According to a well-established rule of the law of armed conflict, warring parties are prohibited from employing weapons, means, and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. Agreement about the foundational nature of this rule can, however, easily conceal the disagreement as to its precise meaning and efficacy. This paper considers the origins of the rule in question, and how key aspects of the rule are interpreted. It then examines one of the more contentious issues about the rule, namely whether it is only concerned with the inherent properties of particular weapons or whether it also deals with the use of weapons generally.

Chapter 2’s purpose is to provide some focused discussion on the meaning of the ‘force’ prohibited in Article 2(4) and customary international law. In seeking to expose the uncertainties regarding this particular term, various factors or common elements of ‘force’ are distilled. After looking at the prohibition of force in the context of the principle of non-intervention, the chapter moves on to look at the type of force that the prohibition is concerned with and, concluding that it is ‘armed force’, then moves on to attempt to distil the key elements of such force, including whether it is the means used or the effects created which is of importance, and whether force can be used indirectly. The chapter then addresses the ‘gravity’ or severity aspects of a use of force, in particular by distinguishing it from an armed attack or act of aggression, but also by examining whether there is a level of force – or de minimis threshold – below which an action falls out of the remit of the prohibition. Finally, and having distilled the key practical components of a prohibited use of force, the chapter focuses upon the mens rea component.

For many writers, one singular clue symbolizes the Dongo massacre and its rapid resolution by the Novohispanic judiciary. Written accounts obsess over one tiny bloodstain which plays a critical role in the events that took place from October 23 to November 7. This chapter continues to discuss the investigations of the murderers, including an array of different clues, not just the famous single drop of blood.

This chapter depicts the witnesses who heard sounds or picked up clues before, during and after the massacre on the night of October 23, 1789. It brings to life the moment when the crime was discovered and the initial reports of the investigating judicial officials, as well as surgeons who examined the bodies.

A return to the 1970s would mean a dramatic reduction in federal law enforcement and federal prisoners. While the vast majority of criminal prosecutions happen at the State and local level, the federal government is just as important a contributor to Mass Incarceration as the largest State. And it is the easiest place to see that Mass Incarceration is about policies, not crime.

After making an arrest, a police officer typically refers the matter to the local prosecutor’s office. Once presented with a case, that office decides whether to charge the defendant with a crime and, if so, which crime(s). Even if prosecutors initially file a charge, they can still dismiss the case later on. If prosecutors do not dismiss the case, they can seek an informal resolution (often called “diversion”), negotiate a plea bargain on behalf of the government, or take the case to trial. These decisions about which cases to prosecute, and how, are important contributors to the incarceration rate. As this chapter explains, over the era of Mass Incarceration, prosecutors’ primary contribution was to follow the lead of police and legislators. Prosecutors applied the new tools enacted by legislators leading to more severe punishments for crimes generally. And, perhaps most importantly, they uncritically accepted the new mix of arrests forwarded to them by police, flooding the courts with a higher proportion of cases that were easy to prove and punish.

Chapter 8, “Spoiling for A Fight: Armed Opposition,” begins a two-part examination of violent resistance and how, when, and why Poles embraced or rejected it. This discussion is deliberately postponed in the story, as much of the existing literature focuses on military resistance as a shorthand for resistance as a whole, which it was not. Polish military resistance efforts, initially launched by officers and soldiers of the Polish Army in hiding under occupation, remained fractured and hamstrung by vicious Nazi reprisals until 1942. Despite its danger, myriad groups organized around plans for insurrection, spanning the political spectrum from orthodox communists to the fascist far right, and including Polish-Jewish participation. After the destruction of many such initiatives and the merging and reformation of others, one increasingly grew in size and strength: the Home Army (Armia Krajowa) eventually dominated a chaotic resistance landscape through the support of the Western Allies. This chapter argues that violent resistance was initially a disorganized catastrophe, and only late in the occupation did a few surviving underground militaries achieve the ability to influence the Polish population or threaten the German occupiers.

Chapter 9, “Home Army on the Offensive: Violence in 1943-1944,” dissects mature intelligentsia military resistance. As the tide of war turned and the Germans endured their first battlefield defeats against the Soviet Union, the consolidated Home Army grew aggressive. Its most effective move was a 1943 assassination campaign targeting Wehrmacht officers, Nazi police, and German administration personnel called Operation Heads. Heads intimidated the Germans and shifted occupation policy. The Home Army’s perceived success and the advance of the Eastern Front toward Warsaw in 1944 convinced underground military leaders that they were facing their last opportunity to launch a city-wide insurrection. Their rebellion, now known as the Warsaw Uprising, failed. Remaining German personnel in the city were reinforced and crushed the insurrection, slaughtered civilians, and destroyed the city. This chapter argues that military conspiracy, like Catholic resistance, had its successes but was ultimately dependent on the international situation and could not secure the practical support of the Grand Alliance in the face of both German and Soviet opposition.

Chapter 2 explains the procedural character of Article 36 and examines its origins. It first tests the possibility that Article 36 represents a restatement or revised version of a similar provision found elsewhere in the law of armed conflict. To that end, it explores 13 international instruments that regulate the use of weapons in war and that were adopted prior to the 1974-1977 Diplomatic Conference where Article 36 was negotiated. The analysis reveals that none of the pre-existing international compliance mechanisms resemble the AP I weapons review provision. The chapter then examines the drafting materials. Whilst no unequivocal evidence on the motives for adopting a provision on weapons review can be found in the Official Records of the 1974-1977 Diplomatic Conference, there is sufficient evidence to conclude that the key States behind Article 36 were Germany and the United Kingdom. The General Legal Provisions relating to the Conduct of Hostilities and War on Land, operative in Germany since 1961 and mandating that weapons be developed in accordance with the requirements of existing legal regulations, might well be a predecessor to Article 36. [182 words]

Chapter 9 focuses on an Article 36 review of (autonomous) cyber capabilities. As in the case of autonomous weapons systems, the most burning questions for a weapons review in the cyber context remain: How to meaningfully incorporate advice on the law of targeting as part of the weapons review? How to determine when a given capability is ‘new’ for review purposes and when to initiate a review? How and when can testing and evaluation processes meaningfully inform the review outcome? Furthermore, some challenges distinct to cyber capabilities also exist. Most importantly, cyber capabilities test the underlying assumptions of the law of armed conflict. The effects of their use may be more deleterious than the consequences produced by traditional weaponry, and yet they may fall outside the legal review requirement because the effects produced do not constitute an ‘attack’ in its conventional interpretation. [142 words]

This chapter considers the inter-relationship between the right to life and arms control and disarmament more broadly, encompassing also prohibitions and restrictions on conventional weapons as well as those pertaining to weapons of mass destruction. It offers definitions of both ‘arms control’ and ‘disarmament’ in the absence of agreement under international law as to the scope of each term. It then considers obligations under global arms control and disarmament treaties, first with respect to specific weapons of mass destruction and then with respect to conventional weapons. The use of weapons is addressed separately from disarmament duties and other arms control obligations.

This chapter describes the duty of States to prevent and investigate deaths that occur while a person is in their formal custody or is otherwise being detained by the authorities. When a person is held in a place of detention, the risks of him or her being killed or seriously harmed, whether at the hands of warders or by other inmates, are acute. In addition, a detainee may decide to commit suicide, whether as a consequence of mental health issues, the broader circumstances of incarceration, or directly as a result of his or her treatment while in detention. Inadequate provision of medical care, food, or water may also contribute to a premature death. Of course, detainees can and do also die from natural causes.