Practice Relating to Rule 71. Weapons That Are by Nature Indiscriminate
Israel’s Manual on the Laws of War (1998) states:
Since St. Petersburg, there have been several universally accepted rules regarding weapons:
Another important goal to attain is control over the weapons to ensure that the harm they inflict is limited only to the battlefield and the combatants thereon, and does not spread out of control to innocent parties such as civilians. Weapons that do not distinguish between targets are prohibited.
Israel’s Manual on the Rules of Warfare (2006) states:
It must be ensured that the results of the use of weapons are confined to the battlefield and the combatants thereon, and are not dispersed uncontrollably over surrounding areas. Weapons that do not distinguish between one target and another are prohibited.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
In its judgment in Physicians for Human Rights v. O.C. Southern Command in 2003, Israel’s High Court of Justice reviewed arguments made by petitioners and by the Israel Defense Forces (IDF) on the legality of the use of flechette shells, before concluding on the matter:
Petitioners request an order nisi that will order the Israeli Defense Forces, in the context of its operations in the Gaza Strip, to cease using flechette shells. A flechette shell contains a cluster of steel darts. When a flechette shell detonates, at a certain height above the ground, these darts are dispersed over an area of several hundred square meters. Like other armaments that contain submunitions – such as cluster bombs – flechettes are intended to be used against field targets, as opposed to distinct, individual targets.
According to petitioners, the use of flechette shells violates the laws of war, which prohibit the use of weapons that do not discriminate between combatants and non-combatants. Petitioners point to two instances in which flechette shells have caused civilian deaths. In the first incident, a flechette shell was used to respond to fire upon a military position in Netzarim, in the Gaza Strip. The shell landed near a Bedouin encampment and caused the deaths of three women. In the second incident, flechette shells were fired upon individuals suspected of being terrorists, on their way to carry out a terrorist attack. In this incident, three youths were killed. As such, petitioners assert that the use of flechette shells is illegal, and that the IDF should be completely prohibited from using such shells.
Respondents assert that the question of whether to prohibit the use of flechette shells, in the context of the United Nations 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 (1980) [hereinafter the 1980 Convention on Certain Conventional Weapons], has been raised several times before various international forums. However, a prohibition against the use of flechette shells has never received significant international support. The 1980 Convention on Certain Conventional Weapons completely prohibited the use of other weapons. Israel joined this treaty in 1995, subsequently ratified it, and sees itself as bound by its provisions. But this treaty does not ban the use of weapons that contain submunitions, such as flechette shells. As such, petitioner’s claim that the use of flechette shells is prohibited by the law of war is incorrect, and should be rejected.
Petitioners request that we prohibit the military from using flechette shells. As the use of such artillery is not prohibited by international conventions, we cannot grant their petition. Our decisions have stated that “this Court will not intervene in the choice of military weapons, which the respondents use in order to prevent vicious terrorist attacks.” See
HCJ 5872/01 Barake v. The Prime Minister
. We further note that we think the IDF has properly set out the conditions under which the use of flechettes is authorized. Of course, the question of whether the use of flechettes is justified under individual circumstances is given to the discretion of the authorized commander. This commander will act according the military directives, which are intended to prevent casualties among residents who do not endanger the IDF forces or Israeli civilians.
In 1991, during a debate in the First Committee of the UN General Assembly, Israel advocated that all weapons that can kill civilians indiscriminately be considered weapons of mass destruction. It gave Scud missiles as an example of this class of weapon.
According to the Report on the Practice of Israel, Israel “does not make use of inaccurate weapon systems which are liable, by their very nature, to strike at locations far removed from their original targets” and considers Scud missiles and Katyusha rockets to be indiscriminate.