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Dr. Paul Kellogg

Governance 540

Theory Paper 2

John A. Sutherland 2980775

PROTECTING THE LIVES OF CIVILIANS FROM NAPALM BOMBS

Napalm bombs are included within that group of military weapons known as

‘incendiaries”. They are dropped by low level flying planes on supposed military targets. But

because of the nature of these weapon their lethal impact on any living thing within a large area

far exceeds their professed use as a ‘military necessity’ or justification under the doctrine of

‘proportionality’. Like most bombs they affect both combatants and civilian non combatants

indiscriminately. When they explode their fire causes severe burns and asphyxiation in people

who are within a mile radius of the detonation point. Their explosion causes winds that can reach

seventy miles per hour and carry the fire over great distances. The napalm currently available to

military forces worldwide is comprised of “plastic polystyrene” and “hydrocarbon benzene”

(Baglole) which combine to form jellied gasoline which is extremely flammable and burns at an

extremely hot temperature when ignited. It burns twenty times longer than the napalm used by

American forces in Vietnam and consequently can cover a wider area and inflict more damage

on people and property. One discharge of Napalm can destroy an area of two thousand five

hundred square yards. Napalm bombs are especially destructive to people as their jellied gasoline

content sticks to the skin and is hard to remove even when burning. Most people burned by

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napalm die because of the severity of the burns (Chong, 1999). The particularly hideous nature

of this type of bomb was described in court documents filed by the Vietnam Association of

Victims of Agent Orange in an action against chemical companies responsible for making these

bomb ingredients (Vietnam Association for Victims of Agent Orange/Dioxin v. Dow Chemical

Co., 2008).

In today’s world, use of napalm bombs by any military force in wars between states or

across national boundaries raises the issue of what law should be applied to afford protection to

civilians subjected to the horrendous effects of these weapons. The choice is between the

application of International Humanitarian Law on one hand and human rights law on the other.

Whether and to what extent should states be bound by human rights obligations with respect to

the conduct of their armed forces when they cross national boundaries (Cerone, 2006)?

Increasingly the decisions of courts and tribunals dealing with this issue on a global stage have

sided with the application of human rights law. This is due in large part to the ineffectiveness of

international humanitarian law because of its development as an offshoot to the laws of war and

the reluctance by nations to limit their war efforts to protect civilians during military action

(Normand, 1994). Despite continuing objections on the part of a handful of states, a consensus is

evolving in favour of the view that human rights law applies in full alongside humanitarian law

during times of armed conflict and occupation (Cerone, 2006).

Generally ,the international legal community recognizes the Hague Conventions of 1899

and 1907 as restatements of international humanitarian law applicable to all countries. Respected

scholars believe that in the Universal Declaration of Human Rights, in conjunction with the two

International covenants on Human Rights, constitutes an authoritative interpretation of the

human rights obligations of all United Nations members and may contain provisions that qualify

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as customary international law (Weissbrodt, p. 333). Some principles of international

humanitarian law are more specific or more exacting than the provisions of international human

rights law . Humanitarian law applies specifically to emergency situations; international human

rights law permits significant derogations during these same periods.

Human rights law and humanitarian law (i.e. the law of armed conflict) are separate

bodies of international law with distinct modes of application. While human rights law is

primarily concerned with the way a state treats those within its domain, “ humanitarian law aims

at placing restraints on the conduct of warfare so as to diminish its effects on the victims of the

hostilities” (Cerone, p. 1453). International humanitarian law emerged from conferences of

nations that were primarily concerned with the development of the laws of war (Tomuschat,

2010) and wanted to make war more humane. Their object was not to put an end to war or to

limit the use of new and evolving weapons. Actions were taken by the international community

as early as 1899 to prohibit the use of asphyxiating gases (Higgins, 1909, p. 493) because their

use was considered ‘barbarous’. But this principle and others were always read as being subject

to being disregarded if found to be an obstacle to the ‘military necessity’ of warfare. In fact many

countries refused to sign treaties which set out these principles. Similarly laws and customs of

War on Land such as Article 22 while stating that “the right of belligerents to adopt means of

injuring the enemy is not unlimited” (Higgins, 1909, p. 233) never defined the actual limits.

While it was forbidden “to employ arms, projectiles, or material of a nature to cause superfluous

injury” (Higgins, 1909, p. 235) no one chose to define that term to limit their military actions.

Even though it was widely accepted that to protect civilian lives “ the attack or bombardment of

towns, villages, habitations or buildings which are not defended , is forbidden” (Higgins, 1909,

p. 237) military forces generally were able to ignore or rationalize these attacks. Later when the

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1925 Geneva Protocol provided that “the use in war of asphyxiating, poisonous or other gases

and of all analogous liquids, materials or devices has been justly condemned by the general

opinion of the civilized world” and “shall be universally accepted as part of International Law,

binding alike the conscience and the practice of nations” (2008, p. 24)few belligerents respected

this. While Article 50 of the Fourth Geneva Convention listed as a grave breach of the laws of

war the act of “wilfully causing great suffering or serious injury to body or health” (2008, p. 26)

nations acted without regard to limiting their weapons. Nations have continually justified their

military actions as legitimate by quoting these principles of war as either supporting them or not

applying to them because of their vagueness. Little use was made of the principles to make war

more humane especially to protect the rights of civilian non-combatants. While non

governmental agencies such as the International Red Cross and Red Crescent tries to ameliorate

conditions for prisoners of war warring nations did little to protect civilian populations.

It was not until the end of the Second World War that human rights law developed as a

result of the 1945 Nuremberg Charter and the 1951 Nuremberg Principles. Initially these were

enunciated by the allied powers to set standards for judging the actions of Axis leaders during

world War II and to prohibit future war crimes namely violations of the laws and customs of war

and wanton destruction “not justified by military necessity” (2008, p. 26). Initially there was a

general consensus that human rights law should provide protection against state interference with

the lives of civilians. There were four core international crimes-war crimes, crimes against

humanity, genocide and wars of aggression. The Geneva Conventions expands and restricts

international crimes as defined at Nuremberg. First, through their detailed listing of rights, they

expand the list of war crimes by better defining the general categories of international crimes

previously identified. Second, theses conventions expand war crimes law by applying in hostile

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situations where there is no declared or recognized war. Article 147 of convention IV dealing

with the protection of civilians , defines ‘grave breaches’ as acts involving civilians which

incorporate wilful killing or inhumane treatment and wilfully causing of great suffering or

serious injury to body or health.

Human rights law (Smith, 2005), embedded in the inter-state structure of the

international legal system, generally binds states and states alone (Cerone, p. 1448). This has

gradually been broadened to impose on states many commitments to provide protection as well

against interference by private persons and to ensure their effective (‘positive’ rights)

(Tomuschat, p. 16). The paramount human right of course is the right to life but there was no

consensus as to whether human rights law would operate to protect civilians during times of

armed conflict. Many believed and still believe that there is a law of war and a law of peace and

that human rights law only operates during a time of peace. In fact reports prepared by non

government agencies regularly refer to humanitarian law , unlike human rights law , as binding

both governmental and nongovernmental parties to armed conflicts, thereby providing a legal

framework for assessing abuses by al parties: and second human rights law is designed to operate

in times of peace while humanitarian law governs the conduct of military operations

(Weissbrodt, 1988, p. 320).

International humanitarian law still continues to function as a means to salvage what

human rights could be protected notwithstanding a clash of arms. A United Nations expert report

(Nations, 1972) indicated that incendiary weapons such as napalm were being used more and

more in modern warfare with increasingly cruel and destructive effects. In fact the General

Assembly has cited the Geneva Conventions and Additional Protocols in resolutions relating to a

number of armed conflicts since 1977 (Weissbrodt, p. 331). The 1980 Protocol III on

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Prohibitions on the Use of Incendiary Weapons prohibited in all circumstances the making of the

civilian population as such the object of attack by incendiary weapons and restricts their use

against military objectives. The last few years have witnessed a growing number of instances in

which weapons prohibited by the Convention have been used against civilians as weapons of

terror in various conflicts, especially internal conflicts (Nations, U.N.Disarmament Year Book

Vol 18, 1993, p. 202). There have been calls for investigation of these allegations (Nations, The

Fires of War :Napalm and Other Incendiary Weapons , 1973, p. 48). Despite these reports and

votes within the General Assembly of the United Nations to condemn these types of weapons it

is clear that another approach must be taken to protect civilians from napalm as international

humanitarian law does not adequately protect.

For much of the twentieth century , it remained unclear whether human rights law would

apply to a state’s conduct during armed conflict or occupation, with some states having taken the

position that these situations were governed by the ‘lex specialis’ of humanitarian law, to the

exclusion of humanitarian law. Others took the position that human rights law applied in full

alongside humanitarian law. In support of their position they noted that the International

Covenant on civil and Political Rights (ICCPR)and regional human rights treaties contain

provisions permitting derogation from certain obligations in times “of public emergency which

threatens the life of the nation,” (Cerone, p. 1453) the inclusion of which implicitly recognizes

that human rights law applies to all situations, subject to possible derogation with respect to

certain obligations. The fact that the General Assembly has cited the Geneva Conventions and

Additional Protocols with increasing frequency in recent years may represent a trend in which

the United Nations will use these as a tool to raise a combatant’s respect for human rights of

people directly or indirectly at risk in armed conflict. International human rights organizations

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and the General Assembly ordinarily refer in their actions, reports, and resolutions to the

Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights

(ICCPR) and the Convention and Protocol Relating to the Status for Refugees.

Pronouncements and judgments by the International Court of Justice show a trend in the

direction of applying human rights law where humanitarian law is not enforced. In delivering an

advisory opinion in 1996 the court stated “that the protection of the ICCPR rights do not cease in

times of war” (Tomuschat, p. 17). Later in 2004 (Tomuschat, p. 18) the court stated that “as

regards the relationship between international humanitarian law and human rights law, there are

thus three possible situations; some rights may be exclusively matters of international

humanitarian law: others may be exclusively matters of human rights law; yet others may be

matters of both of these branches of international law” (Tomuschat, p. 18). Even regional human

rights courts such as the European Court of Human Rights in Strasbourg have dealt with human

rights during armed conflict. It agreed despite a review of the strategy which Russian forces

should have adopted in Chechnya that the right to life of the victims had been violated

(Tomuschat, p. 20).

When the United Nations and nongovernmental organizations confront human rights

violations in the context of armed conflicts, international humanitarian law often provides an

additional legal foundation fo their concerns. In some case, international humanitarian law may

even offer a stronger basis for human rights work than the Universal Declaration of HUMAN

Rights or the ICCPR (Weissbrodt, p. 332).

All people have a right to a secure existence and all states have an obligation to protect

those rights. The world through the United Nations needs to translate these concepts of security

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into principles that can be embedded in international agreements. Then international community

has an obligation to take action in situations where the security of people is imperilled.

Humanitarian action must to address the security of people and protection of their human rights

must be taken not only at the level of the Security Council but at the level of other UN bodies

and specialized agencies as well as numerous organizations of global civil society (Governance,

1995). The humanitarian law (laws of war) should address our humanitarian aspirations and

impose some form of restraint on the forms that war may legitimately take (Normand, 1994).

Further there is no justification for withdrawing attacks against the civilian population from the

ambit of human rights by blurring the borderline between that population and those involved in

armed activities.

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