THE PRINCIPLE OF SUPERFLUOUS INJURY

OR UNNECESSARY SUFFERING
From the Declaration of St. Petersburg of 1868
to Additional Protocol I of 1977

by Henri Meyrowitz

On the 100th anniversary of the Declaration of St. Petersburg, the

International Review of the Red Cross devoted to this important first
document of the law of war an article examining the relation between the
notion of the "legitimate object" of war as defined in the Declaration and
the means of warfare used, whose lawfulness was declared to be limited
by their conformance to that legitimate object and by their necessity. Since
1868 the law of international armed conflicts has been supplemented by
Protocol I additional to the Geneva Conventions of 1949, which enlarged
on the central point of the Preamble to the Declaration of 1868 — i.e.
the concept of "maux superflus" ("superfluous injury or unnecessary
suffering"); although it was not formulated as such until 1899 in Arti-
cle 23 e) of the Regulations respecting the Laws and Customs of War
on Land, it may, as we shall demonstrate, be traced back to the Decla-
ration's Preamble.1 Protocol I broadened the concept's scope of applica-
tion to include methods of warfare, but it also and above all introduced
a new rule of considerable import by narrowing the definition of military
objectives that may lawfully be attacked.

1
In the English translation of the Regulations of 1899 "maux superflus" was translated
by "superfluous injury"; in the 1907 revised version this was replaced by the term
"unnecessary suffering". Since 1977, however, "superfluous injury or unnecessary suf-
fering" has been generally adopted as a more adequate translation and it has been used
througout this article except where quoted documents provide a different translation or
where otherwise specified. (For the author's discussion of the difficulty of translating
"maux superflus" into English see below, section I, B.) — Translator's note.

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

In this article we propose to examine the development of this general

concept, properly termed the principle of superfluous injury or unneces-
sary suffering.

I. THE ORIGIN AND DEVELOPMENT OF THE PRINCIPLE OF

SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

It is commonly acknowledged that the importance of the Declaration

of St. Petersburg lies not in its provisions, which stipulate that Contracting
Parties shall "renounce (...) the employment by their military or naval
troops of any projectile of a weight below 400 grammes, which is either
explosive or charged with fulminating or inflammable substances" and
are now considered out of date, but in its preambular paragraphs, which
have lost none of their value:
"On the proposition of the Imperial Cabinet of Russia, an Interna-
tional Military Commission having assembled at St. Petersburg in order
to examine the expediency of forbidding the use of certain projectiles in
time of war between civilized nations, and that Commission having by
common agreement fixed the technical limits at which the necessities of
war ought to yield to the requirements of humanity, the Undersigned are
authorized by the orders of their Governments to declare as follows:
Considering:
That the progress of civilization should have the effect of alleviating
as much as possible the calamities of war;
That the only legitimate object which States should endeavour to
accomplish during war is to weaken the military forces of the enemy;
That for this purpose it is sufficient to disable the greatest possible
number of men;
That this object would be exceeded by the employment of arms which
uselessly aggravate the sufferings of disabled men, or render their death
inevitable;
That the employment of such arms would, therefore, be contrary to
the laws of humanity".
It must first be observed that the notion of unnecessary suffering, to
which certain governments and the majority of writers wish to reduce the
Declaration's scope, renders only half of the intended meaning of the
fourth preambular paragraph since it does not convey the clearly ex-

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 INTERNATIONAL REVIEW OF THE RED CROSS

pressed idea of unnecessary deaths. Likewise, the expression "calamities

of war" in the first preambular paragraph goes beyond the notion of
unnecessary suffering. Finally, it should be noted that the memorandum
of the Russian Imperial War Minister read by the Chairman of the
Conference and annexed to Protocol I of the military conferences held
in St. Petersburg contains the following two sentences:
"The parties at war may tolerate only those calamities which are
imperatively necessitated by war. Any suffering or damage that would not
have the sole result of weakening the enemy is unjustified and must in
no way be permitted" ?
The first sentence makes it clear that the notion of the necessities of
war is to be understood as the essential condition for acts of violence to
be considered lawful, a meaning which is only implicit in the Preamble
of 1868.3 The second sentence broadens the notion of unnecessary suf-
fering to include that of damage.
In many respects the Brussels Conference of 1874, which was also
convened by the Russian government, must be seen as a follow-up to the
Conference of 1868. The proceedings of this conference, which resulted
in a Project of a Declaration encompassing all the rules pertaining to the
law of war on land, indicate that certain expressions appearing in the
Preamble of 1868 may, and even must, be interpreted as they were six
years later by men who shared similar ideas. It is remarkable to note that
these two documents were not the work of a diplomatic conference but
of a Military Commission.4 It would therefore be difficult to term them
"idealistic".
A quarter of a century later, that 1874 Project of an International
Declaration concerning the Laws and Customs of War provided the basis

2
"Les parties belligerantes ne doivent tolerer que les calamity qui sont imperieu-
sement necessities par la guerre. Toute souffrance et tout dommage qui n'auraient pas
pour seul r6sultat d'affaiblir rennemi n'ont aucune raison d'Stre et ne doivent etre admis
d'aucune maniere." (Annexe au Protocole I des Conferences militaires tenues a Saint-
Petersbourg, "M6moire sur la suppression de l'emploi des balles explosives en temps de
guerre", Nouveau Recueil general des traites..., Vol. XVIII, Gottingen, 1873, p. 460.)
3
Concerning this point see below, part II, C, a.
4
Noting that "among the 32 members of the Conference, 18 were military men, 10
were diplomats and 4 were legal experts and senior officials with no connection to the
military and diplomatic professions", G. Rolin-Jaequemyns acknowledged that the results
of the Conference had allayed the fears that such unequal proportions between the various
professions had initially caused him. "Chronique du droit international 1871-1878", Revue
de droit international et de legislation comparee, VII, 1875, pp. 90-91.

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

for the Regulations Respecting the Laws and Customs of War on Land
annexed to the Hague Convention of 1899; their basic provisions were
repeated in the Regulations annexed to the Convention of 1907 and have
acquired the status of customary law. Article 13 e) of the Project express-
ly forbids "the employment of arms, projectiles or material calculated
to cause unnecessary suffering, as well as the use of projectiles prohibited
by the Declaration of St. Petersburg of 1868".5 In the French version,
although not in the English one, this paragraph thus replaced, or rather
corrected, the notion of unnecessary suffering by using the term "maux
superflus", which conveys the further notion of superfluous deaths ex-
pressed in the fourth preambular paragraph of the Declaration of 1868.
At the same time the drafters of the Project were wrong to suggest that
the Declaration of St. Petersburg could be reduced to its provisions. The
error was inconsequential, however, since it was corrected in Article
23 e) of the Regulations of 1899 and 1907, which gave to the fourth
preambular paragraph of the Declaration of 1868 the form in which it
entered positive law and obtained the status of a principle of customary
law.
Although not directly related to our topic, another idea recorded in
the Acts of the Brussels Conference deserves, we believe, to be men-
tioned. In the instructions which Baron Jomini, the Chairman of the
Military Commission, had received from the Russian government and
which specified the aim and scope of the Project of a Declaration, the two
basic ideas of the law of war are referred to: the necessities of war and
"the joint interests of humanity" ("les interets solidaires de /' humanite"),
an admirable expression recalling the "imprescriptible rights of humanity"
("droits imprescriptibles de I'humanite") used by Baron Jomini in another
document.6 In our opinion, it may legitimately be asked whether such
formulations do not express the true foundation of the law of war more
accurately than can be done by citing the notion of human rights, since
it is well known that this notion has in recent years been the object of
not completely unjustified criticism.

5
"(•••) l'emploi d'armes, de projectiles ou de matieres propres a causer des maux
superflus, ainsi que l'usage de projectiles prohibSs par la Declaration de St. Petersbourg
de 1868".
6
Actes de la Conference de Bruxelles de 1874 sur le Projet d'une convention
Internationale concernant la guerre, Paris, Ministere des Affaires etrangeres, Documents
diplomatiques, 1874, pp. 4 and 48 respectively.

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 INTERNATIONAL REVIEW OF THE RED CROSS

II. ARTICLES 23 (e) OF THE HAGUE REGULATIONS

AND 35 (2) OF ADDITIONAL PROTOCOL I

The prohibition on inflicting superfluous injury or unnecessary suf-

fering, the principle of which is contained in the Preamble to the Dec-
laration of St. Petersburg and clearly set forth in the 1874 Brussels Project
of a Declaration, entered positive law through Article 23 e) of the Reg-
ulations Respecting the Laws and Customs of War on Land annexed to
the 1899 Hague Convention No. II, whose wording was largely adopted
in Article 23 e) of the Regulations annexed to the Fourth Hague Conven-
tion of 1907:
"In addition to the prohibitions provided by special Conventions, it
is especially forbidden (...) e) To employ arms, projectiles, or material
calculated to cause unnecessary suffering".1
From its original form as a preambular paragraph in the Declaration
of 1868, the principle thus became a rule ranking equally with the other
prohibitions stated in Article 23 e), all of which, however, are specific
in nature. From both a theoretical and a formal point of view, this flaw
was corrected in Article 35 (2) of 1977 Additional Protocol I, which
conferred an independent status on the principle expressed in 1899 and
1907 by designating it as a "basic rule", by adding the words "methods
of warfare" to the text of Article 23 e) and by replacing the expression
"calculated to" by "of a nature to" — although in French the correspond-
ing expressions ("propres a" and "de nature a") have exactly the same
meaning.
To interpret this basic rule, it must thus be determined what methods
or means of warfare are involved, what the text means by "injury or
suffering" and what is to be understood by the qualifying terms "unnec-
essary" and "superfluous".

A. "Methods and means of warfare"

In the first place it should be noted that Article 23 e) of the Hague
Regulations and Article 35 (2) of Additional Protocol I prohibit the use
of methods or means of warfare whose use is not prohibited by other rules

7
"Outre les prohibitions etablies par des conventions speciales, il est notamment
interdit (...) e) D'employer des armes, des projectiles ou des matieres propres a causer des
maux superflus".

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

of the law of war, all of which are concerned with military objectives as
defined in Article 52 (2) to be examined below.8
The means referred to in the rule are limited neither to weapons in
the technical sense nor to "material". On this particular point the Proto-
col's wording is not rigorously consistent or exact. Although Art-
icle 35 (1) and (3) refers to "methods or means of warfare" and Article 36
to "means or method of warfare", Article 51 (4) b) and c) uses the
expression "method or means of combat". The general term "means" is
better suited to encompass the meaning of the words "arms, projectiles
and material" used in HR, Article 23 e), and PI, Article 35 (2), since it
may be understood to refer to any device, whatever it may be, capable
of inflicting superfluous injury or unnecessary suffering. By its very
nature, such a rule needs to be interpreted with future developments in
mind. In this regard PI, Article 36, pertaining to "the study, development,
acquisition or adoption of a new weapon, means or method of warfare"
is particularly relevant.
Although the status of HR, Article 23 e), as a rule of customary law
is well established, the use of the term "methods of warfare" in PI,
Article 35 (2), introduces a new element which at present has only the
status of a treaty rule. While this rule derives from the principle expressed
in HR, Article 23 e), international legislation was required to make it a
rule of positive law. The same observation applies to all the rules which,
whether or not they are explicitly based on the principle stated in Article
23 e), prohibit the use of certain means of warfare considered to be of
a nature to cause superfluous injury or unnecessary suffering.
In PI, Article 35 (2), "methods of warfare" is to be understood as the
mode of use of means of warfare in accordance with a certain military
concept or tactic. The new prohibition relates to this concept or tactic as
such, and not to the use of the particular means by which the method of
warfare is applied, unless those means themselves are forbidden. PI,
Article 54 (1), prohibits "starvation of civilians as a method of warfare".
This new rule constitutes an application neither of the principle formulated
in HR, Article 23 e), nor, despite the use of the expression "method of
warfare", of PI, Article 35 (2), but of the principle of the immunity of
civilian populations. It is clear from this example, however, that the notion
of "method of warfare" is independent of the lawful or unlawful nature
of the means by which the method is put into effect. Concerning "methods
of warfare", the rule is directed not only at military strategists but at
political leaders as well.

8
The Hague Regulations of 1899 and 1907 and Additional Protocol I will henceforth
be abbreviated HR and PI respectively.

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 INTERNATIONAL REVIEW OF THE RED CROSS

B. "Injury or suffering"
The above preliminary observation on the means referred to in HR,
Articles 23 e), and PI, Article 35 (2), applies to "injury or suffering" as
well: excluded from the former — or rather included, although their
inclusion was needlessly repetitive — are the means specified in other
rules based on the principle of the immunity of the civilian population,
civilians and civilian objects, and on this principle's two corollaries: the
principles of discrimination and proportionality.
The debate on the question of what is to be understood by "superfluous
injury or unnecessary suffering" has been distorted from the outset, and
continues to be so, by the way the term "maux" has been translated in the
English and German versions of the authentic French text. Whereas as early
as 1874, in Article 13 e) of the Brussels Project of a Declaration, the
expression "souffrances inutiles" used in the fourth preambular paragraph
of the Declaration of St. Petersburg was, as we have pointed out, replaced
by the concept "maux superflus", the English and German translations of
the Brussels Project and of Article 23 e) of the Hague Regulations of 1899
and 1907 use such various terms as "unnecessary suffering" (1874), "su-
perfluous injury", "unnotigerweise Leiden" (1899), "unnecessary suffer-
ing", "unnotig Leiden" (1907). Although the said texts are not the authentic
version, these mistaken translations of the term "maux" in Article 23 e)
— a term which conveys the meaning of the notion expressed in the
Preamble to the Declaration of 1868 and in Article 13 (e) of the 1874
Project of a Declaration — have had a dominant influence on the doctrinal
interpretation of Article 23 e) by English- and German-speaking writers.
The difficulty of translating the term "maux" into English and German may
explain but in no way justify the inexactitude of the translations quoted,
which retain only the meaning of suffering conveyed by the term "maux",
thus failing to render the additional meanings of superfluous deaths, on
the one hand, and material damage on the other.
In the English version of Protocol I, which is not a translation, this
mistake was corrected as far as the language allowed by using the term
"superfluous injury or unnecessary suffering" to convey the meaning of
"maux superflus". However, the official German — or more precisely
German, Austrian and Swiss — translation worsened the error of 1899
and 1907 by translating the expression used in the English document by
" iiberflussige Verletzungen oder unnotige Leiden". The notion of material
damage which the word "injury" conveys is thus absent from the German
translation of PI, Article 35 (2), and it is likewise doubtful whether the
expression "iiberflussige Verletzungen" may be understood to encompass

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

the idea of superfluous deaths. Finally, the German expression may prove
to be difficult to apply to the specific effects of new means of warfare
resulting from advances in science and technology. German-speaking
countries, all of which have ratified Protocol I, are of course bound not
by the translation but by the authentic text of the document to which their
signatures are affixed.9
Without taking the qualifying word "superflus" into account, the
variously rendered term of "maux" used in HR, Article 23 e), and PI,
Article 35 (2), must be understood as referring first of all to any assault
on the life or physical and mental integrity of persons who, according to
the customary rules of the law of war and Additional Protocol I, may
lawfully be the object of acts of violence if such acts are lawful in
themselves. In the second place, the same term may be applied to damage
caused to physical objects. As we have already seen, the notion of damage,
as applied to that of "maux superflus", was discussed in the debates that
led to the adoption of the Declaration of St. Petersburg. Neither the text
of PI, Article 35, nor that of Article 36 pertaining to "new weapons" imply
that the rules set forth in the two articles, including Article 35 (2), refer
solely to methods and means of warfare directed against combatants.
Finally, the rule of Protocol I representing by far the most important
application of the principle formulated in Article 35 (2), i.e. the second
sentence of Article 52 (2), prohibits attacks against objects which con-
stitute genuine military objectives but do not answer to the definition of
lawfully attackable military objectives (see below, part III).

C. The notion of "superfluous injury or unnecessary

suffering"
a) The qualifying terms "superfluous" and "unnecessary", added to
"injury" and "suffering", indicate both the characteristic which renders

9
The only rule explicitly based on PI, Article 35 (2), is the prohibition of the use
of "any booby-trap which is designed to cause superfluous injury or unnecessary suffering",
a provision set forth in Article 6 (2) of Protocol II annexed to the Convention on Pro-
hibitions or Restrictions on the Use of Certain Conventional Weapons which may be
Deemed to be Excessively Injurious or to Have Indiscriminate Effects of 10 October 1980.
In the French version of this document the expressions "blessures inutiles" and "souf-
frances superflues" are appropriately used, as is the expression "designed to" instead of
"of a nature to". The third preambular paragraph of the Convention, whose text is based
on that of PI, Article 35 (2), refers to the rule stated therein as a "principle". Although
it makes no allusion to this rule, the single article constituting Protocol I annexed to the
Convention and stating that "it is prohibited to use any weapon the primary effect of which
is to injure by fragments which in the human body escape detection by X-rays" may also
be considered to be based on PI, Article 35 (2).

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 INTERNATIONAL REVIEW OF THE RED CROSS

use of the methods and means of warfare referred to in HR, Article 23 e),
and PI, Article 35 (2) unlawful, and the ratio of the prohibition. These
terms immediately give rise to the following question: superfluous or
unnecessary in relation to what? The question provides its own answer:
in relation to what is necessary. But such an answer again raises the
question: necessary to or for what? To establish the meaning of the
expression "superfluous injury or unnecessary suffering" and thus define
the scope of this basic rule, it is thus essential on the one hand to
understand the meaning of the word "necessary" that is implicit in it, and
on the other hand to attempt to define the criterion whereby the lawfulness
or unlawfulness of the methods and means of warfare referred to HR,
Article 23 e), and PI, Article 35 (2), are assessed.
To answer these questions it is necessary to refer to the Preamble to
the Declaration of St. Petersburg and to the 1974 Brussels Project of a
Declaration, or, more specifically, to the preliminary debates on the latter
document. The draft presented by Russia to the Conference of 1874
includes a sentence that precisely conveys the meaning of the concept of
"military necessity" as expressed in the Preamble to the Declaration of
St. Petersburg and is the best formulation of the notion - or rather the
principle - of necessity in the law of war. In the section entitled "General
principles", the Russian draft defines the role of military necessity in the
following terms:
"3. — To achieve the object of war, every means and method con-
forming to the laws and customs of war and justified by the necessities
of war are allowed" }°
The expression "object of war" (in French "but de la guerre") recalls
the same term to be found in the second preambular paragraph of the
French text of the Declaration of 1868. On this particular point, the
development of the law of war has not followed the terminology used in
the Declaration of St. Petersburg or in the quoted paragraph from the
Russian draft of 1874. The notion of "object of war" (expressed thus or
in similar terms) has been abandoned in international law because the fact
that its meaning may be indefinitely extended makes it an entirely un-
suitable point of reference for what belligerents and third-party States

10
"3. — Pour atteindre le but de la guerre, tous les moyens et toutes les mesures,
conformes aux lois et coutumes de la guerre, et justifies par les n6cessites de la guerre,
sont permis." A. Mechelynck, La Convention de la Haye concernant les lois et coutumes
de la guerre sur terre d'apres les Actes et Documents des Conferences de Bruxelles de
1874 et La Haye de 1899 et 1907, Ghent, 1915, p. 24.

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

must consider as lawful or unlawful in the conduct of war. Just like the
related idea of "cause", the notion of "object" is therefore irrelevant to
the law of armed conflicts." The same observation applies to values, a
notion often associated with that of "cause" and which, as a point of
reference, is by definition discriminatory and essentially incompatible
with the basic principle of the equality of belligerents before the law of
war.
The merit of the quoted paragraph from the Russian draft lies in the
fact that it highlights the normative role of the notion or principle of
"military necessity", a term which in legal doctrine has replaced the
expression "necessities of war" while retaining the same meaning. The
paragraph states that for means and actions to be lawful, it is not enough
for them to be in accordance with the rules of the law of war; their choice
and the use made of them must also be justified by military necessity.
By virtue of PI, Article 52 (2), this stipulation also applies to military
objectives. The principle of military necessity thus serves as a further
compulsory limitation, in addition to that of the rules of the law of war
themselves.
It is instructive not merely from an historical point of view to compare
the above paragraph from the Russian draft of 1874 with the article on
the same subject in the Instructions for the Government of Armies of the
United States in the Field, prepared in 1863 by the jurist Francis Lieber
after the beginning of the American Civil War.
"Art. 14. Military necessity, as understood by modern civilized na-
tions, consists in the necessity of those measures which are indispensable
for securing the ends of the war, and which are lawful according to the
modern law and usages of war".
The difference between the two texts is quite clear. The American
formulation implies, indeed prescribes a line of thought in complete
reverse to that on which the Russian draft is based. In Lieber's text the
reasoning proceeds as follows: 1) Is a certain specific means or measure
indispensable — or, to be more precise, considered as such by the military
leaders in charge — for securing the ends (object) of war (disregarding
all considerations pertaining to the question of the lawfulness of these
ends in themselves, an issue which was not as important then as it is

" Cf. the last preambular paragraph of Protocol I: "Reaffirming further that the
provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be
fully applied in all circumstances to all persons who are protected by those instruments,
without any adverse distinction based on the nature or origin of the armed conflict or on
the causes espoused by or attributed to the Parties to the conflict (...)".

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 INTERNATIONAL REVIEW OF THE RED CROSS

today)? 2) If the answer is yes, then it must be determined whether that

means or measure is allowed by the relevant rules of the law of war.

The positive law of armed conflicts recognizes the concept of military

necessity only in a special sense that is quite different from that of a
restrictive principle, i.e. military necessity allowing derogation from a
rule. Using various expressions meant to convey different degrees of
gravity, such as "necessity", "absolute necessity", "imperative necessity",
"military necessity", "important" or "inescapable military necessity",
some treaty rules allow for situations in which a belligerent may, excep-
tionally and only within the limits of what the invoked situation of
necessity requires, refrain from observing the prohibition or prescription
that otherwise applies. This possibility, which is strictly confined to those
provisions that explicitly allow for it, is obviously excluded as regards
all the specific rules based on the principle expressed in HR, Article 23 e),
and PI, Article 35 (2). Military necessity understood in this sense raises
no problem either in theory or in practice.

In the commentary on its draft articles on "State responsibility", the

International Law Commission, discussing Article 33 ("State of necessi-
ty") of the provisional text, devoted two paragraphs to a third acceptance
of the concept of necessity, one not recognized in international law. "In
relation to [the rules of the law of war] (...)", states the Commission, "what
is involved is certainly not the effect of 'necessity' as a circumstance
precluding the wrongfulness of conduct which the applicable rule does
not prohibit, but rather the effect of 'non-necessity' as a circumstance
precluding the lawfulness of conduct which that rule normally allows. It
is only when this 'necessity of war', the recognition of which is the basis
of the rule and its applicability, is seen to be absent in the case in point,
that this rule of the special law of war and neutrality must not apply and
the general rule of the law of peace prohibiting certain actions again
prevails. (...) The Commission does not believe that the existence of a
situation of necessity of the kind indicated [i.e. "the object of which is
to safeguard the vital interest of the success of military operations against
the enemy and, in the last resort, of victory over the enemy"] can permit
a State to disobey one of the above-mentioned rules of humanitarian law
[applicable to armed conflicts]. (...) even in regard to obligations of
humanitarian law which are not obligations of jus cogens, it must be borne
in mind that to admit the possibility of not fulfilling the obligations
imposing limitations on the method of conducting hostilities whenever a
belligerent found it necessary to resort to such means in order to ensure
the success of a military operation would be tantamount to accepting a

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

principle which is in absolute contradiction with the purposes of the legal

instruments drawn up".12
However closely connected they may be, the principle of superfluous
injury or unnecessary suffering and the notion, or principle, of military
necessity in the sense of an additional limitation are not identical. Besides
the fact that the notion of superfluous injury or unnecessary suffering has
been part of the codified law of war for almost a century, whereas no
instrument explicitly mentions the notion or principle of military necessity
in the sense of a limitation, the two notions are also different in the
following respect: whereas a specific rule based on HR, Article 23 e), or
on PI, Article 35 (2), must be applied automatically and to the letter in
every case to which it pertains, the principle of military necessity may
be applied according to circumstances. In other words, the principle of
superfluous injury or unnecessary suffering was established, once and for
all, when it was adopted as a law, and the relevant rule must be applied
even in those cases where use of the means to which it refers would
obviously not cause superfluous injury or unnecessary suffering. The
notion or principle of military necessity, on the other hand, is applied by
specific acts and decisions taking the particular circumstances of actual
situations into account.
For the same reason, it would be wrong to think that the basic rule
stated in PI, Article 35 (2), is related to the principle of proportionality.
Such an interpretation is also wrong for two other reasons. In the first
place, the term "principle of proportionality" is generally reserved for
evaluating whether the proportional relationship between the indirect
losses and damages suffered by civilians ("collateral damage", in military
terminology) and "the direct and concrete military advantage anticipated"
is lawful with respect to a given attack — or, according to the interpre-
tations given to PI, Article 51 (5), by certain Western States, with respect
to "an attack considered as a whole, and not only isolated or particular
parts of the attack". This proportional relationship is a lawful one and the
attack does not come under the provisions prohibiting indiscriminate
attacks (Article 51 [4] only when "the incidental loss of civilian life, injury
to civilians, damage to civilian objects or a combination thereof would
not be "excessive in relation to the concrete and direct military advantage
anticipated". Secondly, in the case of HR, Article 23 e), and PI, Art-

12
Yearbook of the International Law Commission, 1980, Vol. II, Part 2: Report of
the International Law Commission to the General Assembly on the work of its thirty-second
session (A/CN.4/SER.A/1980/Add. 1 (Part 2)), p. 46, paras. 27 and 28.

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 INTERNATIONAL REVIEW OF THE RED CROSS

icle 35 (2), which apply to suffering or injury inflicted on combatants and

damage to material military objectives, the very idea of proportionality
is irrelevant: the rule adopted by international law-making bodies that the
suffering, injury or damage likely to result from a certain means or method
of warfare is "unnecessary" and "superfluous" absolutely prohibits any
recourse to that means or method, and hence excludes any evaluation of
the proportional relationship between the suffering, injury or damage that
would be caused if it were used and "the concrete and direct military
advantage" that might be "anticipated".
The question of a criterion remained. Although that of the "object"
or "ends" of war had rightly been abandoned, the law of war had not
replaced it by another concept. However, whereas this had not been
considered an omission when the Hague Regulations of 1899 and 1907
were drafted, it proved to be one during the two World Wars. The
omission was repaired in the Additional Protocol of 1977 by the intro-
duction of the concept of "concrete and direct military advantage" (Article
51 [5, b]) or "definite military advantage" (Article 52 [2]). As we have
just seen with regard to Article 51 (5, b) and as will be shown even more
clearly below in discussing Article 52 (2), the meaning and role of this
concept is diametrically opposed to the notion of "object" or "ends".13
b) As for the meaning of the terms "unnecessary" and "superfluous"
in connection with "injury" and "suffering", it is necessary to set aside
interpretations based either on the presumed evil intentions of potential
infringers of HR, Article 23 e) or PI, Article 35 (2), or on the results of
such persons' acts as seen in terms of their military usefulness. While the
first category comprises interpretations associating the notion of super-
fluous injury or unnecessary suffering with sadism, cruelty and inhuman-
ity, the second includes interpretations which emphasize what are held
to be the irrational and counterproductive aspects of using a means pro-
hibited by HR, Article 23 e).
In reply to the latter type of interpretation, based on the association
of the two words "uselessly" and "sufferings" in the Preamble to the
Declaration of 1868, it may be pointed out that when applied to the
concept of superfluous injury or unnecessary suffering the qualifying
notion of their uselessness does not necessarily mean "without military

13
The two references to the notion of "military advantage" are not equivalent. In
particular, they are different with regard to their respective functions.

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

usefulness or rationale". The use of a means prohibited by HR, Arti-

cle 23 e), or of a method of warfare contrary to PI, Article 35 (2), may
indeed provide a belligerent with a military advantage of a tactical or
strategic nature which in certain cases may have a decisive influence on
the outcome of the conflict. In this connection, the mistaken opinion of
a number of legal experts and military experts, according to whom all the
rules of the law of war serving to govern the lawful use of violence may
be assimilated to the military doctrine known as "economy of means",
must be refuted. Such an opinion is wrong from both a logical and a
philosophical point of view as well as in fact. What distinguishes the rules
of the law of war is that they demand a sacrifice from the belligerents
by requiring them to forgo an advantage that a State which observes a
given rule would in fact be in a position to obtain if it infringed that rule,
and that it cannot obtain by resorting to another available means conside-
red lawful. In logic and in fact, the law of war and the economy of means
principle are diametrically opposed, since these two categories of thought
and action have different purposes. Whereas the military principle aims
at limiting a belligerent's own losses (in men, material, resources and
money), the law of war - especially in those rules based on the principle
of superfluous injury or unnecessary suffering and on the notion of
military necessity as defined above — aims at limiting the losses and
damage inflicted on the enemy.

c) As for those factors which define the unnecessary or superfluous

character of suffering or injury, it should be noted that they may be either
quantitative or qualitative in nature. The Preamble to the Declaration of
St. Petersburg took both aspects into consideration: the qualitative one in
the idea of "useless sufferings" and the quantitative one in the idea of
superfluous deaths. However, it should also be observed that when the
quantitative aspect is taken into consideration in the law of war it takes
on a qualitative character, since it must be judged on the basis of legal
criteria in order to be made the object of a rule. In HR, Article 23 e), the
two aspects are merged in the notion of "maux superflus" (incompletely
translated in that document first by "superfluous injury" and then by
"unnecessary suffering"), which, because it is a normative notion, is
essentially a qualitative one.
The motivations for the basic rule stated in PI, Article 35 (2), have
given rise to the opinion that it should be considered unlawful to resort
to means or methods of warfare that continue to produce harmful effects
after hostilities have ended, thus affecting, strictly speaking, not the
"civilian population" of the State against which they were used, but its

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 INTERNATIONAL REVIEW OF THE RED CROSS

entire "population" at a time when the latter has ceased to be an enemy.14

On this particular point it may be argued that the principle of superfluous
injury or unnecessary suffering has a direct application, since it prohibits
the adoption and implementation of strategies - of "methods of warfare"
- that aim specifically at weakening an enemy State beyond the duration
of a conflict by targeting objectives whose destruction is calculated to
cripple that State's ability to achieve economic and industrial recovery
when it is no longer an enemy. However, there is no need to invoke the
principle of superfluous injury or unnecessary suffering to point out that
such a strategy is unlawful: a great number of the attacks which would
serve to carry it out are explicitly prohibited by PI, Article 52 (1) and (2).

HI. ARTICLE 52, PARAGRAPH 2, OF PROTOCOL I

a) Authors have not called sufficient attention to the far-reaching
scope of PI, Article 52 (2), which reads as follows:
"Attacks shall be limited strictly to military objectives. In so far as
objects are concerned, military objectives are limited to those objects
which by their nature, location, purpose or use make an effective con-
tribution to military action and whose total or partial destruction, capture
or neutralization, in the circumstances ruling at the time, offers a definite
military advantage" ,15

14
Cf. the second sentence of PI, Article 55 (1), prohibiting "the use of methods or
means of warfare which are intended or may be expected to cause such damage [wide-
spread, long-term and severe] to the natural environment and thereby to prejudice the health
or survival of the population" - and not of the civilian population.
15
The concept of "military advantage" was first referred to in the 1923 Hague Draft
Rules of Aerial Warfare, formulated by a Commission of Jurists which had been set up
in accordance with a resolution of the 1922 Washington Conference on the Limitation of
Armaments and was composed of experts from France, Italy, Japan, the Netherlands, the
United States and the United Kingdom. The Hague Draft Rules, which had only the status
of a recommendation, stated in Article 24 (1): "Aerial bombardment is legitimate only
when directed at a military objective, that is to say, an object of which the destruction
or injury would constitute a distinct military advantage to the belligerent." (Dietrich
Schindler and Jiri Toman (eds.), The laws of armed conflicts. A collection of conventions,
resolutions and other documents, Dordrecht, 1988, p. 210.)
The wording of the second sentence of Article 52 (2) is based on the following
paragraph of the Resolution adopted in 1969 by the Institute of International Law, whose
terms were likewise adopted with some slight changes by the ICRC in Draft Protocol I:
"There can be considered as military objectives only those which, by their very nature
or purpose or use, make an effective contribution to military action, or exhibit a generally
recognized military significance, such that their total or partial destruction in the actual
circumstances gives a substantial, specific and immediate military advantage to those who
are in a position to destroy them," Draft Additional Protocols to the Geneva Conventions
of August 12, 1949, Commentary, ICRC, Geneva, 1973, p. 60
The resolution was adopted by 60 votes to 1, with 2 abstentions.

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

When commenting on Article 52, authors should not be misled by its

title, "General protection of civilian objects", or by the fact that it is the
first article of Chapter III (itself entitled "Civilian objects"), Section I,
Part IV: "Civilian population". After having stated the principle that
"civilian objects shall not be the object of attacks or of reprisals" (which
is new only with respect to the prohibition of reprisals), paragraph 1 of
the article stipulates: "Civilian objects are all objects which are not
military objectives as defined in paragraph 2." The definition of military
objectives in the second sentence of the paragraph is not confined to
determining what is to be understood by "military objectives". Indeed,
the originality and importance of the rule lies in the fact that within the
general category of military objectives, which it exhaustively defines, it
establishes a distinction between two sub-categories: that of objects which
are military objectives and therefore legitimate targets and that of objects
which are not. In itself, this distinction is not a permanent one: the same
object may lawfully be attacked in some circumstances and may not be
so in others, all the while remaining a military objective in law, that is
to say a potentially lawful target.16
The article was adopted by 79 votes to O, with 7 abstentions. The
interpretative declarations made by certain States at the time of the Pro-
tocol's ratification bear only on a minor point. More important is the fact
that in 1976 the United States, which to this day has not ratified
Protocol I, officially adhered in advance to the terms of the second
sentence of Article 52 (2) by inserting an amendment in the United States
Army handbook on the law of war (FM 27-10) that reproduces the
wording of this sentence as it was adopted by consensus, in commission,
during the second session of the Diplomatic Conference.17
b) From a theoretical and a practical point of view, the rule estab-
lished by the second sentence of Article 52 (2) represents the most
remarkable application both of the principle of superfluous injury or
unnecessary suffering and of the principle of necessity.
The underlying mechanism of this rule may be considered a model
application of the third article of the Russian draft of 1874 quoted above.
The first element of the definition — the constant element — corresponds

16
With the order of its two paragraphs reversed, the terms of Article 52 (1) and (2)
were adopted word for word in Article 2 (4) and (5) of the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) annexed
to the Convention of 10 October 1980, as well as in Article 1 (3) and (4) of the Protocol
on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III).
17
See Headquarters, Department of the Army: FM 27-10 - The Law of Land Warfare,
Change No. 1, 15 July 1976, para. 40, c.

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 INTERNATIONAL REVIEW OF THE RED CROSS

to the expression "consistent with the laws and customs of warfare" used
in the Russian document, while the second — the variable element —
finds a parallel in "justified by the necessities of war". Although it takes
a different form, the method used by the ICRC to define military object-
ives in its Draft Rules of 1956 (revised in 1958) incorporates a similar
mechanism. Article 7 (2) of this document reads as follows: "Only ob-
jectives belonging to the categories of objective which, in view of their
essential characteristics, are generally acknowledged to be of military
importance, may be considered as military objectives". Paragraph 3
specifies: "However, even if they belong to one of these categories, they
cannot be considered as a military objective where their total or partial
destruction, in the circumstances ruling at the time, offers no military
advantage".18
The second sentence of Article 52 (2) is also related to the principle
of military necessity by the fact that the rule is applicable through specific
decisions made "in the circumstances ruling at the time". It should be
noted that the time factor, which in this expression plays a decisive role
in limiting the definition of military objectives that may lawfully be
attacked, plays the same role in the first element comprised in the def-
inition, where it is conveyed by the condition "make an effective con-
tribution to military action" — i.e. the military action of the adversary,
who is in possession of the objective in question.
It is less easy to specify the connection between the second sentence
of Article 52 (2) and the principle of superfluous injury or unnecessary
suffering. The fact that the rule applies to objectives and not, as in the
Declaration of 1868 and HR, Article 23 e), to means of warfare, cannot
be argued to constitute a reason for not assigning the same basis to the
later rule. Indeed, the notion of "methods of warfare" itself, introduced
in PI, Article 35 (2), encompasses considerably more than is conveyed
by the expression "arms, projectiles and material" used in the text of 1899
and 1907. In the final analysis, the link between the rule established by
Article 52 (2) and the principle stated in St. Petersburg lies in their shared
purpose, concerned as it is with reducing injury or suffering by setting
as narrowly as possible "the technical limits at which the necessities of
war ought to yield to the requirements of humanity", to quote the words
used in the first paragraph of the Preamble to the Declaration of 1868.'9

18
ICRC, Draft rules for the limitation of the dangers incurred by the civilian pop-
ulation in time of war, second edition, Geneva, 1958, pp. 66, 70.
19
Contrary to violations of the prohibition on indiscriminate attacks defined in
Articles 51 (5), b, and 57 (2) a, iii, violations of the rule stated in the second sentence

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

c) The term "military objectives" in the first sentence of Art-

icle 52 (2) denotes both material and human military objectives. Accord-
ing to its wording, however, the second sentence pertains only to military
objectives that are "objects". The question therefore naturally arises
whether the ratio legis for this important rule might not apply with equal
force (allowing for the differences involved) to combatants as well. The
ratio legis is twofold, comprising both an explicit and an implicit aspect.
The ICRC had already previously given the explicit reason in connection
with the corresponding article in the Draft Rules of 1956; it did so again
when it proposed, in draft Protocol I, the rule on which the text of the
second sentence of Article 52 (2) is based. In the ICRC's understanding,
the new rule is intended to reinforce the protection of the civilian pop-
ulation by adding, to the principle of the immunity of the civilian pop-
ulation, individual civilians and civilian objects (Articles 51 [2] and
52 [1]) and to the two complementary principles of distinction (ban on
indiscriminate attacks, Article 51 [4] and [5a]) and of proportionality
(Article 51 [5b]), a further protection which would indirectly result from
the limitation of military objectives that may lawfully be attacked. The
implicit ratio legis for the second sentence of Article 52 (2) is the very
one which underlies the principle of superfluous injury or unnecessary
suffering. It must therefore be asked whether these two reasons should
not apply to attacks against members of armed forces as well.
Strictly speaking, the extension of the rule stated in Article 52 (2) to
combatants would not have the purpose of protecting them, but of exclud-
ing them, under certain circumstances, from the definition of military
objectives that may lawfully be attacked. However great a difference is
entailed with respect to the original field of application of the principle
of superfluous injury or unnecessary suffering, it may be held that this
is not enough to dismiss the idea of extending the rule stated in the second
sentence of Article 52 (2) to include armed forces. The hypothetical cases
in which the extended rule would, mutatis mutandis, be applicable to
combatants are in fact much fewer than those involving material military
objectives. Indeed, on account of the great mobility of armed forces the
two conditions expressed in the definition — the first one in the formula

of Article 52 (2) are not included among the grave breaches of Protocol I listed in its Article
85. However, Article 52 (2) is not meant to be to be an exhaustive enumeration of war
crimes, even in the case of violations of a rule established by the Protocol. Thus, the fact
that violations of the rule stated in the second sentence of Article 52 (2) are not explicitly
repressed provides possible infringers with no protection against the risk of being pros-
ecuted for war crimes, and more specifically for breaches of the laws and customs of war.
However, the problem related to the principle nullum crimen, nulla poena sine lege does
arise here. See below the corresponding text under note 28.

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 INTERNATIONAL REVIEW OF THE RED CROSS

"make an effective contribution to military action", the second one by the

words "in the circumstances ruling at the time" — would require a fairly
broad interpretation.
On the basis of a reasoning that could not have been much different
from the one we have just explained, the ICRC placed members of the
armed forces at the top of the list of categories of military objectives
included in its Draft Rules of 1956. The above-quoted Article 7 (3), which
defined, by elimination, the military objectives that may lawfully be
attacked, was therefore meant to apply to combatants as well as to objects.
The Committee did not adopt this proposed rule in draft Protocol I,
probably because it feared — admittedly with some reason — that such
an innovation could not but meet with an opposition that might jeopardize
the adoption of the rule stated in Article 52 (2).
The lack of a treaty rule extending the principle expressed in the
second sentence of Article 52 (2) to members of armed forces does not
mean that it is necessary to consider as immutable, and even less as an
imperative rule of the law of war, the centuries-old opinion that, by virtue
of their status, combatants may lawfully be attacked without restriction
in any place, at any time and under any circumstances whatsoever, ad-
mitting only those exceptions provided for in the rules pertaining to
specific situations: PI, Article 37, (prohibition of perfidy), PI, Article 40,
(quarter), PI, Article 41, (safeguard of an enemy hors de combat) and PI,
Article 42 (1), (occupants of aircraft). To declare that it is unlawful, for
example, to shower bombs and shells on troops that are completely
defeated, encircled or retreating, and in any case practically defenceless,
thereby not even affording them the opportunity to surrender, the principle
of superfluous injury or unnecessary suffering expressed in HR, Article
23 e), and PI, Article 35 (2), or else PI, Article 40, may exceptionally
be invoked. In point of fact, the latter rule should not be understood as
being strictly limited to the stipulation that "it is prohibited to order that
there shall be no survivors, to threaten an adversary therewith or to
conduct hostilities on this basis". Attacks conducted with such a purpose
in mind are prohibited by this article whether they have been ordered or
are spontaneous and whether the intention of leaving no survivors has
been announced to the enemy or not. In that this rule should be seen as
an application both of the principle of humanity and of that of superfluous
injury or unnecessary suffering,20 our example shows that the possibility

20
For a similar interpretation establishing a connection between Article 35 and the
prohibition of refusing quarter expressed in Article 40, see ICRC, Commentary on the
Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949,
Geneva, 1987, p. 476, para. 1598.

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

of extending to combatants the rule stated in the second sentence of Article

52 (2) must be left open.

IV. STATUS AND ROLE OF THE PRINCIPLE OF

SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

The last paragraph of the Declaration of St. Petersburg, in determining

the Preamble's status and role, thereby defined the place of this instrument
in the system of standards set by the law of war:
"The Contracting or Acceding Parties reserve to themselves to come
hereafter to an understanding whenever a precise proposition shall be
drawn up in view offuture improvements which science may effect in the
armament of troops, in order to maintain the principles which they have
established, and to conciliate the necessities of war with the laws of
humanity".
The Declaration thus makes clear that "the principles" expressed in
the Preamble are not applicable in and of themselves: their application
depends on the adoption, by convention, of specific rules pertaining to
new types of weapons — or to a certain type of weapon that has existed
for years in the arsenals of certain States but has not yet been generally
recognized to be unlawful — whose use is deemed to be contrary to the
stated "principles". This term, in the plural, may be summed up in what
we have called the principle of superfluous injury or unnecessary suffer-
ing. The authors of the Declaration assigned it the status and role of a
directing principle requiring that the lawfulness of means and (since
Article 35 [2]) of methods of warfare shall be judged according to the
criterion represented by the principle itself. Such a concept of the principle
expressed in 1868 goes beyond that of a "source of inspiration" suggested
by Professor Cassese,21 whose opinion the ICRC in its Commentary would
appear to share.22

21
A. Cassese, "Weapons causing unnecessary suffering. Are they prohibited?" in
Rivista di Diritto Internazionale, Vol. 48, 1975, pp. 12-42: "a very significant source of
inspiration" (p. 37).
22
Op. cit., p. 404. For an interpretation in agreement with ours, see Erich Kussbach,
"Internationale Bemiihungen um die Beschrankung des Einsatzes bestimmter
konventioneller Waffen", in Oesterreichische Zeitschrift fiir offentliches Recht und
Volkerrecht, Vol. 28, 1977, pp. 1-50. The author sees in the principle stated in HR, Article
23 e), a "general regulating principle" ("ein allgemeines Regulativ") and a "juridical
principle of the law of war" ("ein Rechtsgrundsatz des Kriegsrechts"), and not merely a
moral principle (p. 24).

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 INTERNATIONAL REVIEW OF THE RED CROSS

In spite of the terms used in the quoted paragraph from the Declaration
of 1868, it would be impossible to rule out the possibility that the use
of a certain means or method of warfare may be prohibited by a customary
rule. In such a case, the rule's emergence will be preceded by a period
of uncertainty during which the unilateral or multilateral claims that this
means or method of warfare is illegal will meet with the denial of the State
or States which are in possession of it and intend to preserve it, or whose
military doctrine continues to provide for the possibility of resorting to
it although, according to its opponents, such a method of warfare is
contrary to PI, Article 35 (2). Despite the risk of partiality involved, the
opinion of third-party States concerning the disputed means or method
of warfare is crucial to the possible formation of a rule prohibiting its use.
Such an opinion may be expressed, for example, in the form of a para-
graph in the military manual on the law of war issued by a State which
judges that the use of a certain means with which the armed forces of one
or several third-party States are equipped, or that the possible resort to
a certain strategy or tactic used or considered for use by a certain third-
party State, are prohibited by PI, Article 35 (2).
The recent military manual on the law of armed conflicts issued by
the Federal Republic of Germany proceeds in such a manner. After
recalling the ban on using dumdum bullets (Declaration Concerning
Expanding Bullets, which prohibits "the use of bullets which expand or
flatten easily in the human body", and was adopted by the First Hague
Peace Conference of 1899) as well as the customary prohibition of using
small-calibre weapons, paragraph 407 of this manual prohibits the use of
a new category of projectiles. These are not referred to by their name but
by their specific effects, considered as answering to the definition of
superfluous injury or unnecessary suffering. The prohibited projectiles are
those "of a nature to burst or deform while penetrating the human body,
to tumble early in the human body, or to cause shock waves leading to
extensive tissue damage or even a lethal shock". At the end of the para-
graph, the authors of the manual mention what they consider to be the
formal basis for this prohibition: PI, Article 35 (2).23
The effects thus succinctly described are those of the small-calibre
high-velocity weapons used by the United States army during the Vietnam
War. The lawfulness of these weapons was often questioned by experts,

23
Bundesministerium der Verteidigung, Humanitares Volkerrecht in bewaffneten
Konflikten. Handbuch, August 1992. The English translation issued by the ministry is
entitled Humanitarian law in armed conflicts. Manual.

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

non-governmental organizations and jurists24 as well as by the United

Nations. At the ICRC's invitation, a group of international experts called
upon to examine the question of weapons of a nature to cause superfluous
injury or unnecessary suffering or have indiscriminate effects studied the
medical effects of projectiles of the type referred to in the paragraph
quoted from the manual. In the report on these meetings published by the
ICRC, the paragraph in which the description of these weapons is summed
up concludes with the following statement: "Because of the tendency of
high-velocity projectiles to tumble and become deformed in the body, and
to set up especially intense hydrodynamic shock-waves, the wounds
which they cause may resemble those of dumdum bullets".25 Stressing the
purely documentary character in the report, the ICRC observed that "it
does not formulate any concrete proposals for the prohibition or limitation
of the use of the weapons under consideration, although the ICRC and
the experts alike hope that this may one day be possible".26 In the opinion
of the German Ministry of Defence, the prohibition of using the weapons
described in paragraph 407 of the manual comes within the scope of
positive law.
Juridically speaking, this is a unilaterally adopted position. As a result,
however, and even if other States do not follow suit, the governments of
countries whose armed forces are or later will be equipped with the kind
of weapon described in the quoted paragraph will be required to prove
that the use of such projectiles is lawful. Although it would not constitute
sufficient proof to argue that no treaty rule prohibits the use of the
weapons under consideration, this argument nonetheless has a certain

24
See for example Giorgio Malinverni, "Armes conventionnelles modernes et droit
international", in Annuaire suisse de droit international, Vol. XXX, 1974, pp. 23-54. The
article concludes as follows: "(...) high-velocity projectiles obviously belong to the cat-
egory of weapons causing superfluous injury or unnecessary suffering" (p. 47).
25
ICRC, Weapons that may cause unnecessary suffering or have indiscriminate
effects. Report on the work of experts, Geneva, 1973, p. 38.
26
Ibid., p. 8. Although the type of weapon under consideration was discussed at the
United Nations Conference on Prohibitions or Restrictions on the Use of Certain Conven-
tional Weapons, the debates did not result in a protocol pertaining to the regulation of this
means of warfare. The Conference had to limit itself to adopting a resolution which,
recalling that dumdum bullets were prohibited by the Declaration of 1899, requested States
to continue research into the special traumatic and ballistic effects of small-calibre weapons
and called on governments to show great caution in the perfecting of these weapons. —
Concerning another new means of warfare, laser weapons, and the questions they raise
from a humanitarian point of view, see Louise Doswald-Beck (ed.), Blinding weapons.
Reports of the meetings of experts convened by the International Committee of the Red
Cross on battlefield laser weapons, 1989-1991, ICRC, Geneva, 1993.

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 INTERNATIONAL REVIEW OF THE RED CROSS

importance in positive law in helping to assess to what degree the respect-

ive opinions of those who hold that the use of the disputed means of
warfare is lawful or not are accepted by the international community. In
this respect, it must be acknowledged that the opinion expressed in the
quoted paragraph of the manual belongs to lex ferenda.21
The most recent application of the customary principle prohibiting the
use of weapons of a nature to cause superfluous injury or unnecessary
suffering is Article 3(a), of the statute of the international tribunal for the
prosecution of persons responsible for serious violations of international
humanitarian law committed in the territory of the former Yugoslavia
since 1991, adopted by Security Council Resolution 827 of 25 May 1993.
Heading the list of violations of the laws or customs of war that come
within the Tribunal's competence, Article 3 (a) mentions "[the] employ-
ment of poisonous weapons or other weapons calculated to cause unnec-
essary suffering".
This paragraph gives rise to the following criticism:
Concerning the form. — Between the use of "poisonous weapons"
prohibited by HR, Article 23 (a), and the use of weapons of a nature to
cause superfluous injury or unnecessary suffering, prohibited by Art-
icle 23 e), no relation exists in fact or in law that can justify listing them
together as constituting a single violation. While it is to be regretted that
the authors of the English version committed the negligence of adopting
the restrictive translation of 1907 (made so by its use of the expressions
"calculated to cause" and "unnecessary suffering"), it is to be regretted
even more that the authors of the French version translated this doubly
flawed text back into their own language instead of keeping to the au-
thentic French version of Article 23 e).

27
This is probably the correct way to interpret the cautious opinion of a writer who
commented on the above-quoted paragraph in D. Fleck (ed.), Handbuch des humanitdren
Volkerrechts in bewaffneten Konflikten, C.H. Beck, Munich, 1994.
On this particular point we are in agreement with the opinion of Professor Kalshoven,
who does "not share the optimism" of those who "believed that 'unnecessary suffering'
and 'indiscriminate effects' provided standards that could simply 'be applied to existing
and possible future weapons'. For any such straightforward application, their component
parts on the one hand and the characteristics of modern weaponry on the other provide
far too many complications and difficulties of interpretation." ("The conventional weapons
convention: underlying legal principles", IRRC, No. 279, November-December 1990,
pp. 510-520 (p. 517).

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 THE PRINCIPLE OF SUPERFLUOUS INJURY OR UNNECESSARY SUFFERING

Concerning the content. — Neither one of these two violations is

mentioned in the provisions of the Geneva Conventions or in those of
Protocol I, nor are they included in the definition of war crimes provided
in Article 6 (b) of the Statute of the International Military Tribunal of
Nuremberg. However, neither the article of the Conventions pertaining
to grave breaches nor Article 85 of Protocol I claim to define war crimes
in an exhaustive manner, and Article 6 (b) of the Statute of the
Nuremberg Tribunal itself specifies that it is not all-inclusive. No ob-
jection can be raised against making the use of poisonous weapons a
violation, that is to say an indictable offence, and indeed the prohibition
of such weapons is a well-established rule of customary law. The same
may not be said, however, for the prohibition of using "weapons cal-
culated to cause unnecessary suffering". Although the use of such
weapons is termed a violation in the Report of the United Nations
Secretary-General containing the draft Statute as subsequently adopted
by the Security Council, to term it as such was to ignore the concern
expressed in that Report that "the application of the principle nullum
crimen sine lege" requires that the international tribunal should apply
rules of international humanitarian law which are beyond any doubt part
of customary law so that the problem of adherence of some but not all
States to specific conventions does not arise".28 The terms in which the
violation under consideration is formulated are much too general to meet
this explicit requirement by the Secretary-General, which derives from
the basic conditions laid down by international criminal law and by the
domestic criminal law of States governed by the rule of law. In fact, only
a very limited number of specific treaty rules meet this requirement, and
they are applications of the prohibition stated in HR, Article 23 e). The
only ones that can actually be cited are the prohibition of using dumdum
bullets and the prohibition "in all circumstances [of using] any booby-
trap which is designed to cause superfluous injury or unnecessary suf-
fering" set out in Article 6 (2) of Protocol II annexed to the 1980
Convention.
One further point should not be omitted when dealing with the topic
under examination. It is important to assert that the principle of super-
fluous injury or unnecessary suffering is equally applicable to internation-
al and non-international armed conflicts, with no need to distinguish
between conflicts coming within the provisions of Article 3 common to

S/25704, p. 9.

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 INTERNATIONAL REVIEW OF THE RED CROSS

the four Geneva Conventions and conflicts having reached the level
defined in Article 1 of Protocol II thereto. Such applicability is imperative,
we believe, for fundamental reasons of humanity.29

Henri Meyrowitz, who holds a doctorate of laws, is an honorary lawyer at the Paris
bar and a laureat of the Paris Faculty of Law. Born in Darmstadt in 1909, he studied
at the University of Frankfurt and has been living in Paris since 1933. He is the
author of La repression par les tribunaux allemands des crimes contre I'humanite
et de I'appartenance a une organisation criminelle, Paris, 1968; Les armes
biologiques et le droit international, Paris, 1968; Le principe de legalite des
belligerants devant le droit de guerre, Paris, 1970, and of some 40 articles dealing
with various aspects of the law of armed conflicts.

29
For a similar opinion see the Declaration on the rules of international humanitarian
law governing the conduct of hostilities in non-international armed conflicts, adopted in
1990 by the Council of the International Institute of Humanitarian Law (IRRC, No. 278,
Sept.-Oct. 1990, pp. 404-408 [p. 405]). On the applicability of the three Protocols of 1980
to non-international armed conflicts, see also Yves Sandoz, "The question of prohibiting
or restricting certain conventional weapons", IRRC, No. 279, Nov. - Dec. 1990, pp. 473-
476, and Maurice Aubert, "The International Committee of the Red Cross and the problem
of excessively injurious or indiscriminate weapons", ibid., pp. 477-497 (pp. 493-494).

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