Practice Relating to Rule 70. Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering
Spain’s LOAC Manual (1996) states: “The right to choose means and methods of warfare is limited by the principle according to which unnecessary suffering and superfluous injury shall be avoided.”
The manual further states: “Weapons causing unnecessary suffering may not be used.”
Spain’s LOAC Manual (2007) states:
The choice of the means (weapons) and methods (procedures) of warfare are limited by the law of armed conflict. The use of force must be proportional to the aim and must not cause superfluous injury or unnecessary suffering even to the combatants of the adverse party. Humanitarian law accepts that one of the legitimate objectives of war is to put the enemy out of action, but prohibits the use of weapons that cause additional and unnecessary suffering. Any form of violence that is not essential to gaining an advantage over the enemy is forbidden.
In a list of general provisions that apply to limiting the means and methods of warfare, the manual states: “The parties to the conflict must always avoid causing superfluous injury or unnecessary suffering.”
Spain’s Military Criminal Code (1985) punishes “any soldier who uses, or orders the use of, means or methods of combat which are prohibited or destined to cause unnecessary suffering or superfluous injury”.
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict, uses, or orders to be used, methods or means of combat which are prohibited or destined to cause unnecessary suffering or superfluous injury”.
Spain’s Penal Code (1995), as amended in 2003, states:
Anyone who in the event of an armed conflict uses or orders the employment of means or methods of combat … of a nature to cause superfluous injury or unnecessary suffering shall be punished with ten to 15 years’ imprisonment, without prejudice to the penalty for the results of such acts.
Spain’s Royal Ordinances for the Armed Forces (2009) states that members of the armed forces “[m]ust not use means and methods of warfare prohibited by International Humanitarian Law that can cause superfluous injury or unnecessary suffering.”
In 2008, in response to a question concerning the prohibition of cluster munitions, Spain’s Secretary of State for Constitutional and Parliamentary Matters wrote:
The Spanish government is at all times supporting the measures advanced within the international community in which humanitarian considerations have primacy over the expected operational advantages that the use by the military of certain weapons, considered to cause excessive suffering to, or that have indiscriminate effects on, the civilian population, … could have.