1. MEANS AND METHODS OF WARFARE Second Summer School for CIS Countries Moscow- Pokrovskoe, 7th July 2006 Prof. Xavier Philippe ICRC Regional Legal Advisor

2. Introduction  Means and methods of warfare: What is it ?  Law of the Hague  Additional instruments in IHL (AP I)  Modern Conventions (CCW, Ottawa Treaty…)  Study could be done through:  Restrictions on the Use of Weapons  Used Methods during Land Operations

3. I. MEANS OF WARFARE Prohibited Weapons Limits on the Use of Certain Weapons

4. Restrictions on the Use of Weapons Basic Principles  It is legitimate for members of the armed forces to assume that weapons issued to them by their States are lawful and that they comply with the LOAC (Law of Armed Conflict).  They must, however, ensure that their weapons and ammunition are used in a manner that complies with the LOAC.

5. Legal Translation of These Principles: Article 35 AP I  The use of a weapon or ammunition will be unlawful under the LOAC where it causes superfluous injury or unnecessary suffering  « Superfluous injury » and « unnecessary suffering » are closely related concepts  « Superfluous » means « more than enough, redundant, needless »  The term « unnecessary » is easily understood  In an armed conflict, it may often be necessary to wound or even kill an adversary

6. Limits to Means of Warfare  Although « suffering » is likely to be inevitable, the Law of Armed Conflict requires to limit the force used to what is required to accomplish the mission  The limitations on the use of weapons fall into two broad categories: a. Prohibited weapons; and b. Restrictions on the use of lawful weapons

7. A. Prohibited Weapons and Ammunitions 1.Indiscriminate Weapons 2.Projectiles 3.Anti-Personnel Land Mines 4.Poison 5.Chemical and Bacteriological Weapons 6.Riot Control Agents 7.Blinding Laser Weapons

8. Prohibited: Indiscriminate Weapons Definition: weapons for which method or means of delivery cannot be directed at a specific military objective Indiscriminate weapons by their very conception Indiscriminate weapons by their context of use Examples: Nuclear weapons? New WMD (Weapons of Mass Destruction)

9. Prohibited: Projectiles The following types of ammunition are prohibited: a)Projectiles of a weight below 400 grams that are either explosive or charged with fulminating (exploding) or inflammable substances; b)Bullets that expand or flatten easily in the human body, such as bullets with a hard envelope that does not entirely cover the core or is pierced with incisions (i.e., hollow point or « dum-dum bullets » bullets) c)Bullets that have been dipped in poison

10. Prohibited: Anti-personnel Land Mines  The possession or use of anti-personnel land mines is prohibited by the Anti- Personnel Mines Convention signed in 1997 by over 100 States.  While some nations may continue to possess and use anti-personnel land mines, States that have ratified are bound not to do so  CCW Protocol also limits the use of landmines

11. Prohibited: Poison  Poison or poisoned weapons are illegal because of their inherent potential to be indiscriminate  For example, the poisoning or contamination of any source of drinking water is prohibited  All kinds of poisons are taken into consideration

12. Prohibited: Chemical And Bacteriological Weapons (Bacteriological Weapons Convention, 1972 & Chemical Weapons Convention, 1993)  The use of biological or chemical weapons as a means of warfare is prohibited.  Riot control agents can be used for law enforcement.

13. Prohibited: Blinding Laser Weapons  Laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to enhanced vision (i.e., to the naked eye or to the eye with corrective eyesight devices) are prohibited

14. B. Limitations On Lawful Weapons 1.Incendiary Weapons 2.Booby Traps 3.Remotely Delivered Mines 4.Nuclear Weapons

15. Limited: Incendiary Weapons  Means any weapon or ammunition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat or any combination thereof, produced by a chemical reaction of a substance delivered on the target  Side effects are not taken into consideration

16. Limited: Booby Traps Cannot be used against civilians Cannot be used indiscriminately Attached to, or associated with, any form of harmless portable item. Attached to, or associated with « humanitarian » objects

17. Limited: New Weapons  In the study, development, acquisition or adoption of a new weapon, means or method of warfare, there is an obligation to determine whether its employment would, in some or all circumstances, be prohibited by the LOAC

18. Limited: Nuclear Weapons  Debate over their classification  1996 Advisory Opinion of the ICJ on the Legality on Use or Threat to Use Nuclear Weapons  Nuclear Weapons are not under specific circumstances per se illegal  Question: how to control the indiscriminate effect of such weapons?

19. II.METHODS OF WARFARE Limitations on Land Operations

20. Prohibited Methods of Warfare  Distinction should be made between prohibited methods of warfare and methods being the result of military strategy and that would grant an advantage to one of the party.  Boundaries are sometimes tiny and difficult to define  Distinction could be made between allowed and prohibited methods of warfare  Emphasize should be put on certain obligations

21. A. Prohibited Means of Warfare

22. Prohibited: Perfidy  It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary and leading him to believe that he is entitled to protection or is obliged to grant protection under the LOAC, with intent to betray that confidence, constitute perfidy. In other words, perfidy consists of committing a hostile act under the cover of a legal protection

23. Prohibited: Improper Use Of Emblems Red Cross / Red Crescent/Red Crystal Other emblems Uniforms Violations of protected emblems is equal to perfidy

24. Prohibited: Denial Of Quarter  It is prohibited to deny quarter. In other words, it is unlawful to order, imply or encourage that no prisoners will be taken; to threaten an adverse party that such an order will be given; or to conduct hostilities on the basis that no prisoners will be taken…

25. Prohibited: Assassination Assassination is prohibited Assassination means the killing or wounding of a selected non- combatant for political or religious motive

26. Prohibited: Terrorising The Civilian Population  Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population are prohibited. A campaign of threats or violence designed to terrorize the civilian population is simply not acceptable under any circumstances, even where the civilian population’s attitude is hostile toward the presence of armed forces

27. Prohibited: Cultural Objects And Places Of Worship  Buildings and monuments dedicated to religion, art, science and charitable purposes are not to be attacked so long as they are not being used for military purposes  Should be identified by a distinctive sign:

28. Prohibited: Dams, Dykes and Nuclear Power Plants The general rule is they are not to be attacked if the result would be the release of dangerous forces resulting in a severe loss of life among the civilian population. Dams, Dykes and Nuclear Generating Stations can be defended. They can be attacked if the release of dangerous forces is not likely. The protection ceases if the installation is used in support of military operations.

29. Prohibited: Dams, Dykes and Nuclear Plants (Continued)

30. Prohibited: Taking Property On The Battlefield  The destruction or seizure of enemy property, whether it belongs to private individuals or to the State is forbidden unless the damage or seizure is imperatively demanded by the necessities of war.  Pillage, the violent acquisition of property for private purposes, is prohibited. Pillage is theft and therefore an offence

31. Prohibited: Damage to the Natural Environment Care shall be taken in an armed conflict to protect the natural environment against widespread, long-term and severe damage. Attacks which are intended or may be expected to cause damage to the natural environment that prejudices the health or survival of the population are prohibited

32. B. Allowed Methods of Warfare

33. Allowed: Ruses Of War Ruses of war are measures taken to obtain advantage of the enemy by confusing or misleading him. Ruses of war are more formally defined as acts which are intended to mislead an adversary or to induce him to act recklessly. They must not infringe any rule of the LOAC. Ruses are lawful if they are treacherous, perfidious and do not violate any expressed or tacit agreement

34. Allowed: Release Of Prisoners Where Proper Evacuation Is Not Possible  …all feasible precautions shall be taken to ensure their safety  Mandatory if objective risks for their security exist

35. Allowed: Sabotage  Sabotage is permitted under the LOAC, so long as the object of the sabotage is a legitimate military objective. Saboteurs are persons operating behind the lines of an adverse party to commit acts of destruction

36. Allowed: Espionage  Members of the armed forces who engage in intelligence gathering while in uniform are not considered to be spies and are entitled to PW status. Members of the armed forces who engage in espionage while not in uniform can be considered as spies

37. Allowed: Objects Indispensable To The Survival Of The Civilian As sustenance solely for the member of its armed forces In direct support of military, provided that actions against these objects do not leave the civilian population with such inadequate food or water so as to cause the starvation or force its movement

38. Allowed: Population May Be Attacked If They Are Used By An Adverse Party  Where a party to a conflict is defending its national territory against invasion, it may attack objects indispensable to the survival of the civilian population  Conditions: a. The objects are within national territory of and under the control of the party; and b. An attack on the objects is required by imperative military necessity

39. C. Obligations Resting on the Parties to the Conflict

40. Obligation: Responsibility Of Commanders  The responsibility of commanders & commanding officers is to ensure that soldiers under their command employ means and methods of warfare which comply with the Law of Armed Conflicts