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Published online by Cambridge University Press: 25 February 2011
This article explores the process of the “study, development, acquisition or adoption of a new weapon, means or method of warfare” under Article 36 of 1977 Additional Protocol I to the Geneva Conventions of 1949. It then considers the manner in which the legal review of weapons can take place in practice, including an examination of the evidence that will be available on which to base legal assessments.
1 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).
2 ICRC Conference, Tehran, Resolution 88(UK)-o–11, 12 November 1973.
3 Draft Art. 86.
4 The discussions leading to the adoption of the Additional Protocols had resulted in Resolution 22 of 9 June 1977 (Fourth Session of the CDDH), which recommended that a Conference of Governments be convened to reach agreements on prohibitions or restrictions on the use of specific conventional weapons (para. 3).
5 UNGA A/Conf.95/15, 27 October 1980. Background information on the conference is given in UNGA A/AC.206/10, 16 June 1981 and in Sandoz, Y., “Prohibitions or restrictions on the use of certain conventional weapons: Final Act of the Conference”, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, January-February 1981, pp. 3–33.Google Scholar
6 See R. J. Mathews, “The 1980 Convention on Certain Conventional Weapons: A useful framework despite earlier disappointments”, paper presented at the Australian Defence Force Conference held at Melbourne University (“Pushing the Envelope: The ADF Contribution to International & Operations Law” held from 20–22 February 2002). With regard to the number of weapons review processes, see Daoust, I., Coupland, R. and Ishoey, R. “New wars, new weapons? The obligation of States to assess the legality of means and methods of warfare”, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, June 2002, Vol. 84, p. 354.CrossRefGoogle Scholar
7 The First Review Conference took place some 15 years after the adoption of the CCW, indicating the level of priority that the international community had accorded it.
8 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997.
9 A mandate was agreed at the December 2002 Meeting of Governmental Experts to negotiate an ‘instrument’ regarding aspects of explosive remnants of war and to explore issues regarding mines other than anti-personnel mines (CCW/MSP/2002/CRP.1 paras 21 & 22).
10 At the 27th International Conference of the Red Cross and Red Crescent (Geneva, 31 October –6 November 1999), under Final Goal 1.5, States were encouraged to develop weapons review processes and to engage with the SlrUS Project to assist them. Conference Plan of Action (2000–2003), p. 12, para. 21.
11 Coupland, R., The SlrUS Project: Towards a Determination of Which Weapons Cause ‘Superfluous Injury or Unnecessary Suffering, ICRC pamphlet 1997.Google ScholarPubMed See also The SlrUS Project and reviewing the legality of new weapons, ICRC, January 2000.
12 Art. 35(2) of Additional Protocol I (capitalization added). This is derived from Art. 23(e) of the Regulations respecting the Laws and Customs of War on Land, Annex to the Hague Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907. The English translation of Art. 23(e) of the authentic French text uses the term, “calculated to cause unnecessary suffering”. The wording in Art. 35(2) of Additional Protocol I, which includes “superfluous injury”, is considered to be a better rendering of the French text (“propres à causer des maux superflus”).
13 Expert Meeting on Legal Reviews of Weapons and the SlrUS Project, Jongny-sur-Vevey, Switzerland (29–31 January 2001).
14 There was criticism of the Red Cross wound classification on the basis of the data within the SlrUS Project.
15 Some of the legal criticism of the SlrUS Project is well summarized by A. Koch in his article “Should war be hell?”, Jane's Defence Weekly, May 2000, p. 23. For an ICRC perspective on the meeting see Daoust, I., “ICRC Expert Meeting on Legal Reviews of Weapons and the Sir US Project” Revue Internationale de la Croix-Rouge/International Review of the Red Cross, No. 842, June 2001, pp. 539–542.Google Scholar
16 Although Art. 36 uses the terms “study, development, acquisition or adoption”, in the present article the term “acquisition” will be used to reflect all four terms unless otherwise stated.
17 The extent of the requirement for legal review under Article 36 is considered below. However, to avoid confusion the term “equipment” will be used to cover the acquisition of all types of weapons and weapon systems.
18 For a detailed summary of the various approaches of States see the Report of the Danish Red Cross, Reviewing the Legality of New Weapons, December 2000. This is expanded upon slightly in Daoust, Coupland, Ishoey, op cit. (note 6).
19 For example, Sweden's Delegation for International Humanitarian Law Monitoring or Arms Projects and Norway's Department of Defence's Committee. These are discussed in the Report of the Danish Red Cross, op cit. (note 18), paras 6.2 and 6.3. It was proposed by some delegates to the CDDH that an international committee to assess the legality of weapons be set up by the Protocol itself. See Sandoz, Y., Swinariski, C. and Zimmerman, B. (eds), Commentary on the Additional Protocols of 8 lune 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Geneva, 1987Google Scholar (hereinafter Commentary on the Additional Protocols of 8 lune 1977), p. 422, para. 1463, esp. footnote 3.
20 For example, the United States of America. See Report of the Danish Red Cross, op cit. (note 18), para. 6.4. See also Paper presented by W. Hays Parks, Special Assistant to the Judge Advocate General of the Army, Washington DC, USA, to an informal technical meeting hosted by the Government of Switzerland, Darlingen, Switzerland, 12–14 June 2002.
21 Parks, op. cit. (note 20).
22 This interpretation is consistent with the comments in the Commentary on the Additional Protocols of 8 lune 1977, op. cit. (note 19), para. 1472, which states “[w]ithout necessarily being ‘new’ in a technical sense, (…) arms are new for the State which is intending to acquire them after becoming a Party to the Protocol”.
23 See Daoust, , Coupland, , Ishoey, , op. cit. (note 6), p. 352.Google Scholar
24 See Meyrowitz, H., “The principle of superfluous injury and unnecessary suffering”, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, March-April 1994, p. 103.Google Scholar
25 Daoust, , Coupland, , Ishoey, , op. cit. (note 6), p. 352.Google Scholar
26 Ibid., footnote 19.
27 It will always be possible, however, in the preparation of a legal review to make comments regarding future ROE to cover the weapon if the characteristics warrant it.
28 There are also issues concerning the use of communications equipment with encryption devices vis-à-vis hospital ships. See Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, Art. 34.
29 The first four to be discussed are also referred to in Daoust, , Coupland, , Ishoey, , op. cit. (note 6), pp. 347–350.Google Scholar
30 The principle of proportionality requires belligerents to refrain from an attack on a legitimate military target if it is expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated from that attack.
31 See Meyrowitz, op. cit. (note 24), for an examination of this principle.
32 Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations respecting the Laws and Customs of War on Land, 18 October 1907, Art. 23 (e); Additional Protocol I, Art. 35; 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, 10 October 1980, Preamble, para. 3.
33 See in particular 1977 Additional Protocol I, Articles 51 and 57.
34 For an examination of the legal framework regarding environmental aspects of conflict see Bouvier, A., “Protection of the natural environment in time of armed conflict”, Revue Internationale de la Croix-Rouge/International Review of the Red Cross, November-December 1991, No. 285, pp. 567–578.Google Scholar
35 Article 35(3) of 1977 Additional Protocol I.
36 One example is that of the B52 bomber which is still in service. See for example the discussion of the continued use of the B52 in Afghanistan in lane's Defence Weekly, Vol. 37, No. 1, p 27.
37 CCW 1980.
38 For example, the need to protect intellectual property and reasons of national security may prevent a State from making a full scientific disclosure.
39 The nature of the fragment has been the source of some debate; see for example the Protocolon Non-Detectable Fragments (Protocol I) of 10 October 1980 annexed to the CCW, op. cit. (note 31). However, the method of using fragments to kill or injure has been uncontroversial.
40 The purpose of having future legal issues as one of the criteria is to avoid being taken by surprise by international legal developments.
41 See Commentary on the Additional Protocols of 8 June 1977, op. cit. (note 19), para. 1470, which states: “[h]owever, it should be added that a State which respects the obligation provided for in Article 36, and determines that a new weapon is prohibited, is not automatically obliged to make public its finding. This reservation is quite understandable, as modern strategy very often relies not on deployment of military means in the traditional ways, but on new possibilities resulting from research and which consists of creating an imbalance of military strengths vis-à-vis the enemy precisely by means of superior technology in the form of new weapons”.
42 Report of the Danish Red Cross, op. cit., (note 18), para. 5.1 (regarding a clearing house) and para. 5.2 (regarding a depository).