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ICRC involvement in banning or restricting the use of certain weapons

09-02-2000 by Yves Sandoz

ICRC delegation to the 17th annual seminar for diplomats on international humanitarian law, United Nations and New York University School of Law. Presentation by Yves Sandoz, former Director for International Law and Communication.

The theme of this year's seminar places us squarely before a dilemma that has beset international humanitarian law (IHL) and the International Committee of the Red Cross (ICRC) since their inception: How far can we go in placing restrictions on means of warfare without straying into another philosophy, that is, the prohibition of war and hence the promotion of peace? Of course, these two lines of actions are complementary, but they are different. The rules applicable in armed conflict recognize the existence of means of warfare as a point of departure and, therefore, in no way set out to prevent the conduct of hostilities.

At the outset, modern IHL made no attempt to place restrictions on means of warfare: The original Geneva Convention of 1864 aimed only to protect the wounded on the battlefield by granting neutral status to medical services. But it was already in 1868 that the first Convention imposing limitation to the conduct of hostilities was adopted, the " Declaration of St Petersburg to the effect of prohibiting the use of certain projectiles in wartime " and that were drafted, in the preamble of this Declaration, two basic principles on this subject: First, that " the only legitimate [objective ] which States should endeavour to accomplish during war is to weaken the military forces of the enemy " , and second, that, " this [objective ] would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable " .

These principles contain two elements which remain fundamental to the relationsh ip between weapons and IHL. The first is that this law deals with the use of   weapons, and thus does not go into the matter of disarmament and all the complex issues relating to arms manufacture and trade. The second is that the prohibition is defined in terms of the objective of war , which is to weaken the enemy's military forces; so it bans what is not necessary to achieve that goal, or in other words what is superfluous. Hence the expressions " superfluous injury " and " unnecessary suffering " , which sound rather strange to the layman.

This reasoning and these concepts remain valid, but have been broadened and are today giving rise to problems of interpretation.

As fighting is having ever more severe effects on civilians, and with the emergence of weapons of mass destruction, it became vital to draw up clear rules banning the use of weapons or methods of warfare having indiscriminate effects . The ravages caused by chemical weapons during the First World War raised awareness in this regard but the debate was naturally revived after the Second World War, which saw the use not only of indiscriminate methods of warfare such as the blanket bombing of cities but also of a new weapon of mass destruction, the atom bomb.

Two pressing issues which were raised at the time have still not been satisfactorily resolved.

The first is to determine the proper framework for discussion of the issue. When IHL was being reviewed and redrafted in the four Geneva Conventions of 12 August 1949, serious consideration of an entire section of the law, that relating to the conduct of hostilities, had to be abandoned because of failure to agree on the question of nuclear weapo ns. Later ICRC proposals came up against the same obstacle, for the nuclear powers did not want to give up the military and political advantage gained by possession of nuclear arms.

There were only two ways out of the dilemma created by the intransigence of the nuclear powers. One was to exclude nuclear weapons and other weapons of mass destruction from the discussion on the conduct of hostilities; the other was to give up clarifying and developing the entire section of humanitarian law governing the conduct of hostilities. The ICRC opted for the first. In view of the pressing need to clarify the rules relating to aerial bombardment, cruelly highlighted by conflicts such as the Viet Nam War, the ICRC resolved to prepare drafts for protocols additional to the 1949 Geneva Conventions without broaching the issue of nuclear arms and other weapons of mass destruction.

Quite a heated debate nevertheless ensued at the 1974-1977 Diplomatic Conference. The issue of nuclear weapons in particular fuelled the discussions. In its report, the ad hoc Committee set up by the Conference noted that certain delegations had felt it was unjustified not to consider weapons of mass destruction. It also noted, however, that many other delegations had agreed to limit the proceedings of the Conference to conventional weapons, underlining that " 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 " .

The absence of any specific reference to weapons of mass destruction does not, however, place such weapons above the rules. The principles and rules restated and developed in Additional Protocol I of 1977 also apply to weapons of mass destruction. But, as is the case for all weapons, these principles and rules have to be supplemented by more precise instruments in order to clarify and take into account all their implications for the us e of a specific weapon. While negotiations have been conducted and brought to a successful conclusion in respect to biological and chemical weapons, the same cannot be said for nuclear weapons. The Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons was certainly a step forward in elucidating the issue, but fell short of resolving it. Far from closing the debate, it gives States, and more particularly the nuclear Powers, a further reason to begin talks with a view to drawing up a convention setting out clear rules.

Of course, the examination of prohibitions and restrictions relating to nuclear and other mass destruction weapons cannot be limited to the sole issue of their use in wartime. Whether we are talking about nuclear or chemical weapons, their strategic importance, the role they play in regional and international security, and the fact that they are produced using components which can also be used for civilian purposes, all these aspects imply negotiations which also cover production, transfer and monitoring and require very sophisticated and complicated mechanisms, as demonstrated by the system which has been adopted for monitoring chemical weapons.

In the context of IHL, the aim should logically be a total and unambiguous ban on the use of nuclear weapons, as for any other weapons of mass destruction, but the ICRC does not challenge the fact that the negotiation should take place in the disarmament framework. However, it urges States to undertake this negotiation, because the remaining ambiguity on the use of nuclear weapons undermines the credibility of the whole part of IHL concerning the conduct of hostilities. The reluctance of nuclear Powers to discuss that question was understandable by the fear to weakening the credibility of their defence policy, based on the " balance of terror " , and the fact that the deterrent effects of those weapons had de facto prevented a general conflagration. But this argument loses its credibility nowadays with the proliferation of nuclear weapons, which on the contrary is becoming a factor of world-wide insecurity.

A second sensitive matter which has been raised recently, notably in relation to the NATO operation in Kosovo, is that of the definition of a military objective . This concept is based on the reasoning which draws a clear distinction between armed hostilities and the political settlement of a conflict. The military make war when politicians feel that there is no other way to settle a dispute, and then, depending on the success or failure of the military operation, the politicians give the final touch. In this scenario, which is the one provided for in humanitarian law, the military phase is relatively independent from the political phase.

This independence is expressed in particular in the definition of the principle of proportionality, which weighs the " concrete and direct " military advantage anticipated from an operation against the incidental loss or damage that the attack may be expected to cause among civilians or to civilian property. The separation of political from military action was reaffirmed in the ICRC's Commentary on the Additional Protocols of 1977 and, more recently, in the German military manual, which declares in particular that " attacks having purely political objectives, such as demonstrating military power or intimidating the political leaders of the adversary " are prohibited.

Without presuming to make any value judgement about the NATO operation in Kosovo, we have to acknowledge that this separation between military and political action was not obvious. Therefore there is an urgent need to resume the dialogue on these matters with the military, so as to arrive at a generally accepted clarification of the concepts in que stion by means of practical examples. This dialogue also has to be conducted at the political level, for this type of action is not included among the scenarios envisaged by IHL, insofar as military operations seem to be constantly dictated by the pursuit of political objectives. Such discussions have a clear link with the interdiction of certain weapons, because a too broad definition of the military objective and of the principle of proportionality might change views on the legality of certain methods of warfare, including he use of certain weapons.

That being said, I wish now to speak on what has been the main focus of ICRC in the recent years, the problem of conventional weapons , that is, the weapons being used on the ground in countless conflicts. Without describing what has been undertaken and achieved, I would like to share with you what I consider six lessons to be drawn from recent experiences.

The first is that the obligation incumbent on every individual State to examine the lawfulness of new weapons is only effective if it forms part of a dialogue with other States , at least on the regional level. Obviously in most cases a State will not decide to renounce use of a weapon without certain assurances concerning the attitude of other States, especially its neighbours, which could constitute a threat to its security. So studies and conclusions in this area have to be shared. Ideally, this dialogue should be developped on a global scale , in order to be embodied in treaty rules. The 1980 Convention on Conventional Weapons is an appropriate instrument for this purpose, since it allows for periodic revision and for the possibility of adding further protocols to the basic Convention.

The second lesson is the importance of taking initiatives to pre pare for the work that States have to carry out. Without undue modesty, I think I can say that the expert meetings organized by the ICRC in the areas of mines and blinding laser weapons were decisive for the successful outcome of the diplomatic proceedings that ensued.

The third concerns the way in which treaties are adopted . The humanitarian law treaties which, for obvious reasons, must be universal in scope, have traditionally been adopted at Conferences open to all States and by patiently seeking consensus. The Ottawa Convention banning anti-personnel mines and the process that led to its adoption showed that there is another way: Instead of seeking to achieve universality at all costs from the outset, a number of States can come together in pursuit of a common objective. This makes far easier negotiations and clearer texts. Nevertheless, there must obviously be a critical mass of States defending the ideas in question and the risk of fragmentation if a multitude of treaty initiatives were to be taken without regard to the views of States representing a large part of the world should not be underestimated. But all this merits being considered with an open mind and without any dogmatic attitudes.

The fourth lesson is the need to have simple and clear rules relating to weapons. In fact we should seriously consider whether it is worthwhile drawing up rules which are not aimed purely and simply at banning the use of a given weapon. An absolute ban on use of the weapon, even in reprisal, is obviously much easier to supervise, and logically may also include manufacture and sale of the weapon, so that the problem of monitoring can be addressed more systematically and at the source. On the other hand, it is very difficult to control the proper use of a weapon which is not totally forbidden. We must be aware, however, that this raises the question of the demarcation line b etween disarmament and IHL even for conventional weapons.

The fifth lesson is linked to the fourth. Once a ban has been imposed on the use and even the production of a given weapon, there is no room for any exception whatsoever and the weapon will be prohibited also in internal conflicts . But in the framework of the 1980 CCW, the scope was still kept only on international conflicts, by fear of any steps which could undermine the national sovereignty. The appreciable change in this regard observed at the time of the revision of the 1980 Convention and the adoption of the Ottawa treaty is a welcome development

The sixth factor is the growing influence exerted by civil society on political decisions, including those relating to weapons. This influence played a key role in the prohibition of anti-personnel mines. Only time will tell whether there will be a mobilization of similar magnitude for other weapons.

As for the ICRC its main functions in this regard have consisted in encouraging and helping States to implement, on the national level, the treaty provisions setting out the principles on which prohibitions and restrictions on weapons must be based, and above all to take part in the drafting of the relevant international rules. The ICRC performs the first of these functions through its Advisory Service, which has legal specialists posted in delegations in various countries, and the second by organizing preparatory meetings of experts so as to be in a position to provide governments with the technical, legal and scientific material they need to make their decisions. Together with National Societies of the Red Cross or Red Crescent, it also played an important role in the mobilization for the total ban of antipersonnel mines.

In addition, on the basis of a survey carried out among medical associations, ICRC s ought to more thoroughly examine the concept of unnecessary suffering which, along with indiscriminate effects, remains the key criterion for determining the lawfulness of use of a weapon. This study, which has then been submitted for comments to legal specialists and diplomats, is being pursued and its results may be submitted to the next Review Conference of the 1980 Convention.

Finally, the ICRC's role as a witness in conflict situations has prompted it to tackle another aspect of the weapons issue, that of arms proliferation . This admittedly does not directly concern the lawfulness or otherwise of a weapon. But the sheer number of traditional weapons, such as guns, in circulation is in itself a factor of instability and poses a threat to human rights and, in time of conflict, to IHL. The ICRC therefore decided to alert the international community. It was mandated in 1995 by the 26th International Conference of the Red Cross and Red Crescent to conduct a study on " Arms Availability and the Situation of Civilians in Armed Conflict " , which was presented to the 27th Conference last year. It is now primarily up to States to address this particularly sensitive issue.

To sum up, the role played by the ICRC in efforts to prohibit or restrict the use of certain weapons is significant and wide-ranging. It touches what is undoubtedly the most delicate part of international humanitarian law and requires an in depth expertise in IHL and a good sensitivity on the international mechanism. But the credibility of such a role comes also, and above all, from the fact that the requirements of ICRC are based on the reality in the field and that its voice, therefore, is also a relay for the victims of war.

Ref. LG 2000-026-ENG