Lecture 5International humanitarian law

Fall 2010

Means in armed conflict – (arms, projectiles, ammunition, etc.)

Gro Nystuen

Prohibited weapons and ammunition

• Point of departure:

• The principle of distinction (between combatants and civilians)

• The prohibition against indiscriminate attacks

• The principle of propotionality (excessive injury etc. to civilians)

• The principle of unnecessary suffering (mainly directed at combatants)

Distinction

AP I, 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

Indiscriminate attcks

• Art.51 (4) Indiscriminate attacks are prohibited. Indiscriminate attacks are:….

(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or….

and consequently……, are of a nature to strike military objectives and civilians or civilian objects without distinction.

Proportionality

• Art.51 (5)

• (b): an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

Uneccesary suffering/superfluous injury

• 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.

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:• Exploding ammunition (1868)• Expanding bullets (1899)• Gas etc. (1925)• Non-proliferation Treaty (1968)• Biological Weapons (1972)• ENMOD (1977)• CCW (Inhuman Weapons) (1980 – 2003)• Chemical Weapons (1993)• Antipersonnel landmines (1997)• Cluster munitions (2008)

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” (customary law)

The Hague Declaration Concerning Expanding Bullets (1899)

• Unnecessary suffering of combatants• “The Contracting Parties agree to abstain from the use of

bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions.”

• 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

CCW scope of application

• . This Convention and its annexed Protocols shall apply in the situations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, including any situation described in paragraph 4 of Article I of Additional Protocol I to these Conventions.

• 2. This Convention and its annexed Protocols shall also apply, in addition to situations referred to in paragraph 1 of this Article, to situations referred to in Article 3 common to the Geneva Conventions of 12 August 1949. This Convention and its annexed Protocols shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature, as not being armed conflicts.

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)

Full title: Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction

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.

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:

• A weapon (air or surface delivered) which consists of a parent munition which contains several sub-munitions

– Area weapons (covers ”footprints”) often with large numbers of sub-munitions

– Failure rates from 1 - up to 70%, depending on whether or not they have self destruct/self neutralisation mechanisms, and how they work

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,…”

Characteristics of Orkan 87

• Surface launched rocket (MLRS)• 12 Rockets at the time• Each rocket carrying 288 sub-munitions• Each sub-munition carrying 420 pellets• Firing range 50 kilometers• Footprint 150 by 200 meters• Dud rate: 46-69 % (depending on how

many rockets were fired)

Convention on Cluster Munitions

• Art. 1

• 1. Each State Party undertakes never under any circumstances to:

• (a) Use cluster munitions;• (b) Develop, produce, otherwise acquire,

stockpile, retain or transfer to anyone, directly or indirectly, cluster munitions;

• (c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

Definition of cluster munition

• “Cluster munition” means a conventional munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions.

• It does not mean the following:• (a) A munition or submunition designed to

dispense flares, smoke, pyrotechnics or chaff; or a munition designed exclusively for an air defence role;

• (b) A munition or submunition designed to produce electrical or electronic effects;

• (c) A munition that, in order to avoid indiscriminate area effects and the risks posed by unexploded submunitions, has all of the following characteristics:

• (i) Each munition contains fewer than ten explosive submunitions;

• (ii) Each explosive submunition weighs more than four kilograms;

• (iii) Each explosive submunition is designed to detect and engage a single target object;

• (iv) Each explosive submunition is equipped with an electronic self-destruction mechanism;

• (v) Each explosive submunition is equipped with an electronic self-deactivating feature;

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.

The question of customary reach of general/ special regimes

• Most treaties not signed by all

• Some treaties do not prohibit general use

Questions of customary law :

ICRC CUSTOMARY STUDY PART IV

Rules 70-86 (but controversies)

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