Practice Relating to the Use of Prohibited Weapons

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, “war crimes” means:

Limitations on the use of weapons fall into two broad categories, namely:

Some weapons and weapons systems are totally prohibited. These blanket prohibitions, which may be traced to treaty or customary international law, are justified on the grounds that the weapons in question are either indiscriminate in their effect or cause unnecessary suffering. 

The IDF complies with the compulsory rules of warfare in the field and the weapons at its disposal comply with international standards. The ban on soldiers initiating ‘improvements’ in weaponry originates not only in IDF orders but also results from safety considerations and an international ban on the use of prohibited weapons under the rules of war. 

(1) Whoever makes or improves, produces, stores, offers for sale or buys, or intercedes in a purchase or sale, possesses, transfers, or transports … [the] means of combat prohibited by the rules of international law …

(2) Whoever, at a time of war or armed conflict, orders the use of … the means or methods of combat prohibited by the rules of international law, or whoever uses such weapons, means or methods. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

[The following offences] are punishable by life imprisonment: … [e]mploying weapons, projectiles, materials or methods of warfare which are the subject of a comprehensive prohibition and are included in an annex to the Statute of the International Criminal Court accepted by France. 

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The acts that do not contain the elements of the crime provided for by Articles 411 or 412, in particular:

shall be punished by imprisonment for a term of eleven to fifteen years. 

Shall be punished by an imprisonment sentence of seven (7) to twenty (20) years any person who employs or orders to employ against the enemy methods and means of warfare expressly prohibited by the laws and customs applicable in armed conflicts as well as the international conventions to which Rwanda is a party.

When methods and means employed or ordered to be employed have resulted in the death of one or more persons, the culprit shall be punished by life imprisonment or the death penalty. 

(1) Whoever, contrary to law, other regulations, or rules of international law, manufactures, buys, sells, imports, exports or otherwise procures or gives to another, stocks or transports weapons whose production or use is forbidden, or means for production thereof, shall be punished by imprisonment of one to five years.

(2) An official or responsible person who orders or enables a legal entity to engage in activities provided under paragraph 1 of this Article, shall be punished by imprisonment of one to eight years. 

1. Any person in wartime who orders or directly commits the murder of civilians, wounded people, or prisoner[s] of war[]; pillages; destroys residential areas; uses banned war instruments or methods[;] or commits other acts that seriously violate international law or an international agreement to which [the] Socialist Republic of Vietnam is a signatory shall face a penalty of 10–20 years’ imprisonment, life imprisonment, or death

2. [If t]his offence is committed under pressure or order[s] given by superior officers, the offender shall face a penalty of 10–20 years’ imprisonment. 

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.

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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. 

The use of nuclear weapons has the consequences that fit perfectly with the legal figure of war crimes against humankind: the assassination and extermination of entire populations and other inhuman acts committed against the civil population. 

The IDF [Israel Defense Forces] uses only weapons and munitions defined as legal under international law and authorised as such by the relevant IDF authorities, including MAG [Military Advocate General’s Corps] officers. In this regard, the IDF complies strictly with the applicable restrictions governing the use of certain weapons and munitions. Furthermore, all weapons and munitions are employed in accordance with the general rules of International Humanitarian Law. 

Article 85 entitled “Principle of Humanity”, contained in Title IV on Operations [of the Royal Ordinances for the Armed Forces (2009)] clearly embodies the spirit of the [1949] Geneva Convention and its [1977] Additional Protocols, as it provides that “[the] … conduct [of members of the armed forces] in any conflict or military operation must conform to the applicable rules of the international treaties on international humanitarian law to which Spain is a party”.

That is further developed in Chapter VI on Ethics in Operations, which goes into specific duties under international humanitarian law … and prohibits means and methods of warfare not in conformity with international humanitarian law. 

Mrs. Alice Mahon (Halifax): It is widely reported in today’s newspapers that the United States intends to use a new bomb that will melt the Iraqi communications systems. Will this bomb also melt the equipment that is used in hospitals and that runs the water and electricity supplies in Baghdad? Will the Prime Minister assure us that it does not melt people?

The Prime Minister: In any military conflict, we will operate in accordance with international law. Any weapons or munitions that are used will be in accordance with international law. I assure my hon. Friend that we will do everything that we can to minimise civilian casualties and, indeed, to maximise the possibilities of a swift and successful conclusion to any conflict.

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Mr. Martin Caton (Gower): International humanitarian law prohibits military attack that fails to discriminate between combatants and non-combatants or that disproportionately impacts on civilians. Can my right hon. Friend assure me that, in the war on Iraq that the House sanctioned last night, we will not be employing cluster bombs and that electricity, transport and water infrastructure will not be targeted?

The Prime Minister: I simply say in relation to any weapons or munitions that we use that we will use only those that are in accordance with international law and with the Geneva convention. That is the responsibility of the Government and is the commitment of this Government and has been of other British Governments in the past. We will do everything that we can to minimise civilian casualties. The reason why, in respect of any military action that we take, we get legal advice not merely on the military action itself but on the targeting is to make sure that that happens. Of course, I understand that, if there is conflict, there will be civilian casualties. That, I am afraid, is in the nature of any conflict, but we will do our best to minimise them. 

deeply regrets that the use of unlawful methods or means of combat was not included in the grave breaches, particularly since to have done so would merely have been to have codified an already existing rule of customary law, because there can be no doubt that to use prohibited weapons or unlawful methods of making war is already to act unlawfully, that is, it is a war crime punishable by existing international law.