Practice Relating to Rule 84. The Protection of Civilians and Civilian Objects from the Effects of Incendiary Weapons
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’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].
In 1973, in its reply on the report of the UN Secretary-General on napalm and other incendiary weapons and all aspects of their possible use, Denmark stated that it wanted to work out an agreement restricting or prohibiting the use of napalm and other incendiary weapons. It added: “The aim of such agreements should be to restrict or prohibit the use of napalm and other incendiary weapons, especially in circumstances where these weapons have an indiscriminate effect against the civilian population.”
In 1982, at the 7th Extraordinary Session of the UN General Assembly, Denmark expressed its concern on behalf of the European Community over civilian casualties caused by Israel’s use of phosphorous shrapnel during the invasion of Lebanon.
At the Preparatory Conference for the Convention on Certain Conventional Weapons in 1978, Denmark and Norway presented a proposal which stated: “It is prohibited to make the civilian population or individual civilians the object of attack by incendiary weapons.” It also stated: “It is prohibited to make any military objective located within a concentration of civilians the object of attack by incendiary weapons delivered by aircraft, except when that military objective is clearly separated and distinct from the civilian population.” The final rule contained in the proposal provided:
Whenever an attack is made by incendiary weapons in accordance with the above provisions and other applicable rules of international law, all feasible precautions shall be taken to limit the effects of such attack to the military objective itself with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects.
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, Denmark stated:
The [US] reservation appears – with its broad and general formulation – to be contrary to the object and purpose of the  Protocol [III to the Convention on Certain Conventional Weapons]. On this basis, the Kingdom of Denmark objects to the reservation.
The United States has represented that the reservation is intended to only address the highly specific circumstances such as where the use of incendiary weapons is a necessary and proportionate means of destroying counter-proliferation targets, such as biological weapon facilities requiring high heat to eliminate biotoxins, and where the use of incendiary weapons would provide greater protection for the civilian population than the use of other types of weapons.
The Kingdom of Denmark welcomes this narrowing of the scope of the reservation and the humanitarian considerations underlying the reservation of the United States of America. The Kingdom of Denmark further expresses its willingness to engage in any further dialogue, which may serve to settle differences in interpretation.