”
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
16.2 Means of warfare permitted under conditions
231 These include:
3 incendiary weapons: the use of incendiary weapons against civilians or military objectives situated inside a concentration of civilians is prohibited, unless the effects of the weapons’ use remain limited to the military objective. In addition, the use of incendiary weapons against natural vegetation is prohibited, unless it is a military objective.
In 2010, in its objection to the reservation by the United States of America to the 1980 Protocol III to the Convention on Certain Conventional Weapons, Switzerland stated:
Upon depositing the instrument of ratification of Protocol III to the Convention on Certain Conventional Weapons on 21 January 2009, the United States of America made a reservation with reference to paragraphs 2 and 3 of article 2 of the said Protocol. According to the reservation, the United States
“reserve[s] 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”.
Switzerland appreciates the willingness expressed by the United States to take all feasible precautions to protect the civilian population and individual civilians not directly participating in hostilities. Switzerland considers that these measures are in keeping with the fundamental principle of distinction under international humanitarian law, a principle that is enshrined, in particular, in articles 57 (2) (ii) and 57 (4) of the first 1977 Protocol Additional to the Geneva Conventions of 1949. These provisions require each party to a conflict to “take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects”.
Nonetheless, Switzerland considers that the reservation made by the United States is incompatible with the object and purpose of Protocol III, and therefore it objects to the reservation for the following reasons: in Switzerland’s view, paragraphs 2 and 3 of article 2 are core provisions that set out an absolute prohibition of the use of air-delivered incendiary weapons against military objectives located within concentrations of civilians (paragraph 2) and of attacks by means of incendiary weapons other than air-delivered incendiary weapons, except when such military objective is clearly separated from the concentration of civilians (paragraph 3). These provisions were designed as specific rules that replace and strengthen the general customary and treaty obligations arising from international humanitarian law for the purpose of guaranteeing the full protection of civilians from incendiary weapons. The reservation made by the United States does not take into consideration the specific nature of paragraphs 2 and 3 of article 2.
Switzerland considers that this objection does not constitute an obstacle to the entry into force of Protocol III as between Switzerland and the United States of America.
In 2013, in a statement at the Meeting of the High Contracting Parties to the Convention on Certain Conventional Weapons, the permanent representative of Switzerland stated:
The community of States cannot remain indifferent to the human suffering caused by armed conflicts. It was in direct response to this fundamental concern that the CCW [1980 Convention on Certain Conventional Weapons] and its protocols were adopted, with a view to prohibiting or limiting the use of certain specific types of weapon known to inflict superfluous injury or unnecessary suffering, or to strike indiscriminately.
In this regard, Switzerland is deeply concerned by the alleged use of weapons in Syria falling within the ambit of the CCW and its respective protocols, such as the alleged use of anti-personnel mines as well as the alleged use of incendiary weapons in populated areas causing severe human suffering. We call upon all parties to the conflict to comply with their obligations under international law, in particular the principles of distinction, precaution, and proportionality.