Abstract
As part of the second stage of the HAC analytical process, this chapter will explore the constraints imposed upon States regarding the use of ICA weapons, RCAs and related means of delivery, as a result of their obligations under international humanitarian law (IHL), the body of law that applies during situations of armed conflict with the aim of protecting civilians and others who are no longer participating in hostilities, and regulating the conduct of such hostilities. Amongst its provisions are those regulating the means of conflict (including the weapons employed) and also the methods of warfare (how such weapons are employed). IHL is comprised of two elements, the first being IHL treaty law. This is binding only on those States that are party to the specific agreements. Furthermore, a treaty is only binding on a State if it has ratified it. Mere signature, indicating a future intent to be bound, is not sufficient, but a State that has signed a treaty is not free to undermine its objects and purposes.1 In addition to the weapons-specific agreements prohibiting development, possession or use of chemical and biological weapons (i.e. BTWC, CWC and the Geneva Protocol), there are a number of generally applicable IHL treaties — dealing more broadly with the conduct of armed conflict — that are of potential relevance to ICA weapons and RCAs and related means of delivery, particularly the four Geneva Conventions of 1949,2 and two of their three Additional Protocols.3
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Notes
UN, Vienna Convention on the Law of Treaties, 1969, Article 18. For further discussion see Hampson, F. International law and the Regulation of Weapons, in Pearson, A., Chevrier, M. and Wheelis, M. (eds), Incapacitating Biochemical Weapons, Lexington Books, Lanham, MD, 2007, pp. 231–260.
Henckaerts, J. M. and Doswald-Beck, L. (eds), Customary International Humanitarian Law: Rules, Volume I, Cambridge: Cambridge University Press, 2005, pp. xxxi–xxxii.
Henckaerts, J. M. and Doswald-Beck, L. (2005) op.cit. It should be noted that the scope of some of the alleged norms discussed in the ICRC study are controversial and contested.
See for example: Clapham, A. Human Rights Obligations of Non-State Actors, Oxford: Oxford University Press, 2006, p. 271; and Cassese, A. International Law, 2nd edn, Oxford: Oxford University Press, 2005, p. 125, as cited by Casey-Maslen, S. Non-Kinetic-Energy Weapons Termed “Non-Lethal”, A Preliminary Assessment Under International Humanitarian Law and International Human Rights Law, Geneva Academy, October 2010, p. 13.
Hampson, F. (2007) op.cit., p. 238.
For a detailed discussion of this issue see Coupland, R. Incapacitating Biochemical Weapons: Risks and Uncertainties, in Pearson, A., Chevrier, M. and Wheelis, M. (eds), Incapacitating Biochemical Weapons, Lanham, MD: Lexington Books, 2007, pp. 225–230; Fidler, D. The meaning of Moscow: “Non-lethal” Weapons and International Law in the Early 21st Century, International Review of the Red Cross, volume 87, number 859, September 2005, pp. 525–552; Hampson, F. (2007) op.cit.; Herby, P. Protecting and Reinforcing Humanitarian Norms: The Way Forward, in Pearson, A., Chevrier, M. and Wheelis, M. (eds), Incapacitating Biochemical Weapons, Lanham, MD: Lexington Books, 2007, pp. 285–290.
Casey-Maslen, S. (2010) op.cit., p. 13.
For discussion see Henckaerts, J. M. and Doswald-Beck, L. (2005) op.cit., Rule 87, pp. 306–308; Rule 110, pp. 400–403; Rule 111, pp. 403–405.
Royal Society, Science Policy Centre, Brain Waves Module 3, Neuroscience, Conflict and Security, RS publications, London, February 2012, p. 19.
Royal Society (February 2012) op.cit., p. 19. Specifically Under: Third Geneva Convention (1949) op.cit., Article 17.
Ibid., Article 11.2. (b).
Ibid., Article 11.4.
Royal Society (February 2012) op.cit., p. 19.
Henckaerts, J. M. and Doswald-Beck, L. (2005) op.cit., Rule 70, pp. 237–244.
Ibid., Rule 70, p. 242.
Coupland, R. (ed.), The SIRUS Project, Towards a Determination of Which Weapons Cause “Superfluous Injury or Unnecessary Suffering”, ICRC, Geneva, 1997, p. 23, available at http://www.loc.gov/rr/frd/Military_Law/pdf/SIrUS-project.pdf (accessed 10th August 2015).
Herby, P. (2007) op.cit., p. 286.
Chevrier, M. and Wheelis, M. Ibid., p. 286.
Henckaerts, J. M. and Doswald-Beck, L. (2005) op.cit., Rules 1 [pp. 3–8], 7 [pp. 25–29], 9, 10 [pp. 25–34], 11 and 12 [pp. 37–43].
Ibid.
See for example: Fenton, G. Current and Prospective Military and Law Enforcement Use of Chemical Agents for Incapacitation, in Pearson A., Chevrier, M. and Wheelis, M. (eds), Incapacitating Biochemical Weapons, Lanham, MD, Lexington Books, 2007, pp. 103–120; Mayer, C. Non-Lethal Weapons and Non-Combatant Immunity: Is it Permissible to Target Noncombatants?, Journal of Military Ethics, volume 6, number 3, 2007, pp. 221–231.
Herby, P. (2007) op.cit., p. 286.
Royal Society (February 2012) op.cit., p. 20.
Herby, P. (2007) op.cit., p. 288.
Henckaerts, J. M. and Doswald-Beck, L. (2005) op.cit., Rule 73, p. 256.
Ibid., Rule 74, p. 259.
Ibid., Rule 75, p. 263.
Henckaerts, J. M. Study on Customary International Humanitarian Law, International Review of the Red Cross, volume 87, number 857, March 2005, p. 205.
Daoust, I., Coupland, R. and Ishoey, R. New Wars, New Weapons? The Obligation of States to Assess the Legality of Means and Methods of Warfare, International Review of the Red Cross, June 2002, volume 84, number 846, pp. 345–363.
See for example: McClelland, J. The Review of Weapons in Accordance with Article 36 of Additional Protocol 1, International Review of the Red Cross, volume 85, number 850, June 2003, p. 411; International Committee of the Red Cross. A Guide to the Legal Review of New Weapons, Means and Methods of Warfare, Measures to Implement Article 36 of Additional Protocol I of 1977, Geneva, January 2006, p. 24.
Boothby, W. Weapons and the Law of Armed Conflict, Oxford University Press, Oxford, May 2009, pp. 345–346.
Casey-Maslen, S. (2010) op.cit., p. 22.
Lawand, K. Reviewing the Legality of New Weapons, Means and Methods of Warfare, International Review of the Red Cross, volume 88, number 864, December 2006, p. 929.
Fry, J. Contextualized Legal Reviews for the Methods and Means of Warfare: Cave Combat and International Humanitarian Law, Colombia Journal of Transnational Law, 28th February 2006, volume 44, number 2, pp. 470–471. As part of his analysis demonstrating how legality might shift depending on the setting in which weapons were employed, Fry incorporated a case study of the US military’s alleged use of RCAs in caves and other contained spaces, and argued that such alleged use appeared to breach the CWC and also the Hague Regulations, the Hague Gas Declaration and the Geneva Gas Protocol. [See in particular Fry, J. (2006) op.cit., pp. 506–509.]
Daoust, I., Coupland, R. and Ishoey, R. (2002) op.cit., pp. 354–360.
See for example: Daoust, I. Coupland, R. and Ishoey, R. (2002) op.cit., pp. 352–353; Lawland, K. (2006) op.cit., p. 929; 28th International Conference of the Red Cross and Red Crescent (2003) op.cit., paragraph 2.5.1.
Lawand, K. (2006) op.cit., p. 926.
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Crowley, M. (2016). International Humanitarian Law Applicable to ICA Weapons and Riot Control Agents. In: Chemical Control. Global Issues Series. Palgrave Macmillan, London. https://doi.org/10.1057/9781137467140_7
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