Prohibited Weapons in The Conduct of

Hostilities under the Law of

International Armed Conflict
 The cardinal principle of distinction between
civilians and combatants ensure that civilians
The principle of are protected from the havocs of war.
distinction The distinction is also between civilian objects
and military objectives.

It is necessary to differentiate between:

➔weapons that are employed in specific

circumstances contrary to the principle of
distinction, killing combatants and civilians
indiscriminately
➔ weapons that by their very nature or design
cannot possibly maintain the distinction in any
set of circumstances.
 Article 35(2) of AP/I prohibits the use of weapons,
projectiles and material and methods of warfare of a

The principle
nature to cause superfluous injury or unnecessary
suffering. Before, in the 1907 translation of Hague

prohibiting Regulation 23(e) of 1899, the words used were “To

employ arms, projectiles, or material calculated to cause
unnecessary unnecessary suffering”.

suffering In the words of the ICJ, it is prohibited to employ

weapons “uselessly aggravating’ the suffering of
combatants, the test being ‘a harm greater than that
unavoidable to achieve legitimate military objectives”.

In essence, the injunction against ‘superfluous injury or

unnecessary suffering’ hangs on a determination whether
injury/suffering is avoidable or unavoidable.

Under Article 3(a) of the Statute of the ICTY, the

employment of ‘weapons calculated to cause
unnecessary suffering’ is considered a violation giving
rise to individual criminal responsibility
 It has become evident that the safest means of
ensuring that a specific weapon will be
Explicit interdicted is to say so unequivocally in a
binding multilateral treaty.
prohibitions or
Experience shows that some situations are
restrictions of fraught with special danger to civilians. In
order to eliminate or blunt that danger, LOIAC
certain weapons may impose restrictions.
Restrictions exclude use in specified
conditions, without ruling out resort to the
same weapon on other occasions.
Weapons subject by treaty to prohibition or
restriction of use can be divided into two
wide-ranging categories:
● conventional weapons
● weapons of mass destruction.
 1. Poison
2. Certain Projectiles: Explosive bullets
Conventional (authorized in Air Warfare), Expanding
weapons prohibited bullets (authorized in domestic law
enforcement)
or restricted 3. Non-detectable fragments
4. Booby-traps
5. Landmines
6. Naval mines (authorized naval mines
that can apply the principle of
distinction)
7. Torpedoes
8. Incendiaries
9. Blinding laser weapons (authorized if
the blindness is only temporary)
10. Cluster Munitions
 1. Chemical weapons

History since WW1

Weapons of Mass 1925 Geneva Protocol for the Prohibition of the Use in
destruction War of Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare.
prohibited or 1993 Paris Convention on the Prohibition of the
restricted Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction (CWC)

2. Biological weapons

The 1925 Geneva Protocol states that Contracting

Parties ‘agree to extend’ as between themselves the
prohibition of gas warfare ‘

Convention on the Prohibition of the Development,

Production and Stockpiling of Bacteriological
(Biological) and Toxin Weapons and on Their
Destruction (BWC)
 Nuclear weapons are not subject to any

The status of
general treaty banning their use. That does not
denote that nuclear weapons are beyond the
nuclear weapons reach of LOIAC.

There are a number of treaties prohibiting the

deployment of nuclear weapons in designated
areas (such as Antarctica, outer space and the
seabed), their testing, and even their
possession by certain countries; establishing
nuclear free zones; and creating
non-proliferation obligation.

ICJ’s manner of speaking strongly suggests a

non liquet, since the Advisory Opinion could
not conclude definitively whether the disputed
action is lawful or unlawful.
 The accepted definition of an autonomous weapon system is:

“A weapon system that, once activated, can select and engage

Autonomous targets without further intervention by a human operator.”

weapons There are three categories of such devices:

● ‘Man-in-the-loop’, in which a human being pilots the

device by remote control. This weapon system is not
autonomous.
● ‘Man-on-the-loop’, where the machine can select and
engage targets, without additional human input
subsequent to activation, but a human operator
monitoring it can intervene. This weapon system is
semi-autonomous.
● ‘Man-out-of-the-loop’, where the system acts entirely on
its own there being no override capability reserved for
human review. This ‘fire-and-forget’ mechanism is truly
autonomous.

Whereas this generation autonomous weapon systems cannot

think for themselves, it is generally believed that the next
generation will usher in robots with artificial intelligence (AI)
 States spend a lot of time, money and energy in a
endeavour to flex new military muscles by
Development of pioneering the development of unfamiliar
weapons
new weapons The sheer novelty of a weapon does not
necessarily present an insurmountable challenge
to existing LOIAC. To the contrary, LOIAC
principles show a remarkable capability of
bringing new weapons within their fold. Besides,
rather than testing the limits of these principles,
new weapons may actually facilitate their
application by enabling, e.g., a greater degree of
accuracy in targeting.
LOIAC trumps scientific and technological
developments. If a new weapon is prohibited ab
initio, its introduction into the arsenal must be
aborted. Sometimes, a significant upgrading of an
existing (lawful) weapon will also cause it to
become unlawful in its new incarnation.