Practice Relating to the Use of Prohibited Weapons

ICC Statute
Article 8 of the 1998 ICC Statute provides:
1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, “war crimes” means:
(b) 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:
(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or 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, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 8(1) and (2)(b)(xx).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 22(2)(c) of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that the “use of unlawful weapons” constitutes an “exceptionally serious war crime”. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 22(2)(c).
UN Secretary-General’s Bulletin
Section 6.2 of the 1999 UN Secretary-General’s Bulletin provides: “The United Nations force shall respect the rules prohibiting or restricting the use of certain weapons … under the relevant instruments of international humanitarian law.” 
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 6.2.
Australia
Australia’s Commanders’ Guide (1994) provides: “Some weapons and weapons systems are totally prohibited.” 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 304.
The Guide further states: “The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … using certain unlawful weapons and ammunition such as poison.” 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1305(p).
Australia
Australia’s Defence Force Manual (1994) provides that “prohibited weapons” is one of the categories into which the limitations on the use of weapons fall. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 401.
The manual further states: “The following examples constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings: … using certain unlawful weapons and ammunition such as poison.” 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1315(p).
Australia
Australia’s LOAC Manual (2006) states:
Limitations on the use of weapons fall into two broad categories, namely:
- prohibited weapons, and
- the illegal use of lawful weapons. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 4.1.
The manual further 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 weapons in question are either indiscriminate in their effect or cause unnecessary suffering. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 4.4.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Military Instructions (1992) states: “All means and methods of warfare are allowed, except for the ones which are prohibited or restricted by the international law of war.” 
Bosnia and Herzegovina, Instructions on the Implementation of the International Law of War in the Armed Forces of the Republic of Bosnia and Herzegovina, Official Gazette of ABiH, No. 2/92, 5 December 1992, Item 5, § 1.
Ecuador
Ecuador’s Naval Manual (1989) provides: “The following acts constitute war crimes: … use of prohibited weapons or ammunition.” 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 6.2.5(10).
Germany
Germany’s Military Manual (1992) states: “Grave breaches of international humanitarian law are in particular: … use of prohibited weapons.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1209.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
The IDF complies with the compulsory rules of warfare in the field and the weapons at its disposal comply with international standards. The ban on soldiers initiating ‘improvements’ in weaponry originates not only in IDF orders but also results from safety considerations and an international ban on the use of prohibited weapons under the rules of war. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 13.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Mexico
Mexico’s IHL Guidelines (2009), in a section entitled “Basic rules of conduct in armed conflict”, states: “Do not alter weapons or munitions to inflict greater suffering on the enemy.” 
Mexico, Cartilla de Derecho Internacional Humanitario, Ministry of National Defence, 2009, § 14(l).
Nigeria
Nigeria’s Manual on the Laws of War includes “using … forbidden arms or ammunition” in its list of war crimes. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6(7).
Peru
Peru’s IHL Manual (2004) states: “Combatants must not modify their weapons without authorization or use them for any purpose other than their intended use.” 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 26.a.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “Combatants must not modify their weapons without authorization or use them for any purpose other than their intended use.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 27(a), p. 236.
Republic of Korea
Under the Republic of Korea’s Military Regulation 187 (1991), using prohibited weapons and ammunitions constitutes a war crime. 
Republic of Korea, Military Regulation 187, 1 January 1991, Article 4.2.
South Africa
South Africa’s LOAC Manual (1996) provides that “making use of … forbidden arms or ammunition” is a grave breach of the law of war and a war crime. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, §§ 39(a) and 41.
South Africa
South Africa’s Revised Civic Education Manual (2004) provides that “making use of … forbidden arms or ammunition” is a grave breach of the law of armed conflict and a war crime. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, §§ 61(a) and 57.
Spain
Spain’s LOAC Manual (2007) states: “The use of certain weapons is expressly forbidden. Others can be used under certain conditions.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.3.b.(3).
Switzerland
Switzerland’s Basic Military Manual (1987) states that “employing methods and means of combat expressly prohibited in the Swiss army” constitutes a war crime. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 200(2)(a).
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “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 … forbidden arms or ammunition.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 626(g).
United States of America
The US Field Manual (1956) provides: “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’): … making use of … forbidden arms or ammunition.” 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 504(a).
United States of America
The US Instructor’s Guide (1985) provides that “in addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: using … forbidden arms or ammunition”. 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 13.
United States of America
The US Naval Handbook (1995) states: “The following acts are representative war crimes: … employing forbidden arms or ammunition.” 
United States, Naval The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5(10).
United States of America
The US Naval Handbook (2007) states that “[e]mploying forbidden arms or ammunition” is an example of an act that could be considered a war crime. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.
Belarus
Belarus’s Criminal Code (1999) provides that “the use in an armed conflict of … means and methods of warfare prohibited by international treaties binding upon the Republic of Belarus” is a war crime. 
Belarus, Criminal Code, 1999, Article 136(16).
Bosnia and Herzegovina
Under the Federation of Bosnia and Herzegovina’s Criminal Code (1998), the use of, or order to use, “means or practices of warfare prohibited by the rules of international law” in time of war or armed conflict is a war crime. 
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Article 160(1).
The Republika Srpska’s Criminal Code (2000) contains the same provision. 
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Article 436(1).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) states: “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.” 
Bosnia and Herzegovina, Criminal Code, 2003, Article 179(1).
Bulgaria
Bulgaria’s Penal Code (1968), as amended in 1999, provides that “a person who, in violation of the rules of international law for waging war, uses or orders the use of … impermissible means or methods for waging war” commits a war crime. 
Bulgaria, Penal Code, 1968, as amended in 1999, Article 415(1).
Colombia
Colombia’s Penal Code (2000) imposes a criminal sanction on “anyone who, during an armed conflict, uses prohibited means and methods of warfare”. 
Colombia, Penal Code, 2000, Article 142.
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines as war crimes grave breaches of the Geneva Conventions, as well as all other grave breaches of the law and customs of war applied in international or non-international armed conflicts within the scope of international law. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 4.
Croatia
Under Croatia’s Criminal Code (1997), the manufacture, improvement, production, stockpiling, offering for sale, purchase, interceding in purchasing or selling, possession, transfer, transport, use of, and order to use, “means or methods of combat prohibited by the rules of international law” are war crimes. 
Croatia, Criminal Code, 1997, Article 163(1) and (2).
Croatia
Croatia’s Criminal Code (1997), as amended in 2006, imposes a criminal sanction on:
(1) Whoever makes or improves, produces, stores, offers for sale or buys, or intercedes in a purchase or sale, possesses, transfers, or transports … [the] means of combat prohibited by the rules of international law …
(2) Whoever, at a time of war or armed conflict, orders the use of … the means or methods of combat prohibited by the rules of international law, or whoever uses such weapons, means or methods. 
Croatia, Criminal Code, 1997, as amended in June 2006, Article 163(1) and (2).
Czech Republic
The Czech Republic’s Criminal Code (1961), as amended in 1999, punishes “any person who develops, produces, imports, possesses or stockpiles weapons, combat equipment or explosives prohibited by law or by an international treaty approved by the Parliament or otherwise disposes of them”. 
Czech Republic, Criminal Code, 1961, as amended in 1999, Article 185a(1).
It also punishes “whoever in time of war or in combat … orders the use of a forbidden means of combat or material, or who uses such means or material”. 
Czech Republic, Criminal Code, 1961, as amended in 1999, Article 262(1)(a).
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, Military Criminal Code, 1973, as amended in 1978, § 25(1).
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]. 
Denmark, Military Criminal Code, 2005, § 36(2).
El Salvador
El Salvador’s Law on the Control of Firearms, Ammunition and Explosives (1999) states that the armed forces “may use all types of weapons as long as they are not prohibited by international conventions or treaties subscribed to and ratified by El Salvador”. 
El Salvador, Law on the Control of Firearms, Ammunition and Explosives, 1999, Article 9.
Estonia
Under Estonia’s Penal Code (2001), “use of … internationally prohibited weapons” is a war crime. 
Estonia, Penal Code, 2001, § 103.
Ethiopia
Under Ethiopia’s Penal Code (1957), it is a punishable offence to use, or order to be used, against the enemy “any means or method of combat expressly forbidden by international conventions to which Ethiopia is a party”. 
Ethiopia, Penal Code, 1957, Article 288.
Finland
Under Finland’s Revised Penal Code (1995), any person who, in time of war, “uses a prohibited means of warfare or weapon [or] otherwise violates the provisions of an international agreement on warfare binding on Finland or the generally acknowledged and established rules and customs of war under public international law” shall be punished for war crime. 
Finland, Revised Penal Code, 1995, Chapter 11, Section 1(1)(1) and (3).
Finland
Finland’s Criminal Code (1889), as amended in 2008, provides that any person who “uses … weapons, ammunition or materiel that cause excessive injuries or unnecessary suffering … or other prohibited weapons or ordnance” shall be “sentenced for a war crime to imprisonment for at least one year or for life”. 
Finland, Criminal Code, 1889, as amended in 2008, Chapter 11, Section 5(1)(14).
(emphasis in original)
France
France’s Penal Code (1994), as amended in 2010, states in its section on war crimes related to international armed conflict:
[The following offences] are punishable by life imprisonment: … [e]mploying weapons, projectiles, materials or methods of warfare which are the subject of a comprehensive prohibition and are included in an annex to the Statute of the International Criminal Court accepted by France. 
France, Penal Code, 1994, as amended in 2010, Article 461-23.
Hungary
Under Hungary’s Criminal Code (1978), as amended in 1998, “any person who uses or orders the use of a weapon or instrument of war prohibited by international treaty in a theatre of military operation or in an occupied territory against the enemy” is guilty, upon conviction, of a war crime. 
Hungary, Criminal Code, 1978, as amended in 1998, Section 160/A(1).
Italy
Italy’s Wartime Military Penal Code (1941) punishes any “commander of a military force who, to harm the enemy, orders or authorizes the use of any of the methods or means of warfare that are prohibited by the law or by international conventions, or are in any way contrary to military honour”. It also punishes “anyone who, to harm the enemy, adopts means or uses methods that are prohibited by the law or by international conventions, or are in any way contrary to military honour”. 
Italy, Wartime Military Penal Code, 1941, Articles 174 and 175.
Kazakhstan
Under Kazakhstan’s Penal Code (1997), “the use in an armed conflict of means and methods … prohibited by an international treaty to which the Republic of Kazakhstan is a party” is a criminal offence. 
Kazakhstan, Penal Code, 1997, Article 159(1).
Lithuania
Under Lithuania’s Criminal Code (1961), as amended in 1998, “an order to employ prohibited means of warfare or methods of combat and the employment of such [means or methods] in violation of the provisions of international agreements or universally accepted international customs regarding the means and methods of combat” are war crimes. 
Lithuania, Criminal Code, 1961, as amended in 1998, Article 340.
Mozambique
Under Mozambique’s Military Criminal Law (1987), it is a crime against humanitarian rules “to employ unlawful means of combat”. 
Mozambique, Military Criminal Law, 1987, Article 83(a).
New Zealand
New Zealand’s Chemical Weapons Act (1996) forbids the use of weapons prohibited by international agreements. 
New Zealand, Chemical Weapons Act, 1996, Section 6.
Nicaragua
Nicaragua’s Military Penal Code (1996) punishes any soldier “who employs or orders the employment of prohibited weapons or means and methods of warfare”. 
Nicaragua, Military Penal Code, 1996, Article 51.
Nicaragua
Nicaragua’s Revised Penal Code (1998) punishes “anyone who, during an international or civil war, commits serious violations of international conventions on the use of war weapons”. 
Nicaragua, Revised Penal Code, 1998, Article 551.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides: “Anyone who uses a weapon or means of combat which is prohibited by any international agreement to which Norway has acceded, or who is accessory thereto, is liable to imprisonment.” 
Norway, Military Penal Code, 1902, as amended in 1981, § 107.
Norway
Norway’s Military Penal Code (1902), as amended in 2005, states: “Anyone who uses weapons or armament prohibited by international agreement to which Norway has acceded is liable to imprisonment.” 
Norway, Military Penal Code, 1902, as amended in 2005, § 107.
Norway
Norway’s Penal Code (1902), as amended in 2008, states: “Any person is liable to punishment for a war crime who in connection with an armed conflict … employs another [prohibited] means of warfare that is in violation of international law.” 
Norway, Penal Code, 1902, as amended in 2008, § 107(d).
Poland
Poland’s Penal Code (1997) punishes for a war crime “any person who, against the prohibition by international law or by the provisions of law, produces, stockpiles, acquires, sells, retains, transports or sends … means of warfare, or conducts research aimed at the production or use of such means”. 
Poland, Penal Code, 1997, Article 121(1).
Republic of Moldova
The Republic of Moldova’s Penal Code (2002) punishes “the use during an armed conflict of means and methods of warfare prohibited by international treaties to which the Republic of Moldova is a party”. 
Republic of Moldova, Penal Code, 2002, Article 143(1).
Russian Federation
Under the Russian Federation’s Criminal Code (1996), the “use in a military conflict of means and methods of warfare prohibited by an international treaty to which the Russian Federation is a party” is a crime against the peace and security of mankind. 
Russian Federation, Criminal Code, 1996, Article 356(1).
Rwanda
Rwanda’s Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes (2003) provides:
Article: 13
Shall be punished by an imprisonment sentence of seven (7) to twenty (20) years any person who employs or orders to employ against the enemy methods and means of warfare expressly prohibited by the laws and customs applicable in armed conflicts as well as the international conventions to which Rwanda is a party.
When methods and means employed or ordered to be employed have resulted in the death of one or more persons, the culprit shall be punished by life imprisonment or the death penalty. 
Rwanda, Law Repressing the Crime of Genocide, Crimes against Humanity and War Crimes, 2003, Article 13.
Serbia
Serbia’s Criminal Code (2005) states:
(1) Whoever, contrary to law, other regulations, or rules of international law, manufactures, buys, sells, imports, exports or otherwise procures or gives to another, stocks or transports weapons whose production or use is forbidden, or means for production thereof, shall be punished by imprisonment of one to five years.
(2) An official or responsible person who orders or enables a legal entity to engage in activities provided under paragraph 1 of this Article, shall be punished by imprisonment of one to eight years. 
Serbia, Criminal Code, 2005, Article 377.
Slovakia
Slovakia’s Criminal Code (1961), as amended, punishes “any person who develops, produces, imports, possesses or stockpiles weapons, combat equipment or explosives prohibited by law or by an international treaty approved by the Parliament or otherwise disposes of them”. It also punishes “whoever in time of war or in combat … orders the use of a forbidden means of combat or material, or who uses such means or material”. 
Slovakia, Criminal Code, 1961, as amended, Articles 185(a)(1) and 262(1)(a).
Slovenia
Under Slovenia’s Penal Code (1994), the use of, or order to use, “weapons … prohibited under international law in time of war and armed conflict” is a war crime. 
Slovenia, Penal Code, 1994, Article 377(1).
Spain
Spain’s Military Criminal Code (1985) punishes “any soldier who uses, or orders the use of, means or methods of combat which are prohibited”. 
Spain, Military Criminal Code, 1985, Article 70.
Spain
Spain’s Penal Code (1995) punishes “anyone who, during an armed conflict, uses, or orders to be used, methods or means of combat which are prohibited”. 
Spain, Penal Code, 1995, Article 610.
Sweden
Under Sweden’s Penal Code (1962), as amended in 1998, “use of any weapon prohibited by international law” constitutes a crime against international law. 
Sweden, Penal Code, 1962, as amended in 1998, Chapter 22, § 6(1).
Tajikistan
Tajikistan’s Criminal Code (1998) punishes the “use during the hostilities or in armed conflict of means and materials prohibited under an international treaty”. 
Tajikistan, Criminal Code, 1998, Article 405.
Uzbekistan
Uzbekistan’s Criminal Code (1994) punishes “the employment of means of warfare forbidden by international law”. 
Uzbekistan, Criminal Code, 1994, Article 152.
Viet Nam
Viet Nam’s Penal Code (1990) punishes “anyone who, in time of war, … uses prohibited means or methods of warfare”. 
Viet Nam, Penal Code, 1990, Article 279.
Viet Nam
Viet Nam’s Penal Code (1999) provides for the punishment of those “who, in time of peace or time of war, undertake … the use of prohibited means or methods of warfare”. 
Viet Nam, Penal Code, 1999, § 343.
Yugoslavia, Socialist Federal Republic of
Under the Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, the use of, or the order to use, “means or methods of combat prohibited under the rules of international law, during a war or an armed conflict” is a war crime. 
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, Article 148(1).
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.” 
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
Israel
In its judgement 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. 
Israel, High Court of Justice, Physicians for Human Rights v. O.C. Southern Command, Judgement, 27 April 2003.
Ecuador
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Ecuador stated:
The use of nuclear weapons has the consequences that fit perfectly with the legal figure of war crimes against humankind: the assassination and extermination of entire populations and other inhuman acts committed against the civil population.  
Ecuador, Written statement submitted to the ICJ, Nuclear Weapons case, 20 June 1995, p. 2, § F.
Israel
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
The IDF [Israel Defense Forces] uses only weapons and munitions defined as legal under international law and authorised as such by the relevant IDF authorities, including MAG [Military Advocate General’s Corps] officers. In this regard, the IDF complies strictly with the applicable restrictions governing the use of certain weapons and munitions. Furthermore, all weapons and munitions are employed in accordance with the general rules of International Humanitarian Law. 
Israel, Ministry of Foreign Affairs, The Operation in Gaza 27 December 2008–18 January 2009: Factual and Legal Aspects, 29 July 2009, § 405; see also § 225.
Mexico
In 2010, during a debate in the UN Security Council on the protection of civilians in armed conflict, Mexico stated: “Regarding the use of explosives, the fact that there is no specific ban on the use of certain weapons does not mean that those weapons are permitted.” 
Mexico, Statement by the permanent representative before the UN Security Council, 6427th meeting, UN Doc. S/PV.6427, 22 November 2010, p. 23.
Spain
In 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Spain stated:
Article 85 entitled “Principle of Humanity”, contained in Title IV on Operations [of the Royal Ordinances for the Armed Forces (2009)] clearly embodies the spirit of the [1949] Geneva Convention and its [1977] Additional Protocols, as it provides that “[the] … conduct [of members of the armed forces] in any conflict or military operation must conform to the applicable rules of the international treaties on international humanitarian law to which Spain is a party”.
That is further developed in Chapter VI on Ethics in Operations, which goes into specific duties under international humanitarian law … and prohibits means and methods of warfare not in conformity with international humanitarian law. 
Spain, Report on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 5 May 2010, Section 2.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Commons, the UK Prime Minister replied to questions by members:
Mrs. Alice Mahon (Halifax): It is widely reported in today’s newspapers that the United States intends to use a new bomb that will melt the Iraqi communications systems. Will this bomb also melt the equipment that is used in hospitals and that runs the water and electricity supplies in Baghdad? Will the Prime Minister assure us that it does not melt people?
The Prime Minister: In any military conflict, we will operate in accordance with international law. Any weapons or munitions that are used will be in accordance with international law. I assure my hon. Friend that we will do everything that we can to minimise civilian casualties and, indeed, to maximise the possibilities of a swift and successful conclusion to any conflict.
Mr. Martin Caton (Gower): International humanitarian law prohibits military attack that fails to discriminate between combatants and non-combatants or that disproportionately impacts on civilians. Can my right hon. Friend assure me that, in the war on Iraq that the House sanctioned last night, we will not be employing cluster bombs and that electricity, transport and water infrastructure will not be targeted?
The Prime Minister: I simply say in relation to any weapons or munitions that we use that we will use only those that are in accordance with international law and with the Geneva convention. That is the responsibility of the Government and is the commitment of this Government and has been of other British Governments in the past. We will do everything that we can to minimise civilian casualties. The reason why, in respect of any military action that we take, we get legal advice not merely on the military action itself but on the targeting is to make sure that that happens. Of course, I understand that, if there is conflict, there will be civilian casualties. That, I am afraid, is in the nature of any conflict, but we will do our best to minimise them. 
United Kingdom, House of Commons, Statements by the Prime Minister, Hansard, 19 March 2003, Vol. 401, Debates, cols. 933–934.
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to a question in the House of Commons, the UK Prime Minister stated: “In relation to cluster bombs, I will not comment on what munitions we may use, except to say that I am personally satisfied that whatever munitions we are using are in accordance with international law.” 
United Kingdom, House of Commons, Statement by the Prime Minister, Hansard, 24 March 2003, Vol. 402, Debates, col. 32.
Yugoslavia, Socialist Federal Republic of
At the CDDH, the Socialist Federal Republic of Yugoslavia voted in favour of the Philippine proposal concerning an amendment to include “the use of weapons prohibited by international Convention, namely: … asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” in the list of grave breaches in Article 74 of the draft Additional Protocol I (now Article 85). 
See Philippines, Proposal of amendment to Article 74 of the draft Additional Protocol I submitted to the CDDH, Official Records, Vol. III, CDDH/418, 26 May 1977, p. 322.
However, because that amendment had been rejected the Socialist Federal Republic of Yugoslavia stated that it
deeply regrets that the use of unlawful methods or means of combat was not included in the grave breaches, particularly since to have done so would merely have been to have codified an already existing rule of customary law, because there can be no doubt that to use prohibited weapons or unlawful methods of making war is already to act unlawfully, that is, it is a war crime punishable by existing international law. 
Yugoslavia, Socialist Federal Republic of, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.44, 30 May 1977, p. 306.
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Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, states: “Weapons or other material or methods prohibited in international armed conflicts must not be employed in any circumstances.” 
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Article 5(3), IRRC, No. 282, 1991, p. 332.