Weapons and Technology in Armed

Conflict: Challenges to the

Application of IHL
Dr. Lijiang Zhu
Associate Professor, School of International Law, CUPL
 Overview

 Place of weapons and technology in IHL

 Regulation of weapons and technology in IHL: A
Historical Perspective
 Sources of modern IHL in regulation of weapons and
technology
 General principles of IHL regarding weapons and
technology
 Specific treaties
 Challenges
 Place of weapons and technology in IHL

 IHL can be defined as the whole of the international

conventional or customary rules, which are
specifically intended to regulate humanitarian
problems arising directly from both international or
non-international armed conflicts, and which restrict,
for humanitarian reasons, the right of parties to the
conflict to use means and methods of warfare of their
choice and to protect people and object affected by
the conflict.
Hans-Peter Gasser, International Humanitarian
Law: An Introduction, in Hans Haug, Humanity for All,
Henry Dunant Institute, 1993, p. 509.

Place of weapons and technology in IHL
Means:
weapons and
Hague Law (Law on technology
Hostilities): To prohibit
or restrict means and
methods of warfare Methods:
IHL tactics of
warfare
Geneva Law (Geneva
Conventions since
1864): To protect the
victims of war
 Regulation of weapons and technology in
IHL: A Historical Perspective

 To poison the well is prohibited by African ancient

law of tribes.
 Cannon. 29 of the Second Lateran Council called by Pope
Innocent II in 1139 banned the use of crossbows against
Christians.
 Sources of modern IHL in regulation of
weapons and technology

1. IHL Treaties on weapons:

Since 1868 St. Petersburg Declaration, IHL

has developed out more than 20 core global
treaties regulating the use of weapons in
armed conflicts.
The principle of Pact sunt Servanda: Article
26 of the VCLT “Every treaty in force is binding
upon the parties to it and must be performed by
them in good faith.”
 Sources of modern IHL in regulation of
weapons and technology
 2. Customary International Humanitarian Law on
Weapons: 17 Rules [2005 ICRC Customary
International Humanitarian Law, Cambridge
University Press: Part IV (Rules 70-86)]
 CIHL binds all States, except the persistent objector.
 Martens Clause: “In cases not covered by this
Protocol or by other international agreements,
civilians and combatants remain under the protection
and authority of the principles of international law
derived from established custom, from the principles
of humanity and from dictates of public conscience”
(Preamble of 1899 Hague Convention II, 1907 Hague
Convention IV; art.1 (2) of AP I)
 General approaches to weapons
 IHL adopts two approaches to the regulation of
weapons: general approaches and specific
approaches.
 Use of a specific weapon or technology may be
prohibited by general principles even if no specific
rules prohibit or restrict it.
 “74. The Court not having found a conventional rule of
general scope, nor a customary rule specifically
proscribing the threat or use of nuclear weapons per se, it
will now deal with the question whether recourse to
nuclear weapons must be considered as illegal in the light
of the principles and rules of international humanitarian
law applicable in armed conflict...” [ICJ, Nuclear Weapons
advisory opinion, 1996]
 General approaches to weapons

 The Principle of Limitation: the right of belligerents to

adopt means and methods of warfare is not unlimited
[article 23 of 1907 Hague Convention IV; article 35 of
1977 AP I], indicating the principle of limitation also
applies to use of weapons in armed conflict.
 The IHL on weapons is a result of balance between
military necessity and humanitarian consideration.
 The principle of limitation is not workable by itself
and emerges reformulated in more
precise terms which consist of criteria for
determining the lawfulness of a weapon:
General Approaches to Weapons

 Criteria 1: Superfluous injury or unnecessary

suffering [SIrUS]
 Preamble of 1868 St. Petersburg Declaration: “The
only legitimate end that States may have in war being
to weaken the military strength of the enemy” and “to
this effect it suffices to put hors de combat the largest
possible number of troops”, “[but that] this only goal
would be exceeded by the use of weapons which
would needlessly aggravate the suffering of troops
already put out of action or which would inevitably lead
to their deaths(...) ”
General Approaches to Weapons

 Article 23 (e) of 1899 Hague Convention II and 1907

Hague Convention IV: “in addition to the prohibitions
provided by special Conventions, it is especially
forbidden: e) to employ arms, projectiles, or material
calculated to cause unnecessary suffering”.
 Article 35 (2) of 1977 AP I: It is prohibited to
employ weapons, projectiles and material and
methods of warfare of a nature to cause
superfluous injury or unnecessary suffering.
 Rule 70 of 2005 CIHL (IAC/NIAC)
General Approaches to Weapons

 Academic debates on the SIrUS:

 Utilitarian approach: identifies unnecessary suffering
as that which is disproportionate to the military
objective sought.
 Medical approach (ICRC SIrUS project 1996):
identifies the suffering or injury that are excessive
compare to the suffering or injury of the victim
necessary to the goal of putting the person out of
action.
 General Approaches to Weapons

 Criteria 2: Prohibition of Indiscriminative Weapons

 Article 51 of AP 1
 4. b) those which employ a method or means of
combat which cannot be directed at a specific
military objective.
 German V2 missiles in the WWII.
ICTY, the Prosecutor v. Milan Martic, Trial Chamber,
1995, paras. 462-463.
“M-87 Orkan used for the shelling was an
indiscriminate weapon”. It found that the distance
from which the rockets were fired was close to the
maximum range (50 km) of the M-87 Orkan, at which
the dispersion error is about 1,000m in every
direction, with the area of the dispersion of the
bomblets on the ground being about 2 hectares. It
found that the M-87 Orkan, “by virtue of its
characteristics and the firing range in the specific
instance” was “incapable of hitting specific targets”.
General approaches to Weapons

 Article 51 of AP 1
 4 c) those which employ a method or means
of combat the effects of which cannot be
limited by this Protocol. [for example, a large-
area bomb dropped over a city]
Specific approaches to Weapons

1. Exploding Bullets:

 1868 St. Petersburg Declaration: any projectile
of a weight below 400 grams
 Rule 78. The anti-personnel use of bullets
which explode within the human body is
prohibited. [IAC/NIAC]

Alexander
Gorchakov
Ryuichi Shimoda et al. v. The State, District
Court of Tokyo, Japan, 1963

The reason for the prohibition [the 1868 St.

Petersburg Declaration] is explained as follows:
such projectiles are small and just powerful
enough to kill or wound only one man, and as
an ordinary bullet will do for this purpose, there
is no overriding need for using these inhuman
weapons. On the other hand, the use of a
certain weapon, great as its inhuman result
may be, need not be prohibited by international
law if it has a great military effect……
Specific Approaches to Weapons

2. Expanding Bullets (“Dum Dum”

Bullets):
 3. 1899 Hague Declaration (IV,3) concerning
Expanding Bullets: “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”.
 The use of bullets which expand or flatten
easily in the human body is prohibited. (Rule
77 of CIHL)
Specific approaches to Weapons

3. Poisoned weapons:

 Article23 (a) of 1907 Hague Convention IV
forbids using poison or poisoned weapons.
 1925 Geneva Protocol for the Prohibition of the
Use of Asphyxiating, Poisonous or Other
Gases, and of Bacteriological Methods of
Warfare: “bacteriological methods of warfare”
 CIHL Rule 72. The use of poison or poisoned
weapons is prohibited. [IAC/NIAC]
Specific approaches to Weapons

4. Biological weapons (one of the WMDs):

[international disarmament law]
 The 1972 Convention on the Prohibition of the
Development, Production and Stockpiling of Bacteriological
(Biological) and Toxin Weapons and on their Destruction
(BWC)
 Preamble: Convinced that such use would be repugnant to the
conscience of mankind and that no effort should be spared to
minimize this risk
Specific approaches to Weapons

 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
purposes;
(2) Weapons, equipment or means of delivery
designed to use such agents or toxins for hostile
purposes or in armed conflict
Specific approaches to Weapons

Rule 73. The use of biological

weapons is prohibited. [IAC/NIAC]
 Specific approaches to weapons

Chemical Weapons (one of the WMDs):

 1993Convention on the Prohibition of the
Development, Production, Stockpiling and Use
of Chemical Weapons and on their
Destruction.
 Specific approaches to Weapons

 Article 1. Each State Party to this Convention undertakes never

under any circumstances: (b) To use chemical weapons;
 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;
(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;
(c) Any equipment specifically designed for use directly in
connection with the employment of munitions and devices specified
in subparagraph (b).
 Specific approach to weapons

 Rule 74. The use of chemical weapons is prohibited. [IAC/NIAC]

 Rule 75. The use of riot-control agents as a method of warfare is prohibited.
[IAC/NIAC]
 Rule 76. The use of herbicides as a method of warfare is prohibited if they:
(a) are of a nature to be prohibited chemical weapons;
(b) are of a nature to be prohibited biological weapons;
(c) are aimed at vegetation that is not a military objective;
(d) would cause incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which may be expected to be
excessive in relation to the concrete and direct military advantage
anticipated; or
(e) would cause widespread, long-term and severe damage to the natural
environment. [IAC/NIAC]
Specific approaches to weapons

Non-detectable fragments :
 1980 UN CCW Protocol I on Non-Detectable
Fragments prohibits the use of any weapon the
primary effect of which is to injure by
fragments which are not detectable in human
body by X-rays.
 Rule 79. The use of weapons the primary effect of
which is to injure by fragments which are not
detectable by X-rays in the human body is
prohibited. [IAC/NIAC]
 Specific approaches to weapons

Booby-traps :
 1980 UN CCW Protocol II on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and
Other Devices.
 Booby-traps: any device designed or adapted to kill or
injure, and which functions unexpectedly when a
person disturbs or approaches an apparently
harmless object (e.g. opens a door);
 Rule 80. The use of booby-traps which are in any way
attached to or associated with objects or persons
entitled to special protection under international
humanitarian law or with objects that are likely to
attract civilians is prohibited. [IAC/NIAC]
 Specific Approaches to Weapons
 Landmines:
 1980 CCW Protocol II on Prohibitions or Restrictions on
the Use of Mines, Booby-Traps and Other Devices:
 Definition: any munition placed under, on or near the
ground or other surface area and designed to be
detonated or exploded by the presence, proximity or
contact of a person or vehicle.
 Prohibit the used against the civilian population as such or
against individual civilians.
 Prohibit the indiscriminate use.
 Feasible precautions to protect civilians from the effects of
the landmines.
Generally prohibit the use of RDMs, except against
military objective or area contains military objective;
Effective advance warning shall be given of any
delivery or dropping of RDMs which may affect the
civilian population, unless circumstances do not
permit.
Generally prohibit the use of mines other than
RDMs in any city, town, village or other area
containing a similar concentration of civilians in
which combat between ground forces is not taking
place or does not appear to be imminent, except
some preconditions are met.
Record and publication of the locations of the
minefields;
International co-operation in the removal of
minefields.
 1996 Amended CCW Protocol II, 101
State parties
The scope of application was extended to Common
Article 3.
Clear landmine after the termination of hostilities.
Prohibits the use of mines which employ a
mechanism or device specifically designed to
detonate the munition by the presence of commonly
available mine detectors as a result of their
magnetic or other noncontact influence during
normal use in detection operations.
Prohibits the use of a self-deactivating mine
equipped with an antihandling device that is
designed in such a manner that the anti-handling
device is capable of functioning after the mine has
ceased to be capable of functioning.
Prohibit the use of APLs which are not detectable.
APLs shall be equipped with self-destruction
(SD) and self-deactivation (SDA) mechanisms.
APLs not equipped with SD and SDA mechanisms
shall be marked, monitored, and protected.
RDMs shall be also equipped with SD and SDA
mechanisms.
Compliance mechanism enhanced: annual
conference of SPs; legislative and other measures
to prevent and suppress the violations.
Special approach to weapons
1997 Ottawa Convention on the Prohibition
of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and on
their Destruction
Article 1. Each State Party undertakes never
under any circumstances: a) To use anti-
personnel mines;
Article 2. "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. 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.
Partial Award on the Central Front-Ethiopia's
Claim 2 on 28 April 2004

- “Those treaties have been concluded so recently and

the practice of States has been so varied and episodic
that it is impossible to hold that any of the resulting
treaties constituted an expression of customary
international humanitarian law applicable during the
armed conflict between the Parties.”
- “Nevertheless, there are elements in Protocol II of
1980, such as those concerning recording of mine fields
and prohibition of indiscriminate use, that express
customary international law. Those rules reflect
fundamental humanitarian law obligations of
discrimination and protection of civilians. ”
CIHL on landmines
When landmines are used, particular care
must be taken to minimise their indiscriminate
effects. (Rule 81 of CIHL)
A party to the conflict using landmines must
record their placement, as far as possible.
(Rule 82 of CIHL)
At the end of active hostilities, a party to the
conflict which has used landmines must
remove or otherwise render them harmless to
civilians, or facilitate their removal. (Rule 83 of
CIHL)
Specific approaches to weapons

 Incendiary Weapons:
 1980 CCW Protocol III on Prohibitions or
Restrictions on the Use of Incendiary Weapons;
 Incendiary weapons are those that are primarily
designed to set fire to objects or to burn persons
through the action of flame or heat, such as
napalm and flame throwers (Art. 1).
 It is prohibited in all circumstances to use them
against civilians. It is also prohibited to make any
military objective located within a concentration of
civilians the object of attack by air-delivered
incendiary weapons.
Specific approaches to weapons

Blinding Weapons:
 1995
CCW Protocol IV on Blinding Laser
Weapons.
Specific approaches to weapons

Prohibits the use of laser weapons

specifically designed to cause permanent
blindness, and the transfer of such
weapons to any State or non-State entity
(Art. 1).
When using laser systems, all feasible
precautions must be taken to avoid
permanent blindness. These precautions
must include training of armed forces and
other practical measures (Art. 2).
Specific approaches to weapons

Rule 86. The use of laser weapons that are

specifically designed, as their sole combat
function or as one of their combat
functions, to cause permanent blind-ness
to unenhanced vision is prohibited.
[IAC/NIAC]
Specific approach to weapons

Cluster Munitions:
 2008 Convention on Cluster Munitions.
Specific approach to weapons

Article 1. Each State Party undertakes never

under any circumstances to: (a) Use cluster
munitions;
Article 2. “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,
except…
Specific approaches to weapons:
new weapons and technology
 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 of AP I)
 The established principles and rules
of humanitarian law applicable in armed conflict apply
“to all forms of warfare and to all kinds
of weapons,” including “those of the future”. (ICJ,
Nuclear Weapon case, para. 84)
Challenges
 Challenges in existing law:
 Universality issue: States are not parties to all the
relevant treaties;
 Non-State actors: lack of compulsory means to
enforce NSAs to observe treaties.
 Definitional problem: definition of ‘weapon’, and
definition of technical terms of other disciplines,
including biology, chemistry, and weaponry.
 Problems of exceptions: exceptions in definition;
exception in treaties, in particular in the name of
‘scientific research or training’….
 Uneven compliance mechanism:
 Challenges
Challenges from new weapons and technology:
Cyber warfare: the difficulties created by the
anonymity on which cyberspace is built; the lack
of clarity with regard to the application of IHL to
cyber operations in the absence of kinetic
operations; the debate pertaining to the notion of
“attack” under IHL rules governing the conduct
of hostilities; and challenges in applying these
rules to cyber warfare, in particular the
prohibition of indiscriminate attacks and the rules
on precautions in attacks [ICRC report on
challenges of IHL 2015]
 Challenges
Challenges from new weapons and technology:
Autonomous weapon systems (AWSs):
definitional problem; whether the AWSs could
observe the principles of distinction,
proportionality, and precautions in attack; legal
review of the AWSs; accountability for the use of
AWSs; the AWSs under the dictators of public
consciousness; [ICRC report on challenges of
IHL 2015]
Thank you for your attention!