Weapons and Related International Instruments under International

Humanitarian Law: A Review

Abstract

Author

Name : Shashank Shekhar Pandey

(2nd year B.B.A LL.B, Symbiosis Law School Noida )

Email – Id : shashankspandey14@gmail.com

Postal Address : A-15, G-48 , Sanskriti Awass Boys Hostel, Bishanpura , Near Labour Chouk Sec-58 , Noida (201301) , Uttar Pradesh

Contact No. : +91-9650759217

Co-Author

Name: Ruchi Saxena

(1st year B.A LL.B (Hons.), Institute of Law Nirma University, Ahmedabad)

Email – Id: saxenaruchi85@gmail.com

Postal Addres : 201, G-Anand Vihar Flats, IOC road, Tragad, Ahmedabad(Gujarat), 382470

Contact No. : +91-9424800329, 9727296110

Weapons and Related International Instruments under International

Humanitarian Law: A Review

Abstract

The review of the weapons and the laws existing is currently vital and due; because of the

growth in disputes and change in circumstances. The same is likewise vital as it would give the

essential help to the military and the other partners to follow the new models of national and also

international laws. We have seen on numerous occasions that till a certain degree the

International laws have been neglected and offices are not ready to work sincerely in this field.

Stressing on the significance of Article 36 of 1997 Additional Protocol 1 to the Four 1949

Geneva Conventions, till a degree momentarily a bit of significance has been given to such

reviews.

Through this research paper the researchers will attempt to fundamentally investigate the

approaches, set ups and viability of such strategies. The authors will likewise attempt to propose

the ideal conditions with respect to how and when the reviews ought to be directed. The authors

for their reasoning will be relying upon the international instruments present. The Authors will

attempt to set up the relationship between reviews of weapons and human rights.

Keywords: Geneva Conventions, International laws, international instruments

Weapons and Related International Instruments under International

Humanitarian Law: A Review

Introduction

Review of the armory under the international weapons law is important for the military and law

enforcing agencies equally and substantially to make sure that the weapons and their usage are in

compliance with the standards laid down by existing laws. While some attention has been given

to these reviews especially under Article 36 of 1977 Additional Protocol 1 to the four 1949

Geneva Conventions (herein after art. 36), comparatively less consideration has been given to the

requirements of law enforcement agencies for conduction of such reviews on their own and least

considerations has been given to the results which can come after such reviews. These kind of

reviews are not just a requirement in current socio-political scenario but are of higher importance

to critically analyze the risk factor and standards attached to the weapons so acquired by the

states for all the purposes viz. Police force, army etc.

Since the beginning of this debate the review has been divided the international law into two

distinct parts 1) International Humanitarian Law (IHL) and Disarmament Law 2) Human rights

law and Criminal Standards. This review will not only help to assess the current scenario but will

help the forces to inculcate the values of human rights as well as to introduce the procedures to

safeguard the same and will also motivate them regarding usage of less-lethal weapons.

Further adding on to the argument, as raised and mooted by the specialists1 in this area that less

lethal weapons should not be subjected to fundamental2 laws laid down in IHL instead of this it

proposes that all the weaponry should be adjudicated under both IHL and human rights law and

should recommend states the standards in according to the abovementioned laws. We should

start with the legal reviews of these weapons as stated in Art. 36 as it mandates the reviews of

such new weapons or any means of warfare so introduced in world as no other convention or

treaty is existing with regards to the same.

1 Christopher Mayer, ‘Non-Lethal Weapons and Non-Combatant Immunity. Is it Permissible to Target Noncombatants’, Journal of Military Ethics, vol.6, no.3 (2007,221-31;).2 ‘Intransgressible’ in words of the ICJ(Legality of the Threat or Use of Nuclear Weapns,8 July 1996,§79),

Reviews of Weapons and Means or Methods of Warfare

Article 36

A review of the legal status of new weapons so introduced or any other method or instrument

used in warfare has to be reviewed before it can be used and it imposes an obligation on the part

of the state as per 1977 Additional Protocol 1 to the four 1949 Geneva Conventions.3 Thus acc to

Art.36:

“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 High Contracting Party.4 ”

The main objective of this article is to ‘prevent the use of weapons that would violate

international law in all circumstances and to impose restrictions on the use of weapons that

would violate international law in some circumstances, by determining their lawfulness before

they are developed, acquired or otherwise incorporated into State’s arsenal.’5As in the

commentary on the protocol, the International Committee of the Red Cross (ICRC) has observed

and said that this requires a state party to ‘Determine the possibly unlawful nature of a new

weapon, both with regards to any other applicable rule of International Law’. The ICRC has also

added and emphasized on the part that state will be held responsible ‘in any case of wrongful

damage ensuing.’6

Legal Status of the review

The need for review in terms of legality of weapons under international law is primarily absent

from the rules originally espied by ICRC in the study of the Customary IHL, as published in

3 As of Jan 20,2016 177 states are party to 1977 Additional Protocol 14 Kathleen Lawand, Robin Coupland and Peter Herby, A Guide to the legal review of New Weapons, Means and Methods of Warfae, Measure to Implement Art.36 of Additional Protocol I of 1977,ICRC,Geneva,January 2006.5 Ibid.,p.4.6 Yves Sandoz et al. (eds.), Commentary on the Additional protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949,ICRC,Geneva,1986, §1466, Available at : www.icrc.org/ihl.nsf/COM/470-750045?OpenDocument (Retrieved on 6 February 2016)(Herein after The Commentary)

2005.7 Further there’s a lack of states practicing it positively;8 As per ICRC in 2010 ‘Only a few

countries are known to have set up formal review mechanism for new weapons.’

Furthermore adding to previous comments we have seen that none of the parties to 1977

Additional Protocol 1 had, as of date have made any reservations or declaration contratry to the

article. This observation shows that article 36 might emerge as a customary norm. India as non-

state party to the convention has stated that:

‘We feel that there is a need for renewed debate and discussion on strengthening the obligations

of all states to consider whether the adoption of new weapons systems of methods of warfare

should, in some circumstances, be prohibited under the applicable rules of international law.’9

The Armed Forces of USA conduct detailed reviews of weapons prior to their deployment ; they

even did so before the protocol came into foreplay. Further at the 28 th International Conference

of the Red Cross and Red Crescent Movement, States Parties to the Geneva Conventions had

announced that, ‘In light of the rapid advancement of weapon technology and in order to protect

civilians from the indiscriminate effects of weapons and combatants from unnecessary suffering

and prohibited weapons, all new weapons, means and methods of warfare should be subjected to

rigorous and multidisciplinary review.’10

Activities Generating the Need for Review

Art.36 enlists a consequential order for the activities that should generate the need for such

reviews namely the study, advancement, attainment or adoption of a weapon or any means and

method of warfare. The words ‘export’ or ‘transfer’ are not used . Thus , although the onus

applies to the state casting the, as well as on those buying them, and in addition to it state

manufacturing the weapon is bound by Art. 26 to the same extent as the state purchasing the

weapon is in. At the very moment when they become Parties to the Protocol, as ICRC discerns ,

the provision ‘does not seem to oblige them to prohibit the sale and export of weapons when

7 Jean-Marie Henckaerts and Lousie Doswald-Beck (eds.), Customary International Humanitarian Law- Vol.1: Rules, Cambridge University Press, 2005, p.25 and note 102. 8 As per 1945 statue of the ICJ, international custom is observed from ‘evidence of a general practice accepted as law’. Art. 38(1)(b), 1945 Statute of International Court of Justice .9 Statement of India to the Annual Meeting of State Parties to the Convention on Certain Conventional Weapons, Geneva,7 November 2007.10 28th International Conference of the Red Cross and Red Crescent, Geneva,2-6 december 2003, Agenda for Humanitarian Action, Final Goal 2.5 .

evaluation contradicts the rules in force in either their own country or the purchasing country.’

Never the less it is also observed that it’s ‘obviously desirable that the countries which

manufacture arms, which devote to this industry a considerable investment in terms of

employment and finance, and which are mainly responsible for the fact that weapons are

multiplying at an ever increasing rate throughout the world, also carry out their responsibilities in

this matter.’11

The Subject of the Review

Article 36 refers to the requirement to review each new ‘weapon, means, or method of warfare.’

As a fact the term ‘Weapon’ is not formally defined under international law, but is clearly has a

bigger ambit than means of warfare and arms. The term ‘ means and methods of warfare’ refers

to the things used in war and the way they are used . Thus, a method of warfare refers to a way in

which weapon is used. Given an example, Land Mines will be a means of warfare whereas

placing them underground strategically will be a method. Similarly Tear gas and the pepper

sprays fall under the ambit of prohibited chemical agents under 1992 Chemical Weapons

Convention. So, their use as a method of warfare is prohibited. But, using the same can be stated

to be lawful under the ‘Law enforcement including domestic riot control purposes.’12

The ICRC implicates that, in spite of the reference in Article 36 to ‘new weapons’ it should not

be considered as an unnecessary limitation for the purposes of investigation:‘The scope of Article

36 is not restricted to future weapons13’It further observes that with regards to the same weapons

may not necessarily be ‘new in a technical sense’ but they can be new with regards to the state so

introducing the same in their armory.

Conditions in which the review should take place

The commentary on article 36 by ICRC implicates that the recognition of legality of such

reviews should be made on the basis of ‘normal use of the weapon’ as expected at the time of

evaluation.14 Furthermore, nonetheless, the ICRC expects to nuance this position, considering

that the reviewing authority should also consider other foreseeable usage and effects in its

11 ICRC commentary on 1977 Additional Protocol I, §1473. 12 Article 2(9), 1992 Chemical Weapons Convention.13 ICRC commentary on 1977 Additional Protocol I, §1475.14 ICRC Commentary on 1977 Additional Protocol 1, §1466.

original form or in any of the new combinations which may be applied on it.15The reviewing

authority needs not to but can consider the plausible uses or consequences of the weapon beyond

those that can be ‘reasonably expected’.16The use of word ‘would’ in the assessment and

common sense makes it simple to understand that the legal anatomization should take place

before usage with the view of preventing unlawful acts committed by the states.

According to Lawand, the obligation of legal review:

“Implies at least two things. First a state should have in place some form of permanent

procedure to that effect, in other words a standing mechanism that can be automatically

activated at any time that a state is developing or acquiring a new weapon. Second, for the

authority responsible for developing or acquiring new weapons such a procedure should be

made mandatory, by law or by administrative directive. ”17

It also stated that irrespective of who is carrying out the review i.e. either an individual reviewer

or a body made up of several persons or departments, they must be able to take a versatile

approach, drawing on relevant military, legal, medical, and environmental expertise.18

Applicable laws and rights affected

Rights

There are various human rights which are affected due to the involvement of arms in conflicts

major rights which can be said to get hampered because of this are

1. Right to life

2. Protection from Torture and ill-treatment

3. Right to health

15 Lawand,’Reviewing the legality of New Weapons, pp. 927-816 Ibid.,p.928.17 Ibid.p.927. Lawand notes that these minimum procedural requirements are drawn inter alia from the ICRC Commentary on the two Additional Protocols , relevant calls of the International Conference of the Red cross and Red Crescent, and the general obligation of States Parties to 1977 Additional Protocol 1 to adopt measures to ensure the execution of the Protocol pursuant to Article 80. 18 Ibid.,p.929 .

4. Right to protest

All of these rights are more or less affected by uses of arms like riot control substances in forms

of CR gas as used by UK or the drones used by US or the concentration camps and euthanasia or

when it comes to the up keeping of the noncombatants in camps and shelters. Because of the

constraint we cannot discuss all of these in details but for a fact the reviews with regards to these

are also needed.

Laws

As inscribed in the language of Article 36-‘be prohibited by this protocol or by any other rule of

international law applicable to the High Contracting Party’- adding to the provisions of 1977

Additional protocol I itself, both Customary International Law and a given State’s other onuses

are necessary factors for analysis.

1. Provisions of 1977 Additional Protocol 1, applicable in international armed conflicts includes

the prohibition on the use of :

-Weapons, Projectiles and Materials and Methods of warfare of such a nature that it will

cause superfluous injury or unnecessary suffering (Article 35(2));

-Methods or means of warfare which are intended, or may be expected, to cause widespread,

long –term and severe damage to the natural environment (Article 35(3)).

-Any method or means of combat which cannot be directed at a specific military objective

(Article 51(4) (b)); and

-Any method or means of combat whose effects cannot be limited as required by the

protocol, and results in each such case, are of such nature so as to strike military objectives

and civilians or civilian objects without distinction (Article 51(4) (c)) .

2. Other relevant Legal Instruments(IHL/Disarmament treaties)

-Anti-Personnel Mines (1997 Anti-Personnel Mine Ban Convention);

-Cluster Munitions (2008 convention on Cluster Munitions);

-Blinding Laser Weapons (1995 Protocol IV to the 1980 Conventions on Certain

Conventional Weapons as amended- CCW);

-Chemical and Bacteriological Weapons (1925 Gas Geneva Protocol);

-Incendiary Weapons (1980 Protocol III to CCW);

-Anti Vehicle Mines (1980 Protocol II and 1996 Amended Protocol II to the CCW);

-Anti-Personnel Mines (for states not party to the 1997 Anti-Personnel Mine Ban

Convention, 1980 Protocol II and 1996 Amended Protocol II to the CCW).

Rules of IHL

The use of means and methods of warfare which are of a nature to cause superfluous

injury or unnecessary suffering is prohibited(Rule 70);

The use of weapons which are by nature indiscriminate is prohibited(Rule 71);

The use of poison or poisoned weapons is prohibited (Rule 72);

The use of biological weapons is prohibited (Rule 73);

The use of Chemical Weapons is prohibited (Rule 74);

The use of riot control agents as a method of warfare is prohibited (Rule 75);

The use of herbicides in mentioned cases are prohibited (Rule 76);

The use of bullets which expand or flatten easily in human body is prohibited (Rule 77);

The anti-personnel use of bullets which explodes inside human body is prohibited (Rule

78);

When landmines are used precautions should be taken to minimize their indiscriminate

effect (Rule 81);

The anti-personnel use of incendiary weapon is prohibited, unless it is not feasible to use

a less harmful weapon to render a person hors de combat (rule 85);

The use of laser weapons which can cause permanent blindness to unenhanced vision is

prohibited (Rule 86); and

The use of such method or means of warfare which are expected to cause widespread,

long-term and severe damage to the natural environment is prohibited. Destruction of

natural environment shall not be used as weapon (Rule 45).

Other treaties pertinent will also be considered to be as relevant in the given scenario19 especially

the conventions of 1972 related to Biological and Toxin Weapons and 1992 Chemical Weapon

Convention.

Conclusion

We have seen and analyzed that IHL, disarmament laws and human rights laws have crucial

implications when it comes to weapon review and procurements. They might overlap at some

points. With so many legal instruments existing we just have to make sure that the parties to

them adhere to rules in a stricter sense. As the nature of every weapon is they do not discriminate

between civilians and non-civilians, combatants and non-combatants so we have to make sure

that in case of any kind of armed conflicts there should not be or if there is there has to be a

minimal harm to the civilians/non-combatants.

In this paper we have tried to provide the instruments and the conditions also to add into it we

have provided with the rights which get violated most and these are just basic outlines of what

should be done. All the things can be considered as a starting point and further can be worked

upon. Further developing a standards- based approach to selection and testing will require a

dedication from the stakeholders from every possible field even from the field like Surviors of

human right abuses to Private military and security companies , to legal, medical and technical

experts.

Though all the work done till now at international foray isn’t a small feet, but, as understood by

Article 36 of 1977 Additional Protocol I and the 1990 Basic Principles, Weaponry selection

needs more careful study and with an undivided attention. Evaluation cannot be left wholly to

market giants.

Ultimately the cost of filtering out the non-acceptable technologies isn’t simply a financial task

to perform but can also involve unacceptable human cost.

19 As ICRC observed, the clause ‘’ any other rule of international law applicable to the HIGH Contracting Party’, ‘Naturally’ includes the rules that form a part of international customary law, ICRC commentary on 1977 Additional Protocol I,§1472.