Law and war make poor bedfellows — particularly since the adoption of the Charter of the United Nations — and it is to be hoped that one day the former will prevail definitively over the latter. The United Nations Secretary-General has done the Review the honour of contributing a paper to this special issue devoted to prohibitions or restrictions on the use of certain conventional weapons. (See p. 469). In his message he reminds us that war has not yet been completely subjugated by the law and that every effort remains to be made in that direction. Alas, war — and hence the law of war — are still very topical subjects at the moment.

It is a truism to say that technical progress is not always beneficial to mankind because it also leads to the development of more sophisticated - i.e. more deadly - weapons. Any attempts to prohibit or restrict their use on the basis of international agreements come up against major obstacles. Even if only to ensure their own national security, States try to equip their armies with the most up-to-date weapons and, if possible, ones more sophisticated than those in a potential enemy's arsenal. But using a certain type of weapon cannot be justified if it runs counter to the general principles of law and humanity.

Our remarks do not refer to particularly devastating and indiscriminate weapons such as atomic, bacteriological and chemical weapons; rather it limits itself to conventional weapons. To date, a ban on such weapons has been accepted only for those which, in view of the disparity between their military effectiveness and the degree of superfluous injury and unnecessary suffering they cause, are without any real interest as means of combat (i.e. dum-dum bullets, non-detectable fragments, exploding booby-traps in the form of harmless-looking objects). As regards militarily effective weapons (incendiary devices and mines), we cannot but hope that their use will be confined as far as possible to the actual combatants so as to avoid indiscriminate harm to civilians, civilian objects and the environment.

The author commenced an earlier study of the 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (Conventional Weapons Convention) by quoting the late Sir Hersch Lauterpacht's remark: “If international law is, in some ways, the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law”. He then carried Lauterpacht's statement one stage further to suggest that the vanishing point of the law of war was most likely to be found in the body of law restricting the use of weapons. Shortly after writing these words, the author discovered that a colleague had also used the remarks of Sir Hersch and asserted that the vanishing point of the law of war was the law of air warfare. More recently, the author read a paper by a younger colleague in which Sir Hersch was quoted once again, but this time it was asserted that the vanishing point of the law of war was to be found in the body of law regulating nuclear weapons. The two lessons one might derive from this brief tale are that serious students of the law of war rarely have grandiose expectations for their discipline and that a good quotation is always reusable.

Neither 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, adopted in Geneva on 10 October 1980, nor the Protocols annexed to it specify in their operative parts the principles on which the prohibitions and restrictions rest. Such principles are, however, found in the preamble to the Convention.

Four of the twelve preambular paragraphs are relevant here. They list: the “general principle of the protection of the civilian population against the effects of hostilities”; the principle “that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited”; the ban on “the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering”; and the fact that it is prohibited “to employ methods or means of warfare which are intended, or may be expected, to cause widespread, longterm and severe damage to the natural environment.” The fifth paragraph reiterates the well-known Martens clause, in the formulation accepted for Article 1, paragraph 2, of Additional Protocol I of 1977.

In the Declaration of St. Petersburg of 1868 the signatory States recognized that the object of war is to weaken the enemy's military forces, for which it is sufficient to disable the greatest possible number of men, and that this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men or render their death inevitable.

This principle was repeated in Article 23(e) of the Regulations annexed to The Hague Convention No. IV of 1907 concerning the laws and customs of war on land. That article forbids the employment of arms, projectiles or material calculated to cause unnecessary suffering. The authentic French text of the article referred to “des armes, des projectiles ou des matières propres à causer des maux superflus” whereas the English text of the same article referred to “arms, projectiles or material calculated to cause superfluous injury”.

From the time that man discovered fire and devised ways to use it as a tool for survival and advancement, it also has been employed as a weapon for destruction. Sun Tsu's The Art of War (500 B.C.) refers to incendiary arrows, while Thucydides’ The Peloponnesian War describes a flame weapon used by the Spartans in 42 B.C. Edward Gibbon, in The Decline and Fall of the Roman Empire, ascribes Roman success at Constantinople (1453 A.D.) to “Greek fire,” ignited naptha mixed with pitch and resin and spread upon the surface of the water. Great Britain employed Greek fire almost five centuries later as a defence along its coastlines in anticipation of an invasion in 1940.

In the European wars of the 16th and 17th centuries, armies employed compulsory taxation of the countryside in lieu of looting to finance their activities. A defaulting town would have some of its buildings burned, leading to the tax being referred to as Brandschatzung, “burning money.” This practice became widespread during the Thirty Years war.

Having reached the tenth anniversary of 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, adopted on 10 October 1980 (hereinafter referred to as the 1980 Convention), we can measure the progress brought about by the treaty within the limits which the law sets for the suffering caused by war. Paradoxically, however, we are witnessing an increasing number of situations which, in form at least, fall outside the scope of application of the 1980 Convention, namely non-international armed conflicts.

Yet international humanitarian law on methods and means of combat includes general rules applicable to all armed conflict, and hence to non-international armed conflicts too. The provisions of the 1980 Convention are an application of those general rules to the means of combat which the treaty is intended to regulate. The question thus arises whether some of the rules of conduct laid down in the 1980 Convention are applicable to all armed conflicts, whether international or non-international. In the present study, we shall attempt to reply at least to some extent to that question.

Article 36 of Additional Protocol I of 1977 states that:

“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 provision is not new law, but codifies the customary law duty of implementing a treaty or customary rule in good faith. Article 36 does, however, draw attention to the fact that new developments in weapons are quietly going on, and that care must be taken, before their deployment, that their use in some or all circumstances does not violate international humanitarian law. Although the duty to determine in advance the legality of the use of new weapons lies with the State developing them, other States have a legal interest in ensuring that this is done.