Why are there laws about weapons?
In a word, humanity. Wars are dreadful, causing death and injury to very large numbers of people. But if there were no banned weapons, the death and injury – and therefore the suffering – would be much, much worse. So there are general IHL principles that prohibit and regulate the use of certain weapons and international agreements which ban specific types of weapons entirely, and limit the use of others.
What is the basis for banning the use of some weapons?
It is helpful to think of three central ideas. One is that weapons should not be indiscriminate. Another is that weapons should not cause unnecessary suffering or superfluous injury. The third is that the use of weapons in war should be guided by principles of "distinction, proportionality and military necessity". All that sounds quite technical. The explanations below should help to make it clearer.
What is meant by indiscriminate weapons?
Attacks can only be directed at combatants and military objective. If weapons cannot be directed at a specific military target, or if their effects cannot be controlled, they are considered to be indiscriminate. So, for example, a booby-trap weapon, designed to look like a harmless object, but which can kill or injure when someone approaches, cannot be controlled. It is indiscriminate. Anti-Personnel landmines are a case in point.
What weapons cause unnecessary suffering or superfluous injury?
Ones that go beyond what is strictly necessary to achieve a military aim. For instance, it is widely accepted that once someone has been shot by a bullet, they tend not to take any further part in hostilities. So there is no further advantage in a bullet that explodes on impact. Such weapons were invented as long ago as the nineteenth century, and they make injuries much worse. But they don't bring any real military advantage to the side that fired them. So, on humanitarian grounds, exploding bullets are banned.
Another explicit ban is on weapons which injure by fragments that are not detectable in the human body by X-ray. They are prohibited because they achieve nothing, other than prolonging suffering and preventing treatment.
What are the principles of distinction, proportionality and military necessity?
In a conflict there are combatants and military targets. There are also likely to be civilians and civilian objects. Distinction is all about identifying and respecting the very important difference between the two. Civilians must be protected against military operations. They should not be targeted for attack. The use of weapons in ways that do not preserve that difference is likely to be illegal.
Note that this does not mean that civilian deaths are always a result of a violation of the law. Those in charge of forces – both politicians and military leaders – must take constant care to spare the civilian population. They cannot target civilians directly, and must "take all feasible precautions" in the way they attack, to avoid or minimize incidental loss of civilian life, injury to civilians, and damage to civilian objects.
It follows that if an army acts to achieve its military objectives, and keeps civilian casualties to a minimum, it can be acting lawfully. The guiding principle is known as proportionality. Proportionality prohibits the carrying out of an attack if the expected collateral casualties would be excessive compared with the value of the military objective.
Is there a fixed list of banned weapons?
Specific types of weapons are banned entirely, such as anti-personnel landmines, biological and chemical weapons to name a few examples. More are subject to limits – such as the restrictions on the use of booby-traps. But providing an exhaustive list would be difficult, as weapons are constantly being developed and the law evolves accordingly.
But also, as the previous discussions show, the way weapons are used can be as important as what they actually do. For example, incendiary weapons – ones that are primarily designed to spread fire or to burn – are prohibited in all circumstances against civilians. But lawful use against soldiers is possible. Some weapons may be lawful for use against buildings or enemy tanks but not if directed at troops.
Could the use of nuclear weapons be legal?
Today there is no comprehensive and universal prohibition on the use of nuclear weapons in either customary or conventional international law.
However, on 8 July 1996 the International Court of Justice, the principal judicial organ of the United Nations, gave an Advisory Opinion about the Legality of the threat or use of nuclear weapons. The 14 judges of the Court examined current treaty law, customary rules and State practice with regard to nuclear weapons and, based on their analysis, concluded unanimously that the principles and rules of international humanitarian law apply to the use of nuclear weapons. They added that the use of nuclear weapons would generally be contrary to the principles and rules of international humanitarian law.
What is the difference between biological and chemical weapons?
They are sometimes bracketed together because they are different from the guns, explosives, rockets and missiles that are known as conventional weapons. Chemical weapons work, crudely, as poisons. They have toxins that cause death or incapacitation on contact with humans. They include mustard gas and nerve agents and other chemicals that can incapacitate, asphyxiate or irritate and blister skin.
Biological weapons act on the human life system and are often developed from living organisms such as viruses or bacteria. They are greatly feared because relatively small amounts, for example of deadly spores carrying anthrax, can cause immense numbers of casualties. That's why, along with chemical and nuclear weapons, they are often described as "weapons of mass destruction".
The ban on chemical and biological weapons is so absolute that it does not matter whether they are lethal or not, or whether they are allowed by domestic laws. For example, CS gas can be used by police to control riot situations. But its use is prohibited in armed conflict.
Where is the law about weapons written and how is it enforced?
What soldiers call the "laws of armed conflict" is also known as international humanitarian law, particularly in humanitarian and legal circles. The main treaties are the Geneva Conventions of 1949, developed by later agreements known as Additional Protocols. However, the main laws about weapons are contained in separate conventions, equally legally binding, on specific types of weapon. These include the 1972 Biological Weapons Convention, the 1980 Conventional Weapons Convention and the 1997 Ottawa Convention on anti-personnel landmines.
Alleged breaches of the law can be tried in national courts, or by the International Criminal Court at the Hague. It is a sad fact that there are many breaches. War is extremely violent and very many desperate and appalling things happen. But those breaches don't undermine the need for the laws, or for improved compliance.
Have the laws on weapons made a difference?
Almost certainly, though it is very hard to quantify. It can also be hard to appreciate when media reports are full of graphic stories of death and injury. It is worth remembering that news media focus on disturbing and exceptional cases. Those occasions when armies take care to avoid injury to civilians are simply not reported – partly because few people know about them, and partly because "no civilians injured" does not make a news headline.
This information was written by PJ White of the British Red Cross Society. For further information visit the British Red Cross Society.
Posted December 4, 2009