What Do International Law and Norms Say About Burning People Alive?

30 August 2013, 0104 EDT

One line of discussion this past week has been whether it makes any kind of moral sense to think that  death by chemical weapon is so much worse than death by “conventional” weapons. Video imagery captured by BBC in the aftermath of another horrific massacre in Syria yesterday throws this into stark relief. At least ten children burned to death and scores others were left with horrifying injuries after a flammable substance was dropped on a school playground yesterday.

I will put together some thoughts on why the chemical weapon taboo is so politically robust whereas an equally comprehensive norm against incendiaries has yet to emerge, but for now some points of fact about the law on incendiary weapons:

  • Because it was aimed at civilians this attack would likely qualify as a grave breach under Common Article 3 of the Geneva Conventions (to which Syria is a party).
  • Incendiaries are (perhaps unbelievably) not banned outright as are chemical weapons. However the use of incendiaries on civilians is specifically banned by the third additional protocol to the 1980 Convention on Conventional Weapons (CCW) – not to be confused with the Chemical Weapons Convention (CWC).
  • Syria is not a party to this treaty and not technically bound by this rule, although the ICRC customary law study seems to suggest that this rule may have passed into customary law due to widespread practice.
  • Human Rights Watch and some other civil society groups have proposed rules for strengthening the regulation of incendiary weapons. Rather than seeking a separate treaty ban (as with landmines or autonomous weapons) humanitarian organizations hope governments will revisit Protocol III at the upcoming Conference of States Parties to the CCW. This latest attack, which occurs with all eyes already on Syria, may strengthen that call.  Notably, however, this is not the first time the Syrian regime has used incendiaries on civilians.

In terms of norms, it will be interesting to see if this new and likely-to-be-highly-publicized atrocity will shift the debate over the legal justification for intervention away from chemical weapons and onto protection of civilians per se. Clearly, the regime can and will do horrific damage even if it never launched another chemical attack, yet the focus has been on deterring further use of chemical weapons rather than deterring conventional attacks on civilians. Will this massacre make a difference in that political framing?