Seminar on the Legal Review of New Weapons, Means and Methods of Warfare

1. Opening of the seminar and welcome

2. Some words on the historical background and the “raison d’être” of this Conference.

3. Historical background

3.1 - At the origin, IHL was generally considered as divided into 2 branches:

3.1.1 - What was later called “the Geneva Law”, covering the protection of people at the mercy or in the power of their enemy;

3.1.2 - What was later called “the Hague Law” concerning the humanitarian rules applicable at the conduct of hostilities

 3.2 - But there are interference between these 2 categories of rules and after the massive violation of these rules during the 2nd world war, there was a trend to put them all, through a global revision, in one set of Conventions.

3.3 - The problem of the nuclear weapons was nevertheless an obstacle to the reaffirmation or development of “the Hague Law”, the USA, only possessor of such weapons, refusing to discuss of their possible interdiction and many other States refusing to discuss about those rules without including the interdiction of the nuclear weapons. The “Geneva Law” was nevertheless revised and developed in the four Geneva Conventions adopted in 1949 (in particular through the fourth Conventions concerning the civilians and through the article 3, common to the four Conventions, applicable to the non international armed conflicts).

3.4 - Nuclear weapons remained an obstacle to the revision of the “Hague Law” the followin g years, all nuclear powers refusing to discuss the matter, considering nuclear weapons as an essential element of their defence policy, based on deterrence.

3.5 - The pressure to revise and reaffirm the “Hague law” was nevertheless increasing due to war as the Vietnam one, where massive aerial bombing provoked important civilian casualties, injuries and damages. A compromise was finally found for nuclear weapons. The idea was more or less admitted that all mass destructive weapons (biological, chemical and nuclear) be dealt with in the disarmament framework and not in a humanitarian law conference, the argument being that one could not discuss only of the use of such weapons due to their strategic importance, but also of their fabrication, possession and transfer.

3.6 - This compromise allowed the elaboration and adoption of the Protocols of 1977, additional to the 1949 Geneva Conventions, in which was reaffirmed and developed the “Hague Law”.

3.7 - As for the weapons, there were discussions on the basic principles and rules, as well as, through experts Conferences in Lucerne and Lugano and through an ad hoc Commission of the Diplomatic Conference, on specific conventional weapons. But the Conference finally decided to limit itself to adopt the basic principles and rules, and to send the material collected on specific weapons to another Conference, under the UN auspices.

3.8 - The Diplomatic Conference discussed in addition the eventual introduction of an international mechanism to review new weapons but no agreement could be found on such a mechanism. In the other hand, an article could be introduced on the obligation on the national level to examining the legality of new means or methods or warfare (art. 36 of additional Protocol I).

3.9 - A UN conference on the interdiction and limitation of conventional weapons was then convened and could adopt the 1980 Convention on prohibi tions or restrictions on the use of certain conventional weapons and three Protocols. This Convention has the advantage to have a supple review mechanism and to permit to easily add new Protocols to limit or restrict the use of new weapons. It does function, the Convention and one Protocol having been revised and 2 new Protocols having been introduced through review Conferences in 1995, 1995, 2001 and 2003. 

3.10 - In addition, many states, disappointed by the results obtained through the revision in 1995 of the Protocol II (mines, booby traps and other devices) of the 1980 Convention, decided to convey an ad hoc Conference “on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personal Mines and on their Destruction”, with the perspective to abolish this cruel means of warfare. This Conference, largely supported by the civil society (NGO’s, media, public opinion) was successful. A Convention on this subject was adopted then signed in Oslo in 1997 and is today ratified by more than 150 States. 

4. “Raison d’être” of the Conference

4.1 - The permanent review of the means of warfare is essential: as we know, a great part of the research budget is devoted to military research; and there are anyway very often possible military applications of any scientific discovery. 

4.2 - It is therefore important that States take seriously their duty to determine the legality of the means of warfare at their disposal; which they develop themselves; or which they envisage to acquire.

4.3 - In this perspective, a dialog between States on the implementation of art.36, the mechanism and procedures which exist (or which do not exist) in the different States is deemed very useful in order to exchange experiences and to increase the consciousness of the importance of such procedures and mechanisms and to further develop them.

4.4 - Such dialog bet ween States may also be a starting point on the development on new norms at the international level: it is important for a State which deems a means of warfare to be illegal to share its concern with other States in order to avoid its proliferation and to envisage its international ban.

5. Role of the ICRC

5.1 - The ICRC, active in warfare situations, has been very early preoccupied by the development of very cruel or indiscriminate means of warfare. It sent in particular an appeal to abolish chemical and biological weapons after the Second World War and another one to express its deep concern after the use of nuclear weapons, at the end of the Second World War. The international Red Cross and Red Crescent Movement has also adopted numerous resolutions on the matter and shared its concern with Governments in the International Red Cross and Red Crescent Conferences.

5.2 - The ICRC has in addition a specific mandate, given to it by the Statute of the International Red Cross and Red Crescent Movement, to “work for the understanding and dissemination of knowledge or international humanitarian law applicable in armed conflicts and to prepare any development thereof”.

5.3 - It is in this framework that it tries to give impulsions and to promote dialog and discussions between scientific and governmental experts on delicate humanitarian law issues.

5.4 - More precisely on the subject matter of this seminar – the legal review of new weapons, means and methods of warfare – it is worth mentioning that, among other initiatives, that the ICRC has supported and encouraged since 1996 the the SIrUS (Superfluous Injury or Unnecessary Suffering) project aiming at finding objective criteria, among the medical profession, to define this notion; has already organized a seminar in 2001 on the subject matter of the present seminar; and has established on the beginning of this year the Guide to the legal review of new weapons, means and methods of warfare which you have received and is going to be introduced to you.

5.5 - The ICRC regrets, at this stage, not to have received information from the great majority of States on their review mechanism on means and methods of warfare. Conscious of the importance for States to make a serious effort in this field, the ICRC will continue in the coming years to encourage dialog between States and to help them to fulfil their obligation to establish a review mechanism. It has already planed Conferences in Latin America and in Asia. 

5.6 - The present seminar is part of this global effort.

6. Thanks for coming, for your precious contributions and for your interest in this seminar. Hope for fruitful discussions and dynamic dialog.