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The Conference of government experts on the use of certain conventional weapons, Lucerne, 24 September- 18 October 1974*

  • Frits Kalshoven

In previous volumes of this Yearbook, the present author has put on record a series of events under the common denominator of “reaffirmation and development of international humanitarian law applicable in armed conflict”. The latest event so recorded was the first session of the Diplomatic Conference on humanitarian law, held in Geneva at the beginning of 1974. At this session discussion of the two Draft Additional Protocols to the Geneva Conventions of 12 August 1949 prepared by the International Committee of the Red Cross (or ICRC) was commenced. A second session of this Conference has meanwhile been held, from 3 February to 18 April 1975, and a third session is scheduled to take place from 21 April to 11 June 1976. In view of the considerable amount of work already done at the second session, and assuming that the same constructive spirit which prevailed during this session wil persist during the next, it may confidently be expected that the 1976 session will suffice, at least, to finish the work on the first reading of the Draft Protocols. This will then provide an excellent opportunity to enter into some of the more salient features of the Draft Protocols, in the light of the amendments to them brought in the course of the Diplomatic Conference.

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1. 2 N.Y.I.L. (1971) p. 68; 3 N.Y.I.L. (1972) p. 18; 5 N.Y.I.L. (1974) p. 3.

2. International Committee of the Red Cross, Conference of Government Experts on the Use of Certain Conventional Weapons (Lucerne, 24 September - 18 October 1974), Report, Geneva 1975.

3. Draft Rules for the Protection of the Civilian Population from the Dangers of Indiscriminate Warfare, published by the ICRC in June 1955.

4. Draft Rules, Part II (Rules of application), Section IV (Weapons contrary to the laws of humanity), Article 10 (Unlawful means of causing harm).

5. While in the 1955 version of the Draft Rules the ICRC, believing that governments would not be prepared to agree to a restriction on the use of incendiary bombs, expressed the view that in any ease the indiscriminate use of incendiary weapons would be prohibited by the general rules contained in the Draft (Commentary, pp. 87, 88), in a second version published in 1956 it made express mention of incendiary agents in one breath with chemical, bacteriological and radioactive ones (Article 14). In its Commentary to the second version the ICRC explained that, in view of comments it had received from various experts, it had “thought it desirable to mention incendiary agents in the list of examples in Article 14 and thereby to include in that article those incendiary weapons which, by their nature or in certain circumstances, would constitute devices with uncontrollable effects” (2nd ed. (1958), p. 106).

6. Reprinted as Annex XV to the Report on Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflicts, published by the ICRC in May 1969 and submitted to the twenty-first International Conference of the Red Cross (Istanbul, September 1969).

7. Ibid., p. 058.

8. Doc. D 1055b, p. 12. Meanwhile, the International Conference on Human Rights, held under United Nations auspices in Teheran in 1968, had adopted Res. XXIII entitled “Human Rights in Armed Conflicts”; in this resolution it was noted that “napalm bombing” was among the methods of warfare which “erode human rights and engender counter-brutality”.

9. Report, cited supra n.6, p. 62.

10. Documentation, Vol. I (Introduction), p. 20; second Report of the Secretary-General on Respect of Human Rights in Armed Conflicts, A/8052, paras. 125,126.

11. Documentation, Vol. III (Protection of the Civilian Populations against Dangers of Hostilities), p. 115.

12. Documentation, Vol. VI (Rules Applicable in Guerilla Warfare), p. 48.

13. Documentation, Vol. IV, p. 6.

14. Report on the work of the Conference, para. 477.

15. Ibid., p. 99; doc.CE/Com. III/44, introduced by the experts of Egypt, Mexico, the Netherlands, Sweden and Switzerland.

16. GA Res. 2852 (XXVI) of 20 December 1971, following the suggestion made by the Secretary-General in his second report on “Human Rights in Armed Conflicts”, see supra note 10.

17. Report on the work of the Conference, second session, Vol. I, para. 3.14.

18. Commentary, Part One, p. 97: commentary to Article 47 of Draft Protocol I in its 1972 version.

19. Article 74 of Draft Protocol I in its 1972 version; see also Commentary, Part One, p. 152.

20. Report, Vol I, para. 3.21.

21. Ibid., para. 0.32.

22. Ibid., para. 3.20.

23. Report, Vol. II, p. 57; doc. CE/COM III/C33: proposal submitted by the experts of Egypt, Finland, Mexico, Norway, Sweden, Switzerland and Yugoslavia.

24. The experts of the Netherlands submitted an amendment retaining the element of risk to the civilian population; ibid., doc. CE/COM III/C26.

25. Report, Vol I, para. 3.20.

26. Report, Vol II, p. 115; doc. CE/SPF/2, submitted by the experts of Argentina, Austria, Brazil, Denmark, Egypt, Finland, the Federal Republic of Germany, Iraq, Kuwait, Lebanon, Lybia, Mexico, the Netherlands, Norway, Spain, Sweden, Switzerland, Syria and Yugoslavia.

27. Report, Vol. I, paras. 5.8–5.11.

28. A/8803, of 9 October 1972. Mention should also be made here of two resolutions which the General Assembly adopted in the course of its twenty-seventh session and which, as far as relevant here, “noted with concern” the lack of agreement among government experts, inter alia, over the weapons issue and invited the Secretary-General “to prepare as soon as possible, a survey 6f existing rules of international law concerning the prohibition or restriction of use of specific weapons” (Res. 3032 (XXVII) of 18 December 1972), and welcomed the report of the Secretary-General on napalm and other incendiary weapons and deplored the use of these weapons in all armed conflicts (Res. 2932A (XXVII) of 29 November 1972). The survey requested in Res. 3032 was made by the Secretariat on the basis of preparatory work by Professors R.R. Baxter (U.S.A.) and Igor Blishchenko (U.S.S.R.) and submitted to the General Assembly as document A/9215, Vols. 1 and II, of 7 November 1973.

29. Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects, Report on the Work of Experts, published by the ICRC in 1973.

30. Ibid., p. 71.

31. Ibid., pp. 8, 9.

32. Res. XIV.

33. Virtually coincidentally with the Teheran Conference, the United Nations General Assembly dealt with the question of weapons and in Res. 3076 (XXVIII) of 6 December 1973 took note of the invitation to the ICRC to convene a conference of government experts.

34. Doc. CDDH/IV/4; Summary Records of the Ad Hoc Committee's 7th meeting, para. 40 ff.; Report of the Ad Hoc Committee, Doc. CDDH/47/Rev.1, paras. 52–63.

35. Report (Geneva, 1975), p. 97: Annex 2.

36. Ibid., para. 6.

37. See hereafter, p. 101.

38. 5 N.Y.I.L. (1974), p. 27.

39. Report, para. 3.

40. Para. 285.

41. Para. 283.

42. 5 N.Y.I.L. (1974) p. 28.

43. Many documents were introduced during the Conference. In view of their large number and unequal quality, the Bureau ultimately was forced to decide that none of them would be annexed to the report; instead, Annex 4 provides a list of the documents. Report, para. 15.

44. Para. 16.

45. Para. 23.

46. Para. 19.

47. Paras. 24–27.

48. Paras. 20–22.

49. The nearest come the resolutions adopted by the twentieth International Conference of the Red Cross (Res. XXVIII) and the U.N. General Assembly (Res. 2444 (XXIII) and 2675 (XXV)) expressing the principle 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”.

50. The only examples given by Dr. Blix as a proponent of the other group were gas and bacteria, which do not fall within the category of conventional weapons.

51. Paras. 29–31.

52. Para. 31.

53. Ibid.

54. Ibid.

55. Paras. 33–34.

56. Paras. 35–37.

57. Para. 38.

58. Para. 39.

59. Para. 42.

60. Paras. 11–12.

61. Chapter III, paras. 43–117.

62. Paras. 49–50.

63. Para. 101.

64. Para. 102

65. Para. 103.

66. Para. 104.

67. Para. 105.

68. Paras. 109–111.

69. Paras. 112–114.

70. Para. 111.

71. Para. 112.

72. Chapter IV, paras. 118–154.

73. Paras. 130–144.

74. Para. 145.

75. Paras. 146–154.

76. Chapter V, paras. 155–218.

77. Para. 182.

78. Paras. 212–214.

79. Para. 215.

80. Chapter VI, paras. 219–259.

81. Paras. 248, 254.

82. para. 249.

83. Para. 248.

84. Paras. 248, 254.

85. Paras. 250, 256.

86. Para. 257.

87. Chapter VII, paras. 260–281.

88. Paras. 277, 279.

89. Para. 281.

90. The Declaration renouncing the use, in time of war, of explosive projectiles under 400 grammes weight concludes with a paragraph in which the Parties “reserve to themselves to come hereafter to an understanding whenever a precise proposition shall be drawn up in view of future improvements which science may effect in the armament of troops, in order to maintain the principles which they have established, and to conciliate the necessities of war with the laws of humanity”.

91. Report, para. 278.

92. Para. 147.

93. Doc. CDDH/DT/2.

94. Report, para. 147.

95. Para. 218. The other occasion was in the course of the debate on the follow-up, which is not recorded in the Report.

96. Para. 282.

97. Res. 3255A (XXXIX) of 9 December 1974 took note of the work of the Lucerne Conference, appealed to all Governments to cooperate in the clarification of the issues, and invited the Diplomatic Conference to continue its consideration of the subject; Res. 3255B (XXXIX) of the same date, a Syrian initiative, “condemns the use of napalm and other incendiary weapons in armed conflicts in circumstances where it may affect human beings or may cause damage to the environment and/or natural resources”. The latter is an evident (and, it may be suggested, futile) attempt to prejudge a good number of controversial issues.

98. Report, para. 282.

* © F.Kalshoven, 1975.

** Reader in public international law, University of Leyden; Principal Rapporteur to the Conference; Member of the Board of Editors.

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Netherlands Yearbook of International Law
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