2 February 2010
With regard to the reservation made by the United States of America upon consenting to be bound by Protocol III to the above Convention:
Upon depositing the instrument of ratification of Protocol III to the Convention on Certain Conventional Weapons on 21 January 2009, the United States of America made a reservation with reference to paragraphs 2 and 3 of article 2 of the said Protocol. According to the reservation, the United States “reserve the right to use incendiary weapons against military objectives located in concentrations of civilians where it is judged that such use would cause fewer casualties and/or less collateral damage than alternative weapons, but in so doing will take all feasible precautions with a view to limiting the incendiary effects to the military objective and to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects”.
Switzerland appreciates the willingness expressed by the United States to take all feasible precautions to protect the civilian population and individual civilians not directly participating in hostilities. Switzerland considers that these measures are in keeping with the fundamental principle of distinction under international humanitarian law, a principle that is enshrined, in particular, in articles 57 (2) (ii) and 57 (4) of the first 1977 Protocol Additional to the Geneva Conventions of 1949. These provisions require each party to a conflict to “take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects”.
Nonetheless, Switzerland considers that the reservation made by the United States is incompatible with the object and purpose of Protocol III, and therefore it objects to the reservation for the following reasons: in Switzerland’s view, paragraphs 2 and 3 of article 2 are core provisions that set out an absolute prohibition of the use of air-delivered incendiary weapons against military objectives located within concentrations of civilians (paragraph 2) and of attacks by means of incendiary weapons other than air-delivered incendiary weapons, except when such military objective is clearly separated from the concentration of civilians (paragraph 3). These provisions were designed as specific rules that replace and strengthen the general customary and treaty obligations arising from international humanitarian law for the purpose of guaranteeing the full protection of civilians from incendiary weapons. The reservation made by the United States does not take into consideration the specific nature of paragraphs 2 and 3 of article 2.
Switzerland considers that this objection does not constitute an obstacle to the entry into force of Protocol III as between Switzerland and the United States of America.