Practice Relating to Rule 71. Weapons That Are by Nature Indiscriminate
The Military Manual (2005) of the Netherlands states:
[I]t is forbidden to use means and combat methods where the effects cannot be limited to combatants and military targets, and which affect civilians and civilian targets. This is defined as the use of indiscriminate means or indiscriminate attack.
The manual further states that “[t]he question whether a non-lethal weapon can be used as a form of warfare will primarily depend on whether such a weapon”, inter alia
, “is limited, in the effects of its use or deployment, to combatants or military objects”.
In its chapter on non-international armed conflict, the manual states:
It is prohibited to use weapons causing unnecessary suffering or excessive injury, or that are indiscriminate. This means that biological, chemical, toxic or intoxicating weapons, dumdum bullets, saw-blade bayonets, weapons which cause injury by non-detectable fragments, anti-personnel mines and booby traps, blinding laser weapons and firearms whose primary purpose is to cause burn injuries to persons are forbidden.
In 1969, during a debate in the Third Committee of the UN General Assembly, the Netherlands stated that it was:
essential to update and broaden the Hague Conventions and the 1925 Geneva [Gas] Protocol, primarily in so far as related to international security and the protection of human rights, and to extend their application to cover armed conflicts which were not international in character.
In 1992, during a debate in the First Committee of the UN General Assembly, the Netherlands appealed to States to adhere to the 1980 Convention on Certain Conventional Weapons, arguing that: “Universal adherence would compel States not to use such weapons any more in a military conflict and it would at the same time make it more difficult for such weapons to be used in internal conflicts against civilians.”
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Netherlands stated:
[T]he general principles of international humanitarian law in armed conflict also apply to the use of nuclear weapons. Two principles, in particular, which form part of that law are the prohibition on making the civilian population as such the target of an attack and the prohibition on attacking military targets if this would cause disproportionate harm to the civilian population. The applicability of general principles of international humanitarian law in armed conflict – among which must also be counted the principle laid down in Article 22 of the 1907 Hague Regulations that the right of a belligerent to adopt means of injuring the enemy is not unlimited – to the use of nuclear weapons was also confirmed as long ago as 1965 in Resolution XXVIII of the 20th International Conference of the Red Cross (Vienna) which was passed unanimously. Consensus on this point was also reached at the diplomatic conference on Additional Protocol I to the 1949 Geneva Conventions.