The prohibition against using incendiary weapons against military objectives located within a concentration of civilians
The use of WP munitions in Fallujah has also been challenged as a violation of Protocol III to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons. Protocol III deals with Prohibitions or Restrictions on the Use of Incendiary Weapons.[13] The United States, however, is not a party to Protocol III. Thus, it does not apply to the U.S. use of WP munitions, unless the rules in Protocol III can be considered customary international law binding on the United States. For purposes of this Insight, both Protocol III and the customary international law are applied to the use of WP munitions in Fallujah.
Protocol III prohibits in all circumstances (1) making the civilian population, individual civilians, and civilian objects the object of attack by incendiary weapons; and (2) any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons (Articles 2.1 and 2.2). There is no indication that the use of WP munitions in Fallujah constituted an intentional attack on civilian populations or civilian objects, even if such use may have resulted in civilian deaths, injuries, and collateral damage to civilian property. In addition, even if the WP munitions were used against a military objective within a concentration of civilians, the after-action report from Fallujah indicated that ground forces delivered the WP munitions, which means they were not air-delivered weapons.
Protocol III also prohibits the making of "any military objective located within a concentration of civilians the object of attack by means of incendiary weapons other than air-delivered incendiary weapons, except when such military objective is clearly separated from the concentration of civilians and all feasible precautions are taken with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event, minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects" (Article 2.3). The rule in customary international law is similar, according to the International Committee of the Red Cross (ICRC): When incendiary weapons are used, "particular care must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects."[14]