The Law of War

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The Law of War
Week IV Jan 31, 2007
Prohibition of Specific Weapons
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Overview of Week IV

• The history of weapons regulation
• Underlying principles
• Weapons analysis/current issues
• A look at next week

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The Lieber Code (G.O. 100) - 1863

• Art. 14 Military necessity . . . those measures
  indispensable for for securing the ends of the
  war, and which are lawful . . .
• Art. 15 Military necessity admits of
• Direct destruction of armed enemys life and limb
• Destruction of others incidentally unavoidable
• Art. 16 Necessity does not admit of cruelty
• Infliction of suffering for sake of
  suffering/revenge
• Use of poison in any way

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St. Petersburg Declaration - 1868

• Exploding bullets independently developed by
  Confederate Army in U.S. and Russia
• U.S./Russian military leaders recognized harms
• - Czar Alexander II convened Intl Military
  Commission
• Declaration renounced explosive or incendiary
  projectiles lt 400g
• 20 states now parties
• Most recent Estonia in 1991
• first since 1869!

5
Brussels Declaration - 1874

• Art. XII The laws of war do not allow to
  belligerents an unlimited power as to the choice
  of means of injuring the enemy
• Art. XIII Prohibitions
• Use of poison or poisoned weapons
• Use of arms, projectiles, substances which may
  cause unnecessary suffering
• Use of projectiles prohibited by St. Petersburg
  declaration

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Hague Conferences 1899/1907

• Conventions II/IV on Land Warfare
• Incorporated Brussels Declaration provisions
• Additional declarations barred use of
• Projectiles diffusing asphyxiating/deleterious
  gas
• Bullets that expand or flatten easily in human
  body
• Projectiles and explosives launched from balloons
• Convention VIII set naval mine safety limits
• - Max 1 hr life for free-floating mines

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Geneva Protocol on Gas Bacteriological Warfare
- 1925

• Prohibition on gas shall be universally accepted
  as a part of International Law
• Extended prohibition to bacteriological warfare
• Binding between parties
• Prohibits use, not manufacture
• 133 States now parties
• U.S. joined in 1975
• 35 others joined later last in 2003
• Subsequent treaties required destruction of
  stocks
• 1972 Convention on Bacteriological and Toxin
  Weapons
• 1993 Convention on Chemical Weapons

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UN Conv. on Environmental Modification -1976

• US conduct in Viet Nam initial impetus
• Defoliation and efforts to induce flooding
• U.S. Senate resolution called for intl agreement
• Conference of the Comm. on Disarmament drafted
• UNGA resolution opened for state signature
• Bans military or hostile environmental mods if
• Widespread (area of several hundred km2)
• Long-lasting (gt several months, or a season)
• Severe (significant harm to human life/natural
  resources)

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UN Conv. on Certain Conventional Weapons - 1980

• Outgrowth of 1977 Geneva Protocol conferences
• UNGA sponsored convention restates general law of
  war principles
• Provides technical guidance
• Entry into force
• Applicability to parties to a conflict
• Procedures for protocol amendment
• Rules for denunciation

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Conventional Weapons Protocols - 1980

• I Non-Detectable Fragments
• Use prohibited if fragments not detectable by
  X-ray
• II Restrictions on use of Mines/Booby-Traps
• Use directed at civilians/indiscriminate use
  barred
• Specific classes of booby-traps barred
• Positions of all mines/booby-traps must be
  recorded
• III Restrictions on use of incendiary weapons
• Must discriminate military from civilian targets
• No use on military object w/in civilian
  concentration

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Blinding Laser Weapons Protocol - 1995

• Protocol IV to 1980 UN CCW
• Bars use of laser weapons intended to cause
  permanent blindness to unenhanced vision
• Defined as vision of 20/200 or less
• Feasible precautions to prevent blindness must be
  taken in use of other laser weapons
• Blinding as collateral effect of otherwise
  legitimate military use not covered

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Amended Protocol II on Mines/Booby-Traps - 1996

• New technical standards to make mines safer for
  non-combatants
• Requires further discrimination in employment
• Bars transfer of mines to non-state actors or
  states not bound by protocol
• Makes parties to conflict responsible for mine
  clearance

13
ICJ Opinion on Nuclear Weapons -1996

• Advisory opinion requested by WHO and UNGA
• Opinion addressed six issues
• - No specific legal authorization for nuclear use
  (14-0)
• - No comprehensive prohibition on nuclear use
  (11-3)
• - Nuclear threat/use must comply w/UN Charter
  (14-0)
• - Nuclear threat/use must comply w/law of AC
  (14-0)
• - Nuclear threat/use generally contrary to LOAC,
  cannot say definitively outlawed in extreme case
  (7-7)
• - Must pursue nuclear disarmament in good faith
  (14-0)

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Ottawa Convention on Anti-Personnel Mines - 1997

• Bans Anti-Personnel land mines
• Requires destruction of stocks w/in 10 years
• Bars production or transfer (except for
  destruction)
• Requires removal of existing minefields
• Calls for international cooperation in demining
  and assistance to mine victims
• U.S. is not a party

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Overview of Week IV

• The history of weapons regulation
• Underlying principles
• Weapons analysis/current issues
• A look at next week

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St. Petersburg Declaration

• What is the legitimate object during war?
• What humanitarian limits are placed on this?
• When does the convention apply?
• Are the limits on application consistent with
  humanitarian principles?

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Hague Conventions Declarations

• Superfluous injury v. unnecessary suffering
• When do these agreements apply?
• all participating clause
• What about as customary international law?
• What are relative merits of customary law versus
  conventions?

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Additional Geneva Protocol I - 1977

• Art. 35 Restates now customary rules
• Right to choose methods not unlimited
• Weapons/methods causing superfluous injury or
  unnecessary suffering prohibited
• Methods/means intended or expected to cause
  serious environmental harm prohibited
• Art. 36 Must evaluate conformance of new weapons
  to intl law

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UN Convention on Certain ConventionalWeapons -
1980

• Restates general law of war principles
• Right to choose methods of warfare not unlimited
• Superfluous injury/unnecessary suffering barred
• - Causing severe damage to environment prohibited
• Martens Clause (first used in 1899 Hague
  accords)
• in cases not covered by this Convention . . . or
  by other international agreements, the civilian
  population and the combatants shall at all times
  remain under the protection and authority of the
  principles of international law derived from
  established custom, from the principles of
  humanity and from the dictates of public
  conscience.

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Overview of Week IV

• The history of weapons regulation
• Underlying principles
• Weapons analysis/current issues
• A look at next week

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Joint Combat Shotgun

• What is methodology for weapons analysis?
• Is there an outright prohibition on weapon?
• Specific agreement or customary norm
• Does the weapon cause superfluous injury?
• Balancing test between necessity and harm
• Is the weapon capable of discriminate use?
• Can the environmental impact be controlled?

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Joint Combat Shotgun Issues

• Is there an outright prohibition?
• Were Germans right there is a customary ban?
• Do deforming shot classify as dum dum rounds?
• Does the weapon cause superfluous injury?
• Multiple wounds at close range
• Wound characteristics of buckshot
• Is it indiscriminate in effect?
• Does it cause environmental harm?

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Joint Combat Shotgun

• Was the historical analysis convincing?
• Is use before modern law relevant?
• Analogy to Claymore Mine valid?
• Issue was harm to civilians
• Are you convinced?

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Cluster Munitions

• Disperse many bomblets over large area

• Troops in open
• Lightly armored vehicles
• Dud rates of 5-30
• Higher in some terrain
• May remain explosive 30 years after use

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Small Caliber Munitions

• Many modern assault rifles use small high
  velocity bullets that tumble after body impact
• Cause massive internal wounds
• More lethal than older, larger bullets
• What is military necessity?
• How does balance come out?

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Is this a lawful weapon?
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Additional Geneva Protocol I - 1977

• Art. 35 Restates now customary rules
• Right to choose methods not unlimited
• Weapons/methods causing superfluous injury or
  unnecessary suffering prohibited
• Methods/means intended or expected to cause
  serious environmental harm prohibited
• Art. 36 Must evaluate conformance of new weapons
  to intl law

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Geneva Protocol I Commentary

• Prepared under ICRC sponsorship
• Details convention history and law of war
  background
• NO official status
• - cf travaux preparatoires

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Overview of Week IV

• The history of weapons regulation
• Underlying principles
• Weapons analysis/current issues
• A look at next week

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Looking Ahead Week V

• Focus on law governing air warfare
• Unique in lack of specific binding conventions
• General principles of law of war (lecture)
• Customary provisions embodied in Hague/GP I
• Readings
• 1923 draft Rules on Air Warfare
• 1954 Hague Convention on Cultural Property (skim)
• 1977 GP I
• 1977 Reagan letter of transmittal on GP II
• Linebacker and the Law of War

Issue to ponder What are criteria for lawful
targeting?