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The International Committee of the Red Cross and the problem of excessively injurious or indiscriminate weapons

Published online by Cambridge University Press:  20 April 2017

Maurice Aubert
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Extract

It is a truism to say that technical progress is not always beneficial to mankind because it also leads to the development of more sophisticated - i.e. more deadly - weapons. Any attempts to prohibit or restrict their use on the basis of international agreements come up against major obstacles. Even if only to ensure their own national security, States try to equip their armies with the most up-to-date weapons and, if possible, ones more sophisticated than those in a potential enemy's arsenal. But using a certain type of weapon cannot be justified if it runs counter to the general principles of law and humanity.

Our remarks do not refer to particularly devastating and indiscriminate weapons such as atomic, bacteriological and chemical weapons; rather it limits itself to conventional weapons. To date, a ban on such weapons has been accepted only for those which, in view of the disparity between their military effectiveness and the degree of superfluous injury and unnecessary suffering they cause, are without any real interest as means of combat (i.e. dum-dum bullets, non-detectable fragments, exploding booby-traps in the form of harmless-looking objects). As regards militarily effective weapons (incendiary devices and mines), we cannot but hope that their use will be confined as far as possible to the actual combatants so as to avoid indiscriminate harm to civilians, civilian objects and the environment.

Type
Tenth Anniversary of the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
Information
International Review of the Red Cross (1961 - 1997) , Volume 30 , Issue 279 , December 1990 , pp. 477 - 497
Copyright
Copyright © International Committee of the Red Cross 1990

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References

1 In French the expression “armes conventionnelles” was also used but the term “armes classiques” was adopted during the United Nations Conference of 10 October 1980 on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects.

2 “… the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy;

“… for this purpose it is sufficient to disable the greatest possible number of men;

“… this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable;

“… the employment of such arms would, therefore, be contrary to the laws of humanity”.

3 The expression “attack” means acts of violence against the adversary, whether in offence or in defence (Protocol I additional to the Geneva Conventions, Article 49. paragraph 1).

4 – “Protection of the civilian population against the dangers of indiscriminate warfare” – Resolution XXVIII of the Twentieth International Conference of the Red Cross (Vienna, 1965), International Red Cross Handbook (hereinafter referred to as the Handbook), 12th edition, Geneva, 1983, p. 626.

– Resolution of the United Nations General Assembly relative to the respect for human rights in armed conflict – Resolution 2444/XXIII, 1968, Handbook, op. cit. p. 396.

– “Programme of action of the Red Cross as a factor of peace” adopted by the World Red Cross Conference on Peace (Bucharest, 1977)”, Handbook, op. cit. p. 570 ff.

– “Conventional weapons” – Resolution IX of the Twenty-fourth International Conference of the Red Cross (Manila, 1981, Handbook, op. cit. pp. 633-634.

5 Weapons that may cause unnecessary suffering or have indiscriminate effects – Report on the work of experts, published by the ICRC in 1973.

6 Additional Protocol I, Article 35.

7 Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne, 24 September–18 October 1974) – Report, published by the ICRC in 1975.

8 Conference of Government Experts on the Use of Certain Conventional Weapons (second session, Lugano, 28 January–26 February 1976) – Report, published by the ICRC in 1976.

As regards the progress and results of the two conferences of experts, see also Frédéric de Mulinen, “A propos de la Conférence de Lucerne et Lugano sur l'emploi de certaines armes conventionelles” in Annales d'études Internationales 1977, Droit himianitaire et protection de l'homme (only in French), Volume 8, p. 111 ff.

9 Lugano Conference, Report, p. 5.

10 Ibid., p. 6.

11 Ibid., p. 7.

12 Ibid., p. 78.

13 Ibid., p. 7.

14 Ibid., p. 100.

15 Ibid., p. 141.

16 Resolutions 32/152 of 19 December 1977, 33/70 of 28 September 1978 and 34 of 11 December 1979.

17 See Yves Sandoz, “Prohibitions or Restrictions on the Use of Certain Conventional Weapons – United Nations Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons, Final Act”, offprint from the International Review of the Red Cross (IRRC) No. 220, January-February 1981.

18 “The words ‘methods and means’ include weapons in the widest sense, as well as the way in which they are used.” - Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, eds. Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, ICRC, Martinus Nijhoff Publishers, Geneva, 1987, p. 398. We employ the term “means” as regards the weapons themselves and the term “methods” as to how they are used tactically.

19 The “Law of Geneva” and the “Law of The Hague” are referred to as such because they were the cities where the main efforts were made to codify these particular branches of law.

20 Yearbook of the International Law Commission, 1949, Vol. I, p. 53.

21 George Scelle, in Yearbook of the International Law Commission, Vol. I, p. 51, para. 47.

22 See the remarks by France on this question in the Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Geneva (1974-1977), Federal Policy Department, Berne, 1978, Vol. VI, p. 101 (CDDH/SR. 39, para. 55).

23 1980 Convention, Article 1.

24 1980 Convention, Article 7, para. 4.

25 Sandoz, op. cit. (p. 10).

26 1980 Protocol II, Article 6.

27 Ibid., Article 3.

28 Ibid., Article 4.

29 Ibid., Article 5.

30 1980 Protocol II, Articles 7 and 8.

31 Major (Ret.)Wyatt, J.D.R., “Land mine warfare, recent lessons and future trends”, International Defense Review, Vol. 22, No. 1, 1989 Google Scholar.

32 1980 Protocol III, Article 2.

33 Fackler, Martin L., “Wounding patterns of military rifle bullets”, International Defense Review, Vol. 22, No. 1, 1989 Google Scholar.

34 Commentary on the Additional Protocols to the Geneva Conventions, op. cit., pp. 393-394.

35 Report of the Working Group on Land-mines and Booby-traps of 20 October 1980, p. 8.

See also the Commentary on the Additional Protocols to the Geneva Conventions, op. cit., p. 416.

36 Report of the Working Group on Incendiary Weapons of 1 October 1980, p. 3.

37 Report of the Working Group on Land-mines and Booby-traps of 20 October 1980, p. 7.

38 Additional Protocol I, Article 52, para. 2.

39 1980 Protocol II, Article 2, para. 4 and 1980 Protocol III, Article 1, para. 3.

40 Additional Protocol I, Article 51, para. 4 (a).

41 1980 Protocol II, Article 3, para. 3 (a).

42 See Col. A.P.V. Rogers, “Mines, Booby-traps and other devices”, published in this issue of the International Review of the Red Cross, pp. 527-528.

43 1980 Protocol II, Article 3.

44 1980 Protocol III, Article 2.

45 Additional Protocol I, Article 51, paras. 4 and 5; Col. A.P.V. Rogers, op. cit., pp. 533-534.

46 Commentary on the Additional Protocols to the Geneva Conventions, op. cit., p. 414 ff.

47 Additional Protocol I, Article 55.

48 Additional Protocol I, Article 90.

49 Commentary on the Additional Protocols to the Geneva Conventions, on Article 13 of Additional Protocol II, op. cit., p. 1448.

50 “ICRC appeal following the entry into force of the Convention on Prohibitions and Restrictions on the Use of Certain Conventional Weapons”, International Review of the Red Cross, No. 238, January-February 1984, p. 30.

51 Sandoz, op. cit., p. 16.

52 1980 Convention, Article 8.

53 Additional Protocol I, Article 36.

54 1980 Convention, Article 6.

55 Additional Protocol I, Article 87. 1

56 Additional Protocol I, Article 86. See Maurice Aubert, “The question of superior orders and the responsibility of Commanding Officers in the Protocol additional to the Geneva Conventions of 12 August 1949 and relating to the protection of victims of international armed conflicts (Protocol I) of 8 June 1977, offprint from the International Review of the Red Cross, No. 263, March-April 1988, pp. 105-120.

57 See CDDH Resolution 21 which “invites the International Committee of the Red Cross to participate actively in the effort to disseminate knowledge of international humanitarian law…”.