Weapons and Superfluous Injury or Unnecessary Suffering in International Humanitarian Law: Human Pain in Time of War and the Limits of Law
Revue Hellénique de Droit International, Vol. 54, pp. 71-108, 2001
38 Pages Posted: 24 Oct 2011 Last revised: 3 Nov 2011
Date Written: December 24, 2000
The present paper tackles the question of superfluous injury or unnecessary suffering (SIrUS) vis-à-vis the means of warfare. Of particular interest are the conventional weapons, some of the weapons of mass destruction, that is, chemical and biological ones, and environmental weapons, all of them viewed from the angle of SIrUS that these means of war may and do occasionally cause because of their own nature. Nuclear weapons are of a unique nature and subject to a special legal regime that is beyond the limits of the present paper. The first part of the paper deals with the two main concepts of international humanitarian law, those of military necessity and of the principle of humanity, which have provided the framework within which SIrUS in the course of armed conflicts has been outlawed. In the second part the author proceeds and examines the prohibition or restriction of the conventional, chemical, biological and other weapons able to cause SIrUS, as well as of the environmental weapons, through the existing international Declarations, Conventions and Protocols regulating the above weapons. In the final part of the paper the author deals with the question of SIrUS caused by the above-mentioned weapons, from the perspective of the protection of two different categories of persons: combatants and civilians. It is shown that the constant evolution of technology has led to the production of modern weaponry that is de facto impossible to be subject to prompt regulation through treaty law. This fact though detracts nothing at all from the value and the regulative role that may well be played by customary law principles, such as the one pertaining to the prohibition of SIrUS.
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