Controlling Prohibited Weapons and the Illegal Use of
Permitted Weapons
Jordan J. Paust*
In dealing with issues of disarmament and
weapons regulation, international jurists
should be cautious not to rely on paper pro-
hibitions and the pretense of law. Interna-
tional norms must be demonstrated, the au-
thor argues, by actual patterns of human
expectation and behavior. But questioning
and attempts at redefinition are nevertheless
important in shaping alternatives and de-
veloping a new general consensus for con-
trol. Over the last thirty years, world citizens
have received a great deal of protection
through the development of general laws of
armed conflict. The growing body of treaty
and customary law which governs the legal-
ity and use of so-called “conventional”
weapons may also be relevant in evaluating
the legal status of nuclear weapons and the
legality of their use. The author examines the
international norms which presently outlaw
or regulate the use of certain weapons, and
defines two general modes of weapons reg-
ulation. Present efforts at disarmament and
arms limitation are then examined in the light
of the general methods of regulation. Con-
cluding that general principles, when cou-
pled with effective implementary efforts, are
more effective than specific prohibitions, the
author suggests various methods to encour-
age the development of general criteria for
weapons regulation.
Les juristes internationaux doivent se garder
d’aborderles questions relatives au d6sarme-
ment et au contr61e des armes avec des consi-
d6rations juridiques d’ordr.e technique. Se-
Ion l’auteur, les normes internationales se
d6finissent A m~me les volont6s et comporte-
ments humains existants. La remise en ques-
tion et ]a reformulation des concepts est tou-
tefois n~cessaire pour trouver des alterna-
tives et crier un nouveau consensus au sujet
du probl~me. Les citoyens du monde ont
b6n6fici6 depuis les trente demi~res ann~es
de ]a protection qui r6sulte du d6veloppe-
ment d’un droit des conflits arm6s. Les prin-
cipes du droit des trait6s et du droit coutu-
mier gouvernant la 16galit6 et l’usage des
armes dites “conventionnelles” peuvent ser-
vir de guides pertinents dans l’6valuation du
statut 16gal des armes nucldaires et de leur
utilisation. L’auteur examine les r~gles du
droit international public qui prohibent ou
limitent actuellement l’usage de certaines
armes, et trace deux modes g6n6raux de mai-
trise des armements. Les tentatives de d6sar-
mement et de limitation contemporaines sont
plac6es dans l’optique des m~thodes g6n6-
rales de r6glementation. Concluant que des
principes g6n6raux accompagn6s d’efforts
de mise en oeuvre efficaces sont plus utiles
que des interdictions sp~cifiques, l’auteur
sugg~re diverses m6thodes pour encourager
le d6veloppement de critres g6n6raux du
contr6le des armements.
*Of the School of Law, University of Houston. A.B. 1965, J.D. 1968, U.C.L.A.; LL.M.
1972, University of Virginia; J.S.D. Candidate, Yale Law School.
1983]
CONTROLLING PROHIBITED WEAPONS
Synopsis
Introduction
I.
International Norms Outlawing or Regulating the Use of Certain
Weapons
II. Modes of Regulation and Control
111. Toward More Effective Implementation
Conclusion
Introduction
War, since the dawn of human history, has involved cruelty, suffering
and atrocity. Similarly, weapons developed for the waging of war have too
often been designed or used to produce inhumane death, injury and suffering.
Even legally justifiable weaponry can cause death, suffering and destruction
that concerned individuals find reprehensible and frightening.
It is not that this must always be, or that law cannot condition human
attitudes and behavior to promote more humane forms of social violence and
competitive destruction, but one should consider questions of disarmament
and weapons regulation with measured caution. Law does limit permissible
strategies and means of violence, but printed laws, in particular, are simply
insufficient to assure implementation and protection.
It seems that the legally trained are especially prone to false comfort
prompted by paper prohibitions and the pretense of law as illegality threatens,
or even rages, just far enough away to be ignored. For the victims of war, the
illusion of law can be far more perilous. Just as dangerous can be the
passionate desires of lawyers to change aspiration into law by simply calling it
law, that is, before such a change is demonstrated in actual patterns of human
expectation and behavior.’ It is a tragic irony that the very will to change the
‘On the relationship between law and patterns of human expectation and behavior, see, e.g.,
Paust, The Concept of Norm: Toward a Better Understanding of Content, Authority, and
Constitutional Choice (1980) 53 Temple L.Q. 226, and references cited therein [hereinafter
The Concept of Norm]. On the utility of such ajurisprudential framework for more realistic and
policy-serving inquiry concerning human rights and the law of armed conflict, see, e.g., M.
McDougal, H. Lasswell & L. Chen, Human Rights and World Public Order [:] The Basic
Policies of an International Law of Human Dignity (1980); M. McDougal & F. Feliciano, Law
and Minimum World Public Order [:] The Legal Regulation of International Coercion (1961);
Paust, Human Rights: From Jurisprudential Inquiry to Effective Litigation (1981) 56
N.Y.U.L. Rev. 227, 245-56 [hereinafter Human Rights]. See also, M. McDougal, H.
Lasswell & I. Vlasic, Law and Public Order in Space (1963) 482-502.
McGILL LAW JOURNAL
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law, to make warfare more humane and to assure more adequate human
protection, can contribute to a lulled sense of security and can help to
perpetuate an unregulated process of cruelty, suffering and atrocity.
At the same time, efforts at redefinition, although often unrealistic and
even hazardous, can, at times, be heroic and may produce results. The law of
armed conflict is potentially no more static than any other form of legal
ordering. The choice of content is surely ours, 2 and concerned individuals do
play a useful role in questioning present approaches to legality, in shaping
alternatives, and in formulating new demands, even a new general consensus,
regarding the content of law.3
With regard to the regulation of nuclear weaponry and nuclear disarma-
ment, these concerns are very much to the point. While our cities remain
hostage to a balanced nuclear terror, few should be comforted by paper law
that proscribes the use of weapons poised to annihilate much of human
civilization in less than half an hour. Even less comforting are the efforts of
concerned individuals, however noble, to create such law by proclamation.
What is needed is the formation of a new consensus that can form the basis,
not merely for newly drafted legal documents, but also for an effective
prohibition of the use of strategic nuclear weapons. Paper prohibitions simply
cannot protect us from ourselves, and although well-intentioned declarations
of illegality can help to shape future human attitudes and behavior, a function-
al prohibition is not likely without the formation of a new pattern of commun-
ity expectation, one that is shared generally and that is lasting.
I.
International Norms Outlawing or Regulating the Use of Certain
Weapons
Currently, such a new pattern of community expectation does not exist
with regard to the use of nuclear weaponsper se. As a concerned legal scholar
rightly notes: “At present no treaty explicitly prohibits all use of nuclear
weapons. It is also probably correct to say that, as yet, no rule of customary
international law prohibits all use of nuclear weapons.” 4 He adds, however,
278-87. See also Paust, Human Rights, ibid., 249 regarding the concept of authority.
2See, Paust The Concept of Norm, ibid., 227 and fn. 5, 228 and fn. 7, 256-60, 274-6, and
3See, e.g., McDougal, Lasswell & Reisman, Theories About International Law: Prologue
to a Configurative Jurisprudence (1968) 8 Va J. Int’l L. 188, 189-93; Paust, Response to
Terrorism: A Prologue to Decision Concerning Private Measures of Sanction (1977) 12
Stanford J. Int’l Stud. 79, reprinted in A. Evans & J. Murphy, eds, Legal Aspects of
International Terrorism (1978) 575. See also R. Falk, A Study of Future Worlds (1975).
4 See Feinrider, InternationalLaw asLaw of the Land:Another Constitutional Constraint on
Use of Nuclear Weapons (1982) 7 Nova L. J. 103, 113 (No. 1).
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CONTROLLING PROHIBITED WEAPONS
that “a rule of customary international law outlawing nuclear weapons per se
is currently in the process of being created”,’ and that “a variety of treaties,
evidencing global disapprobation, explicitly outlaw or limit a significant
number of nuclear weapon uses”, including: “deployment or use in Antarc-
tica, Latin America, earth orbit, outer space and on celestial bodies, and
deployment on the seabed beyond the twelve-mile limit of national territorial
seas.” 6
To this list of prohibitions, one should add the neutron warhead, a
weapon system that is recognizably illegal under general principles of cus-
tomary international law.7 But it is significant that most commentators are not
prepared to recognize that all types and uses of nuclear weapons are illegal.8
5Ibid., 115. See also Boyle, Arms Control [: Part 11, Chicago Daily L. Bull. (27 April
1982) 3.
6Feinrider, ibid., 113-4, citing the 1959 Antarctic Treaty, 12 U.S.T. 794, T.I.A.S. 4780,
402 U.N.T.S. 71 (ratified presently by twenty-six states); the 1967 Treatyfor the Prohibition of
Nuclear Weapons in Latin America, 634 U.N.T.S. 281 (ratified presently by twenty-four
states, but not by Argentina or Cuba); the 1967 Treaty on Principles Governing theActivities of
States in the Exploration and Use of Outer Space, including the Moon and Other Celestial
Bodies, 18 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty]
(ratified presently by eighty-one states); and the 1971 Treaty on the Prohibition of the
Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and
the Ocean Floorand in the Subsoil Thereof, 23 U.S.T. 701, T.I.A.S. 7337, reprinted in (1971)
10 I.L.M. 146 [hereinafter Seabed Treaty]. On weapons in outer space, see also Vlasic,
Disarmament Decade, OuterSpace andInternationalLaw (1981) 26 McGill L.J. 135; Zedalis
& Wade, Anti-Satellite Weapons and the Outer Space Treaty of 1967 (1978) 8 Cal. West. Int’l
L.J. 454 and references cited therein; Christol, remarks, (1978) 72 Proc. Am. Soc. Int’l L. 47.
7See Paust, remarks, (1978) 72 Proc. Am. Soc. Int’l L. 39,43-5; cf. Rubin, letter, (1981) 21
Va J. Int’l L. 805, 808 and 811.
8See, e.g., Feinrider, supra, note 4; Cassese, Weapons Causing Unnecessary Suffering:
Are They Prohibited? (1975) 58 Rivista di Diritto Int’l 12, 37 [hereinafter Weapons Causing
Unnecessary Suffering](but see 36 and fn. 61); Moore, remarks, (1983) 9 Brooklyn J. Int’l L.
(forthcoming); Paust, The Nuclear Decision in World War 11 – Truman’s Ending and
Avoidance of War (1974) 8 Int’l Law. 160, 166 and fn. 24 [hereinafter The Nuclear Decision]
(but see 164, fn. 13). See also Cassese, The Contribution ofItaly at the Diplomatic Conference
on the Development of Humanitarian Law of Armed Conflicts (1974-1977) (1977) 3 Italian
Y.B. Int’l L. 217,227. For contrary views, see, e.g., Falk, Meyrowitz & Sanderson, Nuclear
Weapons and International Law (1980)(Occasional Paper No. 10, Princeton World Order
Studies Program), reprinted in (1980) 20 Indian J. Int’l L. 541; Fujita, Reconsidgration de
l’affaire Shimoda -Analyse juridique du bombardement atomique de Hiroshima etNagasaki
(1980) 19 R. de dr. penal mil. et de dr. de la guerre 49; Fried, Law and nuclear war (1982) 38
Bull. Atom. Scientists 67-8 (June-July); Fried, International Law Prohibits the First Use of
Nuclear Weapons (1981-82) 16 Rev. belgededr. int. 33; and Margolick, Law Panel SeesAtom
Arms as Illegal, The New York Times (7 June 1982) B 2. Certain United Nations General
Assembly resolutions also would prohibit the use of nuclear weapons. See, e.g., Declaration
on the Prohibition of the Use of Nuclear and Thermo-nuclear Weapons, United Nations G.A.
Res. 1653, 16 U.N. GAOR, Supp. (No. 17) 4, U.N. Doc. A/5100 (1961); and Declaration on
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Additionally, treaties limiting the use of nuclear weapons are not applicable
where they would be most meaningful. Outside of Latin America, 9 our
earthbound population centers are still unprotected by such treaties; they are
often targeted specifically for thermonuclear destruction, and even if not
targeted, they would suffer from uncontrolled nuclear fallout.
Curiously, our citizens have received more specific protection through
the development of general laws of armed conflict over the last thirty years
than through any particular controls upon nuclear weapons. For this reason, it
is important to examine the treaty law and customary international law
governing the legality and use of so-called “conventional” weapons.
Although the problems of controlling conventional weapons are often thought
to be less pressing, norms developed in that context may have significant
application when examining the legal status of nuclear weapons and the
legality of their use.
Customary international law prohibiting attacks by any weapon system
directly on civilians had lapsed in part from World War I until the 1950s,” but
has been vigorously reconstituted in the last half of the twentieth century as a
fundamental and uniform prohibition. This peremptory norm is evident in
earlier United States military manuals where, for example, it was stated that it
is a “generally recognized rule of international law that civilians must not be
made the object of attack directed exclusively against them”.” Similarly, it
was recognized that a distinction must be made at all times between com-
batants and non-combatants,12 that non-combatants cannot be made the object
of attack, 3 and that such peremptory norms also prohibit the intentional
terrorization of the civilian population or the intentional use of a strategy
which produces terror that is not “incidental” to lawful combat operations. 14
the Non-use of Force in International Relations and Permanent Prohibition of the Use of
Nuclear Weapons, United Nations G.A. Res. 2936, 27 U.N. GAOR, Supp. (No. 30) 5, U.N.
Doe. A/8730 (1972).
9See Treaty for the Prohibition of Nuclear Weapons in Latin America, supra, note 6.
1″See, e.g., Paust, The Nuclear Decision, supra, note 8, 162-3 and 165-9.
“United States Dep’t of the Army, Field Manual 27-10, The Law of Land Warfare (1956),
para. 25 [hereinafter F.M. 27-10].
,2 See, e.g., Paust, MyLai and Vietnam:Norms, Myths andLeader Responsibility (1972) 57
Mil. L. Rev. 99, 139-40, fn. 156 [hereinafter My Lai and Vietnam]; Paust, The Nuclear
Decision, supra, note 8, 162 and fn. 7, 165, and 168-70; and Robblee, The Legitimacy of
Modern Conventional Weaponry (1976) 71 Mil. L. Rev. 95, 102 and fn. 49.
“See, e.g., sources cited ibid.
” See Paust, A Survey of Possible Legal Responses to International Terrorism: Prevention,
Punishment, and Cooperative Action (1975) 5 GaJ. Int’l & Comp. L. 431,441-5. These norms
are peremptory for several reasons. First, no exceptions are permitted. Second, the intensity
and degree of shared expectation over a period of thirty years reaffirm the peremptory nature of
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CONTROLLING PROHIBITED WEAPONS
These customary prohibitions were reaffirmed in the 1960s at two
important Red Cross conferences 15 and in a 1968 United Nations General
Assembly resolution that condemned indiscriminate warfare, prohibited
attacks upon the civilian population, and required that a distinction be made
between combatants and non-combatants. 16 In the 1970s, the 1974-77 Geneva
Diplomatic Conference on Humanitarian Law culminated with the adoption
in 1977 of two Protocols to the Geneva Conventions 17 which set forth in more
detail the protected status of individual non-combatants, the civilian popula-
tion and certain “civilian objects”. For example, both Protocols contain the
following humanitarian protections which must now govern the use of any
strategy of warfare or weapon system:
1. The civilian population and individual civilians shall enjoy general protection against
dangers arising from military operations. To give effect to this protection, the following
rules… shall be observed in all circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the object
of attack. Acts or threats of violence the primary purpose of which is to spread terror
among the civilian population are prohibited.
3. Civilians shall enjoy the protection afforded by this section, unless and for such time
as they take a direct part in hostilities.”8
these norms. See infra, note 18 and accompanying text. Specifically, art. 51 of Protocol I to the
Geneva Conventions, infra, note 17, applies “in all circumstances” (para. 1), “reprisals are
prohibited” (para. 6), and violations by one party do “not release” others (para. 8). Additional-
ly, obligations contained in the Geneva Conventions are owed to humankind, not to a particular
state. See, e.g., Paust & Blaustein, War Crimes Jurisdiction and Due Process: The Bang-
ladesh Experience (1978) 11 Vand. J. Trans. L. 1, 33-4, and sources cited therein.
“See, e.g., Paust, My Lai and Vietnam, supra, note 12, 140.
“See United Nations G.A. Res. 2444, 23 U.N. GAOR, Supp. (No. 18) 50, U.N. Doc.
A/7218 (1968). See also discussion in Paust, ibid, 139.
7The two 1977 Geneva Protocols Additional are found at U.N. Doc. A/32/144, Annexes I
”
& II and are reprinted in (1977) 16 I.L.M. 1391 and 1442.
“Protocol I, ibid., art. 51, paras 1-3; Protocol H, ibid., art. 13, paras 1-3. Somehave noted
that many states are not sure whether these and related prohibitions in Protocol I apply to
nuclear warfare. See Almond, remarks, (1980) 74 Proc. Am. Soc. Int’l L. 196. Some have
argued that they do not. See Kalshoven, remarks, (1980)74 Proc. Am. Soc. Int’l L. 203, fn. 8,
citing United States and United Kingdom Statements of Understanding that “new rules” or
“rules established by” Protocol I are “not intended to have any effect on and do not regulate or
prohibit the use of nuclear weapons”. As noted supra, however, the prohibitions of attack on
civilians as such, and the use of indiscriminate weapons or means of warfare are not “new” or
“established by” Protocol I, but mirror or complement recaptured customary prohibitions. See
supra, notes 10 to 17 and accompanying text as well as infra, notes 19 to 24 and accompanying
text. See also Matheson, remarks, (1978) 72 Proc. Am. Soc. Int’l L. 26, 29; and Delessert,
remarks, (1978) 72 Proc. Am. Soc. Int’l L. 36, 37, who state that the differentiation between
civilians and military personnel is a fundamental distinction, a pillar of humanitarian law which
is reaffirmed throughout the Protocols. Further, the United States has recognized this general
prohibition. See supra, notes 11-3 and accompanying text. It also recognizes that the use of
certain nuclear weapons can violate international law. See supra, note 7.
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Recaptured custom and new treaties have thus merged to provide norms
relevant to the use of weapons. More specifically, civilian starvation as a
“weapon” is strictly prohibited by the Protocols 19 and by relatively recent
customary law.” Protocol I to the Geneva Conventions, applicable in times of
armed conflict of an international nature, 2 also provides a detailed elucidation
of the prohibition against indiscriminate attacks while condemning the em-
ployment of any “method or means of combat which cannot be directed at a
specific military objective” and any method or means “the effects of which
cannot be limited as required.., and consequently… [is] of a nature to strike
military objectives and civilian or civilian objects without distinction”.,2
Protocol I requires additionally that the signators “take all feasible precau-
tions in the choice of means and methods of attack with a view to avoiding,
and in any event to minimizing, incidental loss of civilian life, injury to
a provision that, if adequately
civilians and damage to civilian objects” 3 –
implemented, must affect both the selection and the use of various weapons.
Article 35 of Protocol I also reiterates the customary law of The Hague when
declaring:
1. In any armed conflict, the right of the Parties to the conflict to choose methods or
means of warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and methods of warfare of
a nature to cause superfluous injury or unnecessary suffering.24
These developments were soon followed by the adoption, in 1980, of a
United Nations sponsored Convention on Prohibitions or Restrictions on the
“See Protocol I, ibid., art. 54; Protocol II, ibid., art. 14.
“See, e.g., Paust, remarks, (1975) 69 Proc. Am. Soc. Int’l L. 45-52, 57-8, 60-1 (on the
right to food); Mudge, Starvation as a Means of Warfare (1970) 4 Int’l Law. 228. See also
Aldrich, remarks, (1973) 67 Proc. Am. Soc. Int’l L. 141, 147-8; Blix, remarks, (1973) 67
Proc. Am. Soc. Int’l L. 149, 154.
2tFor guidance concerning this threshold level of armed conflict and other stages of conflict,
plus a discussion of the applicability of relevant legal norms, see, e.g., Paust & Blaustein,
supra, note 14, 10-9 and 38, and sources cited therein. See also J. Bond, The Rules of Riot:
Internal Conflict and the Law of War (1974).
2Protocol I, supra, note 17, art. 51, paras 4-5. See also arts 48, 52-3, 57-8, and 85, para. 3.
13Ibid., art. 57, sub-para. 2(a)(ii). See also arts 48, 51-3, 57, and 85, para. 3.
“Ibid. On this customary set of norms, see, e.g., Paust, Does YourPolice Force Use Illegal
Weapons? A Configurative Approach to Decision Integrating International andDomestic Law,
(1977) 18 Harv. Int’l L.J. 19, 29-37 and sources cited therein [hereinafter Illegal Weapons];
Paust, Weapons Regulation, Military Necessity and Legal Standards: Are Contemporary
Department of Defense “Practices” Inconsistent With Legal Norms? (1974) 4 Den. J. Int’l L.
& Pol. 229 [hereinafter Weapons Regulation]; Cassese, Weapons Causing Unnecessary
Suffering, supra, note 8, 15-7, 23-9 and 40 (a useful, if somewhat pessimistic inquiry into
trends, conditioning factors and alternatives); Blix, remarks, (1978) 72 Proc. Am. Soc. Int’l L.
30, 32-3; and Delessert, supra, note 18, 37.
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CONTROLLING PROHIBITED-WEAPONS
Use of Certain Conventional Weapons Which May’be Deemed to be Exces-
sively Injurious or to Have Indiscriminate Effects.’ The more important
portions of the 1980 Convention are contained in three Protocols, two of
which, at least, must be accepted by signators to the Convention.26 The
Protocols, which mirror or supplement customary prohibitions, are as fol-
lows: (a) Protocol on Non-Detectable Fragments; (b) Protocol on Prohibitions
or Restrictions on the Use of Mines, Booby-Traps and Other Devices; and (c)
Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons. 27
Although the Protocols form the major portion of the Convention, it is
nonetheless significant that the preambular portion, which is as much a part of
the Convention as any other,
reaffirms the customary law of The Hague
which “prohibits .the employment in armed conflicts of weapons, projectiles
and material and methods of warfare of anature to cause superfluous injury or
unnecessary suffering”.29
The Preamble also reaffirms “the general principle of the protection of
the civilian population against the effects of hostilities”, a reaffirmation set
forth more specifically in Protocols II and III of the 1980 Convention. For
example, art. 3, para. 2 of Protocol II declares-that mines, booby-traps or
“other devices” which are covered by the Protocol cannot, in any circum-
stance, be directed, “either in offence, defence or by way of reprisals, against
the civilian population as such or against individual civilians”. Paragraphs 3
and 4 of art. 3, in a manner similar to Protocol I of the Geneva Conventions,30
prohibit the indiscriminate use of mines, booby- traps and related devices 3′
and also require that all “feasible precautions” which are “practicable” under
the circumstances be made “to protect civilians from the effects of such
weapons”.32 Other articles place further restrictions on certain booby-traps,
2U.N. Doe. A/CONF. 95/15 (1980), reprinted in (1980) 19 I.L.M. 1523 [hereinafter
Conventional Weapons Convention] (signed 10 April 1981).
6See ibid., art. 4, para. 3.
* “Ibid., Protocols I-Ill. For further elucidation, see Committee on Armed Conflict, “Report
on the 1980 Convention on Certain Conventional Weapons” in International Law Association,
American Branch, Proceedings and Committee Reports (1982) 58-66 [hereinafter I.L.A.
Report]. The I.L.A. Report included a recommendation, at 66, that the United States ratify the
Convention and accept all three Protocols.
“See Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF. 39/27, 289 (1969),
art. 31(2), reprinted in (1969) 8 I.L.M. 679.
9Conventional Weapons Convention, supra, note 25. See also Protocol II, art. 6, para. 2;
I.L.A. Report, supra, note 27, 58, 60 and 62; and supra, note 24 and accompanying text.
“Supra, note 17. See also supra, notes 22 and 23 and accompanying text; I.L.A. Report,
ibid., 62, quoting the United States Delegation Report.
31 Conventional Weapons Convention, supra, note 25, Protocol I, art. 3, para. 3. See also
“Conventional Weapons Convention, ibid., Protocol II, art. 3, para. 4. See also arts 4-9;
I.L.A. Report, ibid., 62.
I.L.A. Report, ibid., 62-3.
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on “remotely delivered” and on “other than remotely delivered” weapon
systems within the ambit of the Protocol so that the same purposes are
served.33 As if to underscore the general customary law of The Hague, art. 6,
para. 2 of Protocol II recognizes that “[i]t is prohibited in all circumstances to
use any booby-trap which is designed to cause superfluous injury or unneces-
sary suffering”.-
Protocol III reaffirms the general principle of civilian protection by
declaring: “It is prohibited in all circumstances to make the civilian popula-
tion as such, individual civilians or civilian objects the object of attack by
incendiary weapons.” 15 Nevertheless, incendiary weapons can be used, when
necessary for legitimate military purposes, against combatants or military
targets.36 Other provisions in Protocol III delimit further the circumstances in
which incendiary weapons may be used, 37 the primary purpose of such
limitations being the desire to avoid unnecessary “loss of civilian life, injury
to civilians and damage to civilian objects”. 8 Thus, Protocol III has the effect
of reaffirming the general customary prohibition against unnecessary death,
injury and suffering while providing more detailed guidance concerning the
illegal use of incendiary weapons under certain circumstances. 39
It is also useful to note that the 1980 Convention, in Protocol I, does
outlaw specific weapon systems entirely, prohibiting the “use of any weapon
the primary effect of which is to injure by fragments which in the human body
escape detection by x-rays”.0 The prohibition is clearly of a humanitarian
13 Conventional Weapons Convention, ibid., Protocol II, arts 4-6. See also arts 7-9; I.L.A.
Report, ibid., 62-3.
34Conventional Weapons Convention, ibid., Protocol II, art. 6, para. 2. See also supra,
notes 24 and 29. As the U.S. Delegation Report states, this article “reaffirms that the existing
prohibition on weapons causing unnecessary suffering applies to booby-traps”. I.L.A. Report,
ibid., 63.
“Supra, note 25, Protocol III, art. 2, para. 1. See also I.L.A. Report, ibid., 61.
“See, e.g., I.L.A. Report, ibid., 60-1; Robblee, supra, note 12, 128-33; F.M. 27-10,
supra, note 11, para. 36; Aldrich, supra, note 20, 148 and 168; Paust, remarks, (1973) 67 Proc.
Am. Soc. Int’l L., 162-3; Kalshoven, remarks, (1973) 67 Proc. Am. Soc. Int’l L. 160. See also
Matheson, remarks, (1979) 73 Proc. Am. Soc. Int’l L. 157-8; and Matheson, supra, note 18;
The Vietnam
A. Trooboff & A. Goldberg, eds, Law and Responsibility in Warfare –
Experience 156-8, 164-5, 174, and 177; Blix, supra, note 24, 30-1, 34 and 46; Han, remarks,
(1978) 72 Proc. Am. Soc. Int’l L. 49.
“7 Conventional Weapons Convention, supra, note 25, Protocol III, art. 2, paras 2-4. See
also art. 1 and I.L.A. Report, ibid., 61.
“Conventional Weapons Convention, ibid., Protocol III, art. 2, para. 3. See generally
Protocol III, art. 2; I.L.A. Report, ibid., 61.
39SeeI.L.A. Report, ibid., 61. On the more general prohibition of unnecessary death, injury
or suffering, see, e.g., sources cited supra, note 24.
4Supra, note 25, Protocol I. This statement is the entire prohibition contained in the
Protocol.
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CONTROLLING PROHIBITED WEAPONS
nature and is designed to assure that no non-detectable fragments lodge in the
human body because such fragments are nearly impossible to remove without
exploratory surgery that may lead to greater injury and suffering. As a recent
International Law Association report notes: “[Sluch weapons are likely to
complicate or preclude effective medical treatment for no legitimate military
purpose.” 4 ‘ The report adds: “[T]he use of such weapons would clearly cause
unnecessary suffering and would violate the complementary principles of
military necessity and humanity underlying the law of armed conflict.” 42
Both the 1980 Convention I and Protocol I to the Geneva Conventions 44
contain a prohibition against the use of “methods or means of warfare which
are intended, or may be expected, to cause widespread, long-term and severe
damage to the natural environment”. Protocol I to the 1980 Convention
declares further:
It is prohibited to make forests or other kinds of plant cover the object of attack by
incendiary weapons except when such natural elements are used to cover, conceal or
camouflage combatants or other military objectives, or are themselves military
objectives.4
This prohibition and its exceptions clearly grew out of concern about United
States bombing practices in the Vietnam War, but the destruction of “the
natural environment” was not then,” nor is it now, prohibited in all circum-
stances. Perhaps more suspect now, however, would be the use of chemical
defoliants that serve military objectives but nonetheless produce “long-term
and severe damage”. 7 Especially prohibited should be the use of chemical
weapon systems which are known or should be known to produce long-term,
severe human suffering unrelated to military objectives. Here, one has in
mind certain cancer-causing agents, but others may be impermissible under
the general proscription of unnecessary death, injury or suffering. The Soviet
Union, for example, has been accused of using such weapons in its war in
Afghanistan, in particular, chemical weapons that destroy human skin and
produce other forms of unnecessary injury and suffering.”
Suffering, supra, note 8, 12; Matheson, supra, note 36, 157.
4″I.L.A. Report, supra, note 27, 62. See also Cassese, Weapons Causing Unnecessary
421I.L.A. Report, ibid.
43Supra, note 25, Preamble.
“Supra, note 17, art. 35, para. 3.
41Supra, note 25, Protocol II[, art. 2, par. 4.
See, e.g., Paust, My Lai and Vietnam, supra, note 12, 152; Trooboff & Goldberg, supra,
note 36, 158-60, 165-6, 168-9, 177, and 179-80.
41Actually, such destructive consequences may be impermissible, depending upon the
circumstances, under customary prohibitions of unnecessary destruction. See generally F.M.
27-10, supra, note 11, paras 3, 41 and 56; Paust, Weapons Regulation, supra, note 24, 232.
41See, e.g., Weinraub, U.S. Assails Sovietfor Reported Use of Toxin Weapons, The New
York Times (30 November 1982) A 1; Chemical War in Afghanistan, The New York Times (5
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Other treaties exist to ban or regulate gaseous, biological and toxic
weapons,49 some of which will be discussed by other contributors to this
special issue. Treaty and customary law also prohibit the use of poison or
poisoned weapons, 5 as well as explosive or incendiary projectiles weighing
less than 400 grams.’ Customary international law has, moreover, prohibited
the use of irregularly shaped bullets and bullets which expand or flatten easily
in the human body to produce excessive wound injury. 2 A few other weapon
systems are illegal per se under international law, 5 but the regulation of most
weapons continues to take place under general principles of customary law
and certain norms of human rights law.- Such principles include, of course,
the customary law of The Hague mentioned above.5
II. Modes of Regulation and Control
From this brief survey of international law outlawing or regulating the
use of weapons, it is evident that international norms already play a signifi-
December 1982) E 2. These articles also report accusations that the Soviet Union has violated
international law by using poison and poison gas in Afghanistan.
49 See, e.g., Convention on the Prohibition of the Development, Production and Stockpiling
of Bacteriological (Biological) and Toxin Weapons and on their Destruction 26 U.S.T. 583,
T.I.A.S. 8062, reprinted in (1972) 11 I.L.M. 310 [hereinafter Convention on Bacteriological
(Biological) and Toxin Weapons]; Protocol for the Prohibition of the Use in War of Asphyxiat-
ing, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (1925) 94 L.N.T.S.
65, reprinted in (1975) 14 I.L.M. 49. See generally, Moore, Ratification of the Geneva
Protocol on Gas and Bacteriological Warfare: A’Legal and PoliticalAnalysis (1972) 58 Va L.
Rev. 419; United Kingdom, Manual of Military Law (1958), Pt III –
The Laws of War on
Land, 175 [hereinafter U.K. Manual] (items r and s prohibiting use of asphyxiating, poisonous
or other gases, and all analogous liquids, materials or devices, and bacteriological methods of
warfare); The Responsibilities Commission of the Paris Peace Conference, List of War Crimes
(1919), item 26 [hereinafter List of War Crimes].
supra, note 8, 14; Paust, Illegal Weapons, supra, note 24, 32-3.
“OSee, e.g., Robblee, supra, note 12, 98, 100, fn. 94 and 150, fn. 202; F.M. 27-10, supra,
note 11, para. 37. With regard to “poisoned” nuclear weapons, see Paust, The Nuclear
Decision, supra, note 8, 164, fn. 13; Paust, supra, note 7, 44-5.
51See, e.g., Robblee, ibid., 110, fn. 94; Cassese, Weapons Causing Unnecessary Suffering,
512See, e.g., Cassese, ibid., 14, 17 and 21-4; Paust, ibid., 31-7; Robblee, ibid., 104-5, 110
and fn. 94; U.K. Manual, supra, note 49, 175, item g;List ofWar Crimes, supra, note 49, item
27. See also United Nations Conference on Prohibitions or Restrictions of Use of Certain
Conventional Weapons, Resolution on Small-Calibre Weapon Systems, 23 September 1979,
U.N. Doc. A/CONF. 95/15, Appendix E, reprinted in (1980) 19 I.L.M. 1536.
53For limited examples, see, e.g., Cassese, ibid., 14; Paust, ibid., 31-2; Robblee, ibid., 110
and fn. 94. It should be noted here once again that “weapons of mass destruction” (both nuclear
and non-nuclear) are prohibited in outer space or on celestial bodies other than the earth, in the
Antarctic, and their emplacement is not permitted on the seabed, ocean floor or subsoil thereof.
See the treaties cited supra, note 6.
-‘See generally, Paust, ibid., 29-37. Cf. Cassese, ibid., passim.
‘-See supra, notes 24, 29, 34, 38-9, 42 and accompanying text.
1983]
CONTROLLING PROHIBITED WEAPONS
cant role in an ongoing process of arms limitation, especially with regard to
the control and use of certain conventional weapons. There are basically two
types of regulation: (a) the outlawing of specific weapons, weapons charac-
teristics or weapons effects (a so-called per se prohibition applicable in all
circumstances);56 and (b) the prohibition of certain uses of weapons that are
otherwise lawful.57 Obviously, the regulation of general strategies and pro-
hibitions of certain forms of targeting also affect the selection and use of
for example, the prohibi-
certain weapon systems in various circumstances-
tions against attacks on civilians and the use of any weapon system that will
predictably produce indiscriminate or excessive death, injury, suffering, or
destruction.
Each of these forms~of direct or indirect regulation can be based on treaty
or customary law, or, as is often the case, on a combination of the two, as well
as on general principles of law recognized by “civilized” nations. 8 This
necessary interrelation is exemplified by art. 1, para. 2 of Protocol I to the
Geneva Conventions:
In cases not covered by this Protocol or by other international agreements, civilians and
combatants remain under the protection and authority of the principles of international law
derived from established custom, from the principles of humanity and from dictates of
public conscience.5 9
Indeed, in weapons regulation, as in any matter of international or domestic
law, it is necessary to consider all relevant legal policies at stake for a
realistic, comprehensive and policy-serving inquiry to result.10 For example,
as noted above, the regulation of an otherwise legitimate weapon system
should be considered in relation to specific use prohibitions contained in
treaties such as the 1977 Protocols to the Geneva Conventions and the 1980
Convention on Certain Conventional Weapons, more general norms con-
tained in the customary laws of armed conflict and norms which form a part of
human rights law applicable in all circumstances of peace or war.
The interrelationship between such norms of international law and
continuing efforts at disarmament can be seen in relevant disarmament docu-
ments. A 1973 General Assembly resolution recognizes such an interconnec-
tion when noting:
[Tihe widespread use of many weapons and the emergence of new methods of warfare that
may cause unnecessary suffering or are indiscriminate call urgently for efforts by Govern-
‘ 6See, e.g., sources cited supra, note 24.
“See ibid.
“See, e.g., Statute of the International Court of Justice, art. 38(1).
59Supra, note 17. On the similar nature of the Martens Clause in the Hague Convention, see
60See, e.g., sources cited supra, notes 1 and 3.
Paust, Illegal Weapons, supra, note 24, 31. Cf. Kalshoven, supra, note 18, 204.
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ments to seek through possible legal means the prohibition or restriction of the use of such
weapons and of indiscriminate and cruel methods of warfare and, if possible, through
measures of disarmament, the elimination of specific weapons that are especially cruel or
indiscriminate.
6’
In 1978, the Final Document of the United Nations General Assembly First
Special Session on Disarmament 62 also reaffirmed the customary law of The
Hague while calling for more specific prohibitions of conventional weapon
systems that are “excessively injurious, cause unnecessary suffering or have
indiscriminate effects.” 6 The General Assembly noted, in particular, the
forthcoming Conference on Prohibitions or Restrictions of Use of Certain
Conventional Weapons 64 and, as part of the United Nations Programme of
Action, set priorities in disarmament negotiations as follows:
Priorities in disarmament negotiations shall be: nuclear weapons; other weapons of mass
destruction, including chemical weapons; conventional weapons, including any which
may be deemed to be excessively injurious or to have indiscriminate effects; and reduction
of armed forces.6
The 1978 Final Document on Disarmament also noted that the 1972
Convention on Bacteriological (Biological) and Toxin Weapons,6 among
others, had “been important in limiting certain weapons or eliminating them
altogether”, but added: “These partial measures have done little to bring the
world closer to the goal of general and complete disarmament.” 67 For the
future, the Final Document stressed that “an agreement on elimination of all
chemical weapons should be concluded as a matter of high priority” 6 (includ-
ing a prohibition on the development, production and stockpiling of all
chemical weapons); 69 that a convention should eliminate all “radiological”
6 United Nations G.A. Res. 3076, 28 U.N. GOAR, Supp. (No. 30) 15, U.N. Doc. A/9030
(1973). See also Obradovic, Disarmament and the Law of Armed Conflicts – A Thorny
Problem, paper presented at Fifth Round Table on Current Problems of International Human-
itarian Law, San Remo, Italy (6-9 September 1978); Ramcharan, Human Rights, Humanitar-
ian Law and Disarmament – Recent Trends in United Nations Human Rights Organs, paper
presented at Fifth Round Table on Current Problems of International Humanitarian Law, San
Remo, Italy (6-9 September 1978).
2United Nations G.A. Res. S-10/2, 10 (Special) U.N. GAOR, Supp. (No. 4) 3, U.N. Doc.
A/S-10/2 (1978), reprinted in (1978) 17 I.L.M. 1016 [hereinafter Final Document].
‘ibid., para. 23. See also Conventional Weapons Convention, supra, note 25, Preamble
(which recognizes the importance of pursuing every effort which may contribute to disarma-
ment).
“See Final Document, ibid., para. 86.
‘Ibid., para. 45.
‘Supra, note 49.
‘Final Document, supra, note 62, para. 17. See also paras 72-3.
“Ibid., para. 21. See also paras 45 and 75; Obradovic, supra, note 61.
‘See Final Document, ibid., para. 75.
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CONTROLLING PROHIBITED WEAPONS
weapons;” and that the Committee on Disarmament “should keep under
review the need for a further prohibition of military or any other hostile use of
environmental modification techniques”. 71 These developments, should they
occur, would be of undoubted help in limiting needless cruelty and in
protecting, to a limited extent, our natural resources.
When discussion turns to the control of specific weapon systems, it is
apparent that the United States is not interested in the banning of laser
weapons 72 which actually could provide more directed and proportionate
weapons capabilities. Most unfortunately, the United States risks violating
existing international law if it ever uses neutron warheads that are presently
being developed for deployment abroad. 73 The United States is keenly in-
terested, however, in a convention eliminating all chemical weapons. Both
the United States and the Canadian Governments recently submitted reports
to the United Nations voicing their outrage’ over the illegal use of chemical
weapons in Southeast Asia and Afghanistan. 74 As Eugene Rostow, the United
States Representative to the First Committee, stated:
Ending the use of these horrible weapons should be given the highest priority by the
international community. Violations of existing legal constraints have a negative impact
on the entire arms control atmosphere.”
For these reasons, the United States supports the continued efforts of the
United Nations Committee on Disarmament to develop a chemical weapons
7 See ibid., para. 76. On the present illegality of radiation weapons, see Paust, supra, note
7, 44.
7 Final Document, ibid., para. 78. See also Convention on the Prohibition of Military or
Any Other Hostile Use of Environmental Modification Techniques cited in Vlasic, supra, note
6, 140.
nSee I.L.A. Report, supra, note 27, 61 (where the United States Delegation Report notes
that laser weapons are not covered by the 1977 Geneva Protocols Additional). It also seems that
the 1967 Outer Space Treaty, supra, note 6, art. 4, does not prohibit the use of laser weapons in
outer space unless they possess the characteristics of prohibited “weapons of mass destruc-
tion”. See also Matheson, supra, note 18, 47. The use of the “moon and other celestial bodies”,
however, must be “exclusively for peaceful purposes”. See Outer Space Treaty, supra, note 6,
arts 1 and 3. See also Vlasic, ibid., 163-7; and Christol, supra, note 6, 47. The use of lasers
would also seem not to be prohibited by the 1971 Seabed Treaty, supra, note 6, art. 1. Laser
guidance systems can even produce more humane results. See Matheson, supra, note 18, 30;
and Paust, My Lai and Vietnam, supra, note 12, 149.
71 See supra, note 7 and accompanying text.
74See, e.g., sources cited supra, note 48 and infra, note 75.
75 Rostow, Statement to the 37th Session of the United Nations General Assembly in the First
Committee (27 October 1982) 28, U.N. Doc. A/Cl/37/PV. 13. But see Almond, supra, note
18, 199-200 (arguing for chemical reprisal capability); Miles, remarks, (1980) 74 Proc. Am.
Soc. Int’l L. 211; Solf, remarks, (1978) 72 Proc. Am. Soc. Int’l L. 47-8; and Blix, supra, note
24, 48. On the illegality of such reprisals, see Paust, supra, note 7, 48.
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convention with effective verification procedures, including “systematic in-
ternational on-site inspection”.76 Subsequent to the publication of the Cana-
dian and American reports, new evidence of the egregious effects produced
by Soviet-made chemical weapons in Africa has underlined the urgent need
for effective mechanisms to prohibit such weapons and, indeed, all chemical
weapons.”
Yet, are new treaties needed to govern each specific weapon system? I
still think not, 78 although it is evident that specific treaty prohibitions comple-
ment general proscriptions contained in both treaty and customary law. As
noted previously, effective implementation of present law is far more impor-
tant than the drafting of new rules of an ad hoc nature prohibiting specific
types of weapons.79 This conclusion is especially compelling in view of the
fact that specific weapon prohibitions are frequently rendered obsolete by
rapid technological developments, with the result that the effort to ban
specific weapons is often an effort geared to the past, not an effort to serve
human needs and to regulate the battlefields of the future. I After recognizing
the cogency of this argument, Professor Cassese nevertheless rightly has
added the following admonition:
It seems therefore that in order to obviate these shortcomings at least to some extent, the
drawing up of lists of specific weapons whose use is forbidden should go hand in hand
with the elaboration of a general standard “geared to the future” that is to say a principle
capable of covering at least the most blatant cases of inhuman weapons that States are
likely to devise.8′
He also recommended that a “comparison” test be built into the general
principle approach in order to cover new weapons.82
December 1982) A 11. See also sources cited supra, note 48.
76Rostow, ibid., 28.
“See U.S. Raises Issue of Ethiopian Toxic Arms in U.N., The New York Times (9
71See Paust, supra, note 36, 162-4.
‘9See Paust, ibid., 163-4. See also Aldrich, supra, note 20, 143, 146 and 148; Rubin,
remarks, (1973) 67 Proc. Am. Soc. Int’l L. 165; Matheson, supra, note 18, 29; Almond,
supra, note 18, 199. Cf. Kalshoven, supra, note 36, 159-61. But see Blix, supra, note 20, 167;
and Blix, supra, note 24, 34.
‘See Paust, ibid., 163; Cassese, Weapons Causing Unnecessary Suffering, supra, note 8,
39. But see Blix, supra, note 20, 167: “It is no argument that a list of specifically banned
weapons will be obsolete in a few years. As new weapons will be developed, we may revise the
list.”
11 See Cassese, ibid., 39. See also Kalshoven, supra, note 36, 161. For an older example of
the United States quest for general prohibitions and a Russian effort to seek specific prohibi-
tions, see Cassese, ibid., 21-2 (at the 1899 Hague Conference). See also Paust, Illegal
Weapons, supra, note 24, 32-3.
8’2See Cassese, ibid., 41-2. Of course, general principles always have the “comparison”
advantage.
1983]
CONTROLLING PROHIBITED WEAPONS
General principles, coupled with effective implementary efforts, will
often serve better than specific prohibitions to control the development and
use of weapons. Yet, early efforts to control such weapons as burning arrows,
the crossbow, muskets, and projectiles dropped from balloons demonstrate
how futile either approach can be if technological change and new patterns of
social expectation dictate contrary results.8 3 Additionally, as was noted
above, paper prohibitions are far less desirable than the effective implementa-
tion of norms that are based upon patterns of widely-shared legal expectation.
In any event, an important question remains: How might we develop such
patterns of expectation further and, more generally, how might we provide
better implementation of international norms proscribing certain weapons or
uses of weapons?
I.
Toward More Effective Implementation
Obviously, any method for the better implementation of international
law and, more specifically, of human rights law can help. The United Nations
General Assembly has recognized already certain interconnections between
several legal policies at stake (e.g., those relating to peace, security, human
survival, self-determination, economic and social development, the rational
use of finite earth resources), and the need for disarmament and arms limita-
tion. The General Assembly has failed however to perceive adequately the
broader implications of the present state-oriented system and the oppression
of authority, self-determination and human rights perpetuated by far too many
of the elites who, jointly or separately, control much of the weaponry under
consideration.84
In sharp contrast, McDougal, Lasswell and Chen have noted in another
context that, although a focus on interconnected legal policies is generally
apt,
human institutions and practices are, geographically, too state-centered and, functionally,
too tradition-bound to make timely responses and adjustments to the accelerating pace and
dimensions of change generated by the universalization of science and technology and the
. The quality of
ever-increasing global interdependences [of persons everywhere]…
83With regard to such early attempts at prohibition, see, e.g., Paust, My Lai and Vietnam,
supra, note 12, 109-10; Paust, The Nuclear Decision, supra, note 8, 165 and fn. 17; and
Robblee, supra, note 12, 98-100. See generally, Rubin, remarks, (1973) 67 Proc. Am. Soc.
Int’l L. 164-5.
“This lack of perception is evident in the Final Document of the United Nations General
Assembly First Special Session on Disarmament, supra, note 62. Cf. Ramcharan, supra, note
61, 6, citing U.N. Doc. AIAC. 197/84, paras 19-21 (statement of Costa Rica before subcom-
mission).
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transnational interaction has largely been shaped by the pattern of cooperation and
coercion among elites representing states of varying sizes, capabilities and orientations.”
Further, as stated in a previous study,86 these authors allege that the unneces-
sary and inhibiting dominance of state-oriented power processes and of elites
controlling such processes, as well as “a bias in favor of perceiving advan-
tages and disadvantages in terms of the individual nation-state”, have contrib-
uted to “excessive” notions of state sovereignty and power, diverting atten-
tion from important issues of authority, human dignity, common interests,
complexities of various power processes (including the role of individuals and
groups in such processes), and from the design and growth of more useful
constitutive processes.87 If they are even partly correct, the implications of
such a recognition for disarmament and arms limitation could prove to be
profound. A redirected attention could have a significant impact upon the
spiralling tragedy of social violence in an interdependent world. As others,
such as Professor Falk, might suggest, a redirected focus might be our only
hope.
On a more mundane level, there is still much to be done. One can
recognize the need for further agreement on general criteria concerning
prohibited weapon uses and effects, and the need for far greater efforts at
education, both of the general populace and of potential military
combatants.”8 Indeed, certain educational efforts are obligatory for the signa-
tories of many of these conventions,89 and education should prove to be a
valuable part of a general sanction process.10 Still useful as well, is the
15McDougal, Lasswell &Chen, supra, note 1,44. These authors pursue a similar analysis at
118, 183-4 and 369-70. For general background, see McDougal, Lasswell & Chen’s formula-
tion of “The Global Constitutive Process of Authoritative Decision”, commencing at 161, and
the discussions at 179 and 431.
16See Paust, Human Rights, supra, note 1, 248-9.
7See McDougal, Lasswell & Chen, supra, note 1, 44. See also their discussion at xxi,
17-20, 47, 49, 130-2, 181, 438-9, and 443.
11 See generally, the FinalDocument of the United Nations General Assembly First Special
Session on Disarmament, supra, note 62, paras 15 and 99-108 (setting forth the need for and
the various types of implementary responses); Conventional Weapons Convention, supra, note
25, art. 6; Protocol I to the Geneva Conventions, supra, note 17, art. 19.
19See sources cited ibid. On the need for education, see generally, the Symposium on
Coping With International Conflicts (1982) 13 Ga J. Int’l & Comp. L.; Draper, The Imple-
mentation of the Geneva Conventions of 1949 and the Additional Protocols of 1978 (1979) 164
Recueil des cours 9, 23 and 29; Draper, The Ethical and Juridical Status of Constraints in War
(1972) 55 Mil. L. Rev. 169, 183-4; Levie, remarks, (1980) 74 Proc. Am. Soc. Int’l L. 148-9;
Parks, remarks, (1980) 74 Proc. Am. Soc. Int’l L. 149-50; Walker, remarks, (1980) 74 Proc.
Am. Soc. Int’l L. 151; and Paust, An International Structurefor Implementation of the 1949
Geneva Conventions: Needs andFunction Analysis (1974) 1 Yale Stud. World Pub. Ord. 148,
169, 181, 193, 201-2, and 204.
9″See sources cited ibid.; and Paust, supra, note 14, 445-8.
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CONTROLLING PROHIBITED WEAPONS
development by various military organizations of “rules of engagement” and
of training programs designed to aid in education and to assure greater
compliance with relevant rules of international law in actual battle
conditions.9′
A greater effort must also be made to study the wound, effects and
lethality of certain weapon systems and to extract needed information from
private industries in the United States and elsewhere.92 As part of such an
effort, there is a need to share information and to develop national93 and
international 9 testing services that engage in a complete testing of gov-
ernmental weapon systems as well as weapons and ammunition sought to be
marketed by private industries in the country of manufacture or abroad.
Article 36 of Protocol I to the Geneva Conventions actually compels the
creation or continuation of a national testing service by providing:
In the study, development, acquisition or adoption of a new weapon, means or
method of warfare, a High Contracting Party is under an obligation to determine whether
its employment would, in some or all circumstances, be prohibited by this Protocol or by
any other rule of international law applicable to the High Contracting Party.
The last clause of the article is obviously important for integrated studies of
weapon effects and relevant norms of human rights, laws of armed conflict
and other international law. The same Protocol provides further for the
creation of an International Fact-Finding Commission that could prove to be
highly beneficial in promoting the control and humane use of weapons.”
The Protocol also provides for nation state monetary responsibility that
can serve as a useful catalyst for future litigation and, thus, for more direct
involvement of private individuals and groups in the overall regulation of
illegal weapons and the illegal use of weapons.96 Of course, such responsibil-
91 See, e.g., sources cited supra, note 89; Paust, supra, note 36, 162; and Protocol I to the
Geneva Conventions, supra, note 17, art. 82 (use of legal advisors for advice and instruction).
92See Paust, supra, note 7, 41-3; and Paust, Illegal Weapons, supra, note 24, 26 and fn. 24,
23-9, 37, and 54. See also Paust, Dumdum Bullets and “Objective” Scientific Research- The
Need for a Configurative Approach to Decision (1978) 18 Jurimetrics J. 268.
9″See Paust, supra, note 7, 41-2. See also Blix, supra, note 24, 33; Matheson, supra, note
18, 27; Matheson, supra, note 36, 156; and Robblee, supra, note 12, 108.
“See Paust, ibid., 42-3. See also Blix, supra, note 20, 156; Delessert, supra, note 18, 37;
Cassese, Weapons Causing Unnecessary Suffering, supra, note 8, 37; I.L.A. Report, supra,
note 27, 63 (noting the 1979 Conference Resolution calling for further national and internation-
al research); and Paust, supra, note 89, 192-3, 195 and 216.
9″See Protocol I to the Geneva Conventions, supra, note 17, art. 90. See also Kalshoven,
supra, note 18, 147-8; and Paust, supra, note 89, 196-200.
“See Protocol I, ibid., art. 91. See also Paust, supra, note 7, 41 and 45-6; Paust, Human
Rights, supra, note 1,243, fn. 79; and Paust, Litigating Human Rights: A Commentary on the
Comments (1981) 4 Hous. J. Int’l L. 81. See generally, Paust, ibid., 197-200 and 218.
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ity can also lead to governmental suits or claims before the International Court
of Justice, regional human rights courts and domestic courts. State-to-state
claims, resulting in arbitration or commission decisions may also be pressed.
If a foreign government or official violating international law is sued in the
courts of the United States, the otherwise inhibiting doctrines of sovereign
immunity and act of state should provide no defense.”
Additionally, the Geneva Protocol, like so many other humanitarian
treaties and like customary international law, provides for criminal sanctions.
Thus, the use of illegal weapons or ammunition and the illegal use of weapons
in time of armed conflict is a war crime, punishable like any other internation-
al crime.98 To carry out treaty responsibilities concerning such criminal
activity, nation states should also assure that domestic criminal sanctions are
possible under relevant domestic statutes.: Further, all states should create
similar criminal restraints on the use of illegal weapons or ammunition and the
illegal use of weapons in times of relative peace. In some cases, such a
criminal prosecution is already possible under existing domestic legislation
designed to secure civil and human rights 100 and to prevent certain strategies
of terrorism.
More generally, there is an urgent need for all states to prohibit the
manufacture, 0’ sale, exportation, 2 importation, distribution, and use of any
weapons and ammunition that are illegal under international law. As noted in
a previous discussion,
it seems highly desirable for… government[s] to serve both… [their] arms control and
human rights policies by banning the development, sale and use of weapons that are illegal
per se under international law and by suspending the development, sale and use of
weapons of questionable legality until appropriate determinations can be made as to their
legality.
International human rights law also provides for such state responsibility, including the
responsibility to take reasonable corrective actions to avoid serious violations of human rights.
9 See, e.g., Paust, Federal Jurisdiction Over ExtraterritorialActs of Terrorism andNonim-
munity of Foreign Violators oflnternational Law Under the FSIA and the Act of State Doctrine
(1983) 23 Va J. Int’l L. 191; and Paust, Human Rights, supra, note 1, 242-4.
98See, e.g., Protocol I to the Geneva Conventions, supra, note 17, arts 85-7; Paust &
Blaustein, supra, note 14, 20-31; D. Zillman, A. Blaustein, et al., eds, The Military in
American Society – Cases and Materials (1978); and Rubin, remarks, (1980) 74 Proc. Am.
Soc. Int’l L. 192, 194. See generally, Paust, supra, note 7, 43.
54.
“See generally, Paust & Blaustein, ibid., 22-30.
1’See Paust, supra, note 7, 43.
,01 See Robblee, supra, note 12, 118, 148; Paust, Illegal Weapons, supra, note 24, 35-6 and
“2 See Final Document of the United Nations General Assembly First Special Session on
Disarmament, supra, note 62, paras 22, 85 and 88; and Paust, supra, note 7, 3948. On
possible export restraints in the U.S., see Tarr, Human Rights andArms TransferPolicy (1979)
8 Den. J. Int’l L. & Pol. 573.
1983]
CONTROLLING PROHIBITED WEAPONS
Such an approach seems most rational whether or not human rights are at stake in
time of relative peace or in time of armed conflict. Not only can weapons developed and
sold for one context (e.g., war) be used by purchasers in another context (e.g., a domestic
riot or in ordinary police operations), but weapons could be resold or stolen and used in
numerous contexts…
.13
Any government that does not ban the manufacture, sale, exportation, im-
portation, distribution, or use of weapon systems that already violate interna-
tional law is certainly not acting in a responsible manner to control or limit
arms, to serve international law generally or to serve human rights and
eliminate cruel, inhumane and unnecessary death, injury or suffering. As
suggested above, a failure to take reasonable corrective action can also lead to
unwanted lawsuits or international claims,”N and to reproach by the interna-
tional community.
Conclusion
To summarize, there are numerous direct and indirect international legal
prohibitions governing conventional weapon systems or their improper use.
Nonetheless, there is an urgent need for nation states to take additional steps
to assure that illegal weapons will not be used against human beings. A
rational first step in further arms limitation would require each state to ban
domestic manufacture, sale, exportation, importation, distribution, and use
of weapons and ammunition that violate international law. States must also
assure that civil and criminal sanctions for weapons infractions are possible
under their domestic law. Additionally, there is a need for greater sanction
effort through civilian and military educational programs, for further research
into wound injury and related effects of weapons, for the sharing of informa-
tion about weapons effects, and for other implementary measures.
For individuals as well as states, there is a need to participate more
effectively in attempts to end the development and use of illegal weapon
systems. Helpful, of course, will be appropriate efforts to serve peace and to
promote basic human rights for all persons. As proclaimed in the United
Nations Charter,105 we must continue to seek both.
“P3paust, ibid., 41.
‘See supra, notes 97-8 and accompanying text.
10S See the Preamble to the United Nations Charter as well as arts 1, 2, 13, 39, and 55-6.
