ICRC databases on international humanitarian law
  • Print page
Commentary - Part IV : Civilian population #Section I -- General protection against effects of hostilities
    [p.585] Part IV, Section I -- General protection against the effects of hostilities


    Introduction

    1822 Although traces of the principle of the distinction between combatants and non-combatants, made in order to spare the latter, were present in all great civilizations, (1) it took a long time to become established. For centuries it was considered that war was not only waged against States and their armies, but also against their people. As a result, civilians were at the mercy of the conquerors, who all too often, even if they spared their lives, submitted them to forced labour, looted their property and treated them in a way which showed contempt for even the most elementary rights. Especially during a siege, civilians shared the dangers faced by soldiers.

    1823 The notion that war is waged between soldiers and that the population should remain outside hostilities was introduced in the sixteenth century and became established by the eighteenth century. The customs of war acquired a more humanitarian character through the process of civilization and as a result of the influence of thinkers and jurists. One of the first codifications of such rules was the work of Francis Lieber, the author of the famous Instructions given to the armed forces of the United States in 1863 when they were engaged in the Civil War. After a reminder that citizens of the opposite side are enemies, Lieber stated:

    "Art. 22. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit."

    1824 In Article 25 he added that, in regulars wars, protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are exceptions. (2)

    [p.586] 1825 This view, to which the work of Bluntschli (3) and the Oxford Manual (4) subscribed, was gradually adopted by governments. For instance, on 11 August 1870, King Wilhelm of Prussia declared: "I wage war against French soldiers and not against the French people".

    1826 Although it was never officially contained in an international treaty, the principle of ' protection ' and of ' distinction ' forms the basis of the entire regulation of war, established in Brussels in 1874 in the form of a draft, (5) and later in the Hague Conventions of 1899 and 1907. (6) These Conventions contain provisions which restrict resort to force and the use of weapons; they were concerned above all with sparing soldiers unnecessary or excessive suffering, by prohibiting the use of means such as poison, or bullets which expand or flatten in the body ("dum-dum" bullets) and conduct such as perfidy. These measures only affected civilians very indirectly. Protection of civilians from arbitrary and oppressive enemy action, outlined in 1899, and later in 1907, (7) was expressed in its most complete form in the Fourth Geneva Convention of 1949, which is now supplemented by this Protocol.

    1827 The protection of the civilian population from the dangers created by hostilities was touched on in 1907 only by some brief provisions contained in the Regulations Respecting the Laws and Customs of War on Land. (8) They included, in particular, a prohibition on attacking towns, villages, dwellings and buildings which are not defended, and respect for certain buildings dedicated to science, charitable purposes etc. It is true that at that time the firing range of artillery was still relatively short and air-power and modern missiles did not yet exist. The importance which projectiles dropped from aircraft or sent by long-range artillery or even self-propelled missiles have assumed since that time, is clear. The First World War revealed the inadequacy of such norms. During the Second World War there was a dramatic turning point in the situation. Although the basic principle still remained unquestioned, the enormous development of the means of warfare jeopardized this principle in practice. Finally, alleging that they were carrying out reprisals, (9) the belligerents went so far as to wage war almost indiscriminately, which resulted in heavy losses amongst the civilian population and culminated in the dropping of nuclear weapons on Hiroshima and Nagasaki. Since that time physicists have continued to make their formidable discoveries.

    [p.587] 1828 At this point the need for restrictive regulation became necessary. However, it was clear that the Allied Powers, which had won the Second World War, were in no hurry to pursue this path, no doubt in the fear of condemning their own conduct. This trend also emerged in other fields. Thus the war crimes listed in the Charter of the Nuremberg Tribunal (10) include the wanton destruction of towns and villages as well as devastation which cannot be justified by military necessity. (11) There was no condemnation of such acts, however, and the attempts made in this direction were abandoned.

    1829 The 1949 Diplomatic Conference did not have the task of revising the Hague Regulations. When proposals were submitted to prohibit the use of nuclear weapons, the Conference declared that it did not have the authority to deal with such a problem. (12) This is why the 1949 Geneva Conventions only deal with the protection to which the population is entitled against the effects of war in a brief and limited way. Only a short part of the Fourth Convention (13) broaches this subject and does so without laying down any basic principles. (14)

    1830 The fact that the Hague Regulations were not brought up to date meant that a serious gap remained in codified humanitarian law. This has had harmful effects in many armed conflicts which have occurred since 1949 involving belligerents one side having a powerful airforce while the other side had no, or hardly any, aircraft. In these circumstances, and in the absence of mandatory, clearly formulated treaty rules on bombardment, it was sometimes difficult to enforce compliance with the provisions of humanitarian law as a whole. "How can you ask us to show consideration for captured enemy airmen and treat them as prisoners of war when our wives and children are attacked and massacred in their homes and on the roads?" Such questions were sometimes asked to the ICRC representatives, and it was not easy to answer them.

    1831 This situation led the ICRC to establish its Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, (15) which reaffirmed some of the principles of customary law and offered concrete solutions to resolve problems resulting from changes and developments in weaponry.

    1832 This draft was submitted to the XIXth International Conference of the Red Cross (New Delhi, 1957), which approved it in principle, but there was no follow-up in practical terms by governments. However, many welcomed this draft, which reaffirmed the distinction to be made between persons participating in military operations and those belonging to the civilian population.

    [p.588] 1833 However, the ICRC did not become discouraged by the lack of interest of governments; adopting another approach, it suggested at the XXth International Conference of the Red Cross (Vienna, 1965) the reaffirmation of certain basic principles; the result was Resolution XXVIII of that Conference, which solemnly declared that:

    "all Governments and other authorities responsible for action in armed conflicts should conform at least to the following principles:
    -- that the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited;
    -- that it is prohibited to launch attacks against the civilian populations as such;
    -- that distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible;
    -- that the general principles of the Law of War apply to nuclear and similar weapons".

    1834 These matters attracted the attention of the United Nations, which up to that time had only dealt with, with some reticence, a few questions relating to armed conflict. The International Conference on Human Rights, held in Teheran in 1968, marked a complete reversal in this field. Since then the United Nations has not ceased to approach these problems with unfailing interest. At the 23rd session of the General Assembly in 1968, Resolution 2444 (XXIII) was adopted taking up the principles expressed in Vienna (though with the exception of the last one). Henceforth, the General Assembly devoted one or more resolutions to the reaffirmation and development of humanitarian law at each of its sessions, thus giving important political support to the efforts of the Red Cross. (16) It is appropriate to cite in particular the Resolution entitled "Basic Principles for the Protection of Civilian Populations in Armed Conflicts" (2675 (XXV)). (17) When [p.589] this Resolution is compared with the text of Protocol I, it is clear that the principles laid down by the General Assembly are incorporated almost in their entirety.

    1835 Thus Section I of Part IV contains valid solutions to problems of great importance. If it had not been possible to impose limitations on certain methods of combat, there would have been reason to fear that the credibility of humanitarian law would suffer seriously as a consequence. The text which was adopted is not always as clear as one might have wished, but it seemed necessary to leave some margin of appreciation to those who will have to apply the rules. Thus their effectiveness will depend to a large extent on the good faith of the belligerents and on their wish to conform to the requirements of humanity.

    1836 This Section contains nineteen articles (48 -67), divided into six separate chapters. Chapter I (48 -49) lays down the basic rule, defines attacks and the scope of application. Chapter II (50-51) contains the rules relating to the protection of the civilian population. Chapter III (52 -56) deals with the objects to be respected and defines military objectives in so far as objects are concerned. Precautionary measures to be observed are the subject of Chapter IV (57 -58), and localities and zones under special protection are dealt with in Chapter V (59 -60).

    1837 Finally, it is appropriate to make a special mention of Chapter VI (Articles 61 -67), which is devoted to civil defence. The regulation which was adopted is the culmination of efforts made over a period of twenty years; the solutions adopted will permit States to organize their civil defence services on a more solid legal basis than hitherto; the definitions given, the international sign laid down, and the possible co-operation with certain military units, will undoubtedly make it possible to save many lives and to give more help to the victims of hostilities.

    ***

    1838 Before going on to study the articles which comprise this Section, it is appropriate to reflect for a moment on the question of nuclear weapons.

    1839 The question had already been raised in 1949, but the Diplomatic Conference, presented with a proposal by the USSR delegation meant in particular to outlaw nuclear weapons, declared that it had no authority to deal with this, and the draft resolution was declared inadmissible by a large majority. (18)

    [p.590] 1840 When the ICRC formulated its Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War in 1956, it included the following provision (Art. 14, para. 1):

    "Without prejudice to the present or future prohibition of certain specific weapons, the use is prohibited of weapons whose harmful effects -- resulting in particular from the dissemination of incendiary, chemical, bacteriological, radioactive or other agents -- could spread to an unforeseen degree or escape, either in space or in time, from the control of those who employ them, thus endangering the civilian population."

    1841 This provision was seen by several governments as a condemnation of nuclear weapons, and it is undoubtedly mainly for this reason that there was no concrete sequel to the ICRC draft.

    1842 In view of the development of air warfare and the increasing resort to bombardment, the situation of the population remained a cause for concern, apart from the problem of nuclear weapons, particularly because of the absence of a restrictive definition of military objectives. This led the ICRC to present its draft articles for the Additional Protocols without approaching this problem. In the introduction to the draft of the present Protocol, the ICRC expressed itself as follows (page 2):

    "Problems relating to atomic, bacteriological and chemical warfare are subjects of international agreements or negotiations by governments, and in submitting these draft Additional Protocols the ICRC does not intend to broach those problems. It should be borne in mind that the Red Cross as a whole, at several International Red Cross Conferences, has clearly made known its condemnation of weapons of mass destruction and has urged governments to reach agreements for the banning of their use."

    1843 In the introduction to the Commentary on the Draft Protocol the ICRC, explaining its position, stated that it had not included in its drafts, apart from some general provisions, a regulation of atomic, bacteriological and chemical weapons. (19) These general provisions are those which already existed in a codified form or as customary law and which were confirmed in the Protocols. They consist mainly of the provisions of Article 33 of the Draft, the present paragraphs 1 and 2 of Article 35 ' (Basic rules) ' (dealing respectively with the fact that the right to choose methods and means of warfare is not unlimited, and with superfluous injury or unnecessary suffering), and the customary rule confirmed by Article 43 of the Draft, now Article 48 of the present Protocol ' (Basic rule) ' (dealing with general protection of the civilian population, distinction between the civilian population and civilian objects, on the one hand, and combatants and military objectives, on the other). Obviously the Protocol could not restrict the scope of these already existing provisions. Moreover, in 1965, the International Conference of the Red Cross, as we saw above, had declared that "the general principles of the Law of War apply to nuclear and similar weapons". It was also [p.591] in this sense that the ICRC replied to a number of governments which had communicated with it on this matter.

    1844 During the course of the four sessions of the Diplomatic Conference which produced the Additional Protocols, several delegations expressed their view on nuclear weapons. During the general debate, a series of governments were opposed to the Conference dealing with specific weapons. (20) Other delegations urged the Conference to broach the question of nuclear weapons and to prohibit their use. (21) Finally, four States urged the Conference not to enter into discussion on nuclear weapons. (22)

    1845 The United Kingdom and the United States confirmed their position when signing the Protocols. (23) At the final meetings of the Conference France declared that it did not consider that the rules of the Protocol applied to nuclear weapons. (24)

    1846 Finally, when the Conference adopted Article 33 (the present Article 35 -- ' Basic rules ') by consensus, the delegation from India declared that it had joined the consensus because, in its interpretation, the rules contained in this article applied to all categories of weapons -- nuclear, bacteriological, chemical or conventional, or any other categories of arms. (25)

    1847 However, this silence should not be interpreted as approval: first, some of these statements are contradictory; secondly, some were not made during the meetings, but submitted at a later date; finally, the maxim that "silence is consent" is not convincing. None of the delegations which had proposed that the Conference should deal with nuclear weapons submitted official proposals, so that there was no discussion on this subject. The same happened when the Conference dealt with Article 56 ' (Protection of works and installations containing [p.592] dangerous forces), ' which lays down special protection for installations containing dangerous forces. The inclusion of nuclear electrical generating stations in the list of protected installations did not provoke any special discussion on nuclear weapons. Similarly, when Article 35 ' (Basic rules), ' paragraph 3 (protection of the natural environment), was adopted, there was no mention of nuclear weapons, although these are capable of profoundly affecting the natural environment. (26)

    1848 The only time at which the Conference concerned itself with this problem was when it had to define the mandate given to an Ad Hoc Committee to study certain conventional weapons (27) which cause superfluous injury and unnecessary suffering. Two delegation proposed that the word "conventional" be deleted, so that the Committee's mandate would extend to nuclear, bacteriological and chemical weapons. The Conference approved the text of the mandate with the word "conventional" by 68 votes to 0, with 10 abstentions. (28)

    1849 The Ad Hoc Committee expressed itself as follows in its report:

    "Nuclear weapons and other weapons of mass destruction were, of course, the most destructive. In that connection, some delegations rejected the view that the debate on those weapons and their possible prohibition should be left to the disarmament discussions, and they urged that the Conference include them in its programme of work. Another delegation expressed its regret at the decision not to consider these weapons. Many other delegations, however, accepted the limitation of the work of this Conference to conventional weapons. As it was pointed out by some, nuclear weapons in particular had a special function in that they act as deterrents preventing the outbreak of a major armed conflict between certain nuclear powers." (29)

    1850 The Diplomatic Conference formally recorded the Ad Hoc Committee's report without any discussion on this point, and it was not raised again while the Conference lasted. (30)

    1851 Thus, there were no deliberations on the subject of nuclear weapons throughout the Conference, although one might have expected this subject to be broached at least marginally, in view of the positions adopted and the subjects dealt with. What can be deduced from this? There can be no question of a consensus in the current legal sense of the term, (31) since no decision was taken. [p.593] Could it then be considered as a tacit understanding? Legally, silence is difficult to interpret. Was there an agreement outside the Conference between the principal States concerned? This is not the place to answer such a question, but it does seem, nevertheless, that none of the States which possess nuclear weapons wished to discuss and examine during this Conference the regulation or the possible limitation of their use.

    1852 What can be concluded from all this? In the first place, there is no doubt that during the four sessions of the Conference agreement was reached not to discuss nuclear weapons. Furthermore, there is no doubt that Protocol I of 1977 has not in any way nullified the general rules which apply to all methods and means of combat. As we saw above, these rules are in any case incorporated in the Protocol. These are, first of all, the provisions of the Hague Regulations of 1907, which are a reminder that belligerents do not have an unlimited right to choose the means of injuring the enemy, that it is prohibited to use weapons, projectiles or other devices of a nature to cause superfluous injury and unnecessary suffering. The Protocol also repeats the customary rule which is at the very basis of the laws and customs of war, i.e., the rule that a distinction shall always be made between combatants and military objectives, on the one hand, and the civilian population and civilian objects, on the other hand. Whatever opinion one may have on the scope of application of Protocol I, these rules remain completely valid and continue to apply to nuclear weapons, as they do to all other weapons. Thus it cannot be argued that by repeating such rules the Protocol excludes nuclear weapons from its scope of application.

    1853 The foregoing is in no way contradicted by the declarations made by the United Kingdom and the United States on signing the Protocol on 12 December 1977. (32) The British declaration refers explicitly to ' new ' rules and therefore implicitly confirms that the rules ' reaffirmed ' in the Protocol apply to all arms; and it is in accordance with the British Military Manual. (33) The American declaration is less clear on this point, though it should certainly be interpreted in the same way, as confirmed by the United States Military Manual. (34)

    1854 The exact limitations of what is prohibited by international humanitarian law as regards the use of nuclear weapons during armed conflict remains to be determined. This question does not really seem to have ever been resolved.

    1855 In fact, the question of the lawful nature of certain uses of nuclear weapons in wartime was reopened in the Protocol, though its contents were not really modified. It is clear that this is a highly controversial problem. The fact that States did not wish to resolve it in the context of the CDDH is because it has implications [p.594] beyond the scope of international humanitarian law, as clearly stated in the above-mentioned report of the Ad Hoc Committee. However, it was perhaps also because they knew that the problem could not be solved in the short term, and that it would have paralyzed the adoption of the Protocols.

    1856 Thus we are not going to end the debate in the context of the Protocol, but to position it as follows:

    1857-- The existing principles reaffirmed in the Protocol, particularly in Article 35 ' (Basic rules) ' and Article 48 ' (Basic rule) ' do not allow the conclusion that nuclear weapons are prohibited as such by international humanitarian law. Some writers certainly have good arguments for claiming that they are so prohibited, based in particular on the prohibition of poison and poisonous weapons, or even of chemical weapons. However, the other point of view is confirmed by first, the absence of a treaty specifically prohibiting or restricting the use of nuclear weapons, secondly the fact that the development of science makes it possible to create more accurate nuclear weapons with more circumscribed effects, and thirdly, and this final argument is based on the previous two arguments, the ' opinio juris ' of other legal experts, and above all, of governments which possess nuclear weapons. (35)

    1858-- The Protocol does not modify existing law with regard to the use of weapons during an armed conflict, but reaffirms and clarifies such law. Clearly, the hypothesis that States acceding to the Protocol bind themselves without wishing to -- or even without knowing -- with regard to such an important question as the use of nuclear weapons, is not acceptable. The desire not to broach it during the CDDH is a determining factor in this respect.

    1859-- As we saw above, no one could take the view that nuclear weapons are "outside" international humanitarian law, i.e., that armed conflicts carried out with conventional weapons are covered by international humanitarian law, while those using nuclear weapons are not. If the principles reaffirmed in the Protocol do not prohibit the use of nuclear weapons during an armed conflict, they nevertheless severely restrict such use. The following principles and rules should in particular be taken into consideration:

    [p.595]
    - the prohibition "to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering" (Article 35 -- ' Basic rule, ' paragraph 2);
    - the obligation of the Parties to the conflict to "at all times distinguish between the civilian population and combatants" (Article 48 -- ' Basic rule ');
    - the prohibition or "indiscriminate attacks" (Article 51 -- ' Protection of the civilian population, ' paragraph 4) in particular "an attack 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 of civilian objects" (Article 51 -- ' Protection of the civilian population, ' paragraph 5(a)), and "an attack 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" (Article 51 -- ' Protection of the civilian population, ' paragraph 5(b)).

    1860-- Within the scope of these rules, and in particular the principle of proportionality, it is difficult to accurately define the borderline between a use of nuclear weapons which may be lawful and a use which is unlawful: this could only be established by means of negotiations between States aimed at determining the scope and consequences, as regards nuclear weapons, of the principles and rules restated in the Protocols. For that matter, it was only possible to begin establishing such limitations with regard to conventional weapons after a diplomatic conference and the adoption of the Convention on the Prohibition or Restriction of the Use of Certain Conventional Weapons in 1980. (36)

    1861-- This uncertainty which exists regarding the scope of international humanitarian law with respect to the use of nuclear weapons is potentially harmful for such law and consequently all the victims that it aims to protect. This danger is all the greater as a first use of nuclear weapons, considered to be lawful by its user, could be considered as a violation by its victim, and clearly entails the risk of uncontrollable escalation. Therefore States ought to enter negotiations to remove such uncertainty.

    1862-- As emphasized in a passage of the above-mentioned report of the Ad Hoc Committee of the CDDH, "nuclear weapons in particular had a special function in that they act as deterrents preventing the outbreak of a major armed conflict between certain nuclear powers". (37)

    [p.596] This function, currently known as "the nuclear deterrence" is outside the scope of international humanitarian law. Therefore, the problem is not dealt with in the context of this commentary.

    ' C. P./J. P. '


    NOTES

    (1) [(1) p.585] Cf. J. Pictet, ' Development and Principles of International Humanitarian Law, ' Dordrecht-Geneva, 1985, pp. 5-25;

    (2) [(2) p.585] However, Lieber states in Article 24 that in wars with uncivilized peoples, protection of individuals was the exception;

    (3) [(3) p.586] J.K. Bluntschli, ' Das moderne Kriegsrecht der civilisierten Staaten, ' 2nd ed., Nördlingen, 1874; ' Das moderne Völkerrecht der civilisierten Staaten als Rechtsbuch dargestellt, ' 5th ed., Nördlingen, 1878; ' Das Beuterecht im Krieg und das Seebeuterecht insbesondere; eine völkerrechtliche Untersuchung, ' Nördlingen, 1878;

    (4) [(4) p.586] ' The Laws of War on Land, ' Manual published by the Institute of International Law, Oxford session, 1880;

    (5) [(5) p.586] Project of an International Declaration concerning the Laws and Customs of War, 27 August 1874, Brussels Conference of 1874;

    (6) [(6) p.586] Above all, the Convention respecting the Laws and Customs of War on Land (IInd Convention of 1899 and IVth Convention of 1907);

    (7) [(7) p.586] Articles 42-52 of the Regulations annexed to the Hague Convention IV of 1907;

    (8) [(8) p.586] Ibid., Art. 23, para. 1(g), and Arts. 25-28;

    (9) [(9) p.586] See, for example, G. Best, ' Humanity in Warfare, ' London, 1980, pp. 242-244;

    (10) [(10) p.587] Charter of the International Military Tribunal annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed on 8 August 1945 by France, the United Kingdom, the USSR and the United States;

    (11) [(11) p.587] Charter, Article 6, para. b;

    (12) [(12) p.587] Official Records 1949, II, B, pp. 495-509 (draft resolution of the USSR);

    (13) [(13) p.587] Part II (Arts. 13-26): General protection of populations against certain consequences of war;

    (14) [(14) p.587] These principles can be found in particular in the Preamble of the St. Petersburg Declaration to the Effect of Prohibiting the Use of certain Projectiles in Wartime, signed at St. Petersburg, 29 November - 11 December 1868; in Articles 1 and 7 of the Oxford Manual (cf. supra, note 4); in the above-mentioned Articles of the Hague Regulations, supra, note 8;

    (15) [(15) p.587] 1st ed., 1956; 2nd ed., 1958;

    (16) [(16) p.588] 2579 (XXIV); 2673, 2674, 2675, 2676, 2677 (XXV); 2852, 2853, 2854 (XXVI); 3032 (XXVII); 3058, 3112 (XXVIII); 3245, 3318, 3319 (XXIX); 3500 (XXX); 31/19;

    (17) [(17) p.588] "The General Assembly, [...] ' Affirms ' the following basic principles for the protection of civilian populations in armed conflicts, without prejudice to their future elaboration within the framework of progressive development of the international law of armed conflict:
    1. Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict.
    2. In the conduct of military operations during armed conflicts, a distinction must be made at all times between persons actively taking part in the hostilities and civilian populations.
    3. In the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations.
    4. Civilian populations as such should not be the object of military operations.
    5. Dwellings and other installations that are used only by civilian populations should not be the object of military operations.
    6. Places or areas designated for the sole protection of civilians, such as hospital zones or similar refuges, should not be the object of military operations.
    7. Civilian populations, or individual members thereof, should not be the object of reprisals, forcible transfers or other assaults on their integrity.
    8. The provision of international relief to civilian populations is in conformity with the humanitarian principles of the Charter of the United Nations, the Universal Declaration of Human Rights and other international instruments in the field of human rights. The Declaration of Principles for International Humanitarian Relief to the Civilian Population in Disaster Situations, as laid down in resolution XXVI adopted by the twenty-first International Conference of the Red Cross, shall apply in situations of armed conflict, and all parties to a conflict should make every effort to facilitate this application.";

    (18) [(18) p.589] Supra p. 585;

    (19) [(19) p.590] ' Commentary Drafts, ' p. 2;

    (20) [(20) p.591] O.R. V, p. 86, CDDH/SR.9; para. 28; p. 113, CDDH/SR.11, para. 64; p. 115, para. 73; p. 121, CDDH/SR. 12, para. 24; p. 150, CDDH/SR.14, para. 46; p. 179, CDDH/SR.17, para. 36; p. 192, CDDH/SR.18, para. 47;

    (21) [(21) p.591] Ibid. p. 97, CDDH/SR.10, para. 36; p. 103, CDDH/SR.11, para. 13; p. 120, CDDH/SR.12, para. 18; p. 123, para. 32; p. 195, CDDH/SR.19, para. 5; O.R. IX, p. 258, CDDH/I/SR.60, para. 23; O.R. XIV, p. 70, CDDH/III/SR.8, para. 87; pp. 241-242, CDDH/III/SR.26, para. 31;

    (22) [(22) p.591] O.R. V p. 134 CDDH/SR.13 para. 36, and O.R. VII, p. 303, CDDH/SR.58, para. 119; O.R. V, pp. 145-146, CDDH/SR.14, para. 21; O.R. VII, pp. 192-194, CDDH/SR.56, para. 3; p. 295, CDDH/SR.58, para. 82;

    (23) [(23) p.591] The declaration of the United Kingdom reads as follows:
    "[...] The Government of the United Kingdom of Great Britain and Northern Ireland declare that they have signed on the basis of the following understandings:
    [...]
    (i) that the new rules introduced by the Protocol are not intended to have any effect on and do not regulate or prohibit the use of nuclear weapons;
    [...]"
    The declaration of the United States reads as follows:
    "[...] This signature is subject to the following understandings:
    A) Protocol I
    1. t is the understanding of the United States of America that the rules established by this Protocol were not intended to have any effect on and do not regulate or prohibit the use of nuclear weapons. [...]";

    (24) [(24) p.591] O.R. VII, p. 295, CDDH/SR.56, para. 3, sub-para. 3;

    (25) [(25) p.591] O.R. VI p. 115, CDDH/SR.39, Annex;

    (26) [(26) p.592] Cf. commentary Art. 35, para. 3, supra, p. 414, for the relation between that paragraph and the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques of 10 October 1976;

    (27) [(27) p.592] In French the expression "armes conventionnelles", which led to the confusion, was replaced by "armes classiques" in the 1980 Convention;

    (28) [(28) p.592] O.R. V, pp. 82-90, CDDH/SR.9, paras. 12-54;

    (29) [(29) p.592] O.R. XVI, p. 454, CDDH/47/Rev.1, para. 5;

    (30) [(30) p.592] Cf. O.R. V, pp. 219-221, CDDH/SR.21, paras. 1-13;

    (31) [(31) p.592] The definition of ' consensus ' contained in Article 4 of the Rules of Procedure of the Conference on Security and Cooperation in Europe is: "Consensus shall be understood to mean the absence of any objection expressed by a Representative and submitted by him as constituting an obstacle to the taking of the decision in question". Cf. also J. Monnier, "Observations sur quelques tendances récentes en matière de formation de la volonté sur le plan multilatéral", 31 ' ASDI, ' 1975, pp. 31-51;

    (32) [(32) p.593] See supra, note 23;

    (33) [(33) p.593] ' Manual of Military Law, ' 1958, Part III, para. 113: "There is no rule of international law dealing specifically with the use of nuclear weapons. Their use, therefore, is governed by the general principles laid down in this chapter.";

    (34) [(34) p.593] ' The Law of Land Warfare, ' 1956, para. 35: "The use of explosive "atomic weapons", whether by air, sea or land forces, cannot as such be regarded as violative of international law in the absence of any customary rule of international law or international convention restricting their employment". In fact, by using the words "as such", the United States Manual affirms that the use of nuclear weapons by itself does not constitute a violation of international law, but does not exclude the possibility that indiscriminate use could constitute such a violation;

    (35) [(35) p.594] See in particular R.E. Charlier, "Questions juridiques soulevées par l'évolution de la science atomique", 91 Hague Recueil, 1957/I, p. 213; G. Schwarzenberger, ' The Legality of Nuclear Weapons, ' London, 1958; N. Singh, ' Nuclear Weapons and International Law, ' London, 1959; United Nations, General Assembly, "Existing Rules of International Law Concerning the Prohibition or Restriction of Use of Specific Weapons", UN Doc. A/9215, 7 November 1973, vol. I, chapter II; Y. Sandoz, ' Des armes interdites en droit de la guerre, ' op. cit., Chapter IV, pp. 57-74; C. Pilloud, "Les Conventions de Genève de 1949 pour la protection des victimes de la guerre, les Protocoles additionnels de 1977 et les armes nucléaires", 21 GYIL, 1978, p. 169; H. Meyrowitz, "La stratégie nucléaire et le Protocole additionnel I aux Conventions de Genève de 1949", 83 RGDIP 4, 1979, p. 905; United Nations, General Assembly, "A Comprehensive Study of the Origin, Development, and Present Status of the Various Alternatives Proposed for the Prohibition of the Use of Nuclear Weapons", UN Doc. A/AC.187/71, 19 August 1977; GIPRI (Geneva International Peace Research Institute), ' Nuclear Weapons and International Law, ' Actes du colloque préparés par. Z. Mériboute, Turin, 1985;

    (36) [(36) p.595] Convention on the Prohibitions or Restrictions of Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects of 10 October 1980. Three Protocols are annexed to that Convention: Protocol I on Non-Detectable Fragments; Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, and Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons;

    (37) [(37) p.595] Cf. supra, note 29;