Practice Relating to Rule 72. Poison and Poisoned Weapons

Poison or poisoned weapons are illegal because of their potential to be indiscriminate. So, for example, the poisoning or contamination of any source of drinking water is prohibited and the illegality is not cured by posting a notice that the water has been contaminated or poisoned. 

Poison or poisoned weapons are illegal because of their potential to be indiscriminate. So, for example, the poisoning or contamination of any source of drinking water is prohibited and the illegality is not cured by posting a notice that the water has been so contaminated or poisoned. 

Provisions of the Hague Regulations 1907 are now recognised as part of customary law. Those regulations provide that the following acts are “especially forbidden”:

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. 

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. 

I.3. War crimes

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War crimes are also violations of the laws and customs of war such as:

II.1.2. Prohibited munitions

The following types of munitions are prohibited:

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II.1.4. Poison

Poison and poisoned weapons are unlawful due to the possibility that they strike without distinction. Thus, poisoning or contamination of any source of drinking water is prohibited. Putting up notices that water has been contaminated or poisoned does not render that practice lawful, because civilians as well as combatants can drink from that source of water and be equally affected. 

You may not use poison or poisoning agents such as dead animals, bodies, or defecation to poison any water and food. Of course, you may use non-poisonous methods to destroy military food and water supplies in order to deprive the enemy combatants of their use. 

It is forbidden to poison water sources, arrows or bullets. This is one of the most ancient prohibitions in the laws of war. Already back in ancient Greece and Rome, it was forbidden to use poison which was perceived as “a dishonorable weapon” that disgraces the user. This prohibition has been carefully upheld also into the twentieth century. Another reason for this prohibition is the difficulty in controlling the outcome of the poisoning, with the possibility that it could also spread to an innocent civilian population (for example, the poisoning of water sources that cannot be restricted to military use only). 

It is forbidden to use poison, for instance to poison water sources, arrows or bullets. This is one of the most ancient prohibitions under the rules of warfare. In Ancient Greece and Ancient Rome, it was forbidden to use poison as it was seen to be a “dishonourable weapon”, bringing shame on the person who used it. This ban has been scrupulously observed in the twentieth and twenty-first centuries. The poisoning of water sources is also prohibited because the results are hard to control and could spread to the civilian population. 

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 … are forbidden. 

i. Prohibited Weapons. The following weapons have been prohibited:

Poison and poisoned weapons … are forbidden.

Water in wells, pumps, pipes, reservoirs, lakes, rivers and the like, from which the enemy may draw drinking water, must not be poisoned or contaminated. The poisoning or contamination of water is not made lawful by posting up a notice informing the enemy that the water has been thus polluted. 

In addition to the “grave breaches” of the 1949 Geneva Conventions, … the following are examples of punishable violations of the laws of war, or war crimes: … using … poisoned … arms or ammunition; … poisoning of wells, streams, and other sources of water supply; … using … poisonous … gases. 

6.19. It is prohibited “to employ poison or poisoned weapons”.

6.19.1. The prohibition applies to any use of poison, including the poisoning or contamination of water supplies. Such poisoning or contamination would not be made lawful by the posting of a notice informing the enemy of the fact. 

The Hague Regulations 1907 are now recognized as part of customary law. Those regulations provide that the following acts are “especially forbidden”:

In addition to the “grave breaches” of the Geneva Conventions of 1949, the following acts are representative of violations of the law of war (“war crimes”):

a. Text. “Any person subject to this chapter who intentionally, as a method of warfare, employs a substance or weapon that releases a substance that causes death or serious and lasting damage to health in the ordinary course of events, through its asphyxiating, bacteriological, or toxic properties, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”

b. Elements.

(1) The accused intentionally employed a substance or a weapon that releases a substance as a result of its employment;

(2) The substance was such that causes death or serious damage to health in the ordinary course of events through its asphyxiating, poisonous, bacteriological properties;

(3) The accused employed the substance or weapon with the intent of utilizing such asphyxiating, poisonous, bacteriological properties as a method of warfare;

(4) The accused knew or should have known of the nature of the substance or weapon employed; and

(5) The conduct took place in the context of and was associated with armed conflict.

c. Comment.

(1) The “death or serious damage to health” required of the offense must be a direct result of the substance’s effect or effects on the human body (e.g., asphyxiation caused by the depletion of atmospheric oxygen secondary to a chemical or other reaction would not give rise to this offense).

(2) The clause “serious damage to health” does not include temporary incapacitation or sensory irritation.

(3) The use of the “substance or weapon” at issue must be proscribed under the law of armed conflict. It may include chemical or biological agents.

(4) The specific intent element for this offense precludes liability for mere knowledge of potential collateral consequences (e.g., mere knowledge of a secondary asphyxiating or toxic effect would be insufficient to complete the offense).

d. Maximum punishment. Death, if the death of any person occurs as a result of the employment of the substance or weapon. Otherwise, confinement for life. 

a. Text. “Any person subject to this chapter who intentionally, as a method of warfare, employs a substance or weapon that releases a substance that causes death or serious and lasting damage to health in the ordinary course of events, through its asphyxiating, bacteriological, or toxic properties, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.”

(1) The “death or serious damage to health” required of the offense must be a direct result of the substance’s effect or effects on the human body (e.g., asphyxiation caused by the depletion of atmospheric oxygen secondary to a chemical or other reaction would not give rise to this offense).

(2) The clause “serious damage to health” does not include temporary incapacitation or sensory irritation.

(3) The use of the “substance or weapon” at issue must be proscribed under the law of armed conflict. It may include chemical or biological agents.

(4) The specific intent element for this offense precludes liability for mere knowledge of potential collateral consequences (e.g., mere knowledge of a secondary asphyxiating or toxic effect would be insufficient to complete the offense).

d. Maximum punishment. Death, if the death of any person occurs as a result of the employment of the substance or weapon. Otherwise, confinement for life. 

It is forbidden to use poison or poisoned weapons. This includes, for example, the use of poisonous bullets. Poisoning of drinking water, food, etc., is not forbidden but it must be announced or marked. 

Breaching prescribed rules for keeping, manufacturing, using, storing, transporting or selling poisonous substances with strong effect constitutes criminal contravention and is punishable by a fine of up to two years of imprisonment.

When the criminal act has led to death, serious harm to the health of people or other serious material consequences, it is punishable by a fine or up to ten years of imprisonment. 

Art. 260. Poisoning is an attempt against the life of a person committed by using substances which can kill more or less promptly, regardless of how these substances have been used or administered, and regardless of what the consequences are.

Art. 261. Any person guilty of … poisoning shall be punished by death. 

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for 25 years. 

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 … :

(1) Whoever in time of war or armed conflict orders the violation of laws and practices of warfare, or whoever violates them,

shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment.

(2) Violations of laws and practices of warfare referred to in paragraph 1 of this Article shall include:

[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:

“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 poisoning of water or of foodstuffs, any deposit, spraying or use of harmful substances intended to cause death, in time of war or in a region where a state of siege or of emergency has been proclaimed, or at the occasion of a police operation aimed at maintaining or re-establishing public order, shall be punished by death. 

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]. 

153. Any person who adds poison or other such substances to any product intended for general use or sale so that the product cannot be used for the purpose intended without causing a person’s death or injuring his health, or who otherwise causes any poisoning that involves general danger to life or health, or who is accessory thereto, shall be liable to imprisonment for a term not exceeding 21 years.

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160. Any person who publicly gives or offers instruction in the use of explosives or poison as a means to commit felonies, or who threatens to commit or publicly incites to the commission of felonies by such means, or who is accessory to any such felony, shall be liable to imprisonment for a term not exceeding 10 years. 

A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:

A member of the military or the police shall be punished with deprivation of liberty of not less than eight years and not more than fifteen years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:

Poisoning is the attempt against the life of a person committed by using substances which can kill more or less promptly, regardless of how these substances have been used or administered or what the consequences are. It entails the death penalty. 

“War crime” shall also mean any of the following acts committed in armed conflicts:

…

Anyone who commits one of the war crimes provided for in Article 10 of this law shall be punished by the following penalties:

1° the death penalty or life imprisonment where he has committed a crime provided for in point 1°, 4°, 5°, 6°, 9° or 10° of Article 10 of this law. 

b) [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:

Ҥ 950v. Crimes triable by military commissions

“ …

“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:

Ҥ 950t. Crimes triable by military commission

“The following offenses shall be triable by military commission under this chapter at any time without limitation:

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:

[179] … There can be no doubt that the use of instruments of state to murder captives long after resistance had ceased would in the 1980s, as before and after, have grossly transgressed even the most minimal standards of international humanitarian law.

[180] The same has to be said of the use of poison to bring about the death of opponents … Such means of warfare are abhorrent to humanity and forbidden by international law. The use of poison to eliminate opponents in armed conflict has long been prohibited. 

In support of their argument that the deployment of Agent Orange violated customary norms prohibiting use of “poisoned weapons” and the infliction of unnecessary suffering, Plaintiffs cite … a number of both domestic and international law sources … [including] the 1907 Hague Regulations … [and] the1925 Geneva [Gas] Protocol …

The United States did not ratify the 1925 Geneva Protocol until 1975. Accordingly, the Protocol cannot be said to have constituted “a treaty of the United States,” … during the period relevant to this appeal. Even at the time of ratification, the United States and other states reserved the right to respond in kind to a belligerent’s first use of poisonous weapons and further limited the treaty obligation to apply only against other treaty parties. … Given the nature and scope of the reservations to ratification, however, it would be an impermissible stretch to find that the 1925 Geneva Protocol had acquired the status of binding customary international law during the Vietnam conflict.

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There is lack of a consensus in the international community with respect to whether the proscription against poison would apply to defoliants that had possible unintended toxic side effects, as opposed to chemicals intended to kill combatants. The prohibition on the use of “poison or poisoned weapons” in Article 23(a) of the 1907 Hague Regulations is certainly categorical … but its scope is nevertheless undefined and has remained so for a century. As the International Court of Justice (“ICJ”) has acknowledged in an authoritative interpretation of Article 23(a), that provision nowhere defines the critical term “poison,” and “different interpretations exist on the issue.” [Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion No. 95, 1996 I.C.J. 226, 248, 255 (July 8, 1996) (“Nuclear Weapons Advisory Opinion”)]. Indeed, Plaintiffs’ own expert conceded that “[t]he concept of ‘poison’ is not defined.” Plaintiffs themselves concede that the authorities “go both ways” as to whether the use of herbicides in war, “particularly to destroy crops not intended for use by enemy forces, did violate established norms of international law prior to 1975.”

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… In 1969, the United States 7 objected to a proposed United Nations resolution that would have “ma[d]e a clear affirmation that the prohibition contained in the Geneva Protocol applied to the use in war of all chemical, bacteriological and biological agents (including tear gas and other harassing agents) which presently existed or which might be developed in the future.” The following year, after the United States ceased its use of Agent Orange upon a study revealing its deleterious effects on humans, the Secretary of State wrote a letter to President Nixon recommending that the President transmit to the Senate for advice and consent the ratification of the 1925 Geneva Protocol. In his letter, the Secretary stated that “[i]t is the United States’ understanding of the Protocol that it does not prohibit the use in war of riot-control agents and chemical herbicides.” When President Ford ratified the Geneva Protocol in 1975, he clarified that “[a]lthough it is our position that the [P]rotocol does not cover riot control agents and chemical herbicides, I have decided that the United States shall renounce their use in war as a matter of national policy.” Moreover, in ratifying the 1925 Geneva Protocol in 1975, the Senate made clear its understanding that the United States’ prior use of herbicides in Vietnam had not violated that treaty and that the government intended the Protocol to be only prospective in effect. 

respect restrictions and limits provided for in international conventions, such as restriction of the use of some weapons, and prohibition of using others, e.g. … the use of poisons. This is in application of well-established principles in wars, such as considerations of military honour and humanitarian considerations. 

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. Such weapons are: a) poison or poisoned weapons; [and] b) asphyxiating, poisonous or other gases, and all analogous liquids, materials and devices … The use of these … kinds of weapons is prohibited by conventional and customary international law.  [footnotes in original omitted]

Clearly it is a violation of customary international law to use poisons or other analogous substances. Thus even where a State is not a party to the Geneva Gas Protocol it is nonetheless bound under customary law to refrain from using poisonous weapons. 

The 1925 [Geneva Gas] protocol and the [1972 Biological Weapons Convention] is a manifestation of a moral and cultural ethos that is over 1400 years old. Violations of the prohibitions against the production or use of poisonous weapons should be treated with equal determination in all cases, without selectivity or discrimination. 

Based on the tradition of fighting with honour that was so cherished by Somalis, there were weapons whose employment in warfare was permitted, and others whose use was prohibited. … [T]hose that were banned included … poison [and] poisoned arrows. 

In times of hostilities, the Biri-Ma-Geydo (Spared from the Spear), i.e. Somalia’s own “Geneva Conventions”[,] which existed long before the adoption of the Hague and Geneva Conventions, mitigated and regulated the conduct of clan hostilities and the treatment of immune groups. 

Underlining the continuing value of existing humanitarian rules relating to armed conflict, in particular the Hague Conventions of 1899 and 1907,

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1. Calls upon all parties to any armed conflict to observe the rules laid down in the Hague Conventions of 1899 and 1907 [including Article 23(a) which prohibits the use of poison or poisoned weapons]. 

Calls again upon all parties to any armed conflict to observe the rules laid down in the Hague Conventions of 1899 and 1907 … and invites those States which have not yet done so to adhere to those instruments. 

Reiterates its call upon all parties to any armed conflicts to observe the rules laid down in the Hague Conventions of 1899 and 1907 … and invites those States which have not yet done so to adhere to those instruments. 

Calls upon all parties to armed conflicts to acknowledge and to comply with their obligations under the humanitarian instruments and to observe the international humanitarian rules which are applicable, in particular the Hague Conventions of 1899 and 1907, the Geneva [Gas] Protocol of 1925 and the Geneva Conventions of 1949. 

Calls upon all parties to armed conflicts to acknowledge and to comply with their obligations under the humanitarian instruments and to observe the international humanitarian rules which are applicable, in particular the Hague Conventions of 1899 and 1907, the Geneva [Gas] Protocol of 1925 and the Geneva Conventions of 1949. 

Calls upon all parties to armed conflicts to acknowledge and to comply with their obligations under the humanitarian instruments and to observe the international humanitarian rules which are applicable, in particular the Hague Conventions of 1899 and 1907, the Geneva [Gas] Protocol of 1925 and the Geneva Conventions of 1949. 

Calls upon all parties to armed conflicts to acknowledge and to comply with their obligations under the humanitarian instruments and to observe the international humanitarian rules which are applicable, in particular the Hague Conventions of 1899 and 1907, the Geneva [Gas] Protocol of 1925 and the Geneva Conventions of 1949. 

Calls upon all parties to armed conflicts to acknowledge and to comply with their obligations under the humanitarian instruments and to observe the international humanitarian rules which are applicable, in particular the Hague Conventions of 1899 and 1907, the Geneva [Gas] Protocol of 1925 and the Geneva Conventions of 1949. 

(a) the Second Hague Declaration of 29 July 1899, which prohibits “the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases”;

(b) Article 23 (a) of the Regulations respecting the laws and customs of war on land annexed to the Hague Convention IV of 18 October 1907, whereby “it is especially forbidden: … to employ poison or poisoned weapons”; and

(c) the Geneva [Gas] Protocol of 17 June 1925 which prohibits “the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices”.