The "incendiary" effect of white phosphorous in counterinsurgency operations

• Published in: The Army Lawyer p. 84
• Main Author: Reeves, Shane R
• Format: Journal Article Trade Publication Article
• Language: English
• Published: Charlottesville Judge Advocate General's School 01.06.2010; Superintendent of Documents
• Subjects: Casualties; Civilians; Counterinsurgency; Incendiary weapons; Influence; International law; Laws, regulations and rules; Methods; Military aspects; War (International law); Weapons
• ISSN: 0364-1287; 1554-9011

"26 The applicability of Protocol III to white phosphorous thus hinges on whether the munitions' incendiary capabilities are the primary reason for use.27 When white phosphorous munitions are employed for a non-incendiary purpose,28 the munitions clearly fall outside the definition of an "incendiary weapon" and will not be regulated by Protocol III.29 Instead, traditional law of war principles control, and the legality of the white phosphorous munitions, similar to any other weapon not subject to specific international law,30 is determined by compliance with these base rules.31 Fulfilling this legal obligation, therefore, requires the employing actor, prior to the use of non-incendiary white phosphorous, to distinguish civilian and civilian objects from combatants and military objectives,32 to determine the advantage of targeting the military objective,33 and to weigh whether the incidental34 adverse effects on the civilian population would be excessive35 compared to the concrete and direct military advantage expected.36 Assuming the employing actor satisfies these obligations and is not using the munitions to intentionally cause suffering or superfluous injury,37 international law would allow for the use of white phosphorous in the vicinity of the civilian population with no further constraints.38 In contrast, when the primary intent of the white phosphorous use is to "set fire to objects or to cause burn injury to persons," the munition is considered an incendiary,39 and Protocol III will apply.40 Supplementing the civilian protections embedded in the traditional principles of the law of war,41 the specific prohibitions and restrictions on incendiary weapon use found in Protocol III afford civilians and civilian objects additional safeguards from adverse effects.42 Article 2 of Protocol III specifically re-emphasizes the existing prohibition on making the civilian population the object of attack43 and bans the use of air-delivered incendiary weapons against a "military objective,44 located within a concentration of civilians.\n"62 In comparison, the counterinsurgent is "tied to his responsibilities and to his past" and "judged on what he does, not on what he says.