Means in armed conflict legal framework

1
Lecture 5

• Means in armed conflict legal framework

2
Prohibited weapons and ammunition

• Point of departure
• The principle of distinction (between combatants
  and civilians)
• The principle of military necessity (unnecessary
  suffering by combatants)

3
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.48the 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.
  

4
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..

5

• 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.

6
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

7
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

8
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)

9
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)

10
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

11
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

12
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,

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• 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.

14
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 lawthe 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.

15
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

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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 purposes2. weapons, equipment or
  means of delivery designed to use such agents or
  toxins for hostile purposes or in armed conflict.

17
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)

18
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

19
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)

20
Protocol I

• Protocol on Non-Detectable Fragments (1980)
• Reflects the prohibition against unnecessary
  suffering and superfluous injury in AP I, art.35
  (2)

21
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

22
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

23
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

24
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

25
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.

26
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

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• 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.

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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

29
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).

30
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.
• .

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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.

32
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.

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• 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)

34
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, 18
  September 1997

35
General obligations

• Article 1 (1) Each State Party undertakes never
  under any circumstancesa) To use
  anti-personnel minesb) To develop, produce,
  otherwise acquire, stockpile, retain or transfer
  to anyone, directly or indirectly, anti-personnel
  minesc) To assist, encourage or induce, in any
  way, anyone to engage in any activity prohibited
  to a State Party under this Convention.

36
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.

37
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.

38
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

39
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,

40
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)

41
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.

42
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

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• (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

44
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.

45
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.

46
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