Definitions of CW and why it matters

Another colleague is repeating the assertion that phosphorous is a chemical weapon and was used by the US forces in Fallujah. Therefore the American red line over Syria is hypocritical. I’ve seen this repeated so often recently now that it doesn’t really matter who  wrote this. But what does matter is that while white phosphorous is a chemical and a weapon it is not a scheduled chemical weapon as understood by the Convention on Chemical Weapons. In a twitter exchanger last week on this issue one correspondent argued  that because most people think that phosphorous is a chemical weapon that is what counts – and for that matter Agent Orange and tear gas.

Here is the Federation of American Scientists on phosphorous:

According to the Chemical Weapons Convention Schedule of Chemicals, the chemical P4 is neither a toxic chemical nor a precursor to a toxic chemical. Protocol III of The Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW) prohibits and restricts the use of incendiary weapons in civilian populations. It defines an incendiary weapon as “any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons”; this definition excludes “munitions which may have incidental effects, such as illuminants, tracers, smoke or signaling systems.” Under that qualification, WP is not necessarily considered an “incendiary weapon” if it incidentally sets buildings on fire. The United States has ratified other protocols and amendments of the CCW, but it has not ratified Protocol III.

And here are the schedules of chemical weapons from the Organisation for the Prohibition of Chemical Weapons. Another twitter correspondent pointed out that the protocol is clear that inclusion does not include ‘definition’ which is true but what it does do is attach a widely understood legal ruling of what is understood to be a banned chemical weapon under treaty, which is a fine but important distinction.

The point you can disagree whether phosphorous of Agent Orange – which was legally defined as a defoliant – or even tear gas when used lethally should be included as a chemical weapon under treaty, but the fact as it stands, is that they are not.

Even more importantly, as Human Rights Watch’s director Ken Roth has argued, the use of white phosphorous indiscriminately against civilians (as chemical weapons are) is covered in international law under the proscription on indiscriminate use of force. This is covered in Article 51 of the 1977 Additional protocol of the 1949 Geneva Conventions.

Article 51 [ Link ] — Protection of the civilian population

1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.

2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

3. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.

4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:

(a) those which are not directed at a specific military objective;

(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or

(c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

5. Among others, the following types of attacks are to be considered as indiscriminate:

(a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and

(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

6. Attacks against the civilian population or civilians by way of reprisals are prohibited.

7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57 [ Link ] .

The reason I think these distinctions matter is because just in the same way that journalists or other commentators should discuss the precise applicability of certain laws on the statute book in domestic issues, we should be precise too about international law. If we want to make comparisons between the use of gas in Damascus and other historical events  we need to find properly compatible points.

The question of whether US use of white phosphorous in Fallujah was excessive and indiscriminate is not the same as the question of whether using a banned chemical weapon in a civilian area because the use of sarin will always be illegal and indiscriminate whereas you have to distinguish whether phosphorous is being used legally or illegally.

What I do accept is the wider point that in instances where there have been justifiable concerns over the misuse of phosphorous as an incendiary – which I witnessed myself in southern Lebanon in 2006 – is held to account when it is the US doing it or its ally Israel.

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