Practice Relating to Rule 71. Weapons That Are by Nature Indiscriminate

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. 

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. 

In addition to any specific prohibitions binding upon the parties to a conflict, it is forbidden to employ methods or means of warfare which:

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. 

Indiscriminate use is placement of such weapons [i.e. mines, booby traps and other devices] which:

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.  

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.

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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 …

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4.8 Poison or poisoned weapons are illegal because of their potential to be indiscriminate. …

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4.20 … Both chemical and biological weapons are prohibited because they cause unnecessary suffering and may affect the civilian population in an indiscriminate fashion.

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4.26 … [I]ndiscriminate use [of anti-vehicle mines] is prohibited.

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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. 

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. 

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. 

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. 

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. 

II.1.1. Weapons striking without distinction

Certain weapons are completely prohibited by the LOAC because they strike without distinction …

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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.

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For example: Scud missile used by Iraq against Israel during the Gulf War. 

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. 

Since St. Petersburg, there have been several universally accepted rules regarding weapons:

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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. 

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. 

[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. 

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. 

Prohibited means of warfare are the various weapons of an indiscriminate character and/or those that cause unnecessary suffering:

Weapons shall be considered particularly inhuman if they:

These criteria have been used in all arms limitation negotiations in recent years. 

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. 

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. 

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. 

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. 

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. 

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. 

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 … :

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 … :

[The following are] considered as war crimes:

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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:

“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:

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

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

[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:

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. 

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:

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. 

Petitioners request an order nisi that will order the Israeli Defense Forces, in the context of its operations in the Gaza Strip, to cease using flechette shells. A flechette shell contains a cluster of steel darts. When a flechette shell detonates, at a certain height above the ground, these darts are dispersed over an area of several hundred square meters. Like other armaments that contain submunitions – such as cluster bombs – flechettes are intended to be used against field targets, as opposed to distinct, individual targets.

According to petitioners, the use of flechette shells violates the laws of war, which prohibit the use of weapons that do not discriminate between combatants and non-combatants. Petitioners point to two instances in which flechette shells have caused civilian deaths. In the first incident, a flechette shell was used to respond to fire upon a military position in Netzarim, in the Gaza Strip. The shell landed near a Bedouin encampment and caused the deaths of three women. In the second incident, flechette shells were fired upon individuals suspected of being terrorists, on their way to carry out a terrorist attack. In this incident, three youths were killed. As such, petitioners assert that the use of flechette shells is illegal, and that the IDF should be completely prohibited from using such shells.

Respondents assert that the question of whether to prohibit the use of flechette shells, in the context of the United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (1980) [hereinafter the 1980 Convention on Certain Conventional Weapons], has been raised several times before various international forums. However, a prohibition against the use of flechette shells has never received significant international support. The 1980 Convention on Certain Conventional Weapons completely prohibited the use of other weapons. Israel joined this treaty in 1995, subsequently ratified it, and sees itself as bound by its provisions. But this treaty does not ban the use of weapons that contain submunitions, such as flechette shells. As such, petitioner’s claim that the use of flechette shells is prohibited by the law of war is incorrect, and should be rejected.

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Petitioners request that we prohibit the military from using flechette shells. As the use of such artillery is not prohibited by international conventions, we cannot grant their petition. Our decisions have stated that “this Court will not intervene in the choice of military weapons, which the respondents use in order to prevent vicious terrorist attacks.” See HCJ 5872/01 Barake v. The Prime Minister. We further note that we think the IDF has properly set out the conditions under which the use of flechettes is authorized. Of course, the question of whether the use of flechettes is justified under individual circumstances is given to the discretion of the authorized commander. This commander will act according the military directives, which are intended to prevent casualties among residents who do not endanger the IDF forces or Israeli civilians. 

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. 

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. 

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. 

[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]). 

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.

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… The uncontrollable effects that a nuclear device has can easily go against the laws and the uses of the war. 

(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.

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(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. 

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. 

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. 

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. 

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”.

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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.

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Also, one cannot but ascertain the absence of a customary rule prohibiting the use of nuclear weapons.

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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. 

[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. 

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. 

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. 

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. 

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. 

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. 

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 … 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. 

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. 

[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. 

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. 

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. 

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. 

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. 

Those rules of the international law of armed conflict which prohibit:

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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”. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

… 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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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,

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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. 

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. 

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. 

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. 

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. 

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 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. 

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. 

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. 

[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. 

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.  

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. 

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.