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3 - Prohibited weapons

Published online by Cambridge University Press:  05 April 2016

Yoram Dinstein
Affiliation:
Tel-Aviv University
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Summary

The principle of distinction

189. The cardinal principle of distinction between civilians and combatants (see supra 33–4, 112) is the most fundamental pillar of LOIAC. The history of LOIAC to date can be described as a sustained effort to ensure that civilians (not directly participating in hostilities) are protected from the havocs of war. This has significant consequences where the use of weapons is concerned. As the ICJ admonished in the Advisory Opinion on Nuclear Weapons:

States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.

The distinction is actually not only between civilians and combatants, but also between civilian objects and military objectives (see infra 275 et seq.).

190. It is necessary to differentiate between (i) weapons that are employed in specific circumstances contrary to the principle of distinction, e.g., killing combatants and civilians indiscriminately (see infra 391 et seq.); and (ii) weapons that by their very nature or design cannot possibly maintain the distinction in any set of circumstances. The fact that some weapons are used indiscriminately in a particular military engagement does not stain them with an indelible imprint of illegality, since in other operations they may be employed within the framework of LOIAC. The ICJ impugned only those weapons that are intrinsically ‘incapable of distinguishing between civilian and military targets’. Such weapons – often called ‘blind’ – are unlawful per se. Leading examples are long-range missiles with a built-in faulty guidance system, making it impossible to aim them at any specific point. With biological weapons (see infra 251 et seq.), the crux of the matter is that – if unchecked by an antidote – their virulent effect may spread contagious disease far and wide without sparing civilians (or even neutrals).

II. The principle prohibiting unnecessary suffering

A. The formulation of the prohibition

191. The second cardinal principle, prohibiting the infliction of unnecessary suffering, was first enshrined in the Preamble to the 1868 St Petersburg Declaration:

Considering:

That the progress of civilization should have the effect of alleviating as much as possible the calamities of war;

That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy;

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Publisher: Cambridge University Press
Print publication year: 2016

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  • Prohibited weapons
  • Yoram Dinstein, Tel-Aviv University
  • Book: The Conduct of Hostilities under the Law of International Armed Conflict
  • Online publication: 05 April 2016
  • Chapter DOI: https://doi.org/10.1017/CBO9781316389591.005
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  • Prohibited weapons
  • Yoram Dinstein, Tel-Aviv University
  • Book: The Conduct of Hostilities under the Law of International Armed Conflict
  • Online publication: 05 April 2016
  • Chapter DOI: https://doi.org/10.1017/CBO9781316389591.005
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Prohibited weapons
  • Yoram Dinstein, Tel-Aviv University
  • Book: The Conduct of Hostilities under the Law of International Armed Conflict
  • Online publication: 05 April 2016
  • Chapter DOI: https://doi.org/10.1017/CBO9781316389591.005
Available formats
×