Also, the accusation that the alleged illegal use of WP by the US constitutes use of a chemical weapon under international law, seems to evoke a lot of anger. With all due respect for each and every dkos reader: I don’t care. If anyone should wish to scream at me for this, they should do so. I still think it is important that this point be addressed, not because of the morality of the alleged actions, but because of the potential for legal action against the people in command, including those at the top of the US government. I will also say that I am merely a layperson, and should the articles and quotes I use turn out to be complete humbug, I shall stand corrected, but until that time I maintain what is the central argument below.
My central point is that the argument: "It's an incendiary round, not a chemical weapon," does not hold up. The one does not exclude the other.
Wikipedia says the following about the Chemical Warfare, the Chemical Weapons Convention (ratified by the US in 1997) and its General Purpose Criterion:
Chemical warfare is different from the use of conventional weapons or nuclear weapons because the destructive effects of chemical weapons are not primarily due to any explosive force. […]
Under this [Chemical Weapons] Convention, any toxic chemical, regardless of its origin, is considered as a chemical weapon unless it is used for purposes that are not prohibited (an important legal definition, known as the General Purpose Criterion)."
Thus, WP is a chemical weapon if it is used illegally. It does not matter if it is also an incendiary. The CWC classification of dual use chemicals depends not only on their properties, but also on their use. Any illegal use of WP as a weapon renders it a chemical weapon under the CWC.
The quote above should address both the issue of chemicals in bullets, TNT, etc., as well as the question of whether or not an incendiary which is not named in the CWC would also be classified as a chemical weapon if used illegally.
To quote the CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, STOCKPILING AND USE OF CHEMICAL WEAPONS AND ON THEIR DESTRUCTION directly (also quoted by BigBite and others):
For the purposes of this Convention:
1. "Chemical Weapons" means the following, together or separately:
(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes;
(b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released as a result of the employment of such munitions and devices;
(c) Any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b).
2. "Toxic Chemical" means:
Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.
(For the purpose of implementing this Convention, toxic chemicals which have been identified for the application of verification measures are listed in Schedules contained in the Annex on Chemicals.)
Now note the following: All the 3 schedules list one of the two the following guidelines:
It has little or no use for purposes not prohibited under this
Convention.
or
It is not produced in large commercial quantities for purposes not prohibited under this Convention.
In other words, the chemicals named specifically in the CWC lists are what may be called (for all practical purposes, as weapons) single-use. The CWC classification of dual-/multiple-use chemicals, such as WP, depends not only on their properties, but also on how they’re applied.
So to make my point even clearer:
The alleged illegal use of WP does not merely constitute illegal use of an incendiary weapon, it also constitutes use of a chemical weapon under the CWC, even though it is not named specifically, as it is a dual-/multiple-use chemical. (Cf. The General Purpose Criterion) It does not matter that it is separately listed as an incendiary and, for that reason (as it has “legitimate” applications as well), is not named specifically on the CWC list. Illegal use, under the CWC, would seem to include also the use of WP in quantities that are inconsistent with the purpose of illuminating enemy troops or camouflaging movement. The images we have seen, as well as the testimonies of burned bodies and "shake and bake" missions, seem to make for powerful allegations of illegal use of WP, as a chemical weapon.
This was my assertion, now to the confirmation:
The argument is also explained by Peter Kaiser (Organization for the Prohibition of Chemical Weapons, the organization that administers the CWC) on the RAI News24 web site (Thanks to Gabriele Zamparini for linking this on The Cat’s Blog). Click on the the play link in the right corner if this link does not work.
Essentially, Kaiser explains that the use of WP is prohibited by the CWC when it is used as a weapon that is not:
[…]used within the context of a military application which does not […] intend to use the toxic properties of white phosphorus. […] If [...] the caustic properties [are] intended to be used as a weapon, that of course is prohibited [under the CWC].[...] Any chemical that is used against humans or animals that causes harm or death through the toxic properties of the chemical are considered chemical weapons. So it does not matter which substance we’re talking about. As long as the purpose is to cause harm through toxic properties, that is prohibited behavior [under the CWC].
Please excuse the two negatives in that first sentence, but to me, it cannot get much clearer than that.
IMO, if the US is guilty – under international law – of using chemical weapons, this must be addressed! The political and moral implications are important in and of themselves, but primarily separate matters from this specific issue of legality. The images of melting children should cause outrage among all sane people, but in order to refute any argument that this is regrettable but legally acceptable collateral damage, it is important to look at all the ways in which the US may be in violation of international law, and this includes applying the CWC.
*Update*
It seems that I may not have made the best job at expressing myself clearly enough. (Mea culpa, this is not my first language.) So let me try and be more precise. These are the claims that I'm making:
1) The general statement "WP is a chemical weapon" is in itself neither true, nor false.
2) The general statement "WP is not a chemical weapon" is in itself neither true, nor false.
3) The possession of WP by a state is legal!
4) WP can be used in a legal, legitimate fashion, i.e. as defined by international law, including the CWC.
5) WP can be used in an illegal fashion -- as defined by international law, including the CWC -- namely by using it to cause harm through the toxic properties of the chemical.
6) A caustic property is a toxic property (though a toxic property is not necessarily a caustic property).
7) The illegal use of WP [as described in 5)]renders WP a chemical weapon in that context and its illegal use as a chemical weapon (i.e. in that context) is banned by the CWC.
Peter Kaiser of the OPCW is essentially making the same points. I encourage everyone to listen to the audio clip.
By the same token:
If I purchase a hammer and say it's a tool, no one can object, as long as I use it merely as a tool. However, if I use it to hit someone on the head, the police will take my hammer away and claim that, under the law, it is a weapon, because of the way it was used. The application defines the object in any context.
