Seminar 6
Seminar 6 – Means and Methods of Combat
Y Dinstein, ‘The Conduct of Hostilities under the Law of International Armed Conflict’ (CUP, 2016) pp 72-85,
87-98, 251-7, 264-76
Chapter 3 – Prohibited Weapons
The Principle of Distinction
Most fundamental pillar of LOIAC – about ensuring civilians are protected from the havoc of war. ICJ
Advisory on Nuclear Weapons stated important States never use weapons that are incapable of this
distinction. Also needed between civilian objects and military objectives
Necessary to distinguish between weapons that are used in an indiscriminate way, and those which by
their nature are indiscriminate.
The former can be used provided precautions are taken and LOIAC are abided by
The latter, often called blind weapons, are unlawful in all circumstances – eg bacteriological weapons
Principle Prohibiting Unnecessary Suffering
Formulation
First established in Preamble to 1868 St Petersburg Declaration – Idea was civilisation should reduce
as much as possible the calamities of war. States should only endeavour to weaken military forces of
the enemy. Whilst it is sufficient to disable greatest possible number of enemy forces, weapons that
aggravate their suffering or render death inevitable.
Weapons should therefore only endeavour to render someone hors de combat
Reflected in Hague Regulation 23e of 1907
Article 35(2) of AP/I propound the basic rule – ‘it is prohibited to employ weapons, projectiles and
material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.’
Extends definition to methods of warfare
Meaning of Unnecessary Suffering
Common interpretation is that international law only forbids the use of weapons that increase
suffering without really increasing military advantage. In words of ICJ these weapons are ‘uselessly
aggravating’ and employ a harm that is ‘greater than that unavoidable to achieve legitimate military
objectives’
Weapons that leave no chance of survival do not automatically count as a breach of this principle. Not
about distinction between lethal and non-lethal weapons. The former is many cases do not lead to
death, the latter sometimes do cause death.
This definition therefore hangs on whether there is superfluous injury or unnecessary suffering, and
whether such suffering is avoidable. Question therefore is there an alternative less damaging weapon?
And the effects of the alternative weapon sufficiently effective in neutralizing the enemy personnel
The Penal Provisions
Under Art 3(a) of ICTY Statute, employment of weapons calculated to cause unnecessary suffering is
considered violation of the laws and customs of war giving rise to individual criminal responsibility.
Article 8(2)(b)(xx) of 1998 Rome Statute of ICC lists it as a war crime as well (annexes referenced not
yet drawn up)
Explicit Prohibitions or Restrictions of Certain Weapons
Groundwork Comments
Cardinal Principles of Distinction and Prohibition against Unnecessary Suffering are universally
acknowledged. Use of weapons against these principles prohibited
Most effective way of doing this however is to say so in an expressed way (e.g. by banning certain
weapons in bilateral treaties) – now fairly long chain of such treaties
Some weapons disputable though – e.g. shotguns, and high velocity bullets – and not subject to any
express ban. Therefore doubt
Particular issues also with weapons that are essential in use against military objectives (inanimate
objects), but can be devastating when accidently effect combatants – e.g. napalm
Some weapons also pose great danger to civilians. Such weapons therefore may have additional
safeguards when used to prevent this from happening.
Conventional Weapons
, Seminar 6
a) Poison
Hague Regulation 23(a) forbids the employment of poison or poisoned weapons – includes of water,
food, projectiles, bullets etc. Long standing rule of laws of armed conflict. Now a war crime as well
under Article 8(2)(b)(xvii) of Rome Statute
b) Certain Projectiles
Explosive Bullets – Banned under St Petersburg Declaration – applied to projectiles under 400
grams, which are explosively charged or inflammable. Weight meant to distinguish between
projectiles and munitions. Art 18 of Hague Rules of Air Warfare allow use of such weapons in air
combat, and because not practical for crews to switch can also be directed at land forces
Expanding Bullets – Also banned under Hague Declaration (IV,3) of 1899 – employing bullets which
expand or flatten easily in the human body is a war crime under Art 8(2)(b)(xix) of the Rome Statute
c) Non Detectable Fragments
Protocol I to CCCW (Convention on Certain Chemical Weapons) – it is prohibited to use any weapon
the primary effect of which is to injure by fragments which in the human body escape detection by x
ray
Rationale is they render medical treatment almost impossible and thereby cause unnecessary
suffering
d) Booby-traps
Article 6 of Protocol II to the CCCW prohibits in all circumstances the use of booby traps: a) in the
form of an apparently harmless portable object which is designed and constructed to contain
explosive material and to detonate when disturbed (b) attached or associated with internationally
recognized protective emblems, burial sites, medical facilities, children toys, anything designed for
feeding or drinking, clothing, education, religious objects, historic objects (c) designed to cause
superfluous injury or unnecessary suffering
Note with (a) in Article 6 only applies to objects specifically designed and constructed to be a booby
tap – e.g a camera can be rigged, but cannot be built to contain explosives – prohibition also applies
to letter bombs
Article 3 prohibits use of booby traps directly, or indiscriminately against civilians. Not really
required, just restates the general rule in LOIAC. Article 4 prohibits use of traps in villages, towns and
cities, and other areas of civilian concentration where combat between ground forces not taking place
or not imminent, unless in close proximity to military objective, or measures are taken to protect
civilians against their use
e) Landmines
Protocol 2 to CCCW treats landmines on a parity with booby traps, as regard to general restrictions in
Articles 3 and 4. Art 5 adds limits on employment of remotely delivered mines
Protocol amended to prevent mines that detonate when attempts to detect them made (e.g. magnetic
detonation) and those capable of functioning after mine has been deactivated.
Also forbidden are non-detectable anti-personnel mines in order to facilitate ultimate clearance of
minefield afterwards. Must be placed in marked and patrolled area.
Article 7 requires parties laying mines to record how many, and where they are so that when the
hostilities are over they can be removed.
ICRC of view protocol not sufficient however. Worded badly, unclearly, and fail to regard that mines
cannot distinguish between civilians and military
1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-
Personnel Mines and on their Destruction removed use of anti-personnel mines
Under Article 1, parties undertake to never use such devices or to create, hold them in any way
Article 5 deals with destructions of such devices by States, including marked fields
Article 2(1) defines anti-personnel mines
Anti-vehicle mines not banned. Eritrea-Ethiopia Claims Commission concluded rules on this so recent
and not yet established that not yet part of CIL – US for example has not ratified after failing to get
exception of Korea DMZ
Incendiaries
Framers of Convention on Certain Chemical Weapons (CCCW) did not see incendiary weapons as
inherently contradicting the principle prohibiting the infliction of unnecessary suffering – not
prohibition on use against combatants and military objectives
Article 2(1) AP/3 to CCCW prohibits ‘in all circumstances to make the civilian population as such,
individual civilians or civilian objects the object of attack by incendiary weapons’
