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The Conventional Weapons Convention: Underlying Legal Principles

Published online by Cambridge University Press:  20 April 2017

Frits Kalshoven
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Extract

Neither 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 in Geneva on 10 October 1980, nor the Protocols annexed to it specify in their operative parts the principles on which the prohibitions and restrictions rest. Such principles are, however, found in the preamble to the Convention.

Four of the twelve preambular paragraphs are relevant here. They list: the “general principle of the protection of the civilian population against the effects of hostilities”; the principle “that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited”; the ban on “the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering”; and the fact that it is prohibited “to employ methods or means of warfare which are intended, or may be expected, to cause widespread, longterm and severe damage to the natural environment.” The fifth paragraph reiterates the well-known Martens clause, in the formulation accepted for Article 1, paragraph 2, of Additional Protocol I of 1977.

Type
Tenth Anniversary of the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
Information
International Review of the Red Cross (1961 - 1997) , Volume 30 , Issue 279 , December 1990 , pp. 510 - 520
Copyright
Copyright © International Committee of the Red Cross 1990

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Footnotes

*

The author wishes to thank Louise Doswald-Beck, member of the ICRC Legal Division, for her useful comments on a first version of this paper.

References

1 Although preambular paragraphs are generally regarded as non-binding, France upon signature took the precaution of specifying that the last-quoted part of the preamble reproduces Art. 35(3) of the 1977 Protocol I and “applies only to States parties to that Protocol”; Schindler, & Toman, , The Laws of Armed Conflicts, Martinus Nijhoff Publishers, Dordrecht, The Netherlands, Henry Dunant Institute, Geneva, 1988, (3rd ed.), p. 194.CrossRefGoogle Scholar

2 Schindler & Toman, op. cit., p. 101. On this instrument, see further below.

3 Schindler & Toman, p. 25.

4 The quoted phrases are from the preamble to the 1899 Hague Convention (II) on Land Warfare, to which the Regulations are annexed.

5 The principle of distinction was clearly expressed in Resolution XXVIII adopted by the XXth International Conference of the Red Cross, Vienna, 1965, and subsequently in Resolution 2444 (XXIII) of the United Nations General Assembly; Schindler & Toman, pp. 259, 263.

6 ICRC, Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects: Report on the Work of Experts, Geneva, 1973. Most of the discussion dealt with the characteristics and effects of specified categories of weapons. Obviously, the work of the forty-odd experts participating in their private capacities could only have a very preliminary character.

7 Report, op. cit., p. 11: para. 20. The summary of the discussion on unnecessary suffering and indiscriminate effects takes less than three pages; pp. 12-13: paras. 21-27.

8 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, (Geneva, 1974-1977), Official Records, Vol. XVI, pp. 457-459: CDDH/47/Rev. 1, Report of the Ad Hoc Committee on Conventional Weapons, paras. 21-35.

9 ICRC, Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne, 24 September-18 October 1974), Report, Geneva, 1975; pp. 7-13: Chapter II: “Legal Criteria”.

10 Report, op. cit., p. 7: para. 18.

11 Report, op. cit., p. 13: para. 42.

12 Official Records, op. cit., Vol. XVI, 479: CDDH/220/Rev.l: Report of Ad Hoc Committee on Conventional Weapons, Second Session, op. cit., para. 51.

13 ICRC, Conference of Government Experts on the Use of Certain Conventional Weapons (Second Session, Lugano, 28 January-26 February 1976), Report, Geneva, 1976. The report of the Working Sub-Group is on pp. 140-146. It may be noted here that the need to devise machinery for periodic review had already been referred to at the first session of the Diplomatic Conference, op. cit., note 8, p. 457: para. 20 of Report.

14 UNGA Doc. A/CONF./95.

15 On this episode see F. Kalshoven, “Arms, Armaments and International Law”, in 191 Recueil des Cours (1985-11) at pp. 263-264.

16 Supra, text at note 11.

17 Supra, text at note 8.

18 See MajorScott, General R., “Unnecessary Suffering?—A Medical View”, in Meyer, M. A. (ed.), Armed Conflict and the New Law, British Institute of International and Comparative Law, London, 1989, pp. 271–279 Google Scholar.

19 The rule was first codified in Art. 3 of the 1907 Hague Convention on land warfare and reaffirmed with the adoption of Art. 91 of Protocol I of 1977.

20 In this connection reference may also be made to the International Fact-Finding Commission provided by Article 90 of Additional Protocol I of 1977.

21 The exception is in Art. 3, para. 2, of the Mines Protocol.