Practice Relating to Rule 71. Weapons That Are by Nature Indiscriminate
Ecuador’s Naval Manual (1989) states: “The use of weapons which by their nature are incapable of being directed specifically against military objectives, and therefore that put noncombatants at equivalent risk, are forbidden due to their indiscriminate effect.”
The manual further specifies:
Weapons that are incapable of being controlled in the sense that they can be directed at a military target are forbidden as being indiscriminate in their effect. Drifting armed contact mines and long-range unguided missiles (such as the German V-1 and V-2 rockets of World War II) fall into this category. A weapon is not indiscriminate simply because it may cause incidental or collateral civilian casualties, provided such casualties are not foreseeably excessive in light of the expected military advantage to be gained. An artillery round that is capable of being directed with a reasonable degree of accuracy at a military target is not an indiscriminate weapon simply because it may miss its mark or inflict collateral damage. Conversely, uncontrolled balloon-borne bombs, such as those released by the Japanese against the west coast of the United States and Canada in World War II, lack that capability of direction and are, therefore, unlawful.
In 1988, during a debate at the Fifteenth Special Session of the UN General Assembly, Ecuador stated: “Weapons, … which threaten equally belligerents and the helpless civilian population, must be the subject of a ban without reservations or limitations.”
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, Ecuador stated:
The use of nuclear weapons does not discriminate by general norm the military objectives from civil objectives. This factor equally attends against a fundamental principle of the International Humanitarian Law: which takes care of the protection of innocent people during war times.
… The uncontrollable effects that a nuclear device has can easily go against the laws and the uses of the war.