College of Europe, Natolin, 21st February 20 13

1. Conduct of hostilitiesMeans and methods of warfareDr. Elżbieta Mikos-SkuzaSeminar „Introduction to International Humanitarian Law” College of Europe, Natolin, 21st February2013

2. International agreements concerning means and methods of warfare • 1868 - Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. • 1899 - Declaration (IV,3) concerning Expanding Bullets • 1899 - Declaration (IV,2) concerning Asphyxiating Gases • 1907 - Regulations concerning the Laws and Customs of War on Land. • 1907 - Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons • 1925 - Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare • 1972 - Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction. • 1977 - Convention on the prohibition of military or any hostile use of environmental modification techniques • 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 • 1980 - Protocol on Non-Detectable Fragments (Protocol I). • 1980 - Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II). • 1980 - Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) • 1995 - Protocol on Blinding Laser Weapons (Protocol IV) • 1996 - Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended • 2003 - Protocol on Explosive Remnants of War (Protocol V) • 1993 - Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction • 1997 - Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction • 2008 – Convention on ClusterMunition

3. Martens Clause Civilians and combatantsremained under protection and authority of theprinciples of international law derivedfromestablishedcustom, fromtheprinciples of humanity and fromthedictates of public conscience 1899 – HagueConvention (Preamble) 1907 – HagueConvention (Preamble) 1949 - I-IV GenevaConvention art. 63/62/142/158 1977 - I AP/IIAP – art. 1.2/Preamble 1980 - CCW (Preamble)

4. GENERAL LIMITATION ON THE RIGHT OF BELLIGERENTS TO ADOPT MEANS AND METHODS OF WARFARE (…) the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy(…) • Saint PetersburgDeclaration, 1868 THEREFORE: Art. 22. The right of belligerents to adopt means of injuring the enemy is not unlimited. - HagueRegulation (HagueConvention IV), 1907 Art. 35 -- Basic rules 1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. • - I AP, 1977

5. GENERAL RULES ON MEANS AND METHODS OF WARFARE Itisparticularlyprohibited to employmeansormethodswhichareintendedor of a nature: • to causesuperfluousinjuryorunnecessarysuffering(art,. 23 (e) HagueReg; art. 35, para 2, API) • to injuremilitaryobjectives, civilians, orcivilianobjectswithoutdistinction (art. 48, art 51, pars. 4 and 5, API) • to causewidespread, longterm, and severedamage to the natural environment (art. 35, para 3, and 55, para 1, API; ENMOD)

6. Preliminary remarks on the regulation of means of warfare Importance of technicalities !!!

7. Types of weapons and ammunition prohibited by IHL Bullets • explosive projectiles under 400 grammes weight, which is either explosive or charged with fulminating or inflammable substances - St. Petersburg Declaration, 1868 • bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions (dum-dum bullets) - HagueDeclaration, 1899

8. 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 - (CCW)

9. Convention on Anti-PersonnelMines 1997

10. Types of weapons and ammunition prohibited by IHL Clustermunition Cluster munition is air-dropped or ground launched weapon that work by dispersing several smaller submunition (bomblets) from a canister, over a wide area to destroy dispersed, moving and unseen targets. Developed in order to improve efficiency of aerial attacks, particularly against “soft” targets like personnel. Failurerate : 1% - 40%

11. Types of weapons and ammunition prohibited by IHL Poisons and poisoned weapons • it is especially forbidden to employ poison or poisoned weapons, because it has an indiscriminate character and can cause unnecessary suffering - art. 23(a) Hague Regulation; 1907. • Prohibition of the use in war asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices - Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare; 1925.

12. Types of weapons and ammunition prohibited by IHL Biological and chemical weapons • - prohibition from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases • II Hague Declarationconcerning Asphyxiating Gases, 1899 • – prohibition on the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices, and extend this prohibition on the use of bacteriological methods of warfare - Geneva Protocol 1925

13. Types of weapons and ammunition prohibited by IHL Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction – 1972 Prohibition to develop, produce, stockpile or otherwise acquire or retain: microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

14. Chemical weapons Convention on the prohibition of military or any hostile use of environmental modification techniques, 10 December 1976 provide a ban on use of chemical agents causing poisoning people indirectly by having a toxic effect on natural environment Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction – 1993 (entered into force in 1997) it oblige to destruction of all stockpiles of this weapon and to stop in production Organization for the Prohibition on Chemical Weapons - control overthe enforcement of this provisions

15. Weapons not prohibited or restricted by binding legal acts of IHL Nuclearweapon • no comprehensive and universal prohibition on the use of nuclear weapons in either customary or conventional international law. • ICJAdvisory Opinion about the Legality of the threat or use of nuclear weapons - 8 July 1996. • the use of nuclear weapons would generally be contrary to the principles and rules of international humanitarian law (distinction, proportionality etc.) • Court could not reach “a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake”

16. Weapons not prohibited or restricted by binding legal acts of IHL • are not in themselves unlawful weapons • most small arms have legitimate uses, including for law enforcement and national defence • Arms Trade Treatyprocess

17. New weapons 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 Contracting Party - art.36 – IAP; 1977

18. Perfidy Perfidyisprohibited (art. 37, IAP) The term „perfidy” refers to actsmisleadingtheadvers party intothebeliefthatthereis a situationaffordingprotection under international law For example: the feigning of an intent to negotiate under a flag of truce or of a surrender; the feigning of an incapacitation by wounds or sickness; the feigning of civilian, non-combatant status; and the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict

19. Ruses of war Ruses of war and theemployment of measuresnecessary for obtaininginformationabouttheadverse party and the country arepermissible (art. 37, para. 2, IAP, art.. 24 HagueReg.) For example: • theuse of enemy signals, passwords, signs, decoys etc.

20. Prohibition on improper use of recognizable emblems of sanitary personnel, cultural property, civil defense, works and installations containing dangerous forces, UN emblems, flag of truce and others Itisprohibited to make improperuse of flags of truce, enemy orneutral national flags, militaryinsignia and uniforms, and internationalyacknowledgedprotectiveemblems (art. 39 IAP, art.. 23, para. 1 lit f HagueReg.; art. 17 para , CulPropConv) For example: - The red cross orthe red crescent

21. Prohibition on giving or ordering no quarter and attacking hors de combat • Itisprohibited to order thatthershall be no survivors. Itisprohibited to threaten an adversarywithsuch an order or to conductmilitary operations on thatbasis (art. 40 IAP, art. 23 lit d, HagueReg.) • A person who is recognized or who, in the circumstances, should be recognized to be ' hors de combat shall not be made the object of attack (art. 41 IAP)

22. Espionage Spiesarepersonswhoclandestinely, or under falspretences, e.g. not wearingthe uniform of theirarmedforces, gatherinformation on theterritorycontrolled by theadversary. Person whofallintothehands of theadversarywhileengageinespionageshall be liable to punishment (art. 29-31 HagueReg) Evenifcapturedwhileengagedinespionage, a spyshall not be punishedwithoutpriorconvictionpursuant to regularjudicalprocedures (art. 30, HagueReg; art. 75, para 4, IAP)

23. Othermethods of warfare Snipers are permitted only if they attack combatants and military objectives. It is strictly forbidden to threaten civilians by attacking them with snipers. Sabotage is allowed by IHL as long as it is directed at military objectives