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9 - Protecting Warfighters from Superfluous Injury and Unnecessary Suffering

Published online by Cambridge University Press:  11 January 2024

By
Rain Liivoja
Edited by
Matt Killingsworth  and
Tim McCormack
Matt Killingsworth
Affiliation:
University of Tasmania
Tim McCormack
Affiliation:
University of Tasmania
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Summary

According to a well-established rule of the law of armed conflict, warring parties are prohibited from employing weapons, means, and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. Agreement about the foundational nature of this rule can, however, easily conceal the disagreement as to its precise meaning and efficacy. This paper considers the origins of the rule in question, and how key aspects of the rule are interpreted. It then examines one of the more contentious issues about the rule, namely whether it is only concerned with the inherent properties of particular weapons or whether it also deals with the use of weapons generally.

Keywords

Weaponsmeans of warfaremethods of warfareinjurysufferinghumanitymilitary necessity
Type
Chapter
Information
Civility, Barbarism and the Evolution of International Humanitarian Law
Who do the Laws of War Protect?
 , pp. 177 - 199
Publisher: Cambridge University Press
Print publication year: 2024

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References

Australian Defence Force (2006). Australian Defence Doctrine Publication (ADDP) 06.4: Law of Armed Conflict.Google Scholar
Baxter, R. R. (1977). Conventional weapons under legal prohibitions. International Security 1, 42–61.Google Scholar
Best, G. (1980). Humanity in Warfare: The Modern History of the International Law of Armed Conflicts, New York: Columbia University Press.Google Scholar
Bill for a Depleted Uranium Munitions Study Act 2005, HR 2410 (109th Congress).Google Scholar
Blix, H. (1988). Means and methods of combat. In UNESCO and Dunant Institute, Henri, eds., International Dimensions of Humanitarian Law, Dordrecht: Martinus Nijhoff.Google Scholar
Boothby, W. H. (2016). Weapons and the Law of Armed Conflict, 2nd ed, Oxford: Oxford University Press.Google Scholar
Boothby, W. H., and von Heinegg, W. H. (2018). The Law of War: A Detailed Assessment of the US Department of Defense Law of War Manual, Cambridge: Cambridge University Press.Google Scholar
Bothe, M., Partsch, K. J., and Solf, W. A. (1982). New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Leiden: Nijhoff.Google Scholar
Casey-Maslen, S., and Haines, S. (2018). Hague Law Interpreted: The Conduct of Hostilities under the Law of Armed Conflict, Oxford: Hart.Google Scholar
Cassese, A. (1975). Weapons causing unnecessary suffering: are they prohibited? Rivista di Diritto Internazionale 48, 12–42.Google Scholar
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949 (entered into force 21 October 1950) 75 UNTS 31 (Geneva Convention I).Google Scholar
Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949 (entered into force 21 October 1950) 75 UNTS 85 (Geneva Convention II).Google Scholar
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 (entered into force 21 October 1950) 75 UNTS 135 (Geneva Convention III).Google Scholar
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 (entered into force 21 October 1950) 75 UNTS 287 (Geneva Convention IV).Google Scholar
Convention (II) with respect to the Laws and Customs of War on Land, The Hague, 29 July 1899 (entered into force 4 September 1900, 189 CTS 429, Annex: Regulations concerning the Laws and Customs of War on Land (Hague Convention II and 1899 Hague Regulations).Google Scholar
Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864, The Hague, 29 July 1899 (entered into force 4 September 1900) 187 CTS 443 (Hague Convention III).Google Scholar
Convention (IV) regarding the Laws and Customs of War on Land, The Hague, 18 October 1907 (entered into force 26 January 1910) 205 CTS 277, Annex: Regulations concerning the Laws and Customs of War on Land (Hague Convention IV and 1907 Hague Regulations).Google Scholar
Convention (X) for the Adaptation to Maritime War of the Principles of the Geneva Convention, The Hague, 18 October 1907 (entered into force 26 January 1910) 205 CTS 359 (1907 Hague Convention X).Google Scholar
Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, Geneva, 27 July 1929 (entered into force 19 June 1931) 118 LNTS 303.Google Scholar
Convention Relative to the Treatment of Prisoners of War, Geneva, 27 July 1929 (entered into force 19 June 1931) 118 LNTS 343.Google Scholar
Coupland, R. M. (1999). The SIrUS Project: Towards a determination of which weapons cause ‘superfluous injury or unnecessary suffering’. In Durham, H. and McCormack, T., eds., The Changing Face of Conflict and the Efficacy of International Humanitarian Law, The Hague: Kluwer.Google Scholar
Crawford, E. (2019). The enduring legacy of the St Petersburg Declaration: Distinction, military necessity, and the prohibition of causing unnecessary suffering and superfluous injury in IHL. Journal of the History of International Law 20, 544–66.Google Scholar
Danish Ministry of Defence (2016). Military Manual on International Law Relevant to Danish Armed Forces in International Operations.Google Scholar
Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, 11 December 1868, in force upon signature, 138 CTS 297, 1 AJIL Supp. 95 (‘St Petersburg Declaration’).Google Scholar
Dinniss, H. A. H. (2018). Legal aspects of human enhancement technologies. In Boothby, W. H., ed., New Technologies and the Law in War and Peace, Cambridge: Cambridge University Press.Google Scholar
Dinniss, H. A. H., and Kleffner, J. K. (2016). Soldier 2.0: Military human enhancement and international law. International Law Studies 92, 432–82.Google Scholar
Dinstein, Y. (2016). The Conduct of Hostilities under the Law of International Armed Conflict, 3rd ed., Cambridge: Cambridge University Press.Google Scholar
Dörmann, K., Doswald-Beck, L., and Kolb, R. (2003). Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge: Cambridge University Press.Google Scholar
Eisenstein, N. M., Naumann, D. N., Bowley, D. M., and Midwinter, M. J. (2016). Pretrauma interventions in force health protection: Introducing the ‘left of bang’ paradigm. Journal of Special Operations Medicine 16, 59–63.Google Scholar
Epps, V. (2013). Civilian casualties in modern warfare: The death of the collateral damage rule. Georgia Journal of International & Comparative Law 41, 307–55.Google Scholar
Fenrick, W. J. (1990). The Conventional Weapons Convention: A modest but useful treaty. International Review of the Red Cross 30, 498–509.CrossRefGoogle Scholar
Frappell-Cooke, W., Wink, P., and Wood, A. (2013). The psychological challenge of genital injury. Journal of the Royal Army Medical Corps 159, 52–56.Google Scholar
Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 22 August 1864, in force 22 June 1865, 129 CTS 361.Google Scholar
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, 6 July 1906, in force 9 August 1907, 202 CTS 144.Google Scholar
German Federal Ministry of Defence (2013). Joint Service Regulation (ZDv) 15/2: Law of Armed Conflict – Manual.Google Scholar
Granat, M. G. (1993). Modern small-arms ammunition in international law. Netherlands International Law Review 40, 149–68.Google Scholar
Greenwood, C. (1997). Current issues in the law of armed conflict: Weapons, targets and international criminal liability. Singapore Journal of International & Comparative Law 1, 441–67.Google Scholar
Greenwood, C. (1998). The law of weaponry at the start of the new millennium. In Schmitt, M. N. and Green, L. C., eds., The Law of Armed Conflict: Into the Next Millennium, Newport, RI: US Naval War College.Google Scholar
Hague Declaration (IV, 3) respecting the Prohibition of the Use of Expanding Bullets, 29 July 1899 (entered into force 4 September 1900) 187 CTS 459.Google Scholar
Haines, S. (2001). Weapons, means and methods of warfare. In Wilmshurst, E. and Breau, S., eds., Perspectives on the ICRC Study on Customary International Humanitarian Law. Cambridge: Cambridge University Press.Google Scholar
India (1978). Statement at the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977). Federal Political Department of Switzerland, vol. XVI, CDDH/IV/SR.28, 20 May 1976.Google Scholar
International Committee of the Red Cross (1974). Lucerne Conference Report.Google Scholar
International Committee of the Red Cross (1976). Statement concerning Unnecessary Suffering presented by the Informal Working Group of Medical Experts. In ICRC, Conference of Government Experts on the Use of Certain Conventional Weapons (Second Session – Lugano, 28.1–26.2.1976): Report.Google Scholar
International Committee of the Red Cross (2005). Customary International Humanitarian Law Database, Rule 70 (online), https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule70.Google Scholar
International Institute of Humanitarian Law (1990). Declaration on the Rules of International Humanitarian Law Governing the Conduct of Hostilities in Non-international Armed Conflicts.Google Scholar
International Institute of Humanitarian Law (2006). The Manual on the Law of Non-International Armed Conflict, with Commentary.Google Scholar
Jevglevskaja, N. (2015). St Petersburg, 1868: First international agreement prohibiting the use of certain weapons. In Klose, F., Palen, M., Paulmann, J. and Thompson, A., eds., Online Atlas on the History of Humanitarianism and Human Rights, https://hhr-atlas.ieg-mainz.de/.Google Scholar
af Jochnick, C., and Normand, R. (1994). The legitimation of violence: A critical history of the laws of war. Harvard International Law Journal 34, 49–95.Google Scholar
Kalshoven, F. (1985) Arms, armaments and international law. Recueil des Cours 191, 183–342.Google Scholar
Kalshoven, F. (2013). The history of international humanitarian law treaty-making. In Liivoja, R. and McCormack, T., eds., Routledge Handbook of the Law of Armed Conflict, Abingdon: Routledge.Google Scholar
Knudsen, P. J. T., and Theilade, P. (1993). Terminal ballistics of the 7.62 mm NATO bullet autopsy findings. International Journal of Legal Medicine 106, 61–67.Google Scholar
Knudsen, P. J. T., Vigsnæs, J. S., Rasmussen, R., and Nissen, P. S. (1995). Terminal ballistics of 7.62 mm NATO bullets: Experiments in ordnance gelatin. International Journal of Legal Medicine 108, 62–67.CrossRefGoogle ScholarPubMed
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Reports 226.Google Scholar
Legality of the Threat or Use of Nuclear Weapons. Public sitting held on Friday 10 November 1995, at 10 a.m., p. 72.Google Scholar
Liivoja, R., and Chircop, L. (2018). Are enhanced warfighters weapons, means, or methods of warfare?. International Law Studies 94, 161–85.Google Scholar
Meyrowitz, H. (1994). The principle of superfluous injury or unnecessary suffering: From the Declaration of St. Petersburg of 1868 to Additional Protocol I of 1977. International Review of the Red Cross 34, 98–122.CrossRefGoogle Scholar
New Zealand Defence Force (2017). DM 69: Manual of Armed Forces Law – Volume 4: Law of Armed Conflict, 2nd ed., Amdt. 1.Google Scholar
Parks, W. H. (1997). Joint service combat shotgun program. Army Lawyer, 10, 16–24.Google Scholar
Parks, W. H. (2005). Conventional weapons and weapons review. Yearbook of International Humanitarian Law 8, 55–142.Google Scholar
de Preux, J. (1987). Protocol I – Article 35 – Basic rules. In Sandoz, Y., Swinarski, C. and Zimmermann, B., eds., Commentary on the Additional Protocols to the Geneva Conventions, Geneva: ICRC & Nijhoff.Google Scholar
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, not in force. In Actes de la Conférence de Bruxelles, Hayez, 1874. p. 297 (‘Brussels Declaration’).Google Scholar
Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Geneva, 8 June 1977, in force 7 December 1978, 1125 UNTS 3 (Additional Protocol I).Google Scholar
Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Geneva, 8 June 1977, in force 7 December 1978, 1125 UNTS 609 (Additional Protocol II).Google Scholar
Roberts, A. and Guelff, R., eds. (2000). Documents on the Laws of War, 3rd ed., Oxford: Oxford University Press.Google Scholar
Scott, R. (1989). Unnecessary suffering? A medical view. In Meyer, M. A., ed., Armed Conflict and the New Law, London: British Institute of International and Comparative Law.Google Scholar
Shimoda v. Japan (1963) 32 ILR 626 at 634.Google Scholar
Sivakumaran, S. (2012). The Law of Non-International Armed Conflict, Oxford: Oxford University Press.Google Scholar
Solf, W. A. (2013). Protocol I – Article 35 – Basic Rules. In New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Convention of 1949. Leiden: Nijhoff.Google Scholar
Spaight, J. M. (1911). War Rights on Land, London: Macmillan.Google Scholar
Spaight, J. M. (1947). Air Power and War Rights, 3rd ed., London: Longmans, Green & Co.Google Scholar
Statute of the International Criminal Court, Rome, 17 July 1998, in force 1 July 2002, 2187 UNTS 90.Google Scholar
Tate, L. G., DiMaio, V. J. M., and Davis, J. H. (1981). Rebirth of exploding ammunition: A report of six human fatalities. Journal of Forensic Sciences 26, 636–44.Google Scholar
Turns, D. (2006). Weapons in the ICRC study on customary international humanitarian law. Journal of Conflict & Security Law 11, 201–37.Google Scholar
UK Ministry of Defence (2004). Joint Service Publication (JSP) 383: The Joint Service Manual of the Law of Armed Conflict, Shrivenham: Ministry of Defence.Google Scholar
US Department of the Army (1956). Field Manual (FM) 27-10: The Law of Land Warfare, Washington, DC: Department of the Army.Google Scholar
US Department of Defense (2016). Law of War Manual, Washington, DC: Department of Defense.Google Scholar
US et al. v. Göring et al. (1946) 1 TMWC 171.Google Scholar
US War Department (1863). General Orders No. 100 Instructions for the Government of Armies of the United States in the Field, 24 April 1863.Google Scholar
de Vattel, E. (1834). The Law of Nations, London: Sweet, Stevens & Sons; Maxwell.Google Scholar
Witt, J. F. (2012). Lincoln’s Code: The Laws of War in American History, New York: Free Press.Google Scholar

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