The laws of Armed Conflict: An Overview of the Restrictions and Limitations on the

Method and Means of Warfare.

Abstract
Impacts to decrease fierceness in a war, inspired by compassionate and strict just as down to
earth contemplations, have a long story. Subsequently, an assortment of limitations and
impediments upon what states may do when falling back on war has created as standard law.
Universal helpful law is a part of open international law humanitarian law. Open universal law
is a mix of rules and customs administering the relations between states in various fields, for
example, furnished armed conflict. This incorporates both national and international armed
conflicts. This specific composed won't examine the global unsettling influence or pressures. In
late decades furnished armed conflict has scourged the lives of a great many regular folks.
Genuine infringement universal philanthropic and human rights law are normal situation in
many armed conflicts. In recent years, governments, legislators, ambassadors, enacts and
columnist have alluded to global philanthropic law and human rights in armed conflicts to
decrease the mass interruption of armed conflicts. The motive of this written is to highlight the
restrictions and limitations on the methods and meanings of warfare regarding the subject
matter of law of armed conflict. This paper has made use of databases, knowledge bases
analysis of both academic and professional publications, information transfer and online
connectivity possible in the era of armed conflict. This paper will also highlight the limitations
of use of power by the state holders and their obligation prescribes by the law. In the summary
of this paper, the written will discuss some suggestions on behalf of the title.
Keywords: Armed Conflict, Limitations, Restrictions, Warfare

INTRODUCTION:

Restrictions & limitations on means & methods of warfare is not a novel concept & it goes
beyond many centuries, even for ancient Greek, Rome battle fields. Use of poisoned weapons
was prohibited in Greek battlefields & temples, priests, and embassies were free from war
attacks. Cut off or poison the enemy's water supply & perfidious tricks or ruses were also
prohibited. Romans were more disciplined than those of any other ancient nation when they
engaged in warfare. If we consider this matter in related to the Islamic world, the ninth
century Islamic statement on the law of nations bans the killing of women, children, the aged,
the blind, the crippled and the insane. In Asian battle world, we can find these types of
restrictions in the literature of Ramayana & Mahabharata. There the fighters should not use
weapons that are concealed in wood, are barbed, are poisoned, or the points of which are
blazing with fire. In the battle field, a car warrior should fight with a car warrior & one on
horse should fight one on horse. Elephant riders must fight with elephant riders while one on
foot fights a foot soldier. As well as “Indian ruler “Manu” prohibited use of certain means of
The laws of Armed Conflict: An Overview of the Restrictions and Limitations on the
Method and Means of Warfare.

combats, such as burning or poisoned arrows.”2. When considering the above description, we
can see that the choices available for combatants to use means & methods of warfare not
unlimited even in our ancient warhistory.

INTERNATIONAL TREATY LAW

The first international legal instrument at control of means & methods of warfare was the
St.Petersburg Declaration in 1868adopted by an International Military Commission. It directed
against the use of lightweight explosive bullets. Thereafter The Hague convention of 1899
concerned about the asphyxiating gases and the prohibition of using bullets which expand or
flatten easily in the Human Body. In Article 23 (a) of the Hague convention in 1907 concerning
the Laws and Customs of War on Land;
pursuanttowhichitisforbiddentoemploypoisonorpoisonedweapons.
Lying automatic submarine contact mines also prohibited by these regulations. Article 22 of
this convention is more important in regard of the considerable matter & it expressly says that
“right of belligerents to adopt means of injuring the enemy is not unlimited.” Article 23(e) of
the 1907 HR provides that “it is especially forbidden . . . to employ arms, projectiles, or
material calculated to cause unnecessary suffering”. Thereafter 1925 Gas Protocol came in to
power & it prohibited the Use of asphyxiating, poisonous or other gases, and of bacteriological
methods ofwarfare.
Although above mentioned regulations at control of means & methods of war fare, were
applicable only for the high contracting parties of those conventions, most of them reflect
customary international law & this was emphasized by the judges of the Nuremburg tribunal.
As well as they are reinforced by the Geneva conventions (e.g. Article 35(1) ofAdditional
Protocol
I. In Resolution 2677 (XXV) adopted in 1970, the UN General Assembly called upon “all
parties to any armed conflict to observe the rules laid down in the Hague Conventions of
1899 and 1907, the Geneva (Gas) Protocol of 1925 and other humanitarian rules applicable
in armedconflicts”.
Hereafter if we move towards the provisions related to means & methods of war fare in
Protocols additional to the Geneva Conventions of 1949, the most important references in
those protocols to relevant matter are found in Article 35 & 36 of Additional Protocol I of
1977. Article 35 point outs that:

 in any armed conflict, the right of the Parties to the conflict to choose methods or
The laws of Armed Conflict: An Overview of the Restrictions and Limitations on the
Method and Means of Warfare.

means of warfare is not unlimited.(Art.35(1))

 employ weapons, projectiles and material and methods of warfare of a nature to cause
superfluous injury or unnecessary suffering is prohibited. (Art.35(2))
 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 is prohibited
{(Articles 35(3). This is repeated even by Article55)

This article is more important as it is applicable for any type of armed conflicts even
irrespective their characteristics. As well as it imposemandatoryobligation for all high
contracting parties including very law ranking officers not to use any type of means & methods
of warfare contrary to the article.

Under the Article 36 of this protocol; "In 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 ContractingParty”

Thus it indicates more broad view on the

 weapons of all types without concerning whether they be anti- personnel or anti-
materiel, "lethal", "non-lethal" or "less lethal" and weaponssystems
as well as
 the ways in which these weapons are to be used in accordance with military doctrines,
tactics, rules of engagement, operating procedures andcountermeasures

Therefore the entire objective of Article 36 is to prevent using weapons that would violate
IHL in all circumstances and to impose restrictions & limitations on the use of means &
methods of warfare that would violate IHL in some circumstances, by determining their
lawfulness before they are developed, acquired or otherwise incorporated by states.
However this article does not specify how a determination of the legality of means and
methods of warfare is to be carried out, especially when in a situation weapon used in one
manner may "pass" the test of Article 36, but may fail it when used in another manner. As
noted in the ICRC's Commentary on the Additional Protocols, “a State need only determine
whether the employment of a weapon for its normal or expected use would be prohibited
under some or all circumstances. A State is not required to foresee or analyze all possible
misuses of a weapon, for almost any weapon can be misused in a way that would be
The laws of Armed Conflict: An Overview of the Restrictions and Limitations on the
Method and Means of Warfare.

prohibited."3
However Article 36 is complemented by Article 82 of the same protocol, which requires that
legal advisers be available at all times to advise military commanders on IHL and "on the
appropriate instruction to be given to the armed forces on this subject.” These two provisions
cumulatively establish a framework for ensuring that armed forces will be capable of
conductinghostilities in strict accordance with IHL, through means and methods of warfare.

As required by above said Article 36 of AP, High Contracting Party of it is under an obligation
to determine whether its employment would be prohibited by this Protocol or by any other rule
of international law applicable to the High Contracting Party. This includes following rules
under the same protocol;

 Prohibition to employ a method or means of warfare which cannot be directed at a

specific military objective and consequently, that is of a nature to strike military
objectives and civilians or civilian objects without distinction (Art. 51(4)(b))
 Prohibition to employ a method or means of warfare the effects of which cannot be
limited as required by Additional Protocol I and consequently, that is of a nature to
strike military objectives and civilians or civilian objects without distinction (Art.
51(4)(c))
 Prohibition of attacks by bombardment by any methods or means which treats as a
single military objective a number of clearly separated and distinct military objectives
located in a city, town, village or other area containing a similar concentration of
civilians or civilian objects (Art. 51(5)(a))
 Prohibition of attacks which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination thereof, which would
be excessive in relation to the concrete and direct military advantage anticipated (Art.
51 (5)(b))

12
Except those provisions, Article 48, 51(2), 52(1), 52(2), 51(6), 51(7), 54, 85(3) (a), 85(3) (b)
of the same protocol also acquire utmost important when considering the relevant matter as
they restrict the method or the way in which even non-lethal or less lethal weapons are used
against non-military objectives.
Henceforth if we consider the AP II, Article 13(2) AP II provides that “the civilian population
as such, as well as individual civilians, shall not be the object of attack”. Article 20(2) of draft
The laws of Armed Conflict: An Overview of the Restrictions and Limitations on the
Method and Means of Warfare.

AP II submitted by the ICRC to the CDDH provided that “it is forbidden to employ weapons,
projectiles, and material and
methodsofcombatofanaturetocausesuperfluousinjuryorunnecessarysuffering”. (It was deleted
in the plenary, after having been rejected by 25 votes in favour, 19 against and
33abstentions.)
In accordance with above mentioned two protocols as well as 3 rd protocol additional to the
Geneva Conventions of 1949; & 1st& 2nd Geneva Conventions; Certain methods of warfare
including perfidy also concern as prohibited.13,14 Under this condition, emblem of the Red
Cross, Red Crescent or Red Lion and sun on a white ground shall not be used improperly as
a method of war fare.15 Over and above, improper use of flags or military emblems, insignia
or uniforms of the adversary as a method of war fare also prohibited under International
Treaty law.16As well as Starvation of civilians as a method of war fare is also prohibited
under several treaty law17
When we consider all above International Humanitarian Treaty law provisions at control of
means & methods of warfare, it is clear that choice available for combatants to use means
& methods of warfare not unlimited under International TreatyLaw.

INTERNATIONAL TREATY LAW PROHIBITING THE USE OF SPECIFIC

WEAPONS, MEANS OFWARFARE

Here onwards, if we pay our attention towards the other treaty law instruments which impose
restrictions on specific means & methods of war fare; conventions suchas
 BWC
 ENMOD
 CCW & its fiveprotocols
 CWC
 APM
 CCM
If we pay furthermore attention towards CCW & its five protocols, it lays down prohibitions
or restrictions on the use of certain conventional weapons which may be deemed to be
excessively injurious or to have indiscriminate effects such as landmines, booby traps,
incendiary weapons, blinding laserweapons. When concern about BWC, IT bans the
development, production and stockpiling ofan entire category ofbiological &toxin weaponsof
massdestruction. Eventually all of these treaty law conditions cumulatively prohibited using
means and methods of warfare which are of a nature to cause superfluous injury or
The laws of Armed Conflict: An Overview of the Restrictions and Limitations on the
Method and Means of Warfare.

unnecessary suffering or which are inherently indiscriminate in violation of the international

humanitarian law.

CUSTOMARY INTERNATIONALLAW

Many of the rules governing means & methods of war fare have become part of customary
international law by widespread uniform practice of States with opinio juris. As a result of
this, following these rules are mandatory for all parties to an armed conflict all over theworld.
According to the ICRC study on Customary International Humanitarian Law, there are some
restrictions inflicted on means & methods of war fare such as prohibition of using poisoned
weapons, biological weapons, chemical weapons (under the CIL rules of 72,73,74),
prohibition of using riot-control agents & herbicides as a method of warfare (under the CIL
rules of 75,76), prohibition of using bullets which expand or flatten easily in the human body
& which explode within the human body (under the CIL rules of 77,78). Conversely using
means and methods of warfarewhich
 Are of a nature to cause superfluous injury or unnecessary suffering is prohibited
under the rule of70;
 Are by nature indiscriminate is prohibited under the rule of 71 & rule of11;
 cannot be directed at a specific military objective, and means of warfare the effects of
which cannot be limited as required by IHL is prohibited under the rule of12
 are intended, or may be expected, to cause widespread, long-term and severe damage
to the natural environment (Destruction of the natural environment may not be used
as a weapon) is prohibited under the rule of 45 & rule of44
 may be expected to cause incidental loss of civilian life, injury to civilians, damage to
civilian objects, or a combination thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated (violating the proportionality rule)
is prohibited under the rule of14
 treats as a single military objective a number of clearly separated and
distinctmilitaryobjectiveslocatedinacity,town,villageorotherareacontaining a similar
concentration of civilians or civilian objects is prohibited under the rule of 13
When we go through above description, we can observe that choices available for combatants
to use means &methods of warfare are not unlimited under International customary
humanitarian law & it with due regard to the protection & prevention of non-military
objectives as well as natural environment. There for it lays down an un breachable
responsibility on combatants when conducting a military operations.
The laws of Armed Conflict: An Overview of the Restrictions and Limitations on the
Method and Means of Warfare.

In its written statement submitted to the ICJ in the Nuclear Weapons case, Sri Lanka stated
that “customary law principles which have evolved in the field of armed conflict prohibit the
use of weapons and the methods of warfare of a nature to cause superfluous injury or
unnecessary suffering.”18 All though these treaty law conditions are applicable only to the
high contracting parties of the relevant conventions, non-contacting parties also have to
follow these rules as they are to be isolated in the globalized world in absence of following
them. On the other hand most of them reflect customary international law which bound all the
conflicting parties all over the world. In 1974, during discussions in the Ad Hoc Committee
on Conventional Weapons established by the CDDH, Switzerland stated that the principle
prohibiting unnecessary suffering caused by means & methods of warfare belongs to
customary law and was already inforce.

INTERNATIONAL CASE LAW

Many of the judgments delivered by International judicial as well as quasi- judicial bodies bear
witness as to means of warfare cannot be assessed in isolation from the method of warfare &
chose available for using both of them is not unlimited.

This was massively discerned in its advisory opinion in the Nuclear Weapons case in 1996 by
the ICJ. There it stated that it is prohibited to use weapons causing unnecessary suffering to
combatants or uselessly aggravating their suffering. “States do not have unlimited freedom of
choice of means in the weapons they use . . . this is to be observed by all States whether or not
they have ratified the conventions that contain them, because they constitute intransgressible
principles of international customary law.”1

In their dissenting opinions in this case, Judge Higgins stated that “it is not permitted in the
choice of weapons to cause unnecessary suffering to enemy combatants, nor to render their
death inevitable. Over and above Judge Weeramantry stated that “the facts.. are more than
sufficient to establish that the nuclear weapon causes unnecessary suffering going far beyond
the purposes of war.” Judge Koroma, after describing the effects of atomic weapons in
Hiroshima, Nagasaki and the Marshall Islands, stated that the radioactive effects were “more
harmful” than those caused by poison gas and added “the above findings by the court should
have led it inexorably to conclude that any use of nuclear weapons is unlawful under
international law”

1
ICJ, Nuclear Weapons case, Advisory Opinion, 8 July 1996, §§78–79.
The laws of Armed Conflict: An Overview of the Restrictions and Limitations on the
Method and Means of Warfare.

In the Tadic2 decision of the Appeals Chamber of the ICTY in 1995 in relation to prohibited
means and methods of warfare, the Chamber concluded that a customary norm existed
protecting civilians from hostilities in internal conflicts, in particular the prohibition on attacks
by prohibited means & methods ofwarfare

In the Karadˇ zi ´c3, Gali’s4and Mladi´c case5 before the ICTY in 1995, the accused were
charged with “deliberate attack on the civilian population and individual civilians” in the
shelling of civilian gatherings and the sniping campaign against the civilian population of
Sarajevo. In its review of the indictment, trial Chamber emphasized that the method or the way
in which the weapons are used may case to commit war crimes.

In its review of the indictment in the Marti ´c case6 in 1996, the ICTY Trial Chamber had to
determine whether the use of cluster bombs was prohibited in an armed conflict. Noting that no
formal provision forbade the use of such bombs, the Trial Chamber recalled that the choice
of weapons and their use were clearly delimited by IHL. Among the relevant norms of
customary law, the Court referred to Article 51(4) (b) AP I, which forbade indiscriminate
attacks involving the use of a means or method of combat that could not be directed against a
specific militaryobjective.

In the Blaˇski´c case7 before the ICTY in 1997, the accused was charged with “unlawful attack
on civilians” & in its judgment in 2000, the ICTY Trial Chamber considered that using means
& methods of war fare is not unlimited & targeting civilians or civilian property is an offence
when not justified by military necessity.”

In its judgment in the Kupreˇski´c case8 in 2000, the ICTY Trial Chamber stated that “attacks,
even when they are directed against legitimate military targets, are unlawful if conducted using
indiscriminate means or methods of warfare, or in such a way as to cause indiscriminate
damage tocivilians.”

2
ICTY, Tadi´c case, Interlocutory Appeal, 2 October 1995, §§100–127

3
Karadˇ zi ´c and Mladi´c case, Review of the Indictments, 11 July 1996, Section VII, Disposition,ICTY.

4
Gali´c case, Initial Indictment, 24 April 1998,ICTY

5
Mladi´c case, Review of the Indictments, 11 July 1996, Section VII, Disposition,ICTY.

6
Marti ´c case, Review of the Indictment, 8 March 1996, Section III, Disposition,ICTY,

7
ICTY, Blaˇski´c case, Judgment, 3 March 2000, §180.

8
ICTY, Kupreˇski´c case, Judgment, 14 January 2000, §524.
The laws of Armed Conflict: An Overview of the Restrictions and Limitations on the
Method and Means of Warfare.

DOMESTIC CASELAW

When we consider the domestic case law in related to discussed matter, there are so many
domestic judgments emphasized the restrictions & limitations of means & methods of warfare.

In the Military Junta case9 in 1985, Argentina’s National Court of Appeals, with reference to
Articles 22 and 23 of the 1907 HR, mentioned the prohibition on the use of weapons, projectiles
or material which cause “unnecessary damage” to enemies.

In the Shimoda case10 in 1963, Japan’s District Court of Tokyo quoted the 1868 St. Petersburg
Declaration and Article 23(e) of the 1907 HR, and also referred to the 1899 Hague Declaration
concerning Asphyxiating Gases. The Court held, however, that “the use of a certain weapon,
great as its inhuman result may be, need not be prohibited by international law if it has a great
militaryeffect”.

In 1997, in the case concerning the events at La Tablada 11 in Argentina, the IACIHR reaffirmed
the obligation of the contending parties, on the basis of common Article 3 of the 1949 Geneva
Conventions and customary principles applicable to all armed conflicts, not to engage in direct
attacks against the civilian population or individual civilians using any type of means &
methods of warfare.

In 1995, in a ruling on the constitutionality of AP II, Colombia’s Constitutional Court stated in

relation to the prohibition on the use of weapons of a nature to cause unnecessary suffering or
superfluous injury that; although none of the treaty rules expressly applicable to internal
conflicts prohibits indiscriminate attacks or the use of certain weapons.12

In the case of Asian Agricultural Products LTD. (AAPL) v. Republic of Sri Lanka13, the
destruction of the said farm premises occurred during a counter- insurgency operation
undertaken by Sri Lankan governmental security forces against LTTE in 1987. The dispute was
submitted by AAPL to ICSID. After reviewing the evidence submitted by the parties, the

9
Argentina, National Court of Appeals, Military Junta case, Judgment, 9 December1985.

10
Japan, District Court of Tokyo, Shimoda case, Judgment, 7 December 1963.

11
IACIHR, Case 11.137 (Argentina), Report, 18 November 1997, §177.

12
Colombia, Constitutional Court, Constitutional Case no: C - 225/95, judgment 18 May1995

13
ICSID Case No.ARB/87/3.
The laws of Armed Conflict: An Overview of the Restrictions and Limitations on the
Method and Means of Warfare.

majority award foundthat Sri Lanka failed to take important precautionary measures to get all
suspected persons out of the farm premises peacefully before launching the operation. (Such
measures would, in the words of the tribunal, have minimized the risks of killings and
destruction). Therefore the award concluded that Sri Lanka violated its due diligence obligation
to the company through omission in use of armed force & was therefore liable for
compensation.

CONCLUSION

When we consider all the above facts included this assessment, it is unambiguous that a weapon
or means of warfare cannot be assessed in isolation from the method of warfare & choice
available for combatants under the IHL regime is not unrestricted or not unlimited. However
when concerning the practical issues of present scenario, we could perceive that means &
methods of warfare are misused by parties of the conflicts all over the world. Air attacks
launching towards Palestine by Israeli as well as bombardments done by Americans within the
territory of Afghanistan can be shown as better examples for this. Even today so many people in
Cambodia & Laos die as a result of hidden hand mines. Unfortunately most powerful states in
the world who act as guardians of human community are responsible for these types of misery.
Especially when in a situation there is no special treaty law prohibition on use of nuclear
weapons & production of new weapons, all most entire world is at a hazard in near future. In
accordance with the ICRC's Commentary on Article 36 of Additional Protocol I, it implies the
obligation to establish internal procedures for the purpose of elucidating the issue of legality
and the other contracting parties can ask to be informed on this point. But only a limited
number of States are known to have put in place mechanisms or procedures to conduct legal
reviews ofweapons”.
Hence there should be responsible mechanism in order to protect civilians from indiscriminate
effects & unnecessary suffering of weapons, especially in rapid developments of modern
weapons technology. This has been highlighted in a number of international forums such as
27th35& 28th36 International Conference of the Red Cross and Red Crescent, Second Review
Conference of the Convention on Certain Conventional Weapons (CCW).37 However, such type
of mechanism hasn’t been come in to force yet. Therefore at least general prohibition on means
& methods of warfare should be adopted by an international treaty & it should be focused to
prohibit all the weapons including future productions, which defeat the IHL principals
ofdistinction aswell as proportionality.