Book contents
- Frontmatter
- Contents
- Introduction to the Third Edition
- Preface
- Table of cases
- Table of treaties
- List of abbreviations
- 1 The general framework
- 2 Lawful combatancy
- 3 Prohibited weapons
- 4 Lawful targets of attack
- 5 Protection from attack of civilians and civilian objects
- 6 Measures of special protection from attack
- 7 Protection of the environment
- 8 Specific methods of warfare
- 9 War crimes, orders, command responsibility and defences
- General conclusions
- Index of persons
- Index of subjects
3 - Prohibited weapons
Published online by Cambridge University Press: 05 April 2016
- Frontmatter
- Contents
- Introduction to the Third Edition
- Preface
- Table of cases
- Table of treaties
- List of abbreviations
- 1 The general framework
- 2 Lawful combatancy
- 3 Prohibited weapons
- 4 Lawful targets of attack
- 5 Protection from attack of civilians and civilian objects
- 6 Measures of special protection from attack
- 7 Protection of the environment
- 8 Specific methods of warfare
- 9 War crimes, orders, command responsibility and defences
- General conclusions
- Index of persons
- Index of subjects
Summary
The principle of distinction
189. The cardinal principle of distinction between civilians and combatants (see supra 33–4, 112) is the most fundamental pillar of LOIAC. The history of LOIAC to date can be described as a sustained effort to ensure that civilians (not directly participating in hostilities) are protected from the havocs of war. This has significant consequences where the use of weapons is concerned. As the ICJ admonished in the Advisory Opinion on Nuclear Weapons:
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.
The distinction is actually not only between civilians and combatants, but also between civilian objects and military objectives (see infra 275 et seq.).
190. It is necessary to differentiate between (i) weapons that are employed in specific circumstances contrary to the principle of distinction, e.g., killing combatants and civilians indiscriminately (see infra 391 et seq.); and (ii) weapons that by their very nature or design cannot possibly maintain the distinction in any set of circumstances. The fact that some weapons are used indiscriminately in a particular military engagement does not stain them with an indelible imprint of illegality, since in other operations they may be employed within the framework of LOIAC. The ICJ impugned only those weapons that are intrinsically ‘incapable of distinguishing between civilian and military targets’. Such weapons – often called ‘blind’ – are unlawful per se. Leading examples are long-range missiles with a built-in faulty guidance system, making it impossible to aim them at any specific point. With biological weapons (see infra 251 et seq.), the crux of the matter is that – if unchecked by an antidote – their virulent effect may spread contagious disease far and wide without sparing civilians (or even neutrals).
II. The principle prohibiting unnecessary suffering
A. The formulation of the prohibition
191. The second cardinal principle, prohibiting the infliction of unnecessary suffering, was first enshrined in the Preamble to the 1868 St Petersburg Declaration:
Considering:
That the progress of civilization should have the effect of alleviating as much as possible the calamities of war;
That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy;
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- Publisher: Cambridge University PressPrint publication year: 2016