Are Molotov Cocktails Lawful Weapons?

A frequent feature of violent riots and revolts, the Molotov cocktail has reappeared in reports of Ukraine’s preparations to resist the ongoing Russian invasion. Although undoubtedly symbolic of resolve to resist using all means available, whether Ukrainians’ use of Molotov cocktails violates the law of war presents a closer question. This post advises that while not unlawful per se, Ukrainian and Russian use of Molotov cocktails requires careful consideration of treaty-based limits.

The Molotov Cocktail

The term typically refers to a glass bottle filled with flammable fluid and capped with a lit cloth fuse or wick soaked in alcohol. When thrown against a hard surface, the bottle breaks causing the wick to ignite the cocktail’s liquid as well as its vaporized fuel. Other materials such as tar, detergents, Styrofoam, and rubber have been added both to thicken the fuel mixture for adhesion to target surfaces or to create additional pressure improving explosive and shrapnel effects.

Modern use of improvised hand-held firebombs traces to the 1936 Spanish Civil War. Spanish Nationalist forces reportedly used them to attack the rubber components of Republican tank tracks. They also used these weapons against tank crews’ open hatches and vision slits, burning them or forcing them to evacuate their vehicles. They featured again in the 1939 Winter War between Finland and the Soviet Union. After the Soviet Minister of Foreign Affairs, Vyacheslav Mototov denied claims that Soviet air forces had used incendiary bombs, branded “Molotov’s Bread Baskets” by the Finns, Finnish forces reportedly resorted to their own “Molotov cocktails” against Soviet tanks.

The ready availability of their ingredients made Molotov cocktails favored weapons of loosely organized rioters and criminals but also of ill-equipped resistance movements and sporadically organized armed groups. During the Second World War, Great Britain planned to arm its Home Guard with Molotov cocktails to be “served with plenty of gusto” against an anticipated German invasion.

Weapons Law

Despite the seemingly chaotic and often desperate circumstances of war, States have long acknowledged that the means of armed conflict are not unlimited. Legal limits on weapons date to ancient history, including customary and codified taboos on poisons and barbed weapons. Later, one of the earliest multilateral law of war treaties, the 1868 St. Petersburg Declaration, initiated at the behest of Russian Czar Alexander II, banned lightweight explosive projectiles and regarded “the employment of arms which uselessly aggravate the sufferings of disabled men … contrary to the laws of humanity.”

Since those early efforts, the law of war has chiefly employed two approaches to weapon regulation. In the tradition of St. Petersburg, a first strain of regulation has produced codified bans on specific weapons. Today, widely—though not universally—ratified agreements have prohibited non-detectable fragments, blinding lasers, chemical weapons, biological weapons, and certain bullets. In the meantime, momentum, though not unopposed, has built for bans on nuclear weapons, anti-personnel landmines, and cluster munitions. Still other instruments have regulated, rather than banned, select weapons including landmines and incendiary weapons. All the while, arms control instruments, usually not considered part of the laws of war, have limited the production and deployment of a wide range of armaments.

A second strain of the law of war has resorted to broad principles to regulate weapons. Each of two cardinal principles—distinction and unnecessary suffering (or humanity)—guides the regulation of weapons not banned or otherwise regulated by the law of war (para. 78).  While these general provisions have proved adaptable, their ambiguity and fluidity have limited, or as seen below, clouded their regulatory effect.

Are Molotov Cocktails Banned Specifically?

Analyzed under law of war instruments that specifically ban or regulate discreet weapons, the treaty-based prohibition on undetectable fragments and a separate regulation of incendiary weapons are most relevant to Molotov cocktails. The 1980 Convention on Certain Conventional Weapons, Protocol on Non-Detectable Fragments (CCW Protocol I) to which both the Russian Federation and Ukraine are Parties, states in full, “It is prohibited to use any weapon the primary effect of which is to injure by fragments which in the body escape detection by X-rays.”

It’s easy to anticipate that Molotov cocktails made of glass containers can scatter fragments into the human body that would evade or complicate detection by X-ray. Those that use accelerants or substances to enhance explosive effects would undoubtedly do so if used against or in proximity to exposed persons. Yet in most cases, the “primary effect” of the Molotov cocktail is to ignite or burn its target rather than to damage or injure by fragments. Secondary effects, especially the shrapnel-like effects of weapon casings, as opposed to fillings or shrapnel itself, are generally not understood to be relevant to the CCW Protocol I ban. For instance, the U.S. Department of Defense Law of War Manual asserts the ban does not apply to “the casing, detonator, or timing mechanism, [that] may be made of nonmetallic parts or other substances that are not detectable by X-rays in order to reduce weight, manufacturing cost, etc.” (para. 6.11.1).

It’s also worth noting that the Assembly of State Parties to the 1998 Rome Statute of the International Criminal Court (Rome Statute) recently adopted an amendment to incorporate the ban on non-detectable fragments into the Court’s war crimes provisions applicable to both international and non-international armed conflicts. But to date, neither Ukraine nor Russia has ratified that amendment.

Applied to the current conflict, a Molotov cocktail purposely built and used primarily to injure persons by undetectable fragments, as opposed to burns, would undoubtedly be unlawful under CCW Protocol I. However, most Molotov cocktails, it seems, would not. For example, a standard Molotov cocktail used to ignite a vehicle would clearly not implicate the fragments ban because its primary effect would be to burn the vehicle. Similarly, a Molotov cocktail that incidentally produced shrapnel wounds would not be banned.

Because the primary effect of most Molotov cocktails is incendiary rather than fragmentary, the 1980 Convention on Certain Conventional Weapons Protocol on Use of Incendiary Weapons (CCW Protocol III) is worth considering. Most Molotov cocktails appear to qualify as incendiary weapons under CCW Protocol III. Article 1(1) defines incendiary weapons as “any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or a combination thereof, produced by a chemical reaction of a substance delivered on the target.” While the Article’s list of definitional examples does not name Molotov cocktails, it includes “other containers of incendiary substances” which clearly covers them.

CCW Protocol III does not ban incendiaries entirely. It merely regulates their use. Article 2(2) provides, “It is prohibited in all circumstances to make any military objective within a concentration of civilians the object of attack by air-delivered incendiary weapons.” The reference to air-delivery applies to incendiary munitions dropped from aircraft. Although frequently thrown, Molotov cocktails are not likely considered to be air delivered for purposes of that article.

Meanwhile, Article 2(3) addresses incendiaries delivered otherwise. It prohibits their use against military objectives, except when clearly separated from “concentrations of civilians.” That last phrase refers to “any concentration … be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages, or as in camps or columns of refugees or evacuees, or groups of nomads.” Article 2(3) also requires that all feasible precautions be taken to protect civilian objects from the effects of their use.

Thus, use of a Molotov cocktail against an isolated tank would clearly be lawful under CCW Protocol III. But use against a vehicle moving among or accompanied by civilians, such as a mixed convoy, would likely be prohibited. As noted by West Point’s Modern Warfare Institute, incendiary weapons offer unique military advantages in urban warfare. The Institute notes that incendiaries “can penetrate small openings and fill fortified positions with both fire and smoke.” Flame weapons have historically been used in urban environments to clear rooms or bunkers. And military commanders have recently expressed an operational need to field them (at minute 29:20). Yet their use would be unlawful if civilians are known to be present nearby. For example, a Molotov cocktail used against a building or bunker located where civilians remain and are intermingled would violate CCW Protocol III regardless of its otherwise proportionate or discriminate character. On the other hand, were the building or bunker in an abandoned, deserted, or uninhabited urban area, the CCW Protocol I rule would not be applicable.

In sum, States, such as Ukraine, that advocate or facilitate their use, even in their own territory, should ensure those using Molotov cocktails are aware of and observe these limits. They should not design or produce Molotov cocktails that wound primarily by non-detectable fragments. And fighters should use extraordinary caution when employing them as incendiaries in areas where civilians may be present and refrain entirely from using them when it is known that a military objective is not physically separated from civilians.

Are Molotov Cocktails Banned Generally?

Analyzed under the law of war principle of distinction, the Molotov cocktail presents a relatively straightforward case. As explained in this symposium by the weapons law expert Air Commodore W. H. Boothby, the law of war principle of distinction and its various regulatory incarnations prohibit indiscriminate uses of any weapon. Clearly then, use of a Molotov cocktail to attack a civilian not taking direct part in hostilities or a civilian object would be unlawful. Similarly, use of a Molotov cocktail in circumstances where its effects cannot be directed at a military objective or cannot be limited would be unlawful.

However, under the principle of unnecessary suffering, the case of the Molotov cocktail is far cloudier. While support for the principle of unnecessary suffering is widespread, its precise meaning and regulatory effect are contested. According to Article 35(2) of the 1977 Additional Protocol I to the 1949 Geneva Conventions (AP I) applicable to international armed conflict, “It is prohibited to employ weapons … of a nature to cause superfluous injury or unnecessary suffering” (emphasis added). Meanwhile the English translation of Article 23(e) of the, still in force, Regulations annexed to the 1907 Hague Convention IV (Hague IV) provides, “it is especially forbidden … [t]o employ arms … calculated to cause unnecessary suffering” (emphasis added).

Thus, where AP I, Article 35 directs legal analysis of weapons to consider their nature or inherent characteristics, the Hague IV English translation directs analysis to the intentions of the designer, perhaps despite the weapon’s possible effects.[1] The United States applies the calculated-to-cause standard to its legal reviews of weapons (para. 6.6.1).

Considered under the calculated-to-cause understanding of unnecessary suffering, the Molotov cocktail might be lawful. For instance, despite potential to inflict horrible burns and suffering, an improvised Molotov cocktail might be designed to achieve a particular military effect. If so, the weapon’s design and effects would not be calculated to cause unnecessary suffering but rather to achieve military advantage. By this understanding, such a design would not violate the principle or its related rules because the suffering imposed is necessary to accomplish a legitimate military purpose. Thus, design and use of a Molotov cocktail to achieve an effect or reach a target that other designs cannot reach would not be unlawful under the calculated-to-cause approach. By contrast, design and resort to a Molotov cocktail as a means of attack to significantly increase suffering or to deliberately prolong or aggravate suffering would be unlawful. It’s worth adding that the Molotov cocktail would also be unlawful if the grave suffering it inflicted were clearly disproportionate to the military advantage it was designed to achieve in the attack.

But because both the Russian Federation and Ukraine are Parties to AP I, the “of a nature to” manifestation of the unnecessary suffering principle applies to each side’s weapons including the Molotov cocktail. It is widely acknowledged that burn wounds and deaths are among the most painful and horrific. Between the World Wars a widely supported League of Nations effort nearly banned flamethrowers for this very reason. And while it is indisputably in the nature of the Molotov cocktail to cause enormous, even excruciating suffering, those effects cannot in all circumstances be said to unnecessary or superfluous even under the AP I standard.

Still, because the AP I of-a-nature-to-cause standard focuses on the characteristics of the weapon rather than the designer’s intent, expediency or demanding circumstances might not excuse design of and resort to Molotov cocktail in the way it might under the calculated-to-cause standard. For instance, under the AP I standard, that the effects of a Molotov cocktail are intended to serve military necessity rather than to aggravate wounds, would not excuse its design if the nature of burns it caused were unnecessary. However, States’, including Parties to AP I, decision not to regulate rather than ban incendiaries outright at least suggests a view that burns do not categorically amount to unnecessary suffering. And expressions by AP I States indicating that other incendiaries are in some circumstances lawful, even when they burn persons, suggests Molotov cocktails may in the same circumstances be lawful as well (para. 6.12.6).

All the same, the AP I standard shares the calculated-to-cause standard’s consideration of proportionality between military advantage and suffering inflicted. So, a weapon that inflicts suffering clearly out of proportion to anticipated military advantage is unlawful under the AP I understanding of unnecessary suffering. But by the same turn, significant or unique military advantage could justify substantial suffering including burns inflicted by a Molotov cocktail. Even so, the United Kingdom Manual of the Law of Armed Conflict advises that napalm and flamethrowers “should not be used directly against personnel but against vehicles, bunkers, and built-up emplacements, even though personnel inside may be burnt” (para. 6.12.6). It is a position both Ukraine and Russia might strongly consider adopting.

Last, the Rome Statute incorporates the “of a nature to” passage in its war crimes provision on weapons (Article 8(2)(b)(xx)). And while neither Ukraine nor Russia is a Party to the Statute, the Court’s Prosecutor has initiated an investigation into the situation at the behest of other Parties. Yet this provision must be considered cautiously. The same article indicates it is only enforceable “provided that such weapons … are the subject of a comprehensive prohibition and are included in an annex to this Statute ….” As noted above, Molotov cocktails are not subject to any such prohibition. Additionally, States have not, to date, produced the annex referred to by the article. Thus, their use seems unlikely to constitute a war crime before the Court.

Conclusion

Weapons law has often developed unpredictably. States’ decisions to ban or regulate some weapons and not others often seem capricious. Elsewhere, I have attempted to identify some predictive factors for weapons that are regulation tolerant and those that are regulation resistant. For its part, the Molotov cocktail has perhaps proved both regulation resistant and regulation tolerant. No treaty bans the weapon, as such. But rules specific to incendiary weapons regulate its use. At the same time, the cardinal principles of distinction and unnecessary suffering clearly limit use of the Molotov cocktail in important respects.

In the ongoing conflict between Ukraine and the Russian Federation, both parties, but particularly the former in light of recent reports, should carefully control their resort to Molotov cocktails despite the admittedly urgent and desperate circumstances.

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Sean Watts is a Professor in the Department of Law at the United States Military Academy, Co-Director of the the Lieber Institute for Law and Land Warfare at West Point, and Co-Editor-in-Chief of Articles of War.

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Footnotes

[1] The English translation of the 1907 Hague Convention reads identically to the preceding 1874 Brussels Declaration which included the passage “calculated to cause” with respect o unnecessary suffering. The English translation of the 1899 Hague Convention II, Article 23(3) abandoned the English Brussels wording in favor of the phrase “of a nature to cause.” French, however, is the official language of the 1907 Hague Conventions. The French text of Article 23(e) reads identically in both the 1899 and 1907 editions of the Hague Conventions applicable to land warfare. Meanwhile the preamble of the 1980 CCW, to which the United States is a Party, resorts to the “of a nature to cause” phrasing.