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New Developments in the Law Concerning the Use of Conventional Weapons in Armed Conflict

Published online by Cambridge University Press:  09 March 2016

W. J. Fenrick
W. J. Fenrick*
Affiliation:
Department of National Defence, Ottawa
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 19 , 1982 , pp. 229 - 256
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1982

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References

1 Lauterpacht, H., “The Problem of the Revision of the Law of War,” (1952) 29 B.Y.B.I.L. 360, 382.Google Scholar

2 Green, L. C., “The New Law of Armed Conflict,” (1977) 15 Canadian Yearbook of International Law 3,Google Scholar and International Committee of the Red Cross, Protocols Additional to the Geneva Convention of 12 August 1949 (Geneva, 1977).

3 Military necessity is a particularly complex subject. The two most searching studies are probably O’Brien, W. V., “The Meaning of ‘Military Necessity’ in International Law,” (1957) 1 World Polity 109 Google Scholar and O’Brien, W. V., “Legitimate Military Necessity in Nuclear War,” (1960) 2 World Polity 35.Google Scholar Other studies are Dunbar, N. C. H., “Military Necessity in War Crimes Trials,” (1952) 29 B.Y.B.I.L. 442,Google Scholar Downey, W. G., “The Law of War and Military Necessity,” (1953) 47 Am. J. Int’l L. 251,CrossRefGoogle Scholar and an unpublished study prepared by E. Rauch for the International Society of Military Law and Law of War, “The Concept of Military Necessity in the Context of the Law of War.” A useful collection of definitions is contained in Gehring, R. W., “Loss of Civilian Protections under the Fourth Geneva Convention and Protocol I,” (1980) 90 Mil. L.R. 49, 54–58.Google Scholar

4 Gehring, supra note 3, at 53-55 contains a number of definitions used in national law of war manuals.

5 Lauterpacht, H., ed., 2 Oppenheim’s International Law 227 (7th ed., London, 1952)Google Scholar refers to “the principle of chivalry, which arose in the Middle Ages and introduced a certain amount of fairness in offence and defence, and a certain mutual respect.”

6 Brown, B. L., “The Proportionality Principle in the Humanitarian Law of Warfare: Recent Efforts at Codification,” (1976) 10 Cornell Int’l L.J. 134,Google Scholar and Kruger-Sprengel, F., “The Concept of Proportionality in the Context of the Law of War,” Report to the Committee for the Protection of Human Life in Armed Conflict, VIII Congress of the International Society for Military Law and the Law of War, Ankara, 1979.Google Scholar

7 Schindler, D. and Toman, J., The Laws of Armed Conflict 95, 96 (Geneva, 1973).Google Scholar

8 Ibid., 25, 29.

9 Ibid., 35, 38.

10 Ibid., 57, 64.

11 Ibid., 193, 194.

12 “Contemporary Practice of the United States,” (1973) 67 Am. J. Int’l L. 122, 124.

13 Many states made their position on this point clear in the travaux préparatoire. In addition, in the introduction to the Draft Additional Protocols to the Geneva Conventions of August 12, 1949, published by the International Committee of the Red Cross at Geneva in June 1973, the ICRC states: “Problems relating to atomic, bacteriological and chemical warfare are subjects of international agreements or negotiations by governments, and in submitting these draft Additional Protocols the ICRC does not intend to broach these problems.”

14 Spaight, J. M., War Rights on Land 76–77 (London, 1911).Google Scholar

15 Royse, M. W., Aerial Bombardment and the International Regulation of Warfare 131–32 (New York, 1928).Google Scholar

16 Robblee, P. A., “The Legitimacy of Modern Conventional Weaponry,” (1977) 16 Law of War and Mil. L.R. 400, 403–11,Google Scholar Harris, H. E., “Modern Weapons and the Law of Land Warfare,” (1973) 12 Law of War and Mil. L.R. 7,Google Scholar Cassese, A., “Means of Warfare: The Traditional and the New Law,” in Cassese, A., ed., The New Humanitarian Law of Armed Conflict 161 (Naples, 1979).Google Scholar A useful UN survey is Respect for Human Rights in Armed Conflict — Existing Rules of International Law concerning the Prohibition or Restriction of Use of Specific Weapons, UN Doc. A 9215, November 7, 1973.

17 Schindler and Toman, op. cit. supra note 7, at 99.

18 Garner, J. W., International Law and the World War, Vol. 1, at 262–97 (London, 1920).Google Scholar

19 Schindler and Toman, op. cit. supra note 7, at 109.

20 Baxter, R. R. and Buergenthal, T., “Legal Aspects of the Geneva Protocol of 1925,” (1970) 64 Am. J. Int’l L. 853 CrossRefGoogle Scholar; Kelly, J. B., “Gas Warfare in International Law,” (1960) 9 Mil. L.R. 1.Google Scholar

21 One hopes compliance with the law will remain mutually beneficial. If only one side is equipped to use a weapon, it may be tempted to do so. See Scott, H. F. and Scott, W. F., The Armed Forces of the USSR 245 (Boulder, Colorado, 1979).Google Scholar

22 Wise, S. F., Canadian Airmen and the First World War 231–327 (Toronto, 1980)Google Scholar is an excellent account of the origins of strategic airpower. Jones, N., The Origins of Strategic Bombing (London, 1973).Google Scholar

23 Schindler and Toman, op. cit. supra note 7, at 139.

24 Royse, op. cit. supra note 15, Spaight, J. M., Air Power and War Rights (3d ed., London, 1947),Google Scholar and Chambliss, W. C., “Air Bombardment Regulation,” (1934) 60 US Naval Inst. Proc. 1577.Google Scholar

25 Article 51(4) of Additional Protocol I prohibits indiscriminate attacks. Article 51 (5) (a) defines one type of indiscriminate attack as “an attack by bombardment by any method or means which treats as a military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.” This article and others of similar effect prohibit the type of area bombing to “dehouse” the population which was so common in World War II. C. Webster and Frankland, N., The Strategic Air Offensive against Germany 4V (London, 1961),Google Scholar and Blix, H., “Area Bombardment: Rules and Reasons,” (1978) 49 B.Y.B.I.L. 31.Google Scholar

26 Substantially similar texts are contained in the Washington Treaty of 1922, Schindler and Toman, op. cit. supra note 7, at 657, Part IV, Art. 22 of the London Naval Treaty of 1930, ibid., 661; and the related procès verbal of 1936, ibid., 663.

27 Holmes, W. J., Undersea Victory: The Influence of Submarine Operations on the War in the Pacific 52–53 (New York, 1966),Google Scholar and Morison, S. E., The Two Ocean War 496 (Boston, 1963).Google Scholar

28 Mallison, W. T., Studies in the Law of Naval Warfare: Submarines in General and Limited Wars, (1968) 58 U.S. Naval War College International Law Studies.Google Scholar

29 15 Law Reports of Trials of War Criminals (LRTWC), at 109–12.

30 Sawada, (1946) 5 LRTWC 1, Isayama, (1946) 5 LRTWC 60, and Hisakasu (1946) 5 LRTWC 66. The LRTWC reports concern war crimes trials of Japanese for their earlier participation in trials of American airmen for violations of the Japanese “Enemy Airmen’s Act.”

31 History of the United Nations War Crimes Commission 492 (London, 1948).

32 Judgement of the International Military Tribunal for the Trial of German Major War Criminals 107–12 (London, 1946) Cmd. 6964.

33 A series of articles by F. Kalshoven in The Netherlands Yearbook of International Law have traced the history of these meetings. The most helpful are in (1975) 6 N.Y.I.L. 77) (1976) 7 N.Y.I.L. 197, and (1978) 9 N.Y.I.L. 109 at 146–61.

34 Resolution 22 (IV), Red Cross, op. cit. supra note 2, at 117–18.

35 The mandate authorized the conference to consider proposals concerning specific weapons and the question of a system for reviewing the legality of weapons.

36 Consensus is a term without a widely accepted definition, D’Amato, A., “On Consensus,” (1970) 8 Canadian Yearbook of International Law 104.Google Scholar At the Weapons Conferences every effort was made to obtain general agreement and, in the event, no votes were taken, but certain delegations repeatedly asserted that voting would be possible if there was an apparent near unanimous agreement on a particular text. Sohn, L. B., “Voting Procedures in United Nations Conferences for the Codification of International Law,” (1975) 69 Am. J. Int’l L. 310, 333–58,CrossRefGoogle Scholar discusses “consensus” problems at the Third UN Law of the Sea Conference which were quite similar to those at the Weapons Conference.

37 UN Doc. A/Gonf. 95/15, October 27, 1980, Annex I.

38 The proper meaning of Article 1 (4) is by no means clear, but it does extend the normal scope of international conflict and its acceptance was considered a political victory by NLMs because it gave some degree of international “recognition” to them and to the struggles in which they were engaged.

39 Article 96(3) provides that the “authority representing a people” engaged in an Article 1(4) conflict against a party to Additional Protocol I may undertake to apply the Protocol and the Geneva Conventions by means of a unilateral declaration to the depository. Following receipt of the declaration, both the “authority” and the party to Protocol I are bound to apply Protocol I and the Geneva Conventions in the conflict. There is no simple criterion for identifying the “authority” although some commentators have suggested that regional organizations such as the O.A.U. could determine the legitimacy of the “authority.” One might expect that parties to Protocol I could refuse to accept the legitimacy of the “authority” in particular cases. To date, no country with an NLM problem has become a party to Protocol I. Further, no NLM has utilized the unilateral declaration procedure.

40 UN Doc. A/Conf. 95/15, October 87, 1980, Annex I, Appendix B.

41 Ibid., Appendix G.

42 Working Paper on Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects 28 (Stockholm, 1978).

43 The only treatise that contains a substantial treatment of the subject is Greenspan, M., The Modern Law of Land Warfare 362–65 (Los Angeles, 1959).Google Scholar A useful, but unpublished, study is B.M. Carnahan, “Remotely Delivered Landmines under Protocol I.”

44 Carnahan, supra note 43.

45 Article 49(1) of Additional Protocol I defines attacks as “acts of violence against the adversary, whether in offence or defence.”

46 Conference of Government Experts on the Use of Certain Conventional Weapons (Second Session — Lugano, January 28-February 26, 1976) Report (Geneva, 1976) at 171.

47 Similar hard-line approaches towards the requirements of national self-defence were adopted by countries such as France and Yugoslavia during the negotiation of Additional Protocol I. The French position concerning Article 51 (Protection of the Civilian Population) of Additional Protocol I is stated in Levie, H. S., Protection of War Victims, vol. 3, at 163 (Dobbs Ferry, 1980).Google Scholar

48 Report of the Secretary General, Napalm and Incendiary Weapons and All Aspects of Their Possible Use, particularly chap. 4 (New York, 1973), UN Doc. А/8803/Rev. 1.

49 Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne, September 24-October 18, 1974) Report (Geneva, 1975) at 19.

50 Ibid., 19.

51 Lauterpacht, op. cit. supra note 5, at 340. Greenspan, op. cit. supra note 43, at 360-62. The US law of land warfare manual, Department of the Army Field Manual FM 27-10, at 18 (Washington, 1956), indicates that the use of weapons employing fire is not of itself unlawful but such weapons should not be employed in such a way as to cause unnecessary suffering. The UK manual, The Law of War on Land, Part III of the Manual of Military Law 41 (London, 1958) indicates that the use of flame throwers and napalm bombs against personnel is unlawful “in so far as it is calculated to cause unnecessary suffering.” The two manuals do not necessarily state the law but they do provide evidence of state practice.

52 UN Doc. A/Conf. 95/15, October 27, 1980, Annex I, Appendix D.

53 Schindler and Toman, op. cit. supra note 7, at 95.

54 Spiers, E. M., “The Use of the Dum-Dum Bullet in Colonial Warfare,” (1975) 4 J. of Imperial and Commonwealth History 3–14.CrossRefGoogle Scholar Recently the Solicitor General of Canada authorized the use of hollow point ammunition, which has an effect similar to that of dum dum bullets by police forces, “Police Use of Hollow Bullets Allowed,” Edmonton Journal, August 28, 1981. One might query the concept of police forces using weapons against law breakers which are banned in warfare.

55 Schindler and Toman, op. cit. supra note 7, at 103.

56 UN Doc. A/Conf. 95/15, October 27, 1980, Annex I, Appendix E.

57 The Judgement of the International Military Tribunal at Nuremberg (London, 1946), Cnd. 6964, refers repeatedly to breaches of specific provisions of these treaties.

58 Carnegie, A. R., “Jurisdiction over Violations of the Laws and Customs of War,” (1963) 39 B.Y.B.I.L. 402, 424.Google Scholar

59 The German High Command Trial, (1948) 11 LRTWC 1, at 98, and The Hostages Trial, (1948) 8 LRTWC 34, at 67–69.