Written by: Maria Gevorgyan
Incendiary weapons produce heat and fire as a result of the chemical reaction of the combustible substance. They cause excruciating burns, sometimes to the bone, and can cause respiratory damage, infection, shock, and organ failure. Over time, contractures—constant tension in muscles and other tissues—prevent mobility, while the trauma of the initial seizure, painful procedures, and appearance-changing scars lead to psychological damage and social isolation. Fires caused by incendiary weapons can also destroy civilian buildings and property, damage crops, and kill livestock. According to the official statement of the Human Rights Ombudsman of Artsakh (also referred to as Nagorno-Karabakh), as of November 2, 2020, at least 1815 hectares forest area of Artsakh was deliberately burned by the Azerbaijani Armed Forces.
Furthermore, an official information from the Human Rights Ombudsman of Artsakh was received on the damage of the gas pimples in number of civilian communities (e.g., Nngi, Taghavard, Aknaghbyur, Sghnakh). Other than being extremely dangerous, the burn of gas pimples caused a deprivation of the use of gas as an object the indispensable to the survival of the civilian population. Civilian deaths have also been recorded. In addition, inadequate resources available to healthcare providers in situations of armed conflict exacerbated the already difficult process of treating serious burns.
At the Certain Conventional Weapons (CCW) Review Conference held in December 2021, concerns were expressed about the recent rising number of reports of the use of incendiary weapons against civilians. There was also the condemnation of the use of incendiary weapons against civilians or civilian objects, as well as any other use incompatible with the relevant rules of international humanitarian law. The United Nations Mines Action Service (UNMAS), also speaking on behalf of the UN Inter-Agency Coordination Group on Mine Action (IACG-MA), noted that 90 percent of victims are civilians when explosive weapons are used in populated areas. UNMAS also welcomed the momentum generated by the informal consultations led by Ireland to develop a political declaration that addresses the humanitarian impact on the use of EWIPA. The UN Office for the Coordination of Humanitarian Affairs (OCHA), ICRC and INEW also welcomed the collective commitment embodied in the declaration to restrict the use of explosive weapons in populated areas, and ensure assistance to survivors as part of a range of measures to strengthen the protection of civilians in armed conflict and respect for international humanitarian law.
The Review Conference itself did not accept a mandate to revise and amend Protocol III. CCW Protocol III seeks to protect civilians and civilian objects by regulating the use of incendiary weapons in “concentrations of civilians” and in “forests and other kinds of plant cover.” Nevertheless, it contains two legal loopholes that reduce its effectiveness.
One, the protocol’s definition of incendiary weapons excludes most multipurpose incendiary weapons such as white phosphorus. Protocol III’s definition of incendiary weapons arguably excludes most multipurpose incendiary munitions. According to Article 1(1), an incendiary weapon is “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 combination thereof, produced by a chemical reaction of a substance delivered on the target.” The definition does not encompass munitions, like those containing white phosphorus, that set fires and cause burns but are “primarily designed” to create smokescreens or signal troops. The nature or magnitude of impact or injury is not considered, as long as its primary purpose is considered beyond the scope of the protocol. The applicability of Protocol III thus depends largely on how developers, manufacturers, and users describe the purpose of a weapon.
Two, the protocol has weaker restrictions on ground-based weapons than on airborne ones, even though they have the same damaging effect. Protocol III draws an arbitrary and outdated distinction between air-dropped and ground-launched incendiary weapons. It prohibits the use of air-dropped models of any military objective located within a concentration of civilians, but the provision on the use of ground-launched incendiary weapons in such areas includes several caveats, falling short of a ban. This loophole ignores the reality that incendiary weapons cause the same horrific burns and destructive fires regardless of their delivery mechanism. In addition, ground-launched incendiary weapons, especially when delivered by multi-barrel rocket launchers, can have wide area effects comparable to air-dropped ones, which makes them dangerous to civilians when used in populated areas. Furthermore, non-state armed groups have greater access to ground-launched incendiary weapons and may feel less pressure not to use them if international law, and the resulting norm, is less than absolute.
Incendiary weapons cause devastating burns, much worse than any of the standard scalding or fire burns. Incendiary attacks often result in burns covering more than 15 percent of the body’s surface area. From impact to treatment and even after being discharged from the hospital, incendiary weapon burns cause excruciating pain. Patients with severe burns require maximum doses of pain medication, once or twice a day. However, it is possible that the maximum dose may not be enough. For example, in an interview conducted by the Center for Truth and Justice, a witness AUA0097 stated that her son, who sustained severe burns from the use of white phosphorus during the Second Nagorno-Karabakh war, found no relief in reducing his pain through the use of medication.
Exposure to incendiary weapons often damages the respiratory system. Burns to the head and neck can lead to inflammation of the upper airways, making it difficult to breathe. Incendiary weapons also emit carbon monoxide and carbon dioxide, which, if inhaled, can cause poisoning and respiratory or organ failure.
One type of incendiary weapons that has been frequently used in modern warfare is white phosphorus. White phosphorus burns usually require a longer hospital stay than other burns that cover the same percentage of the body, due to their severity and the ability of white phosphorus to continue burning inside the body. For example, witness AUA0097’s son needed two plastic surgeries after he sustained his injuries. Even after his operation, particles of white phosphorus remained on his head.
White phosphorus munitions often inflict second and third degree partial and full-thickness burns and also cause severe eye irritation, paralysis, seizures, and fatal cardiac arrhythmias. Often you can see smoke coming from the wound because white phosphorus continues to burn. White phosphorus is also extremely toxic and burns of less than 10% of a body may prove fatal due to the damage to internal organs. Witness AUA0097 indicated that her son developed left-sided paralysis. Direct eye burns can also result in the loss of one or both eyes.
In addition to inflicting bodily harm, incendiary weapons cause fear, horror and panic among survivors, bystanders and their families. The testimony the Center for Truth and Justice collected show that that those who had been injured during the Second Nagorno-Karabakh war were frightened and in agony, and their family were also deeply traumatized. There can often be social isolation here. Mental health problems associated with burn injuries include, but are not limited to, anxiety, depression, post-traumatic stress disorder (PTSD), discouragement, helplessness, and loneliness. Due to feelings of powerlessness or helplessness, some survivors may predictably progress towards the desire to die or commit suicide. Such anxiety can be associated both with an injury resulting from a burn, and with fear of painful treatment, knowing that it will have to be done every day. For example, witness AUA0097 mentioned that her son has expressed that he did not want to live, and he refuses to continue treatment due to various complications, such as the inability to insert an intravenous needle in his arm because of the burn.
Survivors and their families may experience economic consequences from incendiary weapons. Injuries can create barriers to work. Many burn victims are unable to return to their old job or cannot find a new one.
The lack of medical staff also exacerbates the harm from incendiary weapons. In addition, there are a limited number of medical workers in hospitals in the conflict zone, not to mention those who have received the necessary training necessary to properly care for burn patients.
Testimony reveals the horrific injuries inflicted on people, the lasting physical and mental effects, and the extensive treatment required to care for the victims. It should be noted that this unacceptable harm does not depend on whether it comes from white phosphorus or weapons that are considered to be incendiary weapons under Protocol III and whether these weapons are delivered by air or by land. Testimonies collected from doctors collected by the Center for Truth and Justice also show that there is an infliction of unnecessary suffering that does not comply with the principle of proportionality that is the cornerstone of international humanitarian. law. Such suffering is unnecessary for civilians and combatants alike.
There is an urgent need to draw attention to the human suffering caused by incendiary weapons. This suffering should be the primary factor shaping legal norms regulating the use of incendiary weapons.
 AD HOC Public report on the use of incendiary ammunition of mass destruction (incendiary weapon) against civilian objects of Artsakh (Nagorno-Karabakh) by the Azerbaijani Armed Forces (2020). Available at: https://www.ombuds.am/images/files/ea04773e0fcf3a7e4dadb87e9b73d360.pdf (accessed August 7, 2022).
 Human Rights Watch organised an open letter from more than 50 healthcare professionals, medical related organisations, and burn survivor groups urging governments to strengthen international law on IWs. They called on states to address this issue at the Conference as a humanitarian imperative.
 CCW Meeting of High Contracting Parties, “Final Report,” CCW/MSP/2019/9, Geneva, November 13-15, 2019, para. 25.
 Action on Armed Violence, Explosive Violence Monitor 2020 (2021). Available at: https://www.unocha.org/fr/themes/explosive-weapons-populated-areas (accessed August 7, 2022).
 Draft Political Declaration on Strengthening the Protection of Civilians from Humanitarian Harm arising from the use of Explosive Weapons in Populated Areas (2022) Available at: https://www.dfa.ie/media/dfa/ourrolepolicies/peaceandsecurity/ewipa/Draft-Political-Declaration-17032020.pdf (accessed August 7, 2022).
 ICRC (2022) Ireland to present draft declaration to protect civilians from explosive weapons in populated areas. Available at: https://www.icrc.org/en/document/ireland-present-draft-declaration-protect-civilians-explosive-weapons-populated-areas (accessed August 7 2022).
 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) art. 2 para. 2, Oct. 10, 1980.
 Protocol III art. 2 para. 4.
 Protocol III art. 1 para. 1.
 Major Shane R. Reeves, a military officer and professor at the US Military Academy at West Point, interprets Protocol Ill to exclude white phosphorus when it is intended for something other than burning. Major Reeves explained: “[W]hen white phosphorus munitions are employed for a non-incendiary purpose,” such as to create a smokescreen, “the munitions clearly fall outside the definition of an ‘incendiary weapon’ and will not be regulated by Protocol Ill.” Even though “white phosphorous is at times employed solely because of its ‘incidental’ incendiary effects, thus essentially converting the munition into an incendiary weapon,” the current design-based definition in Protocol Ill ensures that white phosphorus escapes regulation. Maj. Shane R. Reeves, “The ‘Incendiary’ Effect of White Phosphorous in Counterinsurgency Operations,” The Army Lawyer (June 2010), p.86, https://ssrn.com/ abstract=2295118 (accessed August 7, 2022).
 Aviv et al., “The Burning Issue of White Phosphorus: A Case Report and Review of the Literature,” Disaster and Military Medicine, p. 4; Loai Barqouni, Nafiz Abu Shaban, and Khamis Elessi, “Interventions for Treating Phosphorus Burns (Review),” Cochrane Database of Systematic Reviews, vol. 6 (2014), p. 3; Jill S. Waibel, Kim Phuc Phan Thi, and Leonard J. Hoenig, “Decades after Napalm Burns: Healing the Scars of the ‘Napalm Girl,’” Journal of the American Medical Association Dermatology, vol. 154 (2018), p. 1228.
 Human Rights Watch-IHRC video interview with Dr. Stephanie Nitzschke, October 15, 2020.
 Human Rights Watch-IHRC video interview with Christine Collins, critical care nurse and former US Air Force captain, October 10, 2020; Human Rights Watch-IHRC video interview with Dr. Stephanie Nitzschke, burn specialist, Brigham and Women’s Hospital, October 15, 2020.
 Gregory T. Guldner and Curtis Knight, “Napalm Toxicity,” StatPearls; Tian et al., “Epidemiology and Outcome Analysis of Facial Burns: A Retrospective Multicentre Study 2011–2015,” Burns, p. 494; Peter Reich and Victor W. Sidel, “Napalm,” New England Journal of Medicine, vol. 277 (1967), p. 87.
 Eldad et al, “Phosphorus Burns: Evaluation of Various Modalities for Primary Treatment,” Journal of Burn Care & Rehabilitation, p. 49.
 B’Tselem, “Testimony: Members of Abu Halima family killed and burned in army’s bombing of their house, 4 January 2009.”
 Berndtson et al., “White Phosphorus Burns and Arsenic Inhalation: A Toxic Combination,” Journal of Burn Care & Research, pp. e129; Matthias Frank et al., “Not All that Glistens is Gold: Civilian White Phosphorus Burn Injuries,” American Journal of Emergency Medicine, vol. 26 (2008), p. 947.e5.
 Kemal T. Saracoglu et al., “Delayed Diagnosis of White Phosphorus Burns,” Burns, vol. 39 (2013), p. 825.
 Berndtson et al., “White Phosphorus Burns and Arsenic Inhalation: A Toxic Combination,” Journal of Burn Care & Research, p. e130.
 Trong-Duo Chou et al., “The Management of White Phosphorus Burns,” Burns, vol. 27 (2001), p. 496.
 Allison E. Berndtson et al., “White Phosphorus Burns and Arsenic Inhalation: A Toxic Combination,” Journal of Burn Care & Research, vol. 35 (2014), pp. e129.
 Uri Aviv et al., “The Burning Issue of White Phosphorus: A Case Report and Review of the Literature,” Disaster and Military Medicine, vol. 3 (2017), p. 4.
 Human Rights Watch-IHRC video interview with Dr. Stephanie Nitzschke, October 15, 2020.
 Vahid Zamanzadeh et al., “Preserving Self-Concept in the Burn Survivors: A Qualitative Study,” Indian Journal of Palliative Care, vol. 21 (2015), p. 182. Available at: https://www.researchgate.net/publication/276422933_Preserving_Self-Concept_in_the_Burn_Survivors_A_Qualitative_Study (accessed August 7, 2020).
 Human Rights Watch-IHRC video interview with Dr. Jeffrey Schneider, October 21, 2020.
 Ibid. See also BMS National Data & Statistics Center, Burn Model System Summary Report (1994–2019), 2020. Available at: https://burndata.washington.edu/sites/burndata/files/files/2020BMS_Annual_Report(1).pdf (accessed August 7, 2020).
 Human Rights Watch-IHRC video interview with Dr. Rola Hallam, October 15, 2020. See also World Health Organization, “Achieving the Health-Related MDGs. It Takes a Workforce!”. Available at: https://www.who.int/hrh/workforce_mdgs/en/ (accessed August 7, 2020).