Practice Relating to Rule 70. Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering
The Military Manual (1993) of the Netherlands states that parties to an armed conflict “may not use means (weapons, projectiles and substances) and methods which cause unnecessary suffering or superfluous injury”. The manual gives dum-dum bullets, serrated-edged bayonets or weapons injuring by non-detectable fragments as examples of such means of warfare.
The Military Handbook (1995) of the Netherlands states: “Means which cause unnecessary suffering with respect to the objective (elimination of the enemy) may not be used.” It gives as examples of such means of warfare: “poison and poisoned weapons, dum-dum bullets, serrated-edged bayonets, weapons whose primary effect is to injure by fragments which cannot be detectable by X-ray, booby-traps attached to the Red Cross Emblem, wounded or dead person, [and] medical objects or toys”.
The Military Manual (2005) of the Netherlands states that “it is inadmissible for weapons and methods of combat to … cause excessive suffering or excessive damage to non-military targets (collateral damage)”.
The manual further states: “Methods and means of warfare which cause excessive injury or unnecessary suffering are forbidden.”
The manual also states:
A bayonet or combat knife is not prohibited. It is prohibited to modify bayonets and knives, for example with a saw blade or barb. This prohibition stems from the ban on using weapons, projectiles or substances which may cause unnecessary suffering.
In addition, the manual states that “[t]he question whether a non-lethal weapon can be used as a form of warfare will primarily depend on whether such a weapon”, inter alia
, “causes no excessive injury or unnecessary suffering”.
In its chapter on non-international armed conflict, the manual states:
It is prohibited to use weapons causing unnecessary suffering or excessive injury, or that are indiscriminate. This means that biological, chemical, toxic or intoxicating weapons, dumdum bullets, saw-blade bayonets, weapons which cause injury by non-detectable fragments, anti-personnel mines and booby traps, blinding laser weapons and firearms whose primary purpose is to cause burn injuries to persons are forbidden.
In its chapter on peace operations, the manual states that the use of methods and means which “cause excessive injury or unnecessary suffering” must be avoided.
The Definition of War Crimes Decree (1946) of the Netherlands includes the “use of … inhuman appliances” in its list of war crimes.
In its written statement submitted to the ICJ in the Nuclear Weapons case in 1995, the Netherlands stated:
19. Suffering may be called “unnecessary” when its infliction is not necessary to attain a lawful military advantage or greatly exceeds what could reasonably have been considered necessary to attain that military advantage.
21. The availability of considerably less harmful means to attain the military advantage or the causing of suffering out of proportion to the military advantage to be gained therefore appears to be the essential yardstick for determining whether the use of certain weapons must be deemed to cause “unnecessary” suffering. This approach has governed the development of rules with regard to means and methods of warfare since 1868.
In 1969, during a debate in the Third Committee of the UN General Assembly, the Netherlands stated that it was
essential to update and broaden the Hague Conventions and the 1925 Geneva [Gas] Protocol, primarily in so far as related to international security and the protection of human rights, and to extend their application to cover armed conflicts which were not international in character.