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Published online by Cambridge University Press: 20 April 2017
Having reached the tenth anniversary of the 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, adopted on 10 October 1980 (hereinafter referred to as the 1980 Convention), we can measure the progress brought about by the treaty within the limits which the law sets for the suffering caused by war. Paradoxically, however, we are witnessing an increasing number of situations which, in form at least, fall outside the scope of application of the 1980 Convention, namely non-international armed conflicts.
Yet international humanitarian law on methods and means of combat includes general rules applicable to all armed conflict, and hence to non-international armed conflicts too. The provisions of the 1980 Convention are an application of those general rules to the means of combat which the treaty is intended to regulate. The question thus arises whether some of the rules of conduct laid down in the 1980 Convention are applicable to all armed conflicts, whether international or non-international. In the present study, we shall attempt to reply at least to some extent to that question.
1 Cf. The opinion handed down by the International Court of Justice in the case concerning military and paramilitary activities in and against Nicaragua (Nicaragua/United States of America), which states that “There is no doubt, in the event of international armed conflicts, that these rules (editor's note: those in Article 3 common to the Geneva Conventions) also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts”. Reports of Judgments, Advisory Opinions and Orders, 1986, page 114, paragraph 218.
2 Cf. Greenspan, Morris, The Modern Law of Land Warfare, Berkeley and Los Angeles, University of California Press, 1959, p. 623 CrossRefGoogle Scholar, in particular the references quoted in note 17.
3 Cf. in this regard, Fenrick, William J., “New Developments in the Law Concerning the Use of Conventional Weapons in Armed Conflict,” Canadian Yearbook of International Law, vol. 19, 1981, pp. 229–256, ad p. 232CrossRefGoogle Scholar.
4 Bond, James E., The Rules of Riot, Internal Conflict and the Law of War, Princeton University Press, Princeton, New Jersey, 1974, p. 82 Google Scholar; Goldman, Robert Kogod, “International Humanitarian Law and the Armed Conflicts in El Salvador and Nicaragua,” The American University Journal of International Law and Policy, vol. 2, number 2, fall 1987, pp. 539–578, ad p. 547Google Scholar.
5 As at 30 November 1990.
6 Both of these principles are recalled in the Preamble of the 1980 Convention. Furthermore, rules 6 and 7 of the Leaflet Fundamental Rules of international humanitarian law applicable in armed conflicts drawn up by the ICRC above all for dissemination purposes state that:
“6. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
7. Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed solely against military objectives”.
7 Cf. the “Declaration on the Rules of International Humanitarian Law governing the conduct of hostilities in non-international armed conflicts”, adopted by the Council of the International Institute of Humanitarian Law, San Remo, on 7 April 1990, and reproduced in the International Review of the Red Cross, No. 278, September-October 1990, pp. 387-408, ad pp. 404-408.
8 Cf. United Nations General Assembly resolution 2444 (XXIII), of 19 December 1968, on respect for human rights in armed conflicts, and Resolution 2675 (XXV) of 9 December 1970 summarizing the basic principles for the protection of civilian populations in armed conflicts, reproduced in The Laws of Armed Conflicts, A Collection of Conventions, Resolutions and Other Documents, ed. Dietrich Schindler and Jiri Toman, Martinus Nijhoff Publishers, Henry Dunant Institute, Geneva, 1988, p. 263 and p. 267, respectively. Cf. also Frits Kalshoven, “Applicability of Customary International Law in Non-international Armed Conflicts,” in: Current Problems of International Law, Essays on U.N. Law and on the Law of Armed Conflict, ed. Antonio Cassese, Milano, Dott. A. Giuffre editore, 1975, pp. 267-285, ad p. 281; Hans-Peter Gasser, “Armed Conflict within the Territory of a State, Some reflections on the state of the law relative to the conduct of military operations in non-international armed conflicts,” in: Im Dienst an der Gemeinschaft, Festschrift für Dietrich Schindler zum 65. Geburtstag, edited by Walter Haller et al, Verlag Helbing und Lichtenhahn, Basel/Frankfurt am Main, 1989, pp. 225-240, ad p. 239. For an example of practice, cf. the appeal launched by the ICRC on 14 January 1977 to the parties to the conflict in Rhodesia/Zimbabwe, in which the ICRC invited the parties to the conflict to respect the rules quoted in note 6 supra, ICRC, Annual Report, 1977, p. 16.
9 Cf. United Nations General Assembly resolutions 2444 (XXIII) and 2675 (XXV), supra note 8. Cf. also Kalshoven supra note 8, p. 281, Antonio Cassese, “The Spanish Civil War and the Development of Customary Law concerning International Armed Conflicts,” in Current Problems of International Law, supra note 8, pp. 287-318, ad p. 288 and ff.; Gasser, supra note 8, p. 238. For an example of practice, cf. the ICRC's appeal of 14 January 1977, supra note 8.
10 Cf. operative paragraph la) of United Nations General Assembly resolution 2444 (XXIII), supra note 8. Cf. also Kalshoven supra note 8, p. 281; Gasser, supra note 8, p. 237; Goldman supra note 4, p. 559. On the relationship between the principle of humanity and the principle of proportionality, cf. Bothe, Michael, Partsch, Karl Joseph, Solf, Waldemar A., New Rules for Victims of Armed Conflicts, Commentary on the Two 1977 Protocols Additional to the Geneva Convention of 1949, Martinus and Nijhoff Publishers, The Hague/Boston/London, 1982, p. 671 and p. 683Google Scholar; Meron, Theodor, Human Rights and Humanitarian Norms as Customary Law, Clarendon Press, Oxford, 1989, p. 36 Google Scholar; Fenrick, supra note 3, p. 231. For an example of practice, cf. the ICRC's appeal of 14 January 1977, supra note 8.
11 Kalshoven, supra note 8, p. 281. Cf., with regard to perfidious use of the protective emblem of the Red Cross and the Red Crescent; Gasser, supra note 8, p. 239. On the principle of chivalry as a fundamental principle of international humanitarian law, cf. Fenrick, supra note 3, p. 230. On the principle of “fair play” and chivalry as the foundation for the prohibition of weapons likely to cause unnecessary suffering, cf. Yves Sandoz, Des armes interdites en droit de la guerre, thesis, Neuchâtel, 1975, p. 19.
12 Cf. The Laws of Armed Conflicts, supra note 8, p. 263.
13 Id., p. 259.
14 Ibid., p. 269.
15 Ibid. p. 261.
16 Kalshoven, supra note 8, p. 277 and p. 282.
17 Cassese, supra note 8, p. 297.
18 Press release No. 1567 of 23 March 1988.
19 Cf. San Remo Declaration, supra note 7.
20 Cf. Philippe Bretton, on the problem of methods and means of warfare or combat in the Protocols additional to the Geneva Conventions of 12 August 1949, in: Revue generate de droit international public, January-March 1978, No. 1, pp. 1-50, ad p. 9.
21 Cf. Provision 3 of the general provisions on the scope of the future Convention, which reads as follows: “Each State party undertakes not to use chemical weapons”, Report of the Special Committee on Chemical Weapons to the Disarmament Conference on the work conducted from 17 January to 3 February 1989, CD/881, 3 February 1989, Appendix I, p. 9.
22 Cf. Antonio Cassese, “Means of Warfare: The Traditional and the New Law” in: The New Humanitarian Law of Armed Conflict, ed. A. Cassese, Editoriale Scientifica S.r.l.; Napoli, 1979, pp. 161-198, ad pp. 164-165.
23 Cf. CapitainRoach, J. Ashley, “Certain Conventional Weapons Convention: Arms Control or Humanitarian Law” in: Military Law Review, vol. 105, 1984, pp. 9–72, pp. 25-26Google Scholar.
24 Ibid, p. 69.
25 Cf., in this regard, A.P.V. Rogers, “A Commentary on the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices,” in: Revue de droit penal militaire et de droit de la guerre 1987, vol. XXVI, pp. 185-206, ad p. 200.
26 Cf. Lieutenant Colonel Burrus M. Carnahan, “The Law of Land Mine Warfare: Protocol II to the United Nations Convention on Certain Conventional Weapon”, in: Military Law Review, 1984, vol. 105, pp. 73-95, pp. 91-93.
27 Id., p. 90.
28 Cf. Fenrick, supra note 3, p. 244. According to Rogers, “The words ‘directed against’ […] must not be interpreted in the narrow sense of ‘aimed at’” (Rogers, supra note 26, p. 192).
29 As Rogers points out, the area containing military objectives in the sense of Article 5, paragraph 1, cannot be limitless (Rogers, supra note 25, p. 196).
30 According to Carnahan, the adjective “pre-planned” means that “a detailed military plan exists considerably in advance of the proposed date of execution” (Carnahan, supra note 27, p. 84).
31 Cf., for the notion of recording, the technical annex to Protocol II, which provides guidelines on recording to assist parties in fulfilling their obligations in this regard.
32 According to Article 1, paragraph 2, of Protocol III, “‘concentration of civilians means any concentration of civilians’, be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages, or as in camps or columns of refugees or evacuees, or groups of nomads”.
33 This condition means in practice that an attack using incendiary weapons other than by air can only take place if civilians are protected by natural relief (hill) or a building (bunker), or are a sufficient distance away (Fenrick, supra note 3, pp. 249-250).
34 Cf. Fenrick, supra note 3, p. 250 and Sandoz, Yves, “Prohibitions or Restrictions on the Use of Certain Conventional Weapons” in: International Review of the Red Cross, January-February 1981, No. 220, pp. 3–18, ad p. 15CrossRefGoogle Scholar.
35 Cf. San Remo Declaration (section B.4, paragraph 2), supra note 7.
36 Cf. San Remo Declaration (sections B.4 and 5), supra note 7.
37 Cf. the opinion of the Special Rapporteur on the human rights situation in Afghanistan, Mr. Felix Ermacora, on the losses resulting from the use of mines, United Nations Document A/41/778, paragraph 42, and the opinion of the Special Rapporteur on the human rights situation in El Salvador, Prof. Antonio Pastor Ridruejo, recommending that the use of anti-personnel mines should cease as they are “incompatible with the norms of international humanitarian law applicable to the civil war in El Salvador,” United Nations Document A/43/736. Cf. also the ICRC's interventions reported in the following Annual Reports: 1985, p. 35; 1986, p. 37; 1987, p. 40; 1988, p. 43.
