Conduct of hostilities Means and methods of warfare

Dr. Elżbieta Mikos-Skuza

Seminar „Introduction to International Humanitarian Law”

College of Europe, Natolin, 21st February 2013

International agreements concerning means and methods of warfare

1868 - Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight.

1899 - Declaration (IV,3) concerning Expanding Bullets 1899 - Declaration (IV,2) concerning Asphyxiating Gases 1907 - Regulations concerning the Laws and Customs of War on Land. 1907 - Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons 1925 - Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of

Bacteriological Methods of Warfare 1972 - Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological

(Biological) and Toxin Weapons and on their Destruction. 1977 - Convention on the prohibition of military or any hostile use of environmental modification

techniques 1980 - 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 1980 - Protocol on Non-Detectable Fragments (Protocol I). 1980 - Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices

(Protocol II). 1980 - Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) 1995 - Protocol on Blinding Laser Weapons (Protocol IV) 1996 - Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as

amended 2003 - Protocol on Explosive Remnants of War (Protocol V)

1993 - Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction

1997 - Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction

2008 – Convention on Cluster Munition

Martens Clause

Civilians and combatants remained under 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

1899 – Hague Convention (Preamble)1907 – Hague Convention (Preamble)1949 - I-IV Geneva Convention art. 63/62/142/1581977 - I AP/IIAP – art. 1.2/Preamble1980 - CCW (Preamble)

GENERAL LIMITATION ON THE RIGHT OF BELLIGERENTS TO ADOPT MEANS AND METHODS OF WARFARE

(…) the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy (…)

- Saint Petersburg Declaration, 1868THEREFORE:

Art. 22. The right of belligerents to adopt means of injuring the enemy is not unlimited.

- Hague Regulation (Hague Convention IV), 1907

Art. 35 -- Basic rules 1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.

- - I AP, 1977

GENERAL RULES ON MEANS AND METHODS OF WARFARE

It is particularly prohibited to employ means or methods which are intended or of a nature:

-to cause superfluous injury or unnecessary suffering (art,. 23 (e) HagueReg; art. 35, para 2, API)

-to injure military objectives, civilians, or civilian objects without distinction (art. 48, art 51, pars. 4 and 5, API)

-to cause widespread, longterm, and severe damage to the natural environment (art. 35, para 3, and 55, para 1, API; ENMOD)

Preliminary remarks on the regulation of means of warfare

IHLDisarma

ment Law

Importance of

technicalities !!!

Treaty Law Customary Law

International conflicts

Internal conflicts

Weapons of mass

destruction

Small Arms and

light weapons

Conventional

Weapons

Types of weapons and ammunition prohibited by IHL

Bullets

explosive projectiles under 400 grammes weight, which is either explosive or charged with fulminating or inflammable substances

- St. Petersburg Declaration, 1868 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 (dum-dum bullets)

- Hague Declaration, 1899

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 - (CCW)

Protocol on Non-Detectable Fragments - 1980

Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices - 1980 (1996)

Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons - 1980

Protocol on Blinding Laser Weapons - 1995

Protocol on Explosive Remnants of War - 2003

Convention on Anti-Personnel Mines 1997

Destruction of stockpiles – 4

years

Types of weapons and ammunition prohibited by IHL

Cluster munition Cluster munition is air-dropped or ground launched weapon

that work by dispersing several smaller submunition (bomblets) from a canister, over a wide area to destroy dispersed, moving and unseen targets.

Developed in order to improve efficiency of aerial attacks, particularly against “soft” targets like

personnel.

Failure rate : 1% - 40%

Types of weapons and ammunition prohibited by IHL

Poisons and poisoned weapons it is especially forbidden to employ poison or poisoned

weapons, because it has an indiscriminate character and can cause unnecessary suffering

- art. 23(a) Hague Regulation; 1907. Prohibition of the use in war asphyxiating, poisonous or

other gases, and of all analogous liquids materials or devices

- Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare; 1925.

Types of weapons and ammunition prohibited by IHL

Biological and chemical weapons

-- prohibition from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases- II Hague Declaration concerning Asphyxiating Gases, 1899

-– prohibition on the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices, and extend this prohibition on the use of bacteriological methods of warfare

- Geneva Protocol 1925

Types of weapons and ammunition prohibited by IHL

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their

Destruction – 1972 Prohibition 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 purposes;2.weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

Chemical weapons

Convention on the prohibition of military or any hostile use of environmental modification techniques, 10 December 1976provide a ban on use of chemical agents causing poisoning people indirectly by having a toxic effect on natural environment

Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction – 1993 (entered into force in 1997)it oblige to destruction of all stockpiles of this weapon and to stop in production Organization for the Prohibition on Chemical Weapons - control over the enforcement of this provisions

Weapons not prohibited or restricted by binding legal acts of IHL

Nuclear weapon no comprehensive and universal prohibition on the use of nuclear weapons in

either customary or conventional international law.

ICJ Advisory Opinion about the Legality of the threat or use of nuclear weapons - 8 July 1996.

o the use of nuclear weapons would generally be contrary to the principles and rules of international humanitarian law (distinction, proportionality etc.)

o Court could not reach “a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake”

Weapons not prohibited or restricted by binding legal acts of IHL

are not in themselves unlawful weapons most small arms have legitimate uses, including for law enforcement and national defenceArms Trade Treaty process

Small arms

•assault rifles, machine guns, hand grenades and other weapons designed for military use by an individual combatant, including commercial firearms such as handguns and hunting rifles.

Light weapons

•portable weapons designed for use by several persons serving as crew, such as heavy machine-guns, mounted grenade-launchers, portable anti-aircraft guns, portable anti-tank guns, portable launchers of anti-tank missiles, and mortars

New weapons

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

- art.36 – IAP; 1977

Perfidy

Perfidy is prohibited (art. 37, IAP)

The term „perfidy” refers to acts misleading the advers party into the belief that there is a situation affording protection under international law

For example: the feigning of an intent to negotiate under a flag of truce or of a

surrender; the feigning of an incapacitation by wounds or sickness; the feigning of civilian, non-combatant status; and the feigning of protected status by the use of signs, emblems or

uniforms of the United Nations or of neutral or other States not Parties to the conflict

Ruses of war

Ruses of war and the employment of measures necessary for obtaining information about the adverse party and the country are permissible (art. 37, para. 2, IAP, art.. 24 HagueReg.)

For example:- the use of enemy signals, passwords,

signs, decoys etc.

Prohibition on improper use of recognizable emblems of sanitary personnel, cultural property, civil defense, works and installations containing dangerous forces, UN emblems, flag of truce and others

It is prohibited to make improper use of flags of truce, enemy or neutral national flags, military insignia and uniforms, and internationaly acknowledged protective emblems (art. 39 IAP, art.. 23, para. 1 lit f HagueReg.; art. 17 para , CulPropConv)

For example:- The red cross or the red crescent 

Prohibition on giving or ordering no quarter and attacking hors de combat

It is prohibited to order that ther shall be no survivors. It is prohibited to threaten an adversary with such an order or to conduct military operations on that basis (art. 40 IAP, art. 23 lit d, HagueReg.)

A person who is recognized or who, in the

circumstances, should be recognized to be ' hors de combat shall not be made the object of attack (art. 41 IAP)

EspionageSpies are persons who clandestinely, or under fals pretences, e.g. not wearing the uniform of theirarmed forces, gather information on the territory controlled by the adversary. Person who fall into the hands of the adversary while engage in espionage shall be liable to punishment (art. 29-31 HagueReg)

Even if captured while engaged in espionage, a spy shall not be punished without prior conviction pursuant to regular judical procedures (art. 30, HagueReg; art. 75, para 4, IAP)

Other methods of warfare

Sabotageis allowed by IHL as long as it is directed at military objectives

Snipersare permitted only if they attack combatants and military objectives. It is strictly forbidden to threaten civilians by attacking them with snipers.