Lecture 6
Means in armed conflict – legal
framework
Prohibited weapons and
ammunition
• Point of departure:
• The principle of distinction (between
combatants and civilians)
• The principle of military necessity
(unnecessary suffering by combatants)
AP I, art. 35, 48, 51
• Art.35 (2): It is prohibited to employ weapons,
projectiles and material and methods of warfare
of a nature to cause superfluous injury or
unnecessary suffering.
• Art.48:…the Parties to the conflict shall at all
times distinguish between the civilian population
and combatants and between civilian objects
and military objectives
• Art.51 (4) Indiscriminate attacks are prohibited.
ICJ, Advisory Opinion on the Legality of the
Threat of Use of Nuclear Weapons (1996)
• “States must never make civilians the
object of attack and must consequently
never use weapons that are incapable of
distinguishing between civilian and military
targets.”
• “..it is prohibited to cause unnecessary
suffering to combatants..”
“In conformity with the aforementioned
principles, humanitarian law, at a very
early stage, prohibited certain types
of weapons, either because of their
indiscriminate effects on combatants
and civilians or because of the
unnecessary suffering caused to
combatants, that is to say, a harm
greater than that unavoidable to
achieve legitimate military objectives.”
ICC Statute, Article 8 (2)(b)(xx)
• Example of war crime:
• “Employing weapons, projectiles and
material and methods of warfare which are
of a nature to cause superfluous injury or
unnecessary suffering or which are
inherently indiscriminate…”
Explicit prohibitions/restrictions:
• The two main principles do apply – but:
If in doubt – better with explicit prohibitions
The fact that there is a list of
prohibited weapons does not mean
that all other weapons are legal
Overview:
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Exploding ammunition (1868)
Expanding bullets (1899)
Gas (1925)
Non-proliferation Treaty (1968)
Biological Weapons (1972)
ENMOD (1977)
CCW (Inhuman Weapons) (1980 – 2003)
Chemical Weapons (1993)
Antipersonnel landmines (1997)
The Petersburg Declaration, renouncing the
use of Explosive Projectiles Under 400
Grammes Weight (1868)
• Unnecessary suffering of combatants
• Aimed at drawing a line between explosive
artillery shells and rifle ammunition
• Not prohibited to use against “hard
targets”
The Hague Declaration Concerning
Expanding Bullets (1899)
• Unnecessary suffering of combatants
• Not prohibited to use in law enforcement
The Geneva Gas Protocol (1925)
• Protocol for the Prohibition of the Use
of Asphyxiating, Poisonous or Other
Gases, and of Bacteriological
Methods of Warfare.
• “Consumed” by the Conventions on
biological and chemical weapons
The Non-Proliferation Treaty (1968)
The States concluding this Treaty, …
Considering the devastation that would be visited
upon all mankind by a nuclear war and the
consequent need to make every effort to avert
the danger of such a war and to take measures
to safeguard the security of peoples,
Believing that the proliferation of nuclear weapons
would seriously enhance the danger of nuclear
war,…
• Article I
• Each nuclear-weapon State Party to the Treaty
undertakes not to transfer to any recipient whatsoever
nuclear weapons or other nuclear explosive devices or
control over such weapons or explosive devices directly,
or indirectly; and not in any way to assist, encourage, or
induce any non-nuclear-weapon State to manufacture or
otherwise acquire nuclear weapons or other nuclear
explosive devices, or control over such weapons or
explosive devices.
• Article II
• Each non-nuclear-weapon State Party to the Treaty
undertakes not to receive the transfer from any
transferor whatsoever of nuclear weapons or other
nuclear explosive devices or of control over such
weapons or explosive devices directly, or indirectly; not
to manufacture or otherwise acquire nuclear weapons or
other nuclear explosive devices; and not to seek or
receive any assistance in the manufacture of nuclear
weapons or other nuclear explosive devices.
ICJ on the legality of nuclear
weapons:
• “the threat or use of nuclear weapons would
generally be contrary to the rules of international
law applicable in armed conflict..”
• “However, in view of the current state of
international law…the Court cannot conclude
definitely whether the threat or use of nuclear
weapons would be lawful in an extreme
circumstance of self-defence, in which the very
survival of a State would be at stake.”
Biological Weapons Convention
(1972)
• “Convention on the Prohibition of the
Development, Production and Stockpiling
of Bacteriological (Biological) and Toxin
Weapons and on their Destruction”.
• Contains no clear definition of biological
weapons
Article 1: Each State Party to this Convention
undertakes never in any circumstances to develop,
produce, stockpile or otherwise acquire or retain:
• 1. microbial or other biological agents, or toxins
whatever their origin or method of production, of
types and in quantities that have no justification
for prophylactic, protective or other peaceful
purposes;
2. weapons, equipment or means of delivery
designed to use such agents or toxins for hostile
purposes or in armed conflict.
ENMOD (Environmental
Modification) (1977)
• “The Convention on the Prohibiting of
Military or other Hostile Use of
Environmental Modification Techniques”
• Came after the Vietnam war – made it
prohibited to use environmental
modification as means of warfare
• AP I art.35 (3)
Convention on Certain
Conventional Weapons (1980)
• Convention on Certain Conventional
Weapons (CCW) -also called the UN
Convention on inhumane weapons.
• Full title: “Convention on Prohibitions or
Restrictions on the Use of Certain
Conventional Weapons Which May be
Deemed to be Excessively Injurious or to
have Indiscriminate Effects”
CCW Protocols:
• I: Non-Detectable Fragments (1980)
• II: Mines, Booby-traps etc. (1980 and
1996)
• III: Incendiary Weapons (1980)
• IV: Blinding Laser Weapons (1995)
• V: Explosive Remnants of War (2003)
Protocol I
• Protocol on Non-Detectable Fragments
(1980)
• Reflects the prohibition against
unnecessary suffering and superfluous
injury in AP I, art.35 (2)
Protocol II
• On Prohibitions or Restrictions on the Use
of Mines, Booby-Traps and Other Devises
as amended 3 May 1996 (1980 and 1996)
• Much of its content consumed by the Mine
Ban Treaty of 1997
• Reflects the distinction principle, AP I,
art.48 and 51
Protocol III
• On Prohibitions or restrictions on the Use
of Incendiary Weapons (1980)
• Contains a definition of Incendiary
Weapons and restricts the use of such
weapons
• Reflects the principle of distinction, AP I,
art.48 and 51
Protocol VI
• On Blinding Laser Weapons (1995)
• Contains a prohibition of the use of
weapons that have a a combat function to
cause permanent blindness.
• Reflects the principle of proportionality and
military necessity, art.35 (2), API
Protocol V
• On Explosive Remnants of War (2003)
• Contains an obligation to “take feasible
measures” to mark and clear up minefields
and other UXOs
• An attempt to reflect the principle of
distinction
Chemical Weapons Convention
(1993)
• Art. I (1). Each State Party to this
Convention undertakes never under any
circumstances:
• (a) To develop, produce, otherwise
acquire, stockpile or retain chemical
weapons, or transfer, directly or indirectly,
chemical weapons to anyone;
• (b) To use chemical weapons;
• Art. I (2) Each State Party undertakes to destroy
chemical weapons it owns or possesses, or that are
located in any place under its jurisdiction or control, in
accordance with the provisions of this Convention.
• Art. I (3) Each State Party undertakes to destroy all
chemical weapons it abandoned on the territory of
another State Party, in accordance with the provisions
of this Convention.
• Art. I (4) Each State Party undertakes to destroy any
chemical weapons production facilities it owns or
possesses, or that are located in any place under its
jurisdiction or control, in accordance with the
provisions of this Convention.
Definition of a Chemical Weapon
• Art. II (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;
Chemical weapons’ delivery devices
• Art.II (1) (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;
• Art.II (1) (c) Any equipment specifically designed
for use directly in connection with the
employment of munitions and devices specified
in subparagraph (b).
Definitions of precursor and toxic chemical:
• Art. II (3) "Precursor" means:
• Any chemical reactant which takes part at any stage in
the production by whatever method of a toxic chemical.
This includes any key component of a binary or
multicomponent chemical system.
• Art. II (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.
• ….
Exceptions - Purposes Not Prohibited Under
the Convention:
• Art. II (9) (a) Industrial, agricultural, research, medical,
pharmaceutical or other peaceful purposes;
• Art. II (9) (b) Protective purposes, namely those
purposes directly related to protection against toxic
chemicals and to protection against chemical weapons;
• Art. II (9) (c) Military purposes not connected with the
use of chemical weapons and not dependent on the use
of the toxic properties of chemicals as a method of
warfare;
• Art. II (9) (d) Law enforcement including domestic riot
control purposes.
Law enforcement including domestic riot
control purposes:
Article II (7): "Riot Control Agent" means:
Any chemical not listed in a Schedule, which
can produce rapidly in humans sensory irritation
or disabling physical effects which disappear
within a short time following termination of
exposure.
• Article I (5): Each State Party undertakes not to
use riot control agents as a method of warfare.
• Definition of chemical weapon: Any chemical which
through its chemical action on life processes can cause
death, temporary incapacitation or permanent harm to
humans or animals.
• Definition of Riot Control Agent: Any chemical which can
produce rapidly in humans sensory irritation or disabling
physical effects which disappear within a short time
following termination of exposure.
RCAs are included in the first definition.
Both are explicitly prohibited to use as a method of warfare
(Art. I (1) and (5)
Mine Ban Treaty (1997)
Convention on the Prohibition of the
Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and
on their Destruction, 18 September
1997
General obligations
• Article 1 (1) Each State Party undertakes never
under any circumstances:
a) To use anti-personnel mines;
b) To develop, produce, otherwise acquire,
stockpile, retain or transfer to anyone, directly or
indirectly, anti-personnel mines;
c) To assist, encourage or induce, in any way,
anyone to engage in any activity prohibited to a
State Party under this Convention.
Destruction of stockpiles and
minefields
• Article 1 (2) Each State Party undertakes
to destroy or ensure the destruction of all
anti-personnel mines in accordance with
the provisions of this Convention.
Definition of an anti personnel mine
• Article 2 (1) "Anti-personnel mine" means
a mine designed to be exploded by the
presence, proximity or contact of a person
and that will incapacitate, injure or kill one
or more persons.
Anti vehicle mines are not
prohibited
• Article 2 (1) (Second sentence) Mines
designed to be detonated by the presence,
proximity or contact of a vehicle as
opposed to a person, that are equipped
with anti-handling devices, are not
considered anti-personnel mines as a
result of being so equipped.
Cluster weapons (not prohibited):
• A weapon (air or surface delivered)
which contains more than one submunition
• Everything between:
– High tech missiles. Each sub-munition is target
seeking, and self destructs if target is not found.
Relatively few (6-12) sub-munitions in each bomb
(Advanced Munitions)
– Area weapons (covers ”footprints”) with large
numbers of sub-munitions. Non-guided submunitions. Failure rates from 1 - up to 70%.
ICTY, Trial Chamber I, Judgement
12 June 2007, Milan Martic
• Para 463: ”..the Trial Chamber notes the
characteristics of the weapon, it being a
non-guided high dispersion weapon. The
Trial Chamber therefore concludes that the
M-87 Orkan, by virtue of its characteristics
and the firing range in this specific
instance, was incapable of hitting specific
targets. For these reasons, the Trial
Chamber also finds that the M-87 Orkan is
an indiscriminate weapon,…”
• Para 472: ”Having regard in particular to
the nature of the M-87 Orkan and the
finding that Milan Martic knew about the
effects of this weapon, the Trial Chamber
finds that Milan Martic willfully made the
civilian population of Zagreb the object of
this attack. Milan Martic therefore incurs
individual criminal responsibility under
Article 7(1) of the Statute for Count 19,
attacks on civilians under Article 3.”
The relationship between the
general rules and the specific rules
• The fact that a weapon is not subject to
specific prohibition does not necessarily
mean that the weapon is allowed: One
must always assess weapons with regard
to the basic principles of distinction and
unnecessary suffering.
Obligation to Review New
Weapons
• Art.36, AP I
In the study, development, acquisition or
adoption of a new weapon, means or method of
warfare, a High Contracting Party is under an
obligation to determine whether its employment
would, in some or all circumstances, be
prohibited by this Protocol or by any other rule of
international law applicable to the High
Contracting Party.
“Non-lethal” /”less lethal” weapons
• Difficult to distinguish between “lethal” and
“non-lethal” weapons (AP mines are
designed to be non-lethal)
• If a weapon is categorised as “non-lethal”
this does not have any impact on whether
the weapon is prohibited - for example
tear gas is prohibited as a means of
warfare
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Exploding ammunition (Unnecessary suffering)
Expanding bullets (Unnecessary suffering)
Nuclear weapons (Distinction + environment)
Biological Weapons (Distinction)
ENMOD (Environment)
Non-detectable fragments (Unnecessary
suffering)
Incendiary weapons (Unnecessary suffering)
Blinding laser (Unnecessary suffering)
Chemical Weapons (Distinction)
Antipersonnel landmines (Distinction)