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When are military bombs illegal?

By Channel 4 News

Updated on 22 January 2009

White phosphorous, a weapon that can cause its victims to die from horrific burns, is not an "illegal" weapon unless it is used in the wrong way. Channel 4 News online looks at the so-called "law of war" and what is allowed, and what is not.

Q: What are the laws of war?

A: The law of war, known as International Humanitarian Law is a huge body of legal frameworks, treaties and conventions, signed up to by countries worldwide.

Perhaps the best known is the Geneva Convention, which is responsible for many of the rules which govern the nature of combat today.

Some conventions relate to the use of specific weapons, such as anti-personnel mines and cluster bombs.

Q: Who do these rules protect?

A: International Humanitarian Law developed to limit the effect of armed conflict on civilians, to prevent human suffering.

It protects people who are not, or are no longer, participating in the hostilities and limits the methods of warfare.

These rules require armies to discriminate between military targets and civilians. All feasible precautions to prevent harm to civilians and civilian objects must be taken. The key point is that attacks which cause "disproportionate" harm to civilians are outlawed.

Q: Which weapons are illegal?

A: It is a common misconception that some weapons being used in modern-day combat are illegal.

Some reports have made reference to the alleged use of "illegal" weapons such as white phosphorous, DIME bombs and flechettes.

However, such weapons are not outlawed in their own right, they are only outlawed in certain circumstances.

If the use of the weapon causes "disproportionate" harm or suffering to civilians then it is illegal, but if it is used in a military strike which causes minimal civilian damage it is not prohibited.

Put simply, a machine gun can be an "illegal" weapon if it is used in the wrong circumstances, manner or environment.

Q: Is the use of white phosphorous illegal?

A: Like all weapons it is subject to the rules outlined above.

In the past white phosphorous has been used to create smokescreens for troops or to illuminate targets, perfectly within the boundaries of International Humanitarian Law. It is not classified as an illegal chemical weapon.

The controversy arises when the weapon is deployed in populated areas, such as those alleged to have occurred in Gaza, as it has the potential to cause civilian suffering on a "disproportionate" scale, as the substance continues to burn and kills people via exposure and ingestion.

To this end, it is illegal to use this type of incendiary device unless the military target is clearly separated from the civilians.

The use of air-dropped incendiary weapons against military objectives within a concentration of civilians is simply prohibited full stop.

Q: Do these laws apply in all countries?

A: While not all countries will have signed up to the relevant treaties or conventions; such is their widespread acceptance the rules have become known as customary law, which means that states are subject to them even if they did not sign up originally.

However, nearly all states are signed up.

Q:Where does International Humanitarian Law apply?

A: While practically all nations fall under the influence of these laws, the rules did originate to focus on international conflict - rather than internal. This left a question mark over domestic armed conflicts.

Recent studies have shown that many rules previously applicable in just international armed conflicts are now binding as a matter of customary law in non-international armed conflicts as well.

However, it is still a more limited and uncertain influence, one that could have an impact in Gaza, as some debate continues as to whether it should be termed an international or domestic conflict in the eyes of the law.

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