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New wars, new weapons? The obligation of States to assess the legality of means and methods of warfare

Published online by Cambridge University Press:  19 April 2010

Isabelle Daoust ,
Robin Coupland  and
Rikke Ishoey
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Type
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Information
International Review of the Red Cross , Volume 84 , Issue 846 , June 2002 , pp. 345 - 363
Copyright
Copyright © International Committee of the Red Cross 2002

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References

1 See Dunant, H., A Memory of Solferino, ICRC, Geneva, 1986, p. 128.Google Scholar The book was first published in 1863.

2 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, St Petersburg, 1868 (hereinafter “St Petersburg Declaration”).

3 See, for example, Durham, H. and McCormack, T. (eds), The Changing Face of Conflict and the Efficacy of International Humanitarian Law, Kluwer, The Hague, 1999, pp. 66–73.Google Scholar

4 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (hereinafter “Additional Protocol I”).

5 See, for example, Segall, A., Punishing Violations of International Humanitarian Law at the National Level: A Guide for Common Law States, ICRC, Geneva, 2001, pp. 21–22.Google Scholar

6 Additional Protocol I does not, however, contain prohibitions on specific weapons.

7 See Article 35(2) and (3).

8 See Sandoz, Y., Swinarski, C. and Zimmermann, B. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 3949, Martinus Nijhoff, Geneva, 1987, p. 426.Google Scholar

9 Ibid., p. 428. The measures adopted by States may vary and can be formal or informal. The procedures adopted by certain States are examined below in greater detail.

10 Ibid., pp. 426–427.

11 Ibid., pp. 423–424.

12 Levie, H., Protection of War Victims: Protocol I to the 1949 Geneva Conventions, Oceana Publications, New York, 1980, p. 287.Google Scholar

13 Legality of the threat or use of nuclear weapons, Advisory Opinion of 8 July 1996, I.C.J. Reports 1996, para. 78.

14 Ibid.

15 Dando, M. (ed.), “Non-Lethal Weapons: Technological and Operational Prospects”, Jane's Special Report, London, 2000, pp. 60–65.Google Scholar

16 Op. cit. (note 13), paras 78 and 87.

17 Ibid., para. 86.

18 This was Sweden's argument; op. cit. (note 12), p. 285.

19 It is unclear how the term “weapon” differs from “means of warfare”.

20 Future weapons which fall under the umbrella term “non-lethal weapons” are also to be considered under Article 36 of Ad ditional Protocol I.

21 Op. cit. (note 8), p. 425.

22 Ibid., p. 426.

23 The Project takes its name from “Superfluous Injury or Unnecessary Suffering”. See also Coupland, R. (ed.), The SIrUS Project: Towards a Determination of Which Weapons Cause “Superfluous Injury or Unnecessary Suf-fering”, ICRC, Geneva, 1997.Google Scholar

24 It is interesting to note that weapons which do not injure by transfer of kinetic energy have been stigmatized or made the subject of prohibitions or attempts at prohibitions.

25 For a brief summary of this meeting see Daoust, I., “ICRC Expert Meeting on Legal Reviews of Weapons and the SIrUS Project”, IRRC, No. 83, 2001, pp. 539–542.Google Scholar

26 See Summary Report by the ICRC, Expert Meeting on Legal Reviews of Weapons and the SlrUS Project, Jongny sur Vevey, Switzerland (29–31 January 2001). While the specific proposals contained in the SlrUS Project were not broadly accepted at this meeting, all experts acknowledged the importance of implementing Article 36 of Additional Protocol I. See also proposals contained in the January 2000 ICRC document published following the XXVIIth International Conference of the Red Cross and Red Crescent entitled “The SlrUS Project and reviewing the legality of new weapons”.

27 The information in this section was published previously by the Danish Red Cross and the Danish Red Cross International Law Committee in a report entitled Reviewing the Legality of New Weapons, Copenhagen, January 2001. A revised version of this report is currently being prepared; it will include information on national review mechanisms adopted by other States, as well as a discussion of possible international initiatives to promote implementation of Article 36 of Additional Protocol I.

28 See Legal Examination of Weapon Projects Act. Additional information was provided by the Chairman and Secretariat of the Delegation.

29 The Delegation is currently composed of the Surgeon General, the Chief Engineer and representatives from the Ministry of Defence, the Armed Forces and the Ministry of Foreign Affairs. Representatives from the Ministry of Defence chair the Delegation and act as the Secretariat.

30 According to the Chairman of the Delegation, “mainly” is to be interpreted in a broad sense and any weapons which give rise to questions of legality must be reviewed.

31 The Freedom of the Press Act and its provisions on the public nature of documents allow general and anonymous requests for access to information.

32 In this section, the term “law of war” is preferred to the term “international humanitarian law” to reflect the terminology commonly used in the United States by the Department of the Army and the Office of the Judge Advocate General.

33 See Department of Defense Instruction 5500.15 (16 October 1974), Department of Defense Directive 5000.1 (15 March 1996), Department of the Army, Regulation No. 27–53 (1 February 1979), and Department of Defense Instruction 5000.2 (23 October 2000). Additional information was provided by the Department of the Army, Office of the Judge Advocate General.

34 The head of the Judge Advocate General's Office must ensure that activities which may reasonably raise questions of compliance with the obligations under arms control agreements to which the United States is a party have clearance from the Under-Secretary of Defense for Acquisition & Technology in coordination with the OSD General Counsel and the Under-Secretary of Defense (Policy).

35 Directive on the Department of Defence Committee for evaluating the legal aspects of new weapons, means and methods of war, 6 October 1994. Additional information was provided by the Committee Chairman.

36 The Committee changed its name to the “Head of Defence's Committee for evaluating the legal aspects of new weapons, means and methods of war”. See the Directive on the Evaluation under International Law of Means and Methods of War, Department of Defence, 2 November 1998, and the Head of Defence's Directive on Evaluation under International law of means and methods of war, 28 June 1999. This information was provided by the Norwegian Defence Command.

37 It is expected that a member of the Army Medical Services will be included in future. If required, independent experts may also be involved in reviews.

38 See Directive on the Evaluation under International Law of Means and Methods of War of 2 November 1998, op. cit. (note 36).

39 The information on weapons reviews in Australia is based mainly on a background paper prepared by Professor Tim McCormack, Australian Red Cross Professor of International Humanitarian Law in the Faculty of Law at the University of Melbourne, entitled “Integrating the SlrUS Project into national review processes: The Australian approach” and presented during the workshop held at the 27th International Conference of the Red Cross and Red Crescent. Professor McCormack and Lt. Col. Michael Kelly have kindly supplied additional information.

40 Reviews are conducted prior to acquisition. An extensive period of field and other trals may take place to ascertain the suit ability of the weapons.

41 See ICRC Summary Report of the Expert Meeting, op. cit. (note 26).

42 See CCW/CONF.II/2, p. 11.