Australian White Phosphorus bombing of Syrian Army is it considered a war crime under the Geneva Protocols on Incendiary weapons? By Tim Tufuga

(RAAF FA 18 courtesy ABC Australia)

Under the general scope of the Incendiary weapons munitions definition as defined as an illegal chemical weapon, the White Phosphorous (WP) bombing of the Syrian Army positions killing an estimated hundred or so Syrian Soldiers at a military base near the Deir al-Zor military airport, East of Syria, may have constituted a war crime under the 1980 Protocols on Incendiary Weapons (Convention on certain conventional weapons)?

According to the 1980s Protocols on Incendiary Weapons, this indictment against Australia may be considered a valid moot, particularly, under the general definition that,

“ any weapon or munition which is primarily designed to set fire to objects or to burn injury to persons through the action of flame, heat, or combination thereof, produced by a chemical reaction of a substance delivered on that target. “

However, in defence of its military use, in a tactical combat situation, white phosphorus primary military function, is to act as an illuminant and, or an obscurant (smoke screen), supportive function, in actual tactical combat operations, and it is not considered as a primary weapon to destroy enemy targets. With this definition of White Phosphorus chemical weapon ordnances primary illuminant and obscurant function and not as a primary weapon to inflict lethal effects upon a military targets, renders the deaths of military targets as merely incidental deaths caused by the white phosphorus illuminant weapon.

In this later definition of White Phosphorus chemical weapon delivery upon the Syrian Army positions causing the deaths of nearly a hundred military and civilian personnel, therefore, does not constitute a war crime under the Protocols on Incendiary Weapons by the Geneva convention 1992, particularly, under section (b) of the 1992 definition, whereby,

“ Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those chemicals specified…”

The keywords, in this updated version, is whether the White Phosphorus is specifically designed. If the primary function of the White Phosphorus was to illuminate the target area then the specific design of the weapon is not considered to be a primary weapon and therefore exonerates Australia from having committed a war crime.

However, when compared to the initial 1980 Protocols on Incendiary Weapons, the definition seems unambiguous and would have levelled the culpability of using White Phosphorus as a certain type of an actual conventional weapon to inflict actual lethality then Australia has indeed committed a war crime.

Just to reiterate, in no uncertain terms, that the more clarified definition of the delivery of an illuminant weapon by the Australian FA18 bombing sortie upon a Syrian Army position, near the Deir al-Zor military airport, was not considered as a primary weapon to destroy and neutralise a military target, in this definition Australia has not committed a war crime, and under the specific definitions extrapolated within the 1992 Protocols on Incendiary Weapons of the Geneva Conventions on Certain Conventional Weapons, the Australian use of White Phosphorus upon a Syrian Army military post accidentally killing Syrian soldiers is not considered a culpable war crime and that the Australian government can not possibly have committed a war crime.

Tim Tufuga
26th September, 2016.


Sources:

1. White Phosphorus, Weapons Law Encyclopedia, http://www.weaponslaw.org/weapons/white-phosphorus-munitions

2. Australian Jets involved in botched air strike, ABC, http://www.abc.net.au/news/2016-09-18/australian-jets-involved-in-botched-air-strike-on-syrian-army/7855610 19th September, 2016.

3. Syrian Crisis, ABC, http://www.abc.net.au/news/2016-09-19/syria-air-strikes-will-continue-despite-botched-operation/7858694, 19th September, 2016.