Practice Relating to Rule 71. Weapons That Are by Nature Indiscriminate
Sweden’s IHL Manual (1991) states that, according to the criteria given in the 1868 St. Petersburg Declaration and in the 1907 Hague Convention (IV):
Weapons shall be considered particularly inhuman if they:
– cause unnecessary suffering or superfluous damage, or
– have indiscriminate effects, meaning that the weapon effects strike military objectives and civilian persons without any distinction.
These criteria have been used in all arms limitation negotiations in recent years.
In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Sweden stated:
20. A general prohibition of the use of “indiscriminate weapons” could be deduced from the general duty of belligerents to distinguish between combatants and civilians, and between military and civilian objectives … Since, however, article 46, paragraph 3, [of the draft Additional Protocol I] prohibited “the employment of means of combat, and any methods which strike or affect indiscriminately the civilian population and combatants or civilian objects, and military objectives”, a special rule on weapons was perhaps redundant. What were not redundant were rules on specific categories of weapons which governments might agree to ban or restrict the use of on grounds of their indiscriminate effects.
21. All weapons could be used indiscriminately but some were incapable of being directed at military objectives alone. One example was bacteriological weapons: germs could not distinguish between soldiers and civilians … Some of the incendiary weapons had turned out to be quite indiscriminate.