Means and Methods of Warfare in Armed Conflict Major General ANM Muniruzzaman President Bangladesh Institute of Peace and Security Studies (BIPSS)

Introduction The International Humanitarian Law (IHL) or the Laws of Armed Conflict (LOAC) emerged from a desire among civilized nations to prevent unnecessary sufferings and destruction in warfare. LOAC regulates the conduct of armed conflicts. It also aims to protect civilians, prisoners of war, the wounded and sick and the shipwrecked. LOAC applies to international armed conflicts and in the conduct of military operations and related activities in armed conflict.

Understanding Means & Methods of Warfare LOAC attempts to limit the means and methods of warfare. This covers the conduct of military operation by stating which weapons and military tactics can be used in armed conflict. According to these laws, the only legitimate object during war is to weaken the military forces of the enemy.

Evolution of LOAC on Limiting Means and Methods of Warfare Medieval Customary Practice adopted by the parties in armed conflict and strongly influenced by the Church. The Lieber Code in 1863 provides the instruction on limiting belligerent’s means to wage war and identified military objectives as the only legitimate targets for deliberate attack. St. Petersburg Declarations in 1868, which stated that: a. The only legitimate object of war is to weaken the military forces of the enemy. b. The employment of arms which uselessly aggravate the sufferings of disabled men or render their death inevitable would be contrary to the law of humanity. c. Prohibits the use of explosive projectiles of less than 400 grammes in weight.

Evolution of LOAC on Limiting Means and Methods of Warfare (Cont.) Hague Law: It was the first codified series of measures to limit the conduct of war. Article 22 of the Hague Convention (IV) on “The Laws and Customs of War on Land” stated that “the right of belligerents to adopt means and methods of injuring the enemy is not unlimited”. Vienna Conference of the Red Cross in 1965 adopted three essential principles of LOAC which are required to observe by all the governments or other groups involved in armed conflict. These are a. The right of the parties to the conflict to adopt means of injuring the enemy is not unlimited. b. It is prohibited to launch attacks against the civilian populations as such; c. A distinction must be made at all times between persons taking part in the hostilities (Combatants) and members of the population.

Evolution of LOAC on Limiting Means and Methods of Warfare (Cont.) Diplomatic Conference from 1974-1977 paved the way for adopting two protocols. These are: Protocol I to deal with International Conflict. Protocol II to deal with Non-International Armed Conflict.

The Concept of Combatant Article1 of the Hague Convention (1907) recognized Combatant who fulfill following conditions, these are: to be commanded by a person, responsible for his subordinates. to have a fixed distinctive emblem recognizable at a distance. to carry arms openly. to conduct their operations in accordance with the laws and customs of war. Article 43 of the Protocol-I (1977): All organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates”. This article also stated that “such armed forces shall be subject to an internal disciplinary system which inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

Binding Obligation for Limiting Means and Methods of Warfare in Armed Conflict Article 35 of Protocol-I reinforces a principle of the law of armed conflict which stated that “in any armed conflict, the right of the parties to the conflict to choose methods or means of warfare is not unlimited”. The basic rule is supplemented by the rules depicted that “it is prohibited to employ weapons, projectiles and materials and methods of warfare of a nature to cause superfluous injury or unnecessary sufferings”. Article 35 adds a new prohibition as a general limitation on warfare “It is prohibited to employ methods or means of warfare which are intended, or may be expected to cause widespread, long term and severe damage to the natural environment.

Prohibited Methods of Combat The general idea of limiting methods of combat is based on Chivalry which embodies the respect shown by fighting men to their opponent as human beings. Such understanding will restrain the armed forces to use particular cruel forms of attacks and weapons against the enemy. The forbidden methods of combat also included the rule i.e. “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of the International law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy”. Protocol-I contains a special rule forbidding the misuse, in military operations of recognized distinctive emblems, in particular the Red Cross or Red Crescent. This protocol also recognized that the killing of an enemy soldier who has recognizably ceased to fight is murder. Members of armed forces are prohibited to attack protected persons, e.g., civilians or prisoners, or protected objects such as hospitals.

Prohibited Methods of Combat (Cont.) Obligation of Distinction The parties to a conflict shall at all times distinguish between the civilian population from opposing combatants. Forbids attacks with weapons or ammunitions which have indiscriminate effects. This means that arms or ammunitions are prohibited which strike military objectives and civilians or civilian objects without distinction. It is prohibited to target deliberately, or to attack willfully the civilian population, and any such attack in armed conflict constitutes a war crime, a war crime that those responsible for carrying out the attack, as well as those military commanders responsible for ordering it, can be held individually criminally responsible.

Prohibited Methods of Combat (Cont.) Prohibition on Indiscriminate Attacks An indiscriminate attack has been described or defined as an attack which is not directed at a specific military objective, or which employs a method or means of warfare that cannot be directed at a specific military objective, or an attack which cannot be limited as required by the law of armed conflict. Deliberately attacking civilians is a war crime.

Prohibited Methods of Combat (Cont.) Obligation of Proportionality The expected loss of civilian life and damage to civilian property from an attack must not be excessive or disproportionate in relation to the expected direct military advantage. Commanders and planners have to take into account the expected damage to civilian property and expected loss of civilian life.

Prohibited Methods of Combat (Cont.) Obligation to Take Precautious Attack The command of the armed forces must do everything feasible to minimize the loss of civilian life and damage to civilian property. And cancel an attack if new information has come to light about the error of the expected military advantage to be gained. The parties to the conflict have to provide all possible warning to a civilian population of an attack before the attack occurs.

Prohibited Methods of Combat (Cont.) Prohibition of Superfluous Injury or Unnecessary Sufferings Directed at the Combatants to limit the use of weapons or methods of warfare of a nature to cause superfluous injury or unnecessary sufferings. Protocol-I on prohibition for using blinding laser weapons to limit unacceptable level of injury.

Convention, Treaties and Protocols of Using Weapons in Warfare 1925 Protocol for the Prohibition of the use of Asphyxiating, Poisonous or other gases and warfare. 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction. 1980 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. a. Protocol-I on non-detectable fragments. b. Protocol-II on prohibitions or restrictions on the use of mines, booby traps and other devices. c. Protocol-III on prohibitions or restrictions on the use of incendiary weapons. 1993 Convention on the Prohibition of the Development, Production, Stock pilling and Use of Chemical Weapons and on their Destruction.

Convention, Treaties and Protocols of Using Weapons in Warfare (Cont.) 1995 Protocol IV on Blinding Laser Weapons. 1996 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other devices. 1997 Convention on the prohibition of the Use, Stockpiling, Production and Transfer of Anti Personnel Mines and on their Destruction. 2001 Amendment to the conventions on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects. 2003 Protocol on Explosive Remnants of War to the 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.

The Doctrine of Command Responsibility in Deciding Means and Method of Warfare The Doctrine of Command Responsibility was established by the Hague Conventions IV (1907). It has further modified by the “Yamashita Standard” by employing means and methods of warfare. Command Responsibility deserves that commanders should ensure that subordinates conduct themselves with a certain level of civility in armed conflict.

The Hierarchies of Command Responsibility Policy Command Heads of State, High Ranking Gov. officials and Monarchies Strategic Command War Cabinet , Joint Chief of Staff Operational Command Military Leadership Tactical Command Direct Command over Troops on the Ground

Prohibition for New Weapons Art 36 of Additional Protocol-I ensure that the employment of new weapons, means and methods of warfare complies with the rules of international law. High contracting party is under an obligation to determine whether its employment would in some or all circumstances be prohibited by the protocol-I or by any other rule of international law applicable to high contracting party.

Among other States which Has National Mechanism The Experience of Certain States to Review the Legality of Means and Methods of Warfare Sweden Established an Independent Decision Making body for reviewing the legality of weapon United States Not a party to Add Protocol but established weapon review programme in 1974 to assess the implementation of law of war obligation Norway Formed Committee for the evaluation of the legal aspects of new weapons, means and methods of war. Among other States which Has National Mechanism Belgium Canada Denmark Germany Australia Netherlands

Bangladesh as a Party to the Laws of Armed Conflict Protection of Victims of Armed Conflict Geneva Convention I-IV 1949 4 April, 1972 Additional Protocol-I 1977 8 September 1980 Additional Protocol-II 1977 Convention on the Rights of the Child 1989 3 August 1990 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict 2000 6 September 2000 Convention on the Prohibition of Military or any other Hostile use of Environmental Modification Techniques, 1976. 3 October 1979. [Source: ICRC States Party to the International Humanitarian Law and Other Related Treaties as of 16.01.2006 p-1]

Bangladesh as a Party to the Laws of Armed Conflict (Cont.) Weapons Protocol for the Prohibition of the use of Asphyxiating, Poisonous or other Gases, and Warfare, 1925. 20 May 1989 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction, 1972. 13 March 1985. 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. 6 September 2000 Protocol-I on non-detectable fragments, 1980. Protocol-II on Prohibitions or Restrictions on the use of mines, booby traps and other devices, 1980. Protocol III on Prohibitions or Restrictions on the use of Incendiary Weapons, 1980

Bangladesh as a Party to the Laws of Armed Conflict (Cont.) Weapons Protocol-IV on Blinding Laser Weapons, 1995. 6 September 2000 Protocol-IIa on Prohibitions or Restriction on the use of Mines, Booby Traps and other devices, 1996. Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on their Destruction, 1993 25 April 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction,1997. [Source: ICRC States Party to the International Humanitarian Law and Other Related Treaties as of 16.01.2006 p-7]

Bangladesh Institute of Peace and Security Studies (BIPSS) Thank You Bangladesh Institute of Peace and Security Studies (BIPSS)