Note: For practice concerning the use in attack of means and methods of combat which cannot be directed at a specific military objective or the effects of which cannot be limited as required by international humanitarian law, see Rule 12, Sections B and C.
Convention on Certain Conventional Weapons
The preamble to the 1980 Convention on Certain Conventional Weapons recalls “the general principle of the protection of the civilian population against the effects of hostilities”.
Ottawa Convention on Anti-Personnel Mines
The preamble to the 1997 Ottawa Convention on Anti-Personnel Mines specifies that the States parties are “basing themselves … on the principle that a distinction must be made between civilians and combatants”.
ICC Statute
Pursuant to Article 8(2)(b)(xx) of the 1998 ICC Statute, the following constitutes a war crime in international armed conflicts:
Employing weapons, projectiles and material and methods of warfare … which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute.
New Delhi Draft Rules
Article 14 of the 1956 New Delhi Draft Rules provides:
Without prejudice to the present or future prohibition of certain specific weapons, the use is prohibited of weapons whose harmful effects – resulting in particular from the dissemination of incendiary, chemical, bacteriological, radioactive or other agents – could spread to an unforeseen degree or escape, either in space or in time, from the control of those who employ them, thus endangering the civilian population.
San Remo Manual
Paragraph 42(b) of the 1994 San Remo Manual states:
In addition to any specific prohibitions binding upon the parties to a conflict, it is forbidden to employ methods or means of warfare which:
…
(b) are indiscriminate, in that:
(i) they are not, or cannot be, directed against a specific military objective; or
(ii) their effects cannot be limited as required by international law as reflected in this document.
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(xx), “[e]mploying weapons, projectiles and material and methods of warfare … which are inherently indiscriminate in violation of the international law of armed conflict” constitutes a war crime in international armed conflicts.
Australia
Australia’s Commanders’ Guide (1994) states:
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 subject weapons are either indiscriminate in their effect or cause unnecessary suffering.
The Guide also states: “Both chemical and biological weapons are prohibited because they cause unnecessary suffering and may affect the civilian population in an indiscriminate fashion.”
The Guide goes on to say that poison or poisoned weapons are prohibited “because of their potential to be indiscriminate in application”.
With respect to weapons deemed to be legal, the Guide notes: “All legal weapons are limited in the way in which they may be used. Specifically, no weapons may be used indiscriminately.”
In addition, the Guide states: “Weapons which cannot be directed at military objectives or the effect of which cannot be limited are prohibited.”
Moreover, the Guide states:
Indiscriminate use is placement of such weapons [i.e. mines, booby traps and other devices] which:
a. is not on, or directed at, a military objective; or
b. employs a method or means of delivery which cannot be directed at a specific military objective; or
c. may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Australia
Australia’s Defence Force Manual (1994) states:
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 subject weapons are either indiscriminate in their effect or cause unnecessary suffering.
The manual also states that poison or poisoned weapons are prohibited “because of their potential to be indiscriminate”.
Likewise, according to the manual, “both chemical and biological weapons are prohibited because they cause unnecessary suffering and may affect the civilian population in an indiscriminate fashion”.
With respect to weapons deemed to be legal, the manual notes: “All legal weapons are limited in the way in which they may be used. Specifically, no weapons may be used indiscriminately.”
Australia
Australia’s LOAC Manual (2006) states in its chapter on “Weapons”:
4.4 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.
…
4.5 It is prohibited to employ weapons which cannot be directed at a specific military objective or the effects of which cannot be limited as required by Additional Protocol I (G.P.I) and are therefore of a nature that they may strike military objectives and civilians or civilian objects without distinction …
…
4.8 Poison or poisoned weapons are illegal because of their potential to be indiscriminate. …
…
4.20 … Both chemical and biological weapons are prohibited because they cause unnecessary suffering and may affect the civilian population in an indiscriminate fashion.
…
4.26 … [I]ndiscriminate use [of anti-vehicle mines] is prohibited.
…
4.30 All legal weapons are limited in the way in which they may be used. Specifically, no weapons may be used indiscriminately or in such a way as to cause unnecessary injury or suffering.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
According to Belgium’s Teaching Manual for Officers (1994), it is especially forbidden to use indiscriminate weapons.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states: “Any weapons which have indiscriminate effects are prohibited.”
Canada
Canada’s LOAC Manual (1999) states that some weapons are “totally prohibited by the LOAC” because they are indiscriminate. It further states:
Weapons that are indiscriminate in their effect are prohibited. A weapon is indiscriminate if it might strike or affect legitimate targets and civilians or civilian objects without distinction. Therefore, a weapon that cannot be directed at a specific legitimate target or the effects of which cannot be limited as required by the law of armed conflict is prohibited. For example, it may be argued that the Scud missile used in the Gulf War falls in that category.
The manual adds that the use of poison or poisoned weapons is
illegal because of their potential to be indiscriminate. For example, the poisoning or contamination of any source of drinking water is prohibited. Posting a notice that the water has been contaminated or poisoned does not make this practice legal, as both civilians and combatants might drink from that water source and be equally affected.
As regards lawful weapons, the manual states: “Legal weapons are limited in the way in which they may be used. Specifically, no weapons may be used indiscriminately.”
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Restrictions on the use of weapons” that some weapons are “totally prohibited by the LOAC because they are … indiscriminate”.
The manual further states:
Weapons that are indiscriminate in their effect are prohibited. A weapon is indiscriminate if it might strike or affect legitimate targets and civilians or civilian objects without distinction. Therefore, a weapon that cannot be directed at a specific legitimate target or the effects of which cannot be limited as required by the LOAC is prohibited. For example, it may be argued that the Scud missile used in the Gulf War falls in that category.
It also notes the indiscriminate nature of poison:
Poison or poisoned weapons are illegal because of their potential to be indiscriminate. For example, the poisoning or contamination of any source of drinking water is prohibited. Posting a notice that the water has been contaminated or poisoned does not make this practice legal, as both civilians and combatants might drink from that water source and be equally affected.
With regard to limitations placed on weapons that are otherwise lawful under the law of armed conflict, the manual states: “Legal weapons are limited in the way in which they may be used. Specifically, no weapons may be used indiscriminately.”
Chad
Chad’s Instructor’s Manual (2006) prohibits the use of “weapons with indiscriminate effects”.
Colombia
Colombia’s Basic Military Manual (1995) states that the use of weapons which “cause unnecessary and indiscriminate, extensive, lasting and serious damage to people and the environment” is prohibited.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book IV (Instruction of heads of division and company commanders):
II.1.1. Weapons striking without distinction
Certain weapons are completely prohibited by the LOAC because they strike without distinction …
…
A weapon strikes without distinction if it can strike or touch legitimate objectives and civilians or civilian objects without distinction. Consequently, it is prohibited to use a weapon which cannot be directed against a legitimate objective or the effects of which cannot be limited as required by the LOAC.
…
For example: Scud missile used by Iraq against Israel during the Gulf War.
Ecuador
Ecuador’s Naval Manual (1989) states: “The use of weapons which by their nature are incapable of being directed specifically against military objectives, and therefore that put noncombatants at equivalent risk, are forbidden due to their indiscriminate effect.”
The manual further specifies:
Weapons that are incapable of being controlled in the sense that they can be directed at a military target are forbidden as being indiscriminate in their effect. Drifting armed contact mines and long-range unguided missiles (such as the German V-1 and V-2 rockets of World War II) fall into this category. A weapon is not indiscriminate simply because it may cause incidental or collateral civilian casualties, provided such casualties are not foreseeably excessive in light of the expected military advantage to be gained. An artillery round that is capable of being directed with a reasonable degree of accuracy at a military target is not an indiscriminate weapon simply because it may miss its mark or inflict collateral damage. Conversely, uncontrolled balloon-borne bombs, such as those released by the Japanese against the west coast of the United States and Canada in World War II, lack that capability of direction and are, therefore, unlawful.
France
France’s LOAC Teaching Note (2000) states that, “because of their indiscriminate effects”, the use of poison, chemical weapons, biological and bacteriological weapons, dum-dum bullets or other projectiles with expanding heads, anti-personnel mines, weapons that injure by non-detectable fragments, blinding laser weapons, and torpedoes without self-destruction mechanisms “is totally prohibited by the law of armed conflicts”.
France
France’s LOAC Manual (2001) states that weapons that have “indiscriminate effects” are prohibited.
The manual adds that, “because of their indiscriminate effects”, the use of poison, chemical weapons, biological and bacteriological weapons, dum-dum bullets or other projectiles with expanding heads, anti-personnel mines, weapons that injure by non-detectable fragments, blinding laser weapons, and torpedoes without self-destruction mechanisms “is totally prohibited by the law of armed conflicts”.
Germany
Germany’s Soldiers’ Manual (1991) provides: “It is prohibited to use means or methods of warfare which are intended or of a nature … to strike military targets and civilian persons or civilian objects indiscriminately.”
Germany
Germany’s IHL Manual (1996) states: “It is prohibited, in particular, to employ means or methods of warfare, which are intended to or of a nature … to strike military targets and civilian persons or civilian objects indiscriminately.”
Germany
Germany’s Soldiers’ Manual (2006) states: “It is prohibited to use means or methods which are intended or of a nature, … to damage military objectives and civilian persons or civilian objects without distinction.”
Israel
Israel’s Manual on the Laws of War (1998) states:
Since St. Petersburg, there have been several universally accepted rules regarding weapons:
…
Another important goal to attain is control over the weapons to ensure that the harm they inflict is limited only to the battlefield and the combatants thereon, and does not spread out of control to innocent parties such as civilians. Weapons that do not distinguish between targets are prohibited.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
It must be ensured that the results of the use of weapons are confined to the battlefield and the combatants thereon, and are not dispersed uncontrollably over surrounding areas. Weapons that do not distinguish between one target and another are prohibited.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Netherlands
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.
New Zealand
New Zealand’s Military Manual (1992) states: “Weapons which cannot be directed at military objectives or the effects of which cannot be limited are prohibited.”
Nigeria
Nigeria’s Military Manual (1994) states that “the basic principles are that every commander has the right to choose the means and methods or type of warfare” but has to “distinguish between military and civilian objects”.
Peru
Peru’s IHL Manual (2004) states: “It is prohibited to use weapons that can … have indiscriminate effects.”
The manual also states: “It is prohibited to use weapons … that are indiscriminate because they cannot be directed at a specific military objective.”
Peru
Peru’s IHL and Human Rights Manual (2010) states: “It is prohibited to use weapons that can … have indiscriminate effects.”
The manual also states: “It is prohibited to use weapons … that are indiscriminate because they cannot be directed at a specific military objective.”
The manual further states: “Belligerent parties and their armed forces must refrain from using weapons … which, because of their imprecise nature or their effects, indiscriminately injure the civilian population and combatants.”
Republic of Korea
The Republic of Korea’s Operational Law Manual (1996) provides: “Weapons that are by nature indiscriminate shall be prohibited.”
Russian Federation
The Russian Federation’s Military Manual (1990) provides:
Prohibited means of warfare are the various weapons of an indiscriminate character and/or those that cause unnecessary suffering:
a) bullets that expand or flatten easily in the human body;
b) projectiles used with the only purpose to spread asphyxiating or poisonous gases;
c) projectiles weighing less than 400 grammes, which are either explosive or charged with fulminating or inflammable substances;
d) poisons or poisoned weapons;
e) asphyxiating, poisonous or other similar gases and bacteriological means;
f) bacteriological (biological) and toxin weapons;
g) environmental modification techniques having widespread, long-term or serious effects as means of destruction, damage or injury;
h) all types of weapons of an indiscriminate character or that cause excessive injury or suffering.
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “Weapons which are likely to … affect both civilians and combatants, without distinction, and whose harmful effects go beyond control, in time or place, are illegal
per se.”
Sweden
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.
Switzerland
Switzerland’s Basic Military Manual (1987), with respect to nuclear weapons, refers to Article 51 of the 1977 Additional Protocol I and states: “It is prohibited to use weapons the effects of which can harm civilian or military objectives without discrimination.”
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
6.4. It is prohibited to employ weapons which cannot be directed at a specific military objective or the effects of which cannot be limited as required by Additional Protocol I and consequently are of a nature to strike military objectives and civilians or civilian objects without distinction.
6.4.1. This provision operates as an effective prohibition on the use of weapons that are so inaccurate that they cannot be directed at a military target. The V1 flying bomb used in the Second World War and the Scud rocket used during the Gulf conflict of 1990–91 are examples of weapons likely to be caught by this provision.
United States of America
The US Air Force Pamphlet (1976) states:
The existing law of armed conflict does not prohibit the use of weapons whose destructive force cannot strictly be confined to the specific military objective. Weapons are not unlawful simply because their use may cause incidental casualties to civilians and destruction of civilian objects. Nevertheless, particular weapons or methods of warfare may be prohibited because of their indiscriminate effects … Indiscriminate weapons are those incapable of being controlled, through design or function, and thus they can not, with any degree of certainty, be directed at military objectives. For example, in World War II German V-1 rockets, with extremely primitive guidance systems yet generally directed toward civilian populations, and Japanese incendiary balloons without any guidance systems were regarded as unlawful. Both weapons were, as deployed, incapable of being aimed specifically at military objectives. Use of such essentially unguided weapons could be expected to cause unlawful excessive injury to civilians and damage to civilian objects … Some weapons, though capable of being directed only at military objectives, may have otherwise uncontrollable effects so as to cause disproportionate civilian injuries or damage. Biological warfare is a universally agreed illustration of such an indiscriminate weapon. Uncontrollable effects, in this context, may include injury to the civilian population of other states as well as injury to an enemy’s civilian population. Uncontrollable refers to effects which escape in time or space from the control of the user as to necessarily create risks to civilian persons or objects excessive in relation to the military advantage anticipated. International law does not require that a weapon’s effects be strictly confined to the military objectives against which it is directed, but it does restrict weapons whose foreseeable effects result in unlawful disproportionate injury to civilians or damage to civilian objects.
As regards new weapons, the Pamphlet states:
A new weapon or method of warfare may be illegal, per se, if it is restricted by international law including treaty or international custom … [T]he legality of new weapons … is determined by whether the weapon’s … effects are indiscriminate as to cause disproportionate civilian injury or damage to civilian objects.
United States of America
The US Air Force Commander’s Handbook (1980) states:
Weapons that are incapable of being controlled enough to direct them against a military objective … are forbidden. A weapon is not unlawful simply because its use may cause incidental or collateral casualties to civilians, as long as those casualties are not foreseeably excessive in light of the expected military advantage. Using unpowered and uncontrolled balloons to carry bombs is thus forbidden, since these weapons would be incapable of being directed against a military objective.
United States of America
The US Naval Handbook (1995) states: “Weapons which by their nature are incapable of being directed specifically against military objectives, and therefore that put noncombatants at equivalent risk, are forbidden due to their indiscriminate effect.”

The Handbook further specifies:
Weapons that are incapable of being controlled (i.e., directed at a military target) are forbidden as being indiscriminate in their effect. Drifting armed contact mines and long-range unguided missiles (such as the German V-1 and V-2 rockets of World War II) fall into this category. A weapon is not indiscriminate simply because it may cause incidental or collateral civilian casualties, provided such casualties are not foreseeably excessive in light of the expected military advantage to be gained. An artillery round that is capable of being directed with a reasonable degree of accuracy at a military target is not an indiscriminate weapon simply because it may miss its mark or inflict collateral damage. Conversely, uncontrolled balloon-borne bombs, such as those released by the Japanese against the west coast of the United States and Canada in World War II, lack that capability of direction and are, therefore, unlawful.
United States of America
The US Naval Handbook (2007) states that “weapons, which by their nature are incapable of being directed specifically against military objectives, and therefore that put civilians and noncombatants at equivalent risk, are forbidden due to their indiscriminate effect”.
The Handbook also states:
Weapons that are incapable of being directed at a military objective are forbidden as being indiscriminate in their effect. Drifting armed contact mines and long-range unguided missiles (such as the German V-1 and V-2 rockets of World War II) fall into this category. A weapon is not indiscriminate simply because it may cause incidental or collateral civilian casualties, provided such casualties are not foreseeably excessive in light of the anticipated military advantage to be gained. An artillery round that is capable of being directed with a reasonable degree of accuracy at a military target is not an indiscriminate weapon simply because it may miss its mark or inflict collateral damage. Conversely, uncontrolled balloon-borne bombs, such as those released by the Japanese against the west coast of the United States and Canada in World War II, lack that capability of direction and are, therefore, unlawful.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) prohibits “blind weapons” the effects of which “cannot be controlled during their use”.
Belgium
Belgium’s Penal Code (1867), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
…
40. employing weapons, projectiles, material and methods of … which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles, material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to the Statute of the International Criminal Court.
Belgium
Belgium’s Law relating to the Repression of Grave Breaches of International Humanitarian Law (1993), as amended in 2003, provides:
War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :
…
26. employing weapons, projectiles, material and methods of … which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles, material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to the Statute of the International Criminal Court.
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
…
B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:
…
s) employing weapons, projectiles, material and methods of combat which are … inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of combat are the subject of a comprehensive prohibition.
Burundi
Burundi’s Penal Code (2009) states:
“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:
…
2. … [S]erious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
…
20°. Employing weapons, projectiles and material and methods of warfare which are … inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition.
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act.
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute.
Côte d’Ivoire
Côte d’Ivoire’s Penal Code (1981), as amended in 2015, states:
Article 139
Whoever commits a war crime is punished with life imprisonment.
War crimes are:
…
2 - other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
…
- employing weapons, projectiles and material and methods of warfare … which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to the Rome Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123 of that Statute[.]
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
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].
Denmark’s Military Criminal Code (2005) provides:
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].
Georgia
Under Georgia’s Criminal Code (1999), any war crime provided for by the 1998 ICC Statute, which is not explicitly mentioned in the Code, such as “employing weapons, projectiles and material … which are inherently indiscriminate” in international armed conflicts, is a crime.
Mali
Under Mali’s Penal Code (2001), “employing weapons, projectiles, materials and methods of warfare … which are inherently indiscriminate in violation of the international law of armed conflicts, provided that such means are the subject of a comprehensive prohibition” is a war crime in international armed conflicts.
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(b)(xx) of the 1998 ICC Statute.
Senegal
Senegal’s Penal Code (1965), as amended in 2007, states that the following constitute war crimes:
[O]ther serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
…
17. employing weapons, projectiles, material and methods of combat which are … inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles, material and methods of combat are the subject of a comprehensive prohibition and that they are prohibited by an annex to the Rome Statute of the International Criminal Court adopted according to the provisions of its Articles 121 and 123.
Senegal
Senegal’s Law Authorizing Ratification of the 2008 Convention on Cluster Munitions (2010) states:
Concerned that cluster munition remnants kill or maim civilians, including women and children, obstruct economic and social development, and impede post-conflict rehabilitation and reconstruction, States Parties adopted the Convention on Cluster Munitions, in Dublin (Ireland) on 30 May 2008.
In adopting this Convention, States have put in place the keystone of the international legal structure established to overcome these weapons that do not stop killing.
This text, which is inspired by the UN Charter and the rules of international humanitarian law, aims to reduce, as much as possible, the risks following from cluster munition weapons and the effects of such arms on civilian populations and persons.
…
In ratifying this Convention, Senegal, a country without stockpiles of cluster munitions, is thus making a significant contribution to the future prohibition on the use of these weapons, given their indiscriminate effects.
South Africa
South Africa’s ICC Act (2002) reproduces the war crimes listed in the 1998 ICC Statute, including in international armed conflicts:
employing weapons, projectiles and material and methods of warfare … which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to the [1998 ICC] Statute by an amendment in accordance with the relevant provisions set out in Articles 121 and 123 of the Statute.
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(b)(xx) of the 1998 ICC Statute.
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.
26.3. The following are war crimes:
…
28. Employing weapons, projectiles and material and methods of warfare … which are inherently indiscriminate in violation of the international humanitarian law of armed conflict.
…
38. Launching attacks by using weapons … that do not allow to distinguish between military and non-military objectives or between combatants and persons such as, for example, … recourse to … means of attack that cannot be directed against a specific military object or the use of weapons or methods of combat that can be expected to cause incidental injury or death to protected persons or damage to protected objects.
Canada
In 2013, in the
Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the
Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.”
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
The principle of distinction is complex and encompasses a number of treaty and customary norms applicable in internal armed conflicts, in addition to, in many cases, enjoying
ius cogens status. These rules [include] … the prohibition against … the use of weapons that have indiscriminate effects.
Israel
In its judgment in Physicians for Human Rights v. O.C. Southern Command in 2003, Israel’s High Court of Justice reviewed arguments made by petitioners and by the Israel Defense Forces (IDF) on the legality of the use of flechette shells, before concluding on the matter:
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.
…
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.
Australia
In 1995, in a statement at the First Review Conference of States Parties to the Convention on Certain Conventional Weapons, the delegation of Australia stated:
Our presence at this conference reflects a shared belief that even the harsh reality of armed conflict should be tempered by humanitarian constraints. Participants in the diplomatic conferences on humanitarian law in the late 1970s concluded that the international community should develop a framework for specific regulations on the use of those conventional weapons which are indiscriminate or disproportionate in their effects. Those weapons have come to include landmines and booby traps, incendiary devices and weapons which injure by means of non-detectable fragments.
Australia
In its oral pleadings before the ICJ in the
Nuclear Weapons case in 1995, Australia, admitting that “to date, international efforts have not culminated in an international convention banning the threat or use of nuclear weapons in all circumstances”, quoted UN General Assembly Resolution 1653 (XVI) according to which “the use of nuclear and thermo-nuclear weapons would … cause indiscriminate suffering” to conclude that “the use of nuclear weapons would be contrary to international law”.
Canada
In 1973, in its comments on the UN Secretary-General’s report on napalm and other incendiary weapons and all aspects of their possible use, Canada stated:
Broadly, there should be concern with the use of all types of weapons in ways which could … be indiscriminate in effect; for this reason, the protocols additional to the Geneva Conventions of 1949 which are currently being prepared under the auspices of the International Committee of the Red Cross in close co-operation with the United Nations General Assembly, should reaffirm the existing principles and rules of conventional and customary international law of armed conflicts which apply generally to the choice and use of weapons by States in armed conflict and are contained,
inter alia, in the Hague Declaration [concerning Asphyxiating Gases] of 1899, the Hague Conventions of 1907 and the Geneva [Gas] Protocol of 1925.
Canada
In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Canada stated: “Agreement was lacking on standards by which … ‘indiscriminate effects’ could be measured.”
Canada
At the CDDH, Canada stated:
The definition of indiscriminate attack contained in paragraph 4 of Article 46 [now Article 51 of the 1977 Additional Protocol I] is not intended to mean that there are means of combat the use of which would constitute an indiscriminate attack in all circumstances. It is our view that this definition takes account of the circumstances, as evidenced by the examples listed in paragraph 5 to determine the legitimacy of the use of means of combat.
China
At the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons in 2001, China declared: “The impermissibility of using means of warfare that … had indiscriminate effects had become a universally accepted principle.”
Cyprus
In 1977, during a debate in the First Committee of the UN General Assembly, Cyprus referred to the Stockholm International Peace Research Institute (SIPRI), which had stated in its report on the law of war and dubious weapons that indiscriminate weapons were prohibited by international law.
Denmark
In 2008, in a joint cost benefit analysis of a possible introduction of a national moratorium on all cluster munitions, Denmark’s Ministry of Defence and Ministry of Foreign Affairs stated:
[The] provisions, which are outlined below, are generally recognized as being an expression of customary international law. …
The purpose of international humanitarian law is to protect the victims of war as much as possible. …
It follows from API [1977 Additional Protocol I] that military attacks that do not respect the distinction between civilians and military targets are illegal because of their indiscriminate nature. Such indiscriminate attacks are defined in API Article 51(4) and Article 51([5]).
Djibouti
In 2010, in the History and Geography Textbook for 8th Grade, Djibouti’s Ministry of National Education and Higher Education, under the heading “Basic rules of IHL” and in a section on “Distinction”, stated: “The use of weapons that cannot distinguish between civilians and civilian objects [on the one hand] and military objectives [on the other] is prohibited.”
Djibouti
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry of National Education and Vocational Training, under the heading “[O]ffences related to violations of humanitarian law”, listed “[e]mploying weapons, projectiles, means and methods of war … that are by nature indiscriminate”.
Ecuador
In 1988, during a debate at the Fifteenth Special Session of the UN General Assembly, Ecuador stated: “Weapons, … which threaten equally belligerents and the helpless civilian population, must be the subject of a ban without reservations or limitations.”
Ecuador
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Ecuador stated:
The use of nuclear weapons does not discriminate by general norm the military objectives from civil objectives. This factor equally attends against a fundamental principle of the International Humanitarian Law: which takes care of the protection of innocent people during war times.
…
… The uncontrollable effects that a nuclear device has can easily go against the laws and the uses of the war.
Egypt
Upon signature of the 1998 ICC Statute, Egypt stated that its understanding of Article 8 of the Statute was as follows:
(a) The provisions of the Statute with regard to the war crimes referred to in article 8 in general and article 8, paragraph 2(b) in particular shall apply irrespective of the means by which they were perpetrated or the type of weapon used, including nuclear weapons, which are indiscriminate in nature … in contravention of international humanitarian law.
…
(d) Article 8, paragraph 2(b)(xvii) and (xviii) of the Statute shall be applicable to all types of emissions which are indiscriminate in their effects and the weapons used to deliver them, including emissions resulting from the use of nuclear weapons.
Egypt
In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Egypt stated: “Time-delay[ed] weapons … were … indiscriminate.”
In a later statement in 1976, Egypt also advocated a “total prohibition” of weapons that had indiscriminate effects.
Egypt
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Egypt stated that the use of nuclear weapons “cannot at all be legal” because
by their inherent qualitative and quantitative characteristics of their effect, nuclear weapons necessarily have cataclysmic and indiscriminate effects and cannot distinguish between combatants and non-combatants and between protected and unprotected objects, and are expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Egypt
In its oral pleadings before the ICJ in the Nuclear Weapons case in 1995, Egypt stated:
The use of nuclear weapons is prohibited not because they are or they are called nuclear weapons. They fall under the prohibitions of the fundamental and mandatory rules of humanitarian law which long predate them, by their effects; not because they are nuclear, but because they are indiscriminate weapons of mass destruction.
France
In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, France stated:
29. … Each weapon, with its characteristics, its effects and its method of use, had to be considered separately, if specific conclusions have to be reached.
30. … The more important concept of indiscriminate effects might perhaps be applicable to some weapons, but related more often to their method of use. For instance, the mine became indiscriminate only when used as a drifting mine. Indiscriminateness lay much more in the use made of a weapon and in the brain of the commanding officer than in the weapon itself.
France
In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case in 1995, France stated:
The fact that the [CDDH] took into consideration only conventional weapons also follows from the creation therein of an ad hoc commission on “conventional weapons”. Moreover, by its resolution 22, it [the CDDH] recommended the convocation of a conference “with a view to reaching a) agreements on prohibitions or restrictions on the use of specific conventional weapons including those which may be deemed to … have indiscriminate effects, taking into account humanitarian and military considerations; and b) agreement on a mechanism for the review of any such agreements and for the consideration of proposals for further such agreement”.
…
It furthermore appears that the States which participated in the conference considered that the rules figuring in the protocol cannot in themselves suffice to establish the illegality of the use of specific weapons, to whatever type they might belong.
…
Also, one cannot but ascertain the absence of a customary rule prohibiting the use of nuclear weapons.
…
It is true that a certain trend of opinion tries to prove the existence of a legal principle of the prohibition of nuclear weapons not by relying on positive norms specifically dealing with such weapons, but by constructing a reasoning on the basis of other rules of international law. Without directly mentioning the weapons in question, it is said that these rules could be applied to them [i.e. the weapons], by way of implication or by way of extension. For instance, the idea is sometimes put forward that certain rules in force of humanitarian law and the law of war would involve the prohibition of nuclear weapons. The supporters of that theory base themselves especially on diverse rules or principles enunciated in [the 1977 Additional Protocol I] – without questioning which [of these rules] are of customary nature and which are of conventional nature – and especially … the prohibition of indiscriminate attacks in the terms of article 51 of the protocol …
The government of France does not deem it necessary … to discuss in detail such reasoning, which it formally rejects … Indeed, if one cannot contest that protocol I of 1977 expresses, in some respects, general basic principles of existing law, it is obvious that … with respect to others, it constitutes a development …
Moreover, to follow the reasoning recalled above, once the basic customary principles applicable to nuclear weapons were drawn out and defined, one would have to establish that a rule prohibiting the use of these weapons follows from it.
France
In 2009, the Minister of Foreign and European Affairs of France stated:
[B]oth Israel and Hamas have used weapons that have indiscriminate effects, since aerial bombing and mortar fire were not used in such a manner as to spare civilians. Yet the prohibition of the use of weapons with indiscriminate effects is another key principle of international humanitarian law.
Germany, Federal Republic of
At the CDDH, the Federal Republic of Germany stated:
The definition of indiscriminate attacks contained in paragraph 4 of Article 46 [now Article 51 of the 1977 Additional Protocol I] is not intended to mean that there are means of combat the use of which would constitute an indiscriminate attack in all circumstances. Rather, the definition is intended to take account of the fact that the legality of the use of means of combat depends upon circumstances, as shown by the examples listed in paragraph 5. Consequently the definition does not prohibit as indiscriminate any specific weapon.
Germany
In 2009, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “Investigation of serious violations of international humanitarian law in the recent Gaza war”, Germany’s Federal Government wrote:
16. How does the Federal Government assess the use of artillery ammunition, fin-stabilized ammunition, shrapnel shells and other imprecise weapons in the densely populated residential areas in Gaza, documented by Amnesty International, under international law?
The Federal Government has no reliable information on the use of such ammunition. The use of means of warfare which cannot be directed against a specific military objective, so-called indiscriminate attacks, would be prohibited … This would depend not only on the type of ammunition but also on the circumstances of their use.
Holy See
In 1977, during a debate in the First Committee of the UN General Assembly, the Holy See condemned the use of indiscriminate weapons.
India
The Report on the Practice of India states:
The Geneva Convention norms regarding use of indiscriminate weapons are applicable by virtue of the Geneva Conventions Act. Although it is not specifically made applicable to internal conflicts, yet it is possible to suggest on the basis of the practice of not using such weapons that in India such weapons are prohibited in times of internal conflict.
Islamic Republic of Iran
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Islamic Republic of Iran stated:
Some of the principles of humanitarian international law from which one can deduce the illegitimacy of the use of nuclear weapons are: … Prohibition of the use of instruments that cause indiscriminate effects, including means and methods that are used suddenly and equally against both civilian and military targets.
Islamic Republic of Iran
In its oral pleadings before the ICJ in the
Nuclear Weapons case in 1995, the Islamic Republic of Iran stated: “The prohibition of weapons or tactics that cause indiscriminate harm between combatants and non combatants is another argument against the legality of the use of nuclear weapons.”
Islamic Republic of Iran
According to the Report on the Practice of the Islamic Republic of Iran, the Islamic Republic of Iran’s “
opinio juris is supportive of not using indiscriminate weapons (because in Iran’s view civilians must be protected against war effects)”.
Israel
In 1991, during a debate in the First Committee of the UN General Assembly, Israel advocated that all weapons that can kill civilians indiscriminately be considered weapons of mass destruction. It gave Scud missiles as an example of this class of weapon.
Israel
According to the Report on the Practice of Israel, Israel “does not make use of inaccurate weapon systems which are liable, by their very nature, to strike at locations far removed from their original targets” and considers Scud missiles and Katyusha rockets to be indiscriminate.
Italy
At the CDDH, Italy stated:
There was nothing in paragraph 4 [of Article 46, now Article 51 of the 1977 Additional Protocol I] to show that certain methods or means of combat were prohibited in all circumstances by the Protocol except where an explicit prohibition was established by international rules in force for the State concerned with regard to certain weapons or methods.
Japan
In its oral pleadings before the ICJ in the
Nuclear Weapons case in 1995, Japan stated: “The radiation released by [nuclear] weapons cannot be confined to specific military targets.”
Jordan
The Report on the Practice of Jordan states that, while Jordan has no official specific interpretation of the concept of indiscriminate weapons, it does not “use, manufacture or export landmines, V-2 bombs or missiles that cannot be accurately guided”.
Kuwait
According to the Report on the Practice of Kuwait, Kuwait is of the opinion that indiscriminate weapons must be prohibited.
Lesotho
In its written statement submitted to the ICJ in the
Nuclear Weapons case in 1995, Lesotho stated: “Any use of nuclear weapons, even in self-defense, would violate international humanitarian law, including the Hague and Geneva Conventions, which prohibit as practices of war, indiscriminate killing.”
Malaysia
In its written statement submitted to the ICJ in the
Nuclear Weapons (WHO) case in 1995, Malaysia stated: “Nuclear weapons are not just another weapon. Their nature and effect are such that they are inherently incapable of being limited with any degree of certainty to a specific military target.”
Marshall Islands
In its written statement submitted to the ICJ in the
Nuclear Weapons case in 1995, the Marshall Islands stated that “any use of nuclear weapons violates the laws of war including the Geneva and Hague Conventions and the United Nations Charter. Such laws prohibit … the use of indiscriminate weapons.”
Marshall Islands
In its oral pleadings before the ICJ in the
Nuclear Weapons case in 1995, the Marshall Islands stated: “Nuclear weapons, by their nature, are indiscriminate in their effects – and very seriously so.”
Mexico
In its written statement submitted to the ICJ in the
Nuclear Weapons (WHO) case in 1994, Mexico stated: “The principle of discrimination prohibits the use of weapons that fail to discriminate between civilian and military personnel.”
Mexico
In 2009, Mexico submitted a proposal to the UN Secretary General to amend Article 8(2)(c) of the 1998 ICC Statute in accordance with Article 121(1) of the Statute, stating:
Within the category of serious violations of the laws and customs applicable in international armed conflicts, the use of certain weapons whose effects are of an indiscriminate nature or cause superfluous injury or unnecessary suffering is included.
Mexico
In 2010, at the First Meeting of States Parties to the 2008 Convention on Cluster Munitions, Mexico stated:
Mexico … urges the States which use or produce cluster munitions to cease such activities and to comply with their obligations under international humanitarian law which prohibits the use of weapons with indiscriminate effects.
Nauru
In its written statement submitted to the ICJ in the
Nuclear Weapons case in 1995, Nauru stated: “The nuclear weapons for which the status of legality is claimed should be capable of distinguishing between military objectives and civilian objects.”
Netherlands
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.
Netherlands
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.”
Netherlands
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.
New Zealand
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, New Zealand stated:
In general, international humanitarian law bears on the threat or use of nuclear weapons as it does of other weapons … The general application of international humanitarian law to the use of nuclear weapons has also been specifically acknowledged by nuclear-weapon States.
Among the customary law rules applicable to the use of nuclear weapons, New Zealand further stated: “It is prohibited to use indiscriminate methods and means of warfare which do not distinguish between combatants and civilians and other non-combatants.”
Nigeria
In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Nigeria stated: “The wars of liberation … were being fought with conventional weapons, with the weaker side, particularly the freedom fighters, as the exclusive targets of … indiscriminate weapons.” Nigeria’s representative added that “his country was therefore anxious for restrictions to be imposed on such weapons”.
Pakistan
The Report on the Practice of Pakistan states that Pakistan “disapproves” of weapons of an indiscriminate nature.
Peru
The Report on the Practice of Peru, referring to a statement by the head of the Peruvian delegation at the international meeting on the reduction of mines in 1995, states that anti-personnel landmines are considered by Peru as weapons indiscriminate by nature. In addition, the Peruvian State supports the prohibition of anti-personnel mines that are not equipped with self-destruct mechanisms.
Poland
In 1973, during a debate in the Sixth Committee of the UN General Assembly on the UN Secretary-General’s report on respect for human rights in armed conflicts, Poland advocated that special emphasis be placed on the prohibition of the use of weapons indiscriminately affecting civilians and combatants.
Republic of Korea
According to the Report on the Practice of the Republic of Korea, the Republic of Korea considers the prohibition of the use of indiscriminate weapons to be part of customary international law.
The report refers to a presidential declaration in 1991 which stated that the Republic of Korea would not obtain these weapons.
Romania
In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Romania stated: “The use of weapons with indiscriminate effects, including weapons of mass destruction … [and] biological and chemical weapons, was prohibited by international law and by legal conscience of peoples.”
Romania
Upon signature of the 1980 Convention on Certain Conventional Weapons, Romania affirmed “once again its decision to act, together with other States, to ensure the prohibition or restriction of all conventional weapons which … have indiscriminate effects”.
Russian Federation
In 1991, in a statement at the International Conference on the Protection of Victims of War, the Minister of Foreign Affairs of the Russian Federation declared with reference to the conflict in Chechnya that in order to protect the civilian population against indiscriminate weapons, bombers, missiles, rockets, artillery shells, incendiary weapons and booby-traps should be completely banned in internal conflicts.
Russian Federation
In 1993, during a debate in the First Committee of the UN General Assembly, the Russian Federation stated that “in view of the sharp increase in the scale of internal ethnic conflicts and in the bloodshed resulting therefrom,” it had put forward “an initiative to establish restrictions under international law on the use of the most destructive and indiscriminate weapons systems in those conflicts”.
Russian Federation
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Russian Federation stated:
As Hans Blix said, “it is certainly correct to say the legality of the use of most weapons depends upon the manner in which they are employed. A rifle may be lawfully aimed at the enemy or it may be employed indiscriminately against civilians and soldiers alike. Bombs may be aimed at specific military targets or thrown at random. The indiscriminate use of a weapon will be prohibited, not the weapon as such.” We should add that it is a duly qualified use rather than the use of weapons as such at large that will be regarded as illegal.
Russian Federation
In 2011, during the UN Security Council consideration of the report of the chief prosecutor of the International Criminal Court on the situation in Libya, the permanent representative of the Russian Federation stated: “We are greatly alarmed by the growing number of casualties among civilians and destruction of civil facilities inflicted by the Libyan parties to the conflict, in particular due to the use of indiscriminate types of weapons.”
Rwanda
In its written statement submitted to the ICJ in the
Nuclear Weapons (WHO) case in 1993, Rwanda stated: “The use of nuclear weapons by a State during a war or an armed conflict constitutes a contravention of the rules of IHL in general and of the [1980 Convention on Certain Conventional Weapons] in particular.”
Rwanda
According to the Report on the Practice of Rwanda, “landmines and bombs” are considered to be weapons with indiscriminate effects.
Solomon Islands
In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case in 1994, Solomon Islands stated:
Since [their qualitative] effects may affect people outside the scope of conflict, both in time and geographically, the use of nuclear weapons violates the prohibition on the use of weapons which … cause harm to civilians and have indiscriminate effects.
Solomon Islands
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Solomon Islands referred to:
The customary rule which states that belligerents must always distinguish between combatants and non-combatants and limit their attack only to the former. This is an old and well-established rule which has achieved universal acceptance. The first multilateral instrument to state it was the St. Petersburg Declaration of 1868 … This obligation is repeated and further elaborated in different forms in many instruments.
Solomon Islands further referred to:
Those rules of the international law of armed conflict which prohibit:
-the use of weapons that render death inevitable;
-the use of weapons which have indiscriminate effects;
-any behaviour which might violate this law.
South Africa
In its report on “gross violations of human rights” committed between 1960 and 1993, the South African Truth and Reconciliation Commission noted that the killing of more than 600 people in a attack on the South Western Africa People’s Organisation (SWAPO) base/refugee camp at Kassinga in Angola in 1978 constituted a violation of IHL, stating:
International humanitarian law stipulates that the right of parties in a conflict to adopt means of injuring the enemy is not unlimited and that a distinction must at all times be made between persons taking part in hostilities and civilians, with the latter being spared as much as possible.
South Africa
In 2010, in a statement at the Tenth Annual Regional Seminar on the Implementation of International Humanitarian Law in Pretoria, South Africa’s Deputy Minister of the Department of International Relations and Cooperation stated:
International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It also seeks to prohibit all means and methods of warfare which,
inter alia, fail to discriminate between those taking part in the fighting and those who are not, with the emphasis on protecting the civilian population, individual civilians and civilian property.
Spain
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.
Sri Lanka
In its written statement submitted to the ICJ in the Nuclear Weapons (WHO) case, Sri Lanka stated:
The unacceptability of the use of weapons that fail to discriminate between military and civilian personnel is firmly established as a fundamental principle of international humanitarian law. These principles which prohibit indiscriminate killing and make the fundamental distinction between combatants and non-combatants have also found expression in the body of treaty law which have been incorporated in a series of international conventions, from about the time of the 1899 Hague Peace Conference and culminating with the Geneva Conventions of 1949 and [their] Additional Protocols of 1977.
Sweden
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.
Switzerland
In 1974, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, the representative of Switzerland stated:
24. He entirely agreed with the Swedish representative. Two basic principles provided the starting point for the Committee’s discussions: the prohibition of arms which caused unnecessary sufferings, and the distinction between the civilian population and armed forces. Those principles belonged to customary law. They were already in force, and were to be found in the Declaration of St. Petersburg and the Hague Conventions. The ICRC had taken over those principles in articles 33 and 43(3) of draft Protocol I. The proposals put forward by a number of delegations … were merely executing rules: they were not aimed at creating new law, but at clarifying and illustrating the rules already in force.
25. … The problems of banning or restricting the use of certain categories of weapons [introduced by draft Article 33 of the 1977 Additional Protocol I submitted to the CDDH by the ICRC] … was a question of a codification of existing law rather than the creation of new legal norms …
26. … The weapons in question – incendiary or fragmentation weapons, high-velocity projectiles, fléchettes, etc. – were small weapons and could have no decisive impact on the outcome of a conflict; but there was a grave disparity between the suffering they caused and the military advantage they might confer. Even if they were used in defiance of a ban, the advantage of surprise thus gained would be ephemeral.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Distinction
… The principle of distinction imposes limits on means and methods of warfare: any Weapon or strategy that cannot be directed exclusively at a specific military objective is prohibited.
…
Weapons
International humanitarian law imposes limitations, in some cases a total ban, on the use of weapons whose impact goes beyond the permissible purpose of weakening the enemy. Weapons are prohibited on the basis of three fundamental criteria: if their use inevitably leads to death; if they cause disproportionate injury or
Unnecessary suffering; if they strike indiscriminately. On the basis of these three criteria a number of specific weapons have been explicitly prohibited by international conventions, including
Anti-personnel mines,
Cluster munitions, blinding laser weapons,
Dumdum bullets as well as
Biological and
Chemical weapons. Some of these bans are part of
Customary international law.
Switzerland
In 2010, in its Report on Foreign Policy, Switzerland’s Federal Council stated that Switzerland “aims … to prohibit weapons producing excessively traumatic effects or striking without discrimination”.
Switzerland
In 2012, in a speech on the occasion of Public International Law Day, the head of Switzerland’s Federal Department of Foreign Affairs stated that international humanitarian law “also prohibits the use of weapons that have indiscriminate effects, such as chemical weapons or arms with cluster munitions”.
Switzerland
In 2013, in a statement at the Meeting of the High Contracting Parties to the Convention on Certain Conventional Weapons, the permanent representative of Switzerland stated:
The community of States cannot remain indifferent to the human suffering caused by armed conflicts. It was in direct response to this fundamental concern that the CCW [1980 Convention on Certain Conventional Weapons] and its protocols were adopted, with a view to prohibiting or limiting the use of certain specific types of weapon known to inflict superfluous injury or unnecessary suffering, or to strike indiscriminately.
Turkey
In 1977, during a debate in the First Committee of the UN General Assembly, Turkey stated that it supported a prohibition or restrictions on incendiary weapons and other indiscriminate weapons but held that such rules would only be effective if they reflected a consensus in the world community.
Union of Soviet Socialist Republics
In 1975, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, the representative of the USSR stated: “The question of prohibition or restriction of the use of certain types of conventional weapons … of an indiscriminate nature was one of great importance.”
United Kingdom of Great Britain and Northern Ireland
At the CDDH, the United Kingdom stated:
The definition of indiscriminate attacks given in [Article 51(4) of the 1977 Additional Protocol I] was not intended to mean that there were means of combat the use of which would constitute an indiscriminate attack in all circumstances. The paragraph did not in itself prohibit the use of any specific weapon, but it took account of the fact that the lawful use of means of combat depended on the circumstances.
United Kingdom of Great Britain and Northern Ireland
In 1991, in a briefing note on the Gulf crisis, the UK Foreign and Commonwealth Office criticized Iraq’s policy of launching Scud missiles against Israel and Saudi Arabia, “since these missiles are not precision weapons and are clearly intended to hit civilian targets”.
United Kingdom of Great Britain and Northern Ireland
In 1995, in a letter to the UK House of Lords, the government spokesman deplored the use of weapons by the Israeli artillery in southern Lebanon that “may be deemed … to have indiscriminate effects”.
United Kingdom of Great Britain and Northern Ireland
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the United Kingdom stated:
3.67 A further argument which has been raised is that the use of any nuclear weapon would necessarily have such terrible effects upon civilians that it would violate those rules of the law of armed conflict which exist for their protection. There are two principles of particular relevance in this respect. First, it is a well established principle of customary international law that the civilian population and individual civilians are not a legitimate target in their own right. The parties to an armed conflict are required to discriminate between civilians and civilian objects on the one hand and combatants and military objectives on the other hand and to direct their attacks only against the latter …
3.68 … Modern nuclear weapons are capable of far more precise targeting and can therefore be directed against specific military objectives without the indiscriminate effect on the civilian population which the older literature assumed to be inevitable.
United States of America
In 1972, the General Counsel of the US Department of Defense stated:
Existing laws of armed conflict do not prohibit the use of weapons whose destructive force cannot be limited to a specific military objective. The use of such weapons is not proscribed when their use is necessarily required against a military target of sufficient importance to outweigh inevitable, but regrettable, incidental casualties to civilians and destruction of civilian objects … I would like to reiterate that it is recognized by all states that they may not lawfully use their weapons against civilian population[s] or civilians as such, but there is no rule of international law that restrains them from using weapons against enemy armed forces or military targets. The correct rule of international law which has applied in the past and continued to apply to the conduct of our military operations in Southeast Asia is that “the loss of life and damage to property must not be out of proportion to the military advantage to be gained”.
United States of America
In 1987, during the debate on Security Council Resolution 598 concerning the use of chemical weapons in the Iran–Iraq war, the United States stated that chemical weapons “honored no distinction between combatants and non-combatants”.
United States of America
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense accused Iraq of “indiscriminate Scud missile attacks”.
United States of America
In 1992, in a review of the legality of extended range anti-armour munition, the US Department of the Air Force stated:
International law also forbids the use of weapons or means of warfare which are “indiscriminate.” A weapon is indiscriminate if it cannot be directed at a military objective or if, under the circumstances, it produces excessive civilian casualties in relation to the concrete and direct military advantage anticipated. The ERAM [extended range antiarmor munition] is clearly capable of being directed at a military objective, i.e., enemy armor formations.
United States of America
In 1993, in its report to Congress on the protection of natural and cultural resources during times of war, the US Department of Defense stated:
Finally, with the poor track record of compliance with the law of war by some nations, the United States has a responsibility to protect against threats that may inflict serious collateral damage to our own interests and allies. These threats can arise from any nation that does not have the capability or desire to respect the law of war. One example is Iraq’s indiscriminate use of SCUDs during the Iran–Iraq War and the Gulf War. These highly inaccurate theater ballistic missiles can cause extensive collateral damage well out of proportion to military results.
United States of America
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the United States stated:
It has been argued that nuclear weapons are unlawful because they cannot be directed at a military objective. This argument ignores the ability of modern delivery systems to target specific military objectives with nuclear weapons, and the ability of modern weapon designers to tailor the effects of a nuclear weapon to deal with various types of military objectives. Since nuclear weapons can be directed at a military objective, they can be used in a discriminate manner and are not inherently indiscriminate.
United States of America
In 1998, in a legal review of Oleoresin Capsicum (OC) pepper spray, the Deputy Assistant Judge Advocate General of the US Department of the Navy stated:
A weapon must be discriminating, or capable of being controlled (i.e., it can be directed against intended targets). Those weapons which cannot be employed in a manner which distinguishes between lawful combatants and noncombatants violate these principles. Indiscriminate weapons are prohibited by customary international law and treaty law.
The OC system contemplated for acquisition and employment by the Marine Corps is specifically designed to limit its effects only to intended targets. The contemplated OC dispersers utilize a target specific stream of ballistic droplets for controlled delivery and minimal cross contamination (i.e., point target delivery), rather than an aerosolized spray which increases the likelihood of unintended subject impact. Provided the weapon is employed in a discriminating manner, the principle of distinction/discrimination presents no prohibition to acquisition and employment of OC in appropriate circumstances.
United States of America
The Report on US Practice states: “It is the
opinio juris of the United States that customary international law prohibits the use of indiscriminate weapons. Indiscriminate weapons are those that cannot be directed at a military objective.”
Viet Nam
In 1976, during discussions in the Ad Hoc Committee on Conventional Weapons established by the CDDH, Viet Nam stated:
No purpose would be served by suggesting the prohibition or the restriction of specific categories of weapons, since such suggestions amounted only to the classical criteria of the Declaration of St. Petersburg and the Hague Conventions.
Zimbabwe
In its oral pleadings before the ICJ in the Nuclear Weapons case in 1995, Zimbabwe stated:
Nuclear weapons create a vastly greater threat than any other weapon because of their indiscriminate nature. The radiation from nuclear weapons knows no boundaries … The threat or use of nuclear weapons violates the principles of humanitarian law prohibiting the use of weapons or methods of warfare that … are indiscriminate … Zimbabwe would like to emphasize that radiation from nuclear weapons cannot be contained either in space or in time.
Zimbabwe
In 2014, in a speech on the occasion of a workshop on the Biological and Toxin Weapons Crimes Bill, the Director of Procurement, Research and Administration in Zimbabwe’s Ministry of Defence stated:
As some of you may be aware, the Biological and Toxin Weapons Bill falls into the category of [c]hemical disarm[a]ment legislation that seeks to criminalise and prohibit the use of harmful chemicals and toxins in warfare. The bill seeks to protect the society from the indiscriminate effects of biological and toxin weapons in the event of armed conflict. You are aware, ladies and gentlemen[,] that once these biological and toxin weapons are unleashed, they don’t discriminate between a combatant and an innocent civilian and this is undesirable. It is our duty as Government to protect our people and as such we do not want our people to become victims of such atrocious substances.
UN General Assembly
In a resolution adopted in 1961 on the Declaration on the Prohibition of the Use of Nuclear Weapons and Thermo-Nuclear Weapons, the UN General Assembly stated:
The use of nuclear and thermo-nuclear weapons would exceed even the scope of war and cause indiscriminate suffering and destruction to mankind and civilization and, as such, is contrary to the rules of international law and to the laws of humanity.
UN General Assembly
In a resolution adopted in 1972 on general and complete disarmament, the UN General Assembly:
Convinced that the widespread use of many weapons and the emergence of new methods of warfare that cause unnecessary suffering or are indiscriminate call urgently for renewed efforts by Governments to seek, through legal means, the prohibition of the use of such weapons and of indiscriminate and cruel methods of warfare and, if possible, through measures of disarmament, the elimination of specific, especially cruel or indiscriminate weapons.
UN General Assembly
In a resolution adopted in 1972 on respect for human rights in armed conflicts, the UN General Assembly:
Noting with concern, nevertheless, that agreement has not emerged among government experts on drafts concerning a number of fundamental issues, such as:
…
e) Prohibition of the use of weapons and methods of warfare which indiscriminately affect civilians and combatants.
UN General Assembly
In a resolution adopted in 1973 on napalm and other incendiary weapons, the UN General Assembly:
Convinced that the widespread use of many weapons and the emergence of new methods of warfare that may cause unnecessary suffering or are indiscriminate call urgently for efforts by Governments to seek, through possible legal means, the prohibition or restriction of the use of such weapons and of indiscriminate and cruel methods of warfare and, if possible, through measures of disarmament, the elimination of specific weapons that are especially cruel or indiscriminate,
Welcoming as a basis for discussion at [the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts] the proposals elaborated by the International Committee of the Red Cross and aiming, inter alia, at a reaffirmation of the fundamental general principles of international law prohibiting the use of weapons which are likely to cause unnecessary suffering and means and methods of warfare which have indiscriminate effects.
UN General Assembly
In a resolution adopted in 1974 on napalm and other incendiary weapons, the UN General Assembly:
… expressed its conviction that the widespread use of many weapons and the emergence of new methods of warfare that cause unnecessary suffering or are indiscriminate call urgently for renewed efforts by Governments to seek, through legal means, the prohibition of the use of such weapons and of indiscriminate and cruel methods of warfare and, if possible through measures of disarmament, the elimination of specific, especially cruel or indiscriminate weapons,
Mindful of the fact that much suffering of civilian populations and combatants may be avoided if general agreement can be attained on the prohibition or restriction of the use of specific conventional weapons which may be deemed to cause unnecessary suffering or to have indiscriminate effects.
UN General Assembly
In a resolution adopted in 1976 on incendiary and other specific conventional weapons, the UN General Assembly:
Convinced that the suffering of civilian populations and combatants could be significantly reduced if general agreement can be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed to be excessively injurious or to have indiscriminate effects,
…
2.
Invites the Diplomatic Conference [on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts] to accelerate its consideration of the use of specific conventional weapons, including any which may be deemed to be excessively injurious or to have indiscriminate effects, and to do its utmost to agree for humanitarian reasons on possible rules prohibiting or restricting the use of such weapons.
UN General Assembly
In a resolution adopted in 1977 on incendiary and other specific conventional weapons which may be the subject of prohibitions or restrictions of use for humanitarian reasons, the UN General Assembly:
Convinced that the suffering of civilian populations and combatants could be significantly reduced if general agreement can be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed … to have indiscriminate effects.
UN General Assembly
In a resolution adopted in 1978 on the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, the UN General Assembly:
Reiterating its conviction that the suffering of civilian populations and of combatants could be significantly reduced if general agreement could be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed … to have indiscriminate effects.
UN General Assembly
In a resolution adopted in 1979 on the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, the UN General Assembly:
Recalling its resolution 33/70 of 14 December 1978, in which is expressed its conviction that the suffering of civilian populations and of combatants could be significantly reduced if general agreement could be reached on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed … to have indiscriminate effects.
UN General Assembly
In a resolution adopted in 1980 on the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, the UN General Assembly:
Reiterating its conviction that the suffering of civilian populations and of combatants could be significantly reduced if general agreement could be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed … to have indiscriminate effects.
UN General Assembly
In a resolution adopted in 1981 on the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, the UN General Assembly:
Reaffirming its conviction that the suffering of civilian populations and of combatants would be further significantly reduced if general agreement could be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed … to have indiscriminate effects.
UN General Assembly
In a resolution adopted in 1982 on the UN Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons which May be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, the UN General Assembly:
Reaffirming its conviction that the suffering of civilian populations and of combatants would be significantly reduced if general agreement could be attained on the prohibition or restriction for humanitarian reasons of the use of specific conventional weapons, including any which may be deemed… to have indiscriminate effects.
This statement was repeated in numerous subsequent General Assembly resolutions.
UN General Assembly
In numerous resolutions adopted between 1980 and 1999, the UN General Assembly called for the accession of all States to the 1980 Convention on Certain Conventional Weapons.
UN General Assembly
In a resolution adopted in 2003 on the 1980 Convention on Certain Conventional Weapons, the UN General Assembly:
Recalling with satisfaction the decision by the Second Review Conference, on 21 December 2001, to extend the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character,
…
1. Calls upon all States that have not yet done so to take all measures to become parties, as soon as possible, to the 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 and the Protocols thereto, as amended, as well as the amendment of article I extending the scope of the Convention, with a view to achieving the widest possible adherence to these instruments at an early date, and calls upon successor States to take appropriate measures so that ultimately adherence to these instruments will be universal;
2. Calls upon all States parties to the Convention that have not yet done so to express their consent to be bound by the Protocols to the Convention;
3.
Calls upon all States parties to the Convention that have not yet done so to notify the depositary at an early date of their consent to be bound by the amendment extending the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character.
UN General Assembly
In a resolution adopted in 2004 on the 1980 Convention on Certain Conventional Weapons, the UN General Assembly:
1. Calls upon all States that have not yet done so to take all measures to become parties, as soon as possible, to the 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 and the Protocols thereto, as amended, with a view to achieving the widest possible adherence to these instruments at an early date, and so as to ultimately achieve their universality;
2.
Calls upon all States parties to the Convention that have not yet done so to express their consent to be bound by the Protocols to the Convention and the amendment extending the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character.
UN General Assembly
In a resolution adopted in 2005 on the 1980 Convention on Certain Conventional Weapons, the UN General Assembly:
1. Calls upon all States that have not yet done so to take all measures to become parties, as soon as possible, to the 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 and the Protocols thereto, as amended, with a view to achieving the widest possible adherence to these instruments at an early date, and so as to ultimately achieve their universality;
2.
Calls upon all States parties to the Convention that have not yet done so to express their consent to be bound by the Protocols to the Convention and the amendment extending the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character.
UN General Assembly
In a resolution adopted in 2006 on the 1980 Convention on Certain Conventional Weapons, the UN General Assembly:
1. Calls upon all States that have not yet done so to take all measures to become parties, as soon as possible, to the 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 and the Protocols thereto, as amended, with a view to achieving the widest possible adherence to these instruments at an early date, and so as to ultimately achieve their universality;
2.
Calls upon all States parties to the Convention that have not yet done so to express their consent to be bound by the Protocols to the Convention and the amendment extending the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character.
UN General Assembly
In a resolution adopted in 2007 on the 1980 Convention on Certain Conventional Weapons, the UN General Assembly:
1. Calls upon all States that have not yet done so to take all measures to become parties, as soon as possible, to the 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 and the Protocols thereto, as amended, with a view to achieving the widest possible adherence to these instruments at an early date, and so as to ultimately achieve their universality;
2.
Calls upon all States parties to the Convention that have not yet done so to express their consent to be bound by the Protocols to the Convention and the amendment extending the scope of the Convention and the Protocols thereto to include armed conflicts of a non-international character.
UN Sub-Commission on Human Rights
In a resolution adopted in 1989, the UN Sub-Commission on Human Rights stated that chemical weapons were indiscriminate.
UN Sub-Commission on Human Rights
In a resolution adopted in 1996, the UN Sub-Commission on Human Rights urged all States “to be guided in their national policies by the need to curb the production and the spread of weapons of mass destruction or with indiscriminate effects”. It then listed the following as falling within this category: nuclear, chemical and biological weapons, fuel-air and cluster bombs, and napalm and weaponry containing depleted uranium. It also stated that the use of these weapons was incompatible with human rights law and IHL.
UN Secretariat
A survey carried out by the UN Secretariat in 1973 analysed practice and doctrine in relation to different humanitarian rules and enumerated the weapons that had been discussed from the point of view of their indiscriminate effects. These were: chemical and bacteriological weapons, incendiary weapons, nuclear weapons, conventional aerial bombardment, fragmentation bombs, landmines and booby-traps, missiles, delayed action weapons and naval weapons.
Organization of American States
In a resolution adopted in 1994 on respect for international humanitarian law, the OAS General Assembly stated that it was “deeply disturbed by the testing, production, sale, transfer, and use of certain conventional weapons which may be deemed … to have indiscriminate effects”. It urged all member States to accede to the two 1977 Additional Protocols and to the 1980 Convention on Certain Conventional Weapons.

This call was repeated in 1995.
Organization of American States
In a resolution adopted in 1998 on respect for international humanitarian law, the OAS General Assembly stated: “International humanitarian law prohibits the use of weapons, projectiles, material, and methods of warfare that have indiscriminate effects or cause excessive injury or unnecessary suffering.”
International Conference of the Red Cross (1973)
The 22nd International Conference of the Red Cross in 1973 adopted a resolution on the prohibition or restriction of the use of certain weapons in which it endorsed the view of the UN General Assembly in Resolution 2932 (XXVII) A:
The widespread use of many weapons and the emergence of new methods of warfare that cause unnecessary suffering or are indiscriminate call urgently for renewed efforts by governments to seek, through legal means, the prohibition or restriction of the use of such weapons and of indiscriminate and cruel methods of warfare and, if possible, through measures of disarmament, the elimination of specific, especially cruel or indiscriminate, weapons.
The resolution urged the CDDH to “begin consideration at its 1974 session of the question of the prohibition or restriction of the use of conventional weapons which may cause unnecessary suffering or have indiscriminate effects” and invited the ICRC to convene in 1974 a conference of government experts to study the issue in depth.
International Conference of the Red Cross (1981)
The 24th International Conference of the Red Cross in 1981 adopted a resolution on conventional weapons in which it noted with satisfaction the adoption of the 1980 Convention on Certain Conventional Weapons and its Protocols and invited States to become parties to them “as soon as possible, to apply them and examine the possibility of strengthening or developing them further”.
International Conference of the Red Cross (1981)
The 24th International Conference of the Red Cross in 1981 adopted a resolution on disarmament, weapons of mass destruction and respect for non-combatants in which it urged parties to armed conflicts “not to use methods and means of warfare that cannot be directed against specific military targets and whose effects cannot be limited”.
International Conference of the Red Cross (1995)
The 26th International Conference of the Red Cross and Red Crescent in 1995 stated: “Proper attention should be given to other existing conventional weapons or future weapons which may cause unnecessary suffering or have indiscriminate effects.”
Second Review Conference of States Parties to the Convention on Certain Conventional Weapons
In the Final Declaration of the Second Review Conference of States Parties to the Convention on Certain Conventional Weapons in 2001, the High Contracting Parties expressed their grave concern that “the indiscriminate effects … of certain conventional weapons often fall on civilians, including in non-international armed conflicts”.
African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict
In the Final Declaration of the African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict in 2002, the participants stated that they were “worried in the face of the rapid expansion of arms trade and the uncontrolled proliferation of weapons, notably those which can have indiscriminate effects”.
International Court of Justice
In its advisory opinion in the Nuclear Weapons case in 1996, the ICJ stated:
The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets … In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians … Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.
International Court of Justice
In his dissenting opinion in the
Nuclear Weapons case before the ICJ in 1996, Judge Weeramantry stated: “The rule of discrimination between civilian populations and military personnel is, like some of the other rules of
ius in bello, of ancient vintage and shared by many cultures.”
International Court of Justice
In her dissenting opinion in the Nuclear Weapons case before the ICJ in 1996, Judge Higgins stated:
Very important also … is the requirement of humanitarian law that weapons may not be used which are incapable of discriminating between civilian and military targets.
The requirement that a weapon be capable of differentiating between military and civilian targets is not a general principle of humanitarian law specified in the 1899, 1907 or 1949 law, but flows from the basic rule that civilians may not be the target of attack … It may be concluded that a weapon will be unlawful
per se if it is incapable of being targeted at a military objective only, even if collateral damage occurs.
Judge Higgins was the only judge that offered a concrete definition of “indiscriminate weapons”, stating:
It may be concluded that a weapon will be unlawful per se if it is incapable of being targeted at a military objective only, even if collateral harm occurs. Notwithstanding the unique and profoundly destructive characteristics of all nuclear weapons, that very term covers a variety of weapons which are not monolithic in all their effects. To the extent that a specific nuclear weapon would be incapable of this distinction, its use would be unlawful.
International Court of Justice
In his separate opinion in the
Nuclear Weapons case before the ICJ in 1996, Judge Guillaume stated: “Customary humanitarian law contains one single absolute prohibition: the one of so-called ‘blind’ weapons which are incapable of distinguishing between civilian targets and military targets. Obviously, nuclear weapons do not necessarily fall into this category.” He also stated: “The collateral damage caused to the civilian population must not be ‘excessive’ as compared to the ‘military advantage’ offered.”
International Court of Justice
In his separate opinion in the
Nuclear Weapons case before the ICJ in 1996, Judge Fleischhauer concluded: “The nuclear weapon cannot distinguish between civilian and military targets.”
International Court of Justice
In his separate opinion in the
Nuclear Weapons case before the ICJ in 1996, Judge Herczegh judged nuclear weapons illegal because they were “weapons of mass destruction”.
International Court of Justice
In a declaration in the
Nuclear Weapons case before the ICJ in 1996, President Bedjaoui considered the weapons to be “of a nature to hit victims indiscriminately, confusing combatants and non-combatants”.
International Criminal Tribunal for the former Yugoslavia
In its review of the indictment in the
Martić case in 1996, the ICTY Trial Chamber had to determine whether the use of cluster bombs was prohibited in an armed conflict. Noting that no formal provision forbade the use of such bombs, the Trial Chamber recalled that the choice of weapons and their use were clearly delimited by IHL. Among the relevant norms of customary law, the Court referred to Article 51(4)(b) of the 1977 Additional Protocol I, which forbade indiscriminate attacks involving the use of a means or method of combat that could not be directed against a specific military objective.
In its judgment in 2007, the Trial Chamber stated:
[I]ndiscriminate attacks, that is attacks which affect civilians or civilian objects and military objects without distinction, may also be qualified as direct attacks on civilians. In this regard, a direct attack against civilians can be inferred from the indiscriminate character of the weapon used.
International Criminal Tribunal for the former Yugoslavia
In the Dragomir Milošević case before the ICTY in 2006, the accused was charged, inter alia, with unlawful attacks on civilians as a violation of the laws or customs of war, in violation of Article 51 of the 1977 Additional Protocol I and Article 13 of the 1977 Additional Protocol II, and punishable under Articles 3, 7(1) and 7(3) of the 1993 ICTY Statute. According to the amended indictment:
Dragomir Milošević, as Commander of Bosnian Serb forces comprising or attached to the Sarajevo Romanija Corps and/or forces affiliated with the VRS [Army of Republika Srpska], conducted a campaign of artillery and mortar and modified air bomb shelling onto civilian areas of Sarajevo and upon its civilian population … [G]iven the inherent inability of modified airbombs to engage specific targets, their deployment could only have been intended to cause civilian casualties. The campaign of shelling resulted in over a thousand civilians being killed or injured.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that it is prohibited to use weapons “which, because of their lack of precision or their effects, affect civilian persons and combatants without distinction”. Delegates also teach that “belligerent Parties and their armed forces shall abstain from using weapons whose harmful effects go beyond the control, in time or place, of those employing them”.
ICRC
In a press release issued in 1991 in the context of the Gulf War, the ICRC reminded the belligerents: “Weapons having indiscriminate effects … are prohibited.”
ICRC
In 1996, in a statement before the First Committee of the UN General Assembly, the ICRC commented on the advisory opinion of the ICJ in the Nuclear Weapons case, stating:
Turning now to the nature of nuclear weapons, we note that, on the basis of the scientific evidence submitted, the Court found that “… The destructive power of nuclear weapons cannot be contained in either space or time … the radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. Further, the use of nuclear weapons would be a serious danger to future generations …” In the light of this, … the ICRC finds it difficult to envisage how a use of nuclear weapons could be compatible with the rules of international humanitarian law.
ICRC
In a working paper on war crimes submitted in 1997 to the Preparatory Committee for the Establishment of an International Criminal Court, the ICRC proposed that the employment of “weapons, projectiles and material and methods of warfare … inherently indiscriminate”, when committed in international or non-international armed conflicts, be subject to the jurisdiction of the Court.
Institute of International Law
In a resolution adopted during its Edinburgh Session in 1969, the Institute of International Law stated:
Existing international law prohibits the use of all weapons which, by their very nature, affect indiscriminately both military objectives and non-military objects, or both armed forces and civilian populations. In particular, it prohibits the use of weapons the destructive effect of which is so great that it cannot be limited to specific military objectives or is otherwise uncontrollable (self-generating weapons) as well as of “blind” weapons.
Americas Watch
In 1985, in a report on violations of the laws of war in Nicaragua, Americas Watch listed the “use of ‘blind’ weapons that cannot be directed with any reasonable assurance against a specific military objective” among actions which were “prohibited by applicable international law rules”.
Africa Watch
In 1989, in a report on violations of the laws of war in Angola, Africa Watch listed the “use of ‘blind’ weapons that cannot be directed with any reasonable assurance against a specific military objective” among prohibited practices.