Post No.: 0710
The means and methods of warfare mustn’t cause superfluous injury or unnecessary suffering to combatants. The ‘means’ commonly refer to weapons. The ‘methods’ commonly refer to strategies and tactics.
Along with this general principle, there are some treaties that include specific prohibitions or regulations of weapons, like poisons or cluster munitions. The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects includes several protocols that prohibit or regulate the use of weapons where the primary effects are to injure via fragments that escape detection by X-rays; landmines and booby traps; incendiary weapons; blinding laser weapons; and the requirement to clear unexploded explosive remnants of war. There are also conventions pertaining to the development, production and stockpiling of biological or chemical weapons; and pertaining to nuclear weapons (e.g. the Treaty on the Prohibition of Nuclear Weapons – unsurprisingly, no ‘nuclear weapon States’ have signed or ratified this treaty).
Most IHL rules are designed to protect those who don’t or no longer take part in the hostilities – but the aforementioned general, and cardinal, principle aims to protect those who take part in the hostilities. It’s difficult to define, quantify and translate into concrete guidance however because it attempts to balance reducing human suffering with military goals; although ‘superfluous’ and ‘unnecessary’ are precisely relative to the military advantages sought.
The purpose of war isn’t to kill the adversary per se but to put them out of action, hence it’s been argued that weapons that invariably kill must therefore always cause superfluous physical injury or unnecessary psychological suffering. (It’d be nice to have weapons like the I.C.E.R.s in the Marvel Cinematic Universe but alas we don’t.) Others argue that weapons must be assessed on a case-by-case basis, either according to their specific use or their inherent nature/design. Broadly speaking, wounds from conventional weapons can be treated with conventional medicine and surgery i.e. nothing that causes a specific disease, an ‘abnormal’ physiological or psychological state, permanent disability or disfigurement. When the foreseeable effect of a weapon is burning, blinding, infectious disease, poisoning, permanent disability or inevitable death then that weapon should be banned. But for other scholars, even the threat or use of nuclear weapons might be considered proportional in an extreme circumstance of self-defence – when the very survival of a State is at stake.
There’s also a general prohibition of weapons that have an indiscriminate effect. This aims to protect mainly civilians, and supports the principle of distinction. An example of such a ‘blind weapon’ would be long-range missiles that don’t have an internal guidance system. But again, should weapons be assessed according to their specific use or their inherent nature/design? Most (if not all) weapons will actually produce indiscriminate effects if used without making any distinction between combatants and civilians. Yet perhaps a low-yield, guided nuclear weapon is fine to use against warships on the high seas or against troops in sparsely populated areas? However – would guided tactical nuclear weapons make the use of such weaponry more widespread under the justification of ‘they can be precisely guided and a smaller warhead is proportional’? And even if used in places where there are few civilians, they’ll still have foreseeable lasting effects on the natural environment.
There’s a debate concerning whether these general principles are only guiding principles for weapons that aren’t already prohibited under a specific treaty or customary law? Could new kinds of as-yet-invented weapons technologies be automatically deemed unlawful if they fail to comply with these principles? Only a few States have currently established a specific procedure for reviewing new means and methods of warfare according to their potential excessive or indiscriminate effects.
The development of new means and methods of killing one another has always presented new challenges for IHL (e.g. advances in robotics and thus lethal autonomous weapons systems, telecommunications and thus cyberwarfare). There’s currently an arms race in AI weapons like loitering munitions, drone swarms and more. Drones have now been deployed in many theatres of war but they raise concerns regarding the geographical scope of the law of armed conflict. Automated and autonomous weapons systems pose concerns regarding targeting and distinction.
According to British military manuals, automated weapons systems are constrained by algorithms that determine their responses by imposing rules of engagement (ROE) and by setting mission parameters that limit their ability to act independently. Fully autonomous systems are able to interpret their environment and decide from a range of possible means of attack with little or no human input. As usual, the principles of distinction, proportionality and precaution must always be met – but since these assessments are complex, it doesn’t seem like fully autonomous systems will be able to demonstrate that they can operate within the margin of discretion afforded to human combatants under IHL any time soon.
Modern telecommunications are extremely convenient for our daily lives but are constantly vulnerable to cyber attack (e.g. on hospitals, utilities, financial systems, transport controls such as traffic lights and rail connections, military hardware). A question is – if a cyber attack causes no physical damage then would it count as an ‘attack’ for the purposes of IHL (e.g. if a stock exchange was targeted or private data was stolen and disseminated)? According to the Tallinn Manual, it would count provided that, by use or design, an attack is capable of causing either injury to, or the death of, persons, or damage to, or the destruction of, objects (which includes IT systems).
Cyber attacks can have many orders of, and many unintended and far-reaching, effects. The Stuxnet (Operation Olympic Games) computer worm, widely understood to have been created by the USA and Israel to disrupt the Iranian nuclear program, ended up infecting a huge range of devices globally. The lesson learnt is that it’s difficult for cyberweapons that involve malware to lawfully comply with the principles of distinction and proportionality.
So the USA may criticise other nations when it comes to malicious international activities in cyberspace, like when it comes to damaging the physical infrastructures of foreign States during peacetime, yet is often the first to commit such acts. There’s also the evidence presented by Edward Snowden (whether you see him as hero or villain) and other whistleblowers about the extent of US (and ‘Five Eyes’) espionage – even against America’s own allies. The country has so far in history interfered in foreign elections the most – including interrupting democratic elections to install dictators who suited US interests during the Cold War. Neoconservative foreign policies have led to bloody and costly conflicts in foreign lands. US arms trade has led to weapons being used to prolong many bloody conflicts around the globe, in order to serve US interests, arguably including oil. And of course the USA is the only country to have used nuclear weapons in anger so far. There are infamous IHL cases where the USA has gotten away with illegal acts without punishment – suggesting, pejoratively, that ‘might makes right’, which is a common talking point in international law. The point isn’t that the USA is reprehensible but that no country is righteous!
‘Perfidy’ and other particular acts of deception are prohibited under IHL. Is deception clever or dishonourable? Well the purpose of this prohibition is that respect for IHL is only possible if belligerents can trust their adversaries when they rely on the protection afforded by that law. Examples of fuzzy perfidy include feigning surrender but then fighting on, feigning being wounded or sick and then attacking by surprise, or pretending to be a civilian or person with non-combatant or protected status (including disguising oneself in the uniform of a neutral party) and then attacking. Pretending to be dead but not attacking once the enemy’s back is turned, or wearing the uniform of a neutral State to avoid being targeted by the enemy but not attacking whilst wearing it, is okay though. The central element of perfidy is the deliberate claim to legal protection (e.g. as a civilian or person hors de combat) for hostile purposes – in particular if it leads to killing, injuring or capturing the enemy.
‘Ruses of war’ like the use of camouflage, decoys, mock operations and misinformation to fool the enemy into acting recklessly without pretending to be someone who’s claiming protection from being targeted under IHL are okay. Examples of lawful methods of war therefore include Trojan horses, inflatable decoys, simulating the noise of an advancing column, faking one’s presence in one place in order to lead the adversary there and then taking them by surprise, circulating misleading messages, or simulating attacks.
The improper use of recognised emblems (e.g. the Red Cross, Red Crescent or Red Crystal, the Blue Shield for cultural properties) is prohibited regardless of the consequences. It’s also prohibited to make use of the flags, military insignia or uniforms of adversaries whilst engaging in attacks or to shield, favour, protect or impede military operations. Some ambiguous scenarios include whether raising a white flag/flag of truce for the sole purpose of delaying an attack is legal?
The prohibitions of perfidy and the restricted use of certain emblems are considered as part of customary law; albeit the part about using deception to capture (rather than kill or injure) the enemy is debated.
During times of war, many States consider espionage permissible because it’s a common practice. But spies and saboteurs are usually dressed in disguise when they directly participate in the hostilities thus are regarded as unlawful combatants who aren’t entitled to POW status if captured (although they should nevertheless be treated with humanity when detained). However, if a secret squirrel spy rejoins his/her own military and is then captured as a lawful combatant, he/she cannot be punished for any previous acts of espionage and will have POW status. Anyone, like an escaping prisoner, who wears a disguise won’t be treated as a spy though unless they engage in military operations whilst disguised.
We’ve already learnt that causing the civilian population to starve is a prohibited method of warfare – see Post No.: 0700. This is a well-established and general principle in IHL. This risk especially arises in conflicts that involve siege warfare or naval blockades, where enemy supply channels are cut off in order to hasten their surrender. This strategy is okay if the besieged area only includes military personnel but not if it includes a civilian population. In the latter case, the belligerents could agree to evacuate all civilians first or allow the free passage of foodstuffs and other essential supplies into the area – but the problems are matters of logistics and trust because the besiegers mightn’t trust that only non-combatants will leave or that only civilians will benefit from those supplies.
Humanitarian relief is generally dependent upon the consent of the State where the population in distress is located. Therefore a State may refuse to accept proposed relief schemes from foreign States or from impartial humanitarian organisations. This is except in belligerent occupations where the occupied population is inadequately supplied with every kind of essential (e.g. food, medical supplies, clothes, and maybe bedding, shelter and objects necessary for religious worship).
Another exception is when the humanitarian relief is for specific persons like children, pregnant women and other vulnerable people. Some argue that the refusal to otherwise accept aid can never be arbitrary though – besides, States have given advance consent to the ICRC for it to offer its services to any party to a conflict. Human rights law may also have a say too. Woof!
A concerned State may retain control over the relief to verify that the aid is only going to be distributed to the civilian population and not the armed forces/group of the adversary. Relief personnel are subject to the domestic laws of the local State and must take into account local security requirements.
Humanitarian aid workers aren’t naïve idealists – they perform a vital function in war-torn places.