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The principle of superfluous injury or unnecessary suffering: From the Declaration of St. Petersburg of 1868 to Additional Protocol 1 of 1977

Published online by Cambridge University Press:  13 January 2010

Henri Meyrowitz
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Extract

On the 100th anniversary of the Declaration of St. Petersburg, the International Review of the Red Cross devoted to this important first document of the law of war an article examining the relation between the notion of the “legitimate object” of war as defined in the Declaration and the means of warfare used, whose lawfulness was declared to be limited by their conformance to that legitimate object and by their necessity. Since 1868 the law of international armed conflicts has been supplemented by Protocol I additional to the Geneva Conventions of 1949, which enlarged on the central point of the Preamble to the Declaration of 1868 — i.e. the concept of “maux superflus” (“superfluous injury or unnecessary suffering”); although it was not formulated as such until 1899 in Article 23 e) of the Regulations respecting the Laws and Customs of War on Land, it may, as we shall demonstrate, be traced back to the Declaration's Preamble. Protocol I broadened the concept's scope of application to include methods of warfare, but it also and above all introduced a new rule of considerable import by narrowing the definition of military objectives that may lawfully be attacked.

Type
Prohibitions and Restrictions on the Use of Certain Weapons
Information
International Review of the Red Cross (1961 - 1997) , Volume 34 , Issue 299: Special: Prohibitions and Restrictions on the Use of Certain Weapons , April 1994 , pp. 98 - 122
Copyright
Copyright © International Committee of the Red Cross 1994

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References

1 In the English translation of the Regulations of 1899 “maux superflus” was translated by “superfluous injury”; in the 1907 revised version this was replaced by the term “unnecessary suffering”. Since 1977, however, “superfluous injury or unnecessary suffering” has been generally adopted as a more adequate translation and it has been used througout this article except where quoted documents provide a different translation or where otherwise specified. (For the author's discussion of the difficulty of translating “maux superflus” into English see below, section I, B.) — Translator's note.

2 “Les parties belligérantes ne doivent tolérer que les calamités qui sont impérieusement nécessitées par la guerre. Toute souffrance et tout dommage qui n'auraient pas pour seul résultat d'affaiblir l'ennemi n'ont aucune raison d'être et ne doivent être admis d'aucune maniére.” (Annexe au Protocole I des Conférences militaires tenues à Saint-Pétersbourg, “Mémoire sur la suppression de l'emploi des balles explosives en temps de guerre”, Nouveau Recueil général des traités …, Vol. XVIII, Göttingen, 1873, p. 460.)Google Scholar

3 Concerning this point see below, part II, C, a.

4 Noting that “among the 32 members of the Conference, 18 were military men, 10 were diplomats and 4 were legal experts and senior officials with no connection to the military and diplomatic professions”, G. Rolin-Jaequemyns acknowledged that the results of the Conference had allayed the fears that such unequal proportions between the various professions had initially caused him. “Chronique du droit international 1871–1878”, Revue de droit international et de législation comparée, VII, 1875, pp. 90–91.Google Scholar

5 “(…) l'emploi d'armes, de projectiles ou de matières propres a causer des maux superflus, ainsi que l'usage de projectiles prohibés par la Déclaration de St. Pétersbourg de 1868”.

6 Actes de la Conférence de Bruxelles de 1874 sur le Projet d'une convention internationale concernant la guerre, Paris, Ministère des Affaires étrangères, Documents diplomatiques, 1874, pp. 4 and 48 respectively.

7 “Outre les prohibitions établies par des conventions spéciales, il est notamment interdit (…) e) D'employer des armes, des projectiles ou des matières propres à causer des maux superflus”.

8 The Hague Regulations of 1899 and 1907 and Additional Protocol I will henceforth be abbreviated HR and PI respectively.

9 The only rule explicitly based on PI, Article 35 (2), is the prohibition of the use of “any booby-trap which is designed to cause superfluous injury or unnecessary suffering”, a provision set forth in Article 6 (2) of Protocol II annexed to 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 of 10 October 1980. In the French version of this document the expressions “blessures inutiles” and “souffrances superflues” are appropriately used, as is the expression “designed to” instead of “of a nature to”. The third preambular paragraph of the Convention, whose text is based on that of PI, Article 35 (2), refers to the rule stated therein as a “principle”. Although it makes no allusion to this rule, the single article constituting Protocol I annexed to the Convention and stating that “it is prohibited to use any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays” may also be considered to be based on PI, Article 35 (2).

10 “3. — Pour atteindre le but de la guerre, tous les moyens et toutes les mesures, conformes aux lois et coutumes de la guerre, et justifiés par les nécessités de la guerre, sont permis.” Mechelynck, A., La Convention de la Haye concernant les lois et coutumes de la guerre sur terre d'après les Actes et Documents des Conférences de Bruxelles de 1874 et La Haye de 1899 et 1907, Ghent, 1915, p. 24.Google Scholar

11 Cf. the last preambular paragraph of Protocol I: “Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict (…)”.

12 Yearbook of the International Law Commission, 1980, Vol. II Google Scholar, Part 2: Report of the International Law Commission to the General Assembly on the work of its thirty-second session (A/CN.4/SER.A/1980/Add. 1 (Part 2)), p. 46, paras. 27 and 28.

13 The two references to the notion of “military advantage” are not equivalent. In particular, they are different with regard to their respective functions.

14 Cf. the second sentence of PI, Article 55 (1), prohibiting “the use of methods or means of warfare which are intended or may be expected to cause such damage [widespread, long-term and severe] to the natural environment and thereby to prejudice the health or survival of the population” – and not of the civilian population.

15 The concept of “military advantage” was first referred to in the 1923 Hague Draft Rules of Aerial Warfare, formulated by a Commission of Jurists which had been set up in accordance with a resolution of the 1922 Washington Conference on the Limitation of Armaments and was composed of experts from France, Italy, Japan, the Netherlands, the United States and the United Kingdom. The Hague Draft Rules, which had only the status of a recommendation, stated in Article 24 (1): “Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent.” ( Schindler, Dietrich and Toman, Jiri (eds.), The laws of armed conflicts. A collection of conventions, resolutions and other documents, Dordrecht, 1988, p. 210.)Google Scholar

The wording of the second sentence of Article 52 (2) is based on the following paragraph of the Resolution adopted in 1969 by the Institute of International Law, whose terms were likewise adopted with some slight changes by the ICRC in Draft Protocol I:

“There can be considered as military objectives only those which, by their very nature or purpose or use, make an effective contribution to military action, or exhibit a generally recognized military significance, such that their total or partial destruction in the actual circumstances gives a substantial, specific and immediate military advantage to those who are in a position to destroy them,” Draft Additional Protocols to the Geneva Conventions of August 12, 1949, Commentary, ICRC, Geneva, 1973, p. 60 Google Scholar

The resolution was adopted by 60 votes to 1, with 2 abstentions.

16 With the order of its two paragraphs reversed, the terms of Article 52 (1) and (2) were adopted word for word in Article 2 (4) and (5) of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) annexed to the Convention of 10 October 1980, as well as in Article 1 (3) and (4) of the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III).

17 See Headquarters, Department of the Army: FM 27–10 – The Law of Land Warfare, Change No. 1, 15 07 1976 Google Scholar, para. 40, c.

18 ICRC, Draft rules for the limitation of the dangers incurred by the civilian population in time of war, second edition, Geneva, 1958, pp. 66, 70.Google Scholar

19 Contrary to violations of the prohibition on indiscriminate attacks defined in Articles 51 (5), b, and 57 (2) a, iii, violations of the rule stated in the second sentence of Article 52 (2) are not included among the grave breaches of Protocol I listed in its Article 85. However, Article 52 (2) is not meant to be to be an exhaustive enumeration of war crimes, even in the case of violations of a rule established by the Protocol. Thus, the fact that violations of the rule stated in the second sentence of Article 52 (2) are not explicitly repressed provides possible infringers with no protection against the risk of being prosecuted for war crimes, and more specifically for breaches of the laws and customs of war. However, the problem related to the principle nullum crimen, nulla poena sine lege does arise here. See below the corresponding text under note 28.

20 For a similar interpretation establishing a connection between Article 35 and the prohibition of refusing quarter expressed in Article 40, see ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva, 1987, p. 476, para. 1598.Google Scholar

21 Cassese, A., “Weapons causing unnecessary suffering. Are they prohibited?” in Rivista di Diritto Internazionale, Vol. 48, 1975, pp. 12–42 Google Scholar: “a very significant source of inspiration” (p. 37).

22 Op. cit., p. 404. For an interpretation in agreement with ours, see Kussbach, Erich, “Internationale Bemühungen um die Beschränkung des Einsatzes bestimmter konventioneller Waffen”, in Oesterreichische Zeitschrift für öffentliches Recht und Völkerrecht, Vol. 28, 1977, pp. 1–50 Google Scholar. The author sees in the principle stated in HR, Article 23 e), a “general regulating principle” (“ein allgemeines Regulativ”) and a “juridical principle of the law of war” (“ein Rechtsgrundsatz des Kriegsrechts”), and not merely a moral principle (p. 24).

23 Bundesministerium der Verteidigung, Humanitäres Völkerrecht in bewaffneten Konflikten. Handbuch, 08 1992 Google Scholar. The English translation issued by the ministry is entitled Humanitarian law in armed conflicts. Manual.

24 See for example Malinverni, Giorgio, “Armes conventionnelles modernes et droit international”, in Annuaire suisse de droit international, Vol. XXX, 1974, pp. 23–54 Google Scholar. The article concludes as follows: “(…) high-velocity projectiles obviously belong to the category of weapons causing superfluous injury or unnecessary suffering” (p. 47).

25 ICRC, Weapons that may cause unnecessary suffering or have indiscriminate effects. Report on the work of experts, Geneva, 1973, p. 38.Google Scholar

26 Ibid., p. 8. Although the type of weapon under consideration was discussed at the United Nations Conference on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, the debates did not result in a protocol pertaining to the regulation of this means of warfare. The Conference had to limit itself to adopting a resolution which, recalling that dumdum bullets were prohibited by the Declaration of 1899, requested States to continue research into the special traumatic and ballistic effects of small-calibre weapons and called on governments to show great caution in the perfecting of these weapons. — Concerning another new means of warfare, laser weapons, and the questions they raise from a humanitarian point of view, see Doswald-Beck, Louise (ed.), Blinding weapons. Reports of the meetings of experts convened by the International Committee of the Red Cross on battlefield laser weapons, 1989–1991, ICRC, Geneva, 1993.Google Scholar

27 This is probably the correct way to interpret the cautious opinion of a writer who commented on the above-quoted paragraph in Fleck, D. (ed.), Handbuch des humanitären Völkerrechts in bewaffneten Konflikten, C.H. Beck, Munich, 1994.Google Scholar

On this particular point we are in agreement with the opinion of Professor Kalshoven, who does “not share the optimism” of those who “believed that ‘unnecessary suffering’ and ‘indiscriminate effects’ provided standards that could simply ‘be applied to existing and possible future weapons’. For any such straightforward application, their component parts on the one hand and the characteristics of modern weaponry on the other provide far too many complications and difficulties of interpretation.” (“The conventional weapons convention: underlying legal principles”, IRRC, No. 279, 11–12 1990, pp. 510–520 (p. 517).CrossRefGoogle Scholar

28 S/25704, p. 9.

29 For a similar opinion see the Declaration on the rules of international humanitarian law governing the conduct of hostilities in non-international armed conflicts, adopted in 1990 by the Council of the International Institute of Humanitarian Law ( IRRC, No. 278, 09–10 1990, pp. 404–408 [p. 405]Google Scholar). On the applicability of the three Protocols of 1980 to non-international armed conflicts, see also Yves Sandoz, “The question of prohibiting or restricting certain conventional weapons”, IRRC, No. 279, 11–12 1990, pp. 473–476 CrossRefGoogle Scholar, and Aubert, Maurice, “The International Committee of the Red Cross and the problem of excessively injurious or indiscriminate weapons”Google Scholar, ibid., pp. 477–497 (pp. 493–494).