Rule 79. The use of weapons the primary effect of which is to injure by fragments which are not detectable by X-rays in the human body is prohibited.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
Protocol I to the Convention on Certain Conventional Weapons prohibits the use of weapons the primary effect of which is to injure by fragments not detectable by X-rays.[1] It was adopted without any controversy.
The prohibition is contained in numerous military manuals.[2] The use of weapons injuring by fragments not detectable by X-rays is a war crime under the legislation of some States.[3] It is also supported by official statements and reported practice.[4] This practice includes that of States not at the time party to the Convention on Certain Conventional Weapons.[5]
When adopted, Protocol I to the Convention on Certain Conventional Weapons only applied to international armed conflicts. However, on ratification of the Convention, France, Israel and the United States stated that they would apply the Protocol to non-international armed conflicts as well.[6] At the Second Review Conference of the Convention on Certain Conventional Weapons in 2001, the Convention was amended to extend application of the Protocol also to non-international armed conflicts.[7] The amendment was not controversial during the negotiations and has meanwhile entered into force.[8] In addition, the UN Secretary-General’s Bulletin on observance by United Nations forces of international humanitarian law, which is not limited to international armed conflicts, prohibits the use of weapons primarily injuring by non-detectable fragments.[9]
The prohibition in any armed conflict is contained in several military manuals.[10] The use of weapons injuring by fragments not detectable by X-rays is a war crime under the legislation of some States.[11] It is also supported by official statements and reported practice.[12]
Practice is in conformity with the rule’s applicability in both international and non-international armed conflicts, as States generally do not have a different set of military weapons for international and non-international armed conflicts. No weapons the primary effect of which is to injure by non-detectable fragments appear to exist, although the ability to produce them has been widely available for a very long time. That this general abstention is not purely coincidental can be deduced also from the fact that weapons which cause unnecessary suffering are prohibited in both international and non-international armed conflicts (see Rule 70) and that there is general agreement that such weapons would cause unnecessary suffering.[13]
No official contrary practice was found with respect to either international or non-international armed conflicts. No State has claimed that it may use weapons the primary effect of which is to injure by non-detectable fragments in any type of armed conflict.
The reasoning behind the adoption of Protocol I to the Convention on Certain Conventional Weapons was that weapons injuring by non-detectable fragments would make it very difficult to treat the resulting wounds, that the extra suffering caused by this difficulty has no military utility and that they would therefore cause unnecessary suffering. This view is supported by the assertion made in the UK Military Manual, drafted well before the adoption of Protocol I to the Convention on Certain Conventional Weapons, that the prohibition on causing unnecessary suffering included “projectiles filled with broken glass”.[14] It is for this reason that Protocol I to the Convention on Certain Conventional Weapons specifies that prohibited weapons are those whose “primary effect” is to injure by non-detectable fragments. Weapons which contain plastic, for example, as part of their design, are therefore not illegal if the plastic is not part of the primary injuring mechanism.[15]
[1] Protocol I to the Convention on Certain Conventional Weapons (cited in Vol. II, Ch. 27, § 1).
[2] See, e.g., the military manuals of Argentina (ibid., § 8), Australia (ibid., §§ 9–10), Belgium (ibid., § 11), Canada (ibid., § 12), Ecuador (ibid., § 13), France (ibid., §§ 14–15), Germany (ibid., §§ 16–17), Israel (ibid., § 18), Italy (ibid., § 19), Kenya (ibid., § 20), Netherlands (ibid., § 21), New Zealand (ibid., § 22), Nigeria (ibid., § 23), Russian Federation (ibid., § 24), South Africa (ibid., § 25), Spain (ibid., § 26), Sweden (ibid., § 27), Switzerland (ibid., § 28), United Kingdom (ibid., §§ 29–30) and United States (ibid., §§ 31–34).
[3] See, e.g., the legislation of Estonia (ibid., § 35) and Hungary (ibid., § 36).
[4] See, e.g., the statements of Australia (ibid., §§ 39–40), Austria (ibid., §§ 38–39), Belarus (ibid., § 39), Belgium (ibid., § 39), Bulgaria (ibid., § 39), Canada (ibid., § 39), Colombia (ibid., § 38), Cuba (ibid., § 39), Denmark (ibid., §§ 38–39), Finland (ibid., § 39), France (ibid., § 39), Federal Republic of Germany (ibid., §§ 38–39), German Democratic Republic (ibid., § 39), Greece (ibid., § 39), Hungary (ibid., § 39), India (ibid., § 41), Ireland (ibid., § 39), Italy (ibid., § 39), Jamaica (ibid., § 39), Mexico (ibid., §§ 38–39), Morocco (ibid., § 39), Netherlands (ibid., §§ 39 and 45), New Zealand (ibid., § 39), Norway (ibid., §§ 38–39), Panama (ibid., § 39), Philippines (ibid., § 39), Poland (ibid., § 39), Portugal (ibid., § 39), Romania (ibid., § 39), Spain (ibid., §§ 38–39), Sudan (ibid., § 39), Sweden (ibid., §§ 38–39), Switzerland (ibid., §§ 38–39), Syria (ibid., § 39), Togo (ibid., § 39), Ukraine (ibid., § 39), USSR (ibid., § 39), United Kingdom (ibid., § 39), United States (ibid., §§ 38–39 and 46), Bolivarian Republic of Venezuela (ibid., §§ 38–39), Yugoslavia (ibid., §§ 38–39) and Zaire (ibid., § 39) and the reported practice of India (ibid., § 42), Indonesia (ibid., § 43) and Jordan (ibid., § 44).
[5] See, e.g., the military manuals of Argentina (ibid., § 8), Belgium (ibid., § 11), Italy (ibid., § 19), Kenya (ibid., § 20) and New Zealand (ibid., § 22) and the reported practice of Indonesia (ibid., § 43).
[6] France, Reservations made upon ratification of the Convention on Certain Conventional Weapons (ibid., § 3); Israel, Declarations and understandings made upon accession to the Convention on Certain Conventional Weapons (ibid., § 4); United States, Declaration made upon ratification of the Convention on Certain Conventional Weapons (ibid., § 5).
[7] Convention on Certain Conventional Weapons, amended Article 1 (ibid., § 6).
[8] The amendment entered into force on 18 May 2004. To date, 29 States have ratified the amended Convention on Certain Conventional Weapons: Argentina, Australia, Austria, Belgium, Bulgaria, Burkina Faso, Canada, China, Croatia, Estonia, Finland, France, Holy See, Hungary, Japan, Latvia, Liechtenstein, Lithuania, Mexico, Netherlands, Norway, Republic of Korea, Romania, Serbia and Montenegro, Slovakia, Spain, Sweden, Switzerland and United Kingdom.
[9] UN Secretary-General’s Bulletin, Section 6.2 (cited in Vol. II, Ch. 27, § 7).
[10] See, e.g., the military manuals of Australia (ibid., § 9), Ecuador (ibid., § 13), France (ibid., §§ 14–15) (“totally prohibited”), Germany (ibid., §§ 16–17), Italy (ibid., § 19), Kenya (ibid., § 20), South Africa (ibid., § 25) and Spain (ibid., § 26) (“absolute prohibition”).
[11] See, e.g., the legislation of Estonia (ibid., § 35); see also the legislation of Hungary (ibid., § 36), the application of which is not excluded in time of non-international armed conflict.
[12] See, e.g., the statement of India (ibid., § 41) and the reported practice of India (ibid., § 42), Indonesia (ibid., § 43) and Jordan (ibid., § 44).
[13] See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 20, § 34), Ecuador (ibid., § 52), France (ibid., §§ 55–56), Germany (ibid., § 59), Netherlands (ibid., §§ 71–72), New Zealand (ibid., § 73), South Africa (ibid., § 80), United Kingdom (ibid., § 85) and United States (ibid., §§ 87, 89, 91 and 93).
[14] United Kingdom, Military Manual (cited in Vol. II, Ch. 27, § 29); see also the military manuals of Nigeria (ibid., § 23) and United States (ibid., §§ 31–33).
[15] See, e.g., United States, Legal Review of Maverick Alternate Warhead (ibid., § 46).