Presentation on theme: "College of Europe, Natolin, 21st February 2013"— Presentation transcript:
1College of Europe, Natolin, 21st February 2013 Conduct of hostilities Means and methods of warfare Dr. Elżbieta Mikos-Skuza Seminar „Introduction to International Humanitarian Law”College of Europe, Natolin, 21st February 2013
2International agreements concerning means and methods of warfare Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight.Declaration (IV,3) concerning Expanding BulletsDeclaration (IV,2) concerning Asphyxiating GasesRegulations concerning the Laws and Customs of War on Land.Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from BalloonsProtocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of WarfareConvention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction.Convention on the prohibition of military or any hostile use of environmental modification techniquesConvention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate EffectsProtocol on Non-Detectable Fragments (Protocol I).Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II).Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III)Protocol on Blinding Laser Weapons (Protocol IV)Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amendedProtocol on Explosive Remnants of War (Protocol V)Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destructionConvention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction2008 – Convention on Cluster Munition
3Martens ClauseCivilians and combatants remained under protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience1899 – Hague Convention (Preamble)1907 – Hague Convention (Preamble)I-IV Geneva Convention art. 63/62/142/158I AP/IIAP – art. 1.2/PreambleCCW (Preamble)
4GENERAL LIMITATION ON THE RIGHT OF BELLIGERENTS TO ADOPT MEANS AND METHODS OF WARFARE (…) the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy (…)Saint Petersburg Declaration, 1868THEREFORE:Art. 22. The right of belligerents to adopt means of injuring the enemy is not unlimited.- Hague Regulation (Hague Convention IV), 1907Art Basic rules1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.- I AP, 1977
5GENERAL RULES ON MEANS AND METHODS OF WARFARE It is particularly prohibited to employ means or methods which are intended or of a nature:to cause superfluous injury or unnecessary suffering (art,. 23 (e) HagueReg; art. 35, para 2, API)to injure military objectives, civilians, or civilian objects without distinction (art. 48, art 51, pars. 4 and 5, API)to cause widespread, longterm, and severe damage to the natural environment (art. 35, para 3, and 55, para 1, API; ENMOD)
6Preliminary remarks on the regulation of means of warfare Importance of technicalities !!!International conflictsInternal conflictsIHLDisarmament LawWeapons of mass destructionSmall Arms and light weaponsConventional WeaponsTreaty LawCustomary Law
7Types of weapons and ammunition prohibited by IHL Bulletsexplosive projectiles under 400 grammes weight, which is either explosive or charged with fulminating or inflammable substances- St. Petersburg Declaration, 1868bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions (dum-dum bullets)- Hague Declaration, 1899
8Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects - (CCW)Protocol on Non-Detectable FragmentsProtocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (1996)Protocol on Prohibitions or Restrictions on the Use of Incendiary WeaponsProtocol on Blinding Laser WeaponsProtocol on Explosive Remnants of War
9Convention on Anti-Personnel Mines 1997 Destruction of stockpiles – 4 yearsProhibition on construction, production, transfer, stockpiling and useClearance of mine affected areas yearsVictims assistance (including families and comunities)
10Types of weapons and ammunition prohibited by IHL Cluster munitionCluster munition is air-dropped or ground launched weapon that work by dispersing several smaller submunition (bomblets) from a canister, over a wide area to destroy dispersed, moving and unseen targets.Developed in order to improve efficiency of aerial attacks, particularly against “soft” targets likepersonnel.Failure rate : 1% - 40%
11Types of weapons and ammunition prohibited by IHL Poisons and poisoned weaponsit is especially forbidden to employ poison or poisoned weapons, because it has an indiscriminate character and can cause unnecessary suffering- art. 23(a) Hague Regulation; 1907.Prohibition of the use in war asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices- Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare; 1925.
12Types of weapons and ammunition prohibited by IHL Biological and chemical weapons- prohibition from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gasesII Hague Declaration concerning Asphyxiating Gases, 1899– prohibition on the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices, and extend this prohibition on the use of bacteriological methods of warfare- Geneva Protocol 1925Types of weapons and ammunition prohibited by IHL
13Types of weapons and ammunition prohibited by IHL Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction – 1972Prohibition to develop, produce, stockpile or otherwise acquire or retain:microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes;weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.
14Chemical weaponsConvention on the prohibition of military or any hostile use of environmental modification techniques, 10 December 1976provide a ban on use of chemical agents causing poisoning people indirectly by having a toxic effect on natural environmentConvention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction – 1993 (entered into force in 1997)it oblige to destruction of all stockpiles of this weapon and to stop in productionOrganization for the Prohibition on Chemical Weapons - control over the enforcement of this provisions
15Weapons not prohibited or restricted by binding legal acts of IHL Nuclear weaponno comprehensive and universal prohibition on the use of nuclear weapons in either customary or conventional international law.ICJ Advisory Opinion about the Legality of the threat or use of nuclear weapons - 8 July 1996.the use of nuclear weapons would generally be contrary to the principles and rules of international humanitarian law (distinction, proportionality etc.)Court could not reach “a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake”
16Weapons not prohibited or restricted by binding legal acts of IHL are not in themselves unlawful weaponsmost small arms have legitimate uses, including for law enforcement and national defenceArms Trade Treaty processSmall armsassault rifles, machine guns, hand grenades and other weapons designed for military use by an individual combatant, including commercial firearms such as handguns and hunting rifles.Light weaponsportable weapons designed for use by several persons serving as crew, such as heavy machine-guns, mounted grenade-launchers, portable anti-aircraft guns, portable anti-tank guns, portable launchers of anti-tank missiles, and mortars
17New weaponsIn the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party- art.36 – IAP; 1977
18Perfidy Perfidy is prohibited (art. 37, IAP) For example: The term „perfidy” refers to acts misleading the advers party into the belief that there is a situation affording protection under international lawFor example:the feigning of an intent to negotiate under a flag of truce or of a surrender;the feigning of an incapacitation by wounds or sickness;the feigning of civilian, non-combatant status; andthe feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict
19Ruses of warRuses of war and the employment of measures necessary for obtaining information about the adverse party and the country are permissible (art. 37, para. 2, IAP, art.. 24 HagueReg.)For example:the use of enemy signals, passwords, signs, decoys etc.
20Prohibition on improper use of recognizable emblems of sanitary personnel, cultural property, civil defense, works and installations containing dangerous forces, UN emblems, flag of truce and othersIt is prohibited to make improper use of flags of truce, enemy or neutral national flags, military insignia and uniforms, and internationaly acknowledged protective emblems (art. 39 IAP, art.. 23, para. 1 lit f HagueReg.; art. 17 para , CulPropConv) For example: - The red cross or the red crescent
21Prohibition on giving or ordering no quarter and attacking hors de combat It is prohibited to order that ther shall be no survivors. It is prohibited to threaten an adversary with such an order or to conduct military operations on that basis (art. 40 IAP, art. 23 lit d, HagueReg.)A person who is recognized or who, in the circumstances, should be recognized to be ' hors de combat shall not be made the object of attack (art. 41 IAP)
22EspionageSpies are persons who clandestinely, or under fals pretences, e.g. not wearing the uniform of theirarmed forces, gather information on the territory controlled by the adversary. Person who fall into the hands of the adversary while engage in espionage shall be liable to punishment (art HagueReg) Even if captured while engaged in espionage, a spy shall not be punished without prior conviction pursuant to regular judical procedures (art. 30, HagueReg; art. 75, para 4, IAP)
23Other methods of warfare Sabotage is allowed by IHL as long as it is directed at military objectivesSnipersare permitted only if they attack combatants and military objectives. It is strictly forbidden to threaten civilians by attacking them with snipers.