The Legitimacy of Modern Conventional Weaponry

• Author: Captain Paul A. Robblee, Jr.
• Pages: 02

1. INTRODUCTION

   And there were VOLC~S and thunders. and lightnings. and there uas a great eanhquake. Juch a* was n ~ t since man

   was upon the canh. romighty ancanhquakcondsoyreat"

   In recent years eenain categanes of m2dt.m conwnnonal weapons ha\ e been cnticired aa caueing unnccer,ar). suffering DT

   hanng indiacnminate effects This cnncisrn has Seen dis seminated pnnripall) In repons prepared b) the Cluted Xauons: th~Inr~marionalCommirreeoftheRedCrosa

   ICRC 'theSwedish

   government,' and the Swedish Peace Research Institute (SIPRI).j Specific weapons categories thus challenged are: (1) incendiary weapons;E (2) small calibre, high velocity ammunition;. (3) blast and fragmentation weapons;8 and (4) time-delayed, delayed action weapons.$ In particular, the adequacy of existent legal criteria which regulate the utilization of such weapons in armed conflict, the criteria of unnecessary suffering and indiscriminate attack,l" was expressly or impliedly questioned. Moreover. the report of the Swedish government advocated the construction of new, more objective legal criteria to supplement the exment legal criteria." In this regard, many such proposals have indeed been advanced.

   For example, factors such as medical effects, the degree of dis. ability inflicted, the risk of death, and the strain on medical resources resulting as a consequence of the employment ofconventional weapons in battle are among those new criteria which have been proposed as quantifiers appropriate to determine whether a

   19761 LEGITIXACY OF CONVENTIONAL WEAPONRY

   given weapon inflicts unnecessary suffering.'* Criteria unrelated to existent legal criteria have been proposed as well. These proposals suggest the utility of criteria such as public opinion, the laws of humanity, and treachery orperf~dy'~as being appropriate to judge the admissibility of weapons in wmi4

   The challenge to existent legal criteria regulating conventional weaponry is therefore one of considerable dimension. However, at bottom, that which is ultimately in issue, when the relative merits and demerits of existent and proposed legal criteria are argued, is the capacity of each to command a commonly shared interpret& tian and widespread recognition as law binding on all states. Ab sent this capacity, neither existent nor proposed criteria can operate to regulate the acquisition, development, or use of weaponry deemed essential to the efforts of all states to guarantee the peace and avoid Armageddon. The reality of a world in which the condition of war has been the rule, and not the exception,lS simply will not permit it.

   Mindful of the foregoing, this article will examine in detail the legal criteria in bath categories to ascertain their capacity to regulate weaponry. In order to accomplish this purpose, the exist. ent legal criteria regulating weaponry are first placed in perspective by an analysis of the history of weapons regulatinn. Subse quently, the existent and proposed legal criteria are compared and contrasted. Thereafter, selected's modem conventional weapons which have been criticized as causing unnecessary suffering or be ing indiscriminate in their effects are tested for legality pursuant to existent andproposedlegal criteriatoobtain acomparativeevaluatian of the fundion of each. Upon completion ofthis evaluation, the

   I'Id at 23-55. IC R.C.L W R., ~vpianote 10,at 7-8.

   X C R.C LWR. S Y D ~ O

   note 10 at 10 Bettauei U S.L.W.R.. suoronotelo. st26

   article presents conclusions and offers recommendations to reasonably resolve some of the problems presented by the current and proposed tests used to judge the legitimacy of conventional weaponry.

   11. REGULATION OF WEAPONRY IN WARAN HISTORICAL PERSPECTIVE

   When Odysseus has gone to Ephyra to procure a deadly drug for smearing his arrow, Ilus, refused to giveit to him, on the ground that the gods would not sanction such an act."

   1. ANCIENT ORIGINS TO THE ERA OF HUGO GROTIUS

      The modem law of WBI. regulating weaponry, just as ita parent law ofwar, tracesits beginnings toantiquity, aperiodin whichwar was conducted with extreme cruelty and bmtality.18 Indeed, it isimplicitly argued by some that the few evidences of restraint oc. cumng in this period were the result of considerations of practical necessity, uninfluenced by any mumurings of the pnndple of humanity.'~Whatevertheinitialmotivation, itis clear thatancient man did make some effort to regulate warfare21 and the weapons employedtowagewar. Withregardto thelatter, theHinducodeof Manu. developdin Indiaduring the sixthcenturyB.C., represents

      __

      I\.EAPO\S

      Sr.:n, supra note 4 at 11 There the Stud) notes that although the d e s of nar were origlnalli dweloped for practical reasons they were early camblned with ' snpulanons of a humamranan nature "

      "For example. the ides of the m c m t

      Hebrews provided

      what is regarded as man's earliest recorded effort to regulate weaponry by prohibiting the use of poison or other inhumane weapons in warfare. The seventh book of the Code, for example, provided the following among other rules intended to regulateland warfare: "When the king fights with his foes in battle, let him not strike with weapons concealed in wood, nor with such as arrows barbed, poisoned, or the points of which are blaring with fire."*' Similarly, the Roman and Greek cultures prohibited the use of poison as a weapon,12 because it was deemed cowardly~3 or, as nus admonished Odysseus, its use was offensive to the gods.

      In the Middle Ages, weaponry was subjected to further regula. tion by the law of war. In this period theologians of the Catholic Church such as Saint Augustine made significant contributions to the law of war.24 The influence of churchmen was considerable in that with the fall of Rome in 476 A.D.25 these men were enabled to nse to the fore and warn earthly sovereigns not to command their soldiers onto the battlefield except in a just war.26

      The influence of theologians later waned when thejust warcon. cept proved tobewithouteffectinstoppingwarsbetweenchristianleaders.*? Nevertheless, the influence oftheclergy hadmadeitsim. pact on the law of war: war as an instrument offoreign policy could not proceed wholly upon the caprice of theprinceresarting toit. It was now improper to commit men to battle for unjust causes.

      Moreover, the rules relating to the admissibility of weapons in war were enunciated. In 600 A.D., the Saracens, as a result of the promulgation of rules of war based entirely an theKaran,Zsoutlaw. ed the u ~ e in war of burning arrows,20 the incendiary weapons of the time. In 1139, at the Second LateranCound1,PopeInnocent 111 prohibited the use of the arbalist and the crassbow.30 His efforts, however, were apparently unsuccessful, as widespread useofthese

      weapons persisted in subsequent years.3'

      Further, a law of arms developed in the Middle Ages which was influential In broadening the law of war to bind sovereigns and knights alike.3' Based on a code of chivalry, this law required a life ofloyaltyandhonorofitsadherentsandthusservedtoregulatenotonly the conduct of combatants but also the internal discipline of amies.33 Nevertheless, chivalry's efforts to prohibit the use of technologically advanced weaponry as unworthy of brave men resulted in failure, as such appeals to chivalricidealism proved ineffective in quenching man's thirst for more decisive weaponry in combat.3'

      The next important movement in the development of the law of war came largely as a result of Hugo Grotius' publication of his treatise The Law of WarondPeace'jin 1625,Significanttothesub.sequent development of the law of war regulating weaponry was Grotius' reliance in this work on the practices of states as a legitimate means of deriving the substantive prindples of law of war. For the first time the practices of nations were considered along with the works of scholars, philosophers, writers, and churchmen as relevant to the issue of the scope of permissible conduct in battle.36

      In this regard, Grotius proceeded on the assumption that "the practices of states were not improper deviations from a theological nom, but expressions of a natural order whose principles he could detemine."3? In effect, this approach represented B major rethink. ing of the philosophical foundations of thelaw ofwar. Essentially a positivistic, pragmatic view, it rejected the earlier approach propounded by Catholic theologians and enabled Grotius to in. troduce principles applicable to both Catholic and Protestant leaders.36 Julius Stone elaborates on the concept as follows:

      Rith creafne amhiquit). Grotiur ~im~lmneouiybaaed the Ian, of

      nafians on a wand foundation. n8mels the practice of States. 88 emdence

      FLUKICK, supra note 30, at 667

      S'BOSD, aupro note 16. at 13 ~ J M

      KEEU, THE U S S OF WAR Ih THE LATE MlDDLL AGES 239 11965),'SPAIOHT.supra nore 30, at 76 Professor Spaight commented m fhrs regard, "were not sward and lance and crossbow the weapons for knights.'' The disdain which knights of this period felt for fechnalamically improved weaponry IS sliorefleetedmtheuarksoftheChevalierBayard whom 1624. when dyingafawound caused by an arhal~et.issaidtohavathankedGodtharhehadnevershawnmeicyta a musketeer F ~ x I C K , supra note 30, at 677 n 21.''H G~orrr.6,

      THE LIBor WAR ilm PEACE iL. Loomin trans1 1949)

      '(1 FRIEDYAK oupio note 16. sf 14-1:

      Id et 16.'Id

      ofnaturallaw Heargued.rhatstates.eone~stingastheydoofratiana1

      men must have manifested the rules of reason in their p88t praehce Ths practice *as therefore evidence of what reason prescribed and thus of natvral law Itaelf.'s

      Though Grotius' work was much criticized in its time, its introduction of the principle that international law, in particular the law of war, could be ascertained from the practice of states, as evidenceof natural law, conferred on it enduring value which continues un. diminished today.

      Grotius' The Law of War and Peace was also significant to the law of war regulating weaponry in that it articulated the principle that restraint...