India: Limitation On The Choice Of Means And Methods Of Warfare

Last Updated: 17 January 2017
Article by Tanuka De

Most Read Contributor in India, July 2017

THE PRESENT WEAPON SYSTEM OF THE WORLD

Considering the hostiles across the border and the anticipation and on-going talks of a warlike situation gathering over the issues in Kashmir, it is pertinent that the laws of war and use of weapons be re-visited once more because "At his best, man is the noblest of all animals; separated from law and justice he is the worst."- Aristotle

HOW DO WE USE OUR WEAPONS?

International Humanitarian law, also known as 'Laws of War' serves to regulate and minimize the effects of an armed conflict. The law of weaponry dwells on the basic concept that the rights of belligerents to adopt means of injuring the enemy are not unlimited.1 This principle is traced by the authors of the ICRC Commentary on Additional Protocol 1 back to the writings of Grotius2. It is reflected in the Hague Regulations of 19073 and in Article 35 of Additional Protocol 1 to the Geneva Conventions. It is undoubtedly a principle of customary international law and thus binding on all states irrespective of the fact whether they have ratified certain treaties or not.

The two basic principles of the law of armed conflict concerning the use of weapons are that weapons should neither cause unnecessary suffering to combatants nor be used in a manner that will indiscriminately affect both combatants and noncombatants4. These rules are now codified in Articles 35, 36and 51(4) of the Additional Protocol 1.

THE PRESENT WEAPONS SYSTEM CONDITION OF THE WORLD:

In using any particular weapons system, a distinction should be made between legitimate military targets and civilians and objects. The modern rules on specific weapons are contained in different treaties some dating to 1868.

The real problem is that not all states are bound by the same treaties. Some have accepted a given treaty but with national reservations or interpretations. Let us now look at the various provisions as they stand today:

  • Explosive Projectiles: The use of projectiles below the weight of 400 gm. which are either exploding or contain an inflammable substance are prohibited – St. Petersburg Convention, 1868.
  • Explosive Bullets: The uses of bullets which expand or flatten easily in the human body are prohibited.
  • Poisoned Weapons, gases and Bacteriological methods of Warfare: The use of poison or poisoned weapons is prohibited under the Hague Convention of 1907. The Geneva Protocol of 1925 prohibited the use of asphyxiating, poisonous or other gases and bacteriological methods of warfare.
  • Booby traps, Mines and Incendiary Weapons: The 1980 UN Convention dealt with these and non-detectable fragmentation weapons. This convention is divided into 3 Sections or Protocols:

PROTOCOL 1 Deals with Non-detectable fragments.

PROTOCOL 2 Deals with Booby Traps and Mines.

PROTOCOL 3 Deals with Incendiary weapons.

SCENARIO IN INDIA:

India ratified all 3 protocols of the Convention in March 1984: some provisions on weapons were adopted a time ago. Others are very new and some still in the process of definition and ratification. As recently as September 1995, the Vienna Conference added a further protocol to those of 1980. This dealt with Laser weapons. It prohibits the use of laser weapons whose sole purpose is to blind the opponent. Proposals to Anti-Personnel mines were also addressed and efforts in this direction will continue in the future.

The Indian military ranks third in position in terms of number of troops after the U.S. and China. The paramilitary unit of the Republic of India is the world's largest paramilitary force at over one million strong. Eager to portray itself as a potential superpower, India began an intense phase of upgrading its armed forces in the late 1990s. India focuses on developing indigenous military equipment rather than relying on other countries for supplies. Most of the Indian naval ships and submarines, military armored vehicles, missiles, and ammunition are indigenously designed and manufactured.

The law of war is dynamic. It has and will continue to and try and limit the excesses of war. Much of the law is ignored particularly with respect to mines; it is the innocent civilians who pay the price.

INDIA'S NO FIRST USE POLICY:

India has recently declared a nuclear 'no-first-use policy and is in the process of developing a nuclear doctrine based upon a certain principle known as "credible minimum deterrence". In August 1999, the Indian Government came up with a draft of this particular doctrine which asserts that nuclear weapons are should exclusively and only be used in case of deterrence and also said that India will pursue a policy of "retaliation only". This means that India will use its nuclear weapons only in dire consequences only where the safekeeping of the nation depends upon the usage of these weapons only. The document also states the following statement: "India will not be the first to initiate a nuclear strike first, but will respond with punitive retaliation should deterrence fail" and that the decisions to authorize the use of nuclear weapons would be made by the Prime Minister or his 'designated successors' only. According to certain reports, despite the extreme tension during the India Pakistan War of 2001-2002, India remained committed to its no-firstuse policy. India is not a signatory to either the Nuclear Non-Proliferation Treaty (NPT) or the Comprehensive Test Ban Treaty (CTBT), but did accede to the Partial Test Ban Treaty in October 1963.

NEW AGE WEAPONS – DRONES:

An unmanned aerial vehicle (UAV), commonly known as a drone and referred to as a Remotely Piloted Aircraft (RPA) by the International Civil Aviation Organization (ICAO), is an aircraft without a human pilot aboard. Its flight is controlled either autonomously by onboard computers or by the remote control of a pilot on the ground or in another vehicle. The typical launch and recovery method of an unmanned aircraft is by the function of an automatic system or an external operator on the ground.

Under international humanitarian law drones are not expressly prohibited, nor are they considered to be inherently indiscriminate or perfidious. In this respect, they are no different from weapons launched from manned aircraft such as helicopters or other combat aircraft. It is important to emphasize, however, that while drones are not unlawful in themselves; their use is subject to international law.5

STATE OF AFFAIRS WITH RESPECT TO INTERNATIONAL HUMANITARIAN LAW CASE STUDIES:

There are people with contradicting mind sets around the world; members of the armed forces have often suggested that the weapons that have been discussed as inherently dangerous should be used without any restrictions for the sake of security with which they can defend themselves.

The words of these men fighting battles, ensuring our safety cannot be completely done away with and this is why there is still so much ambiguity remaining in the case of law of weapons. Jurists and other men yet do not know whether to completely ban such weapons for the sake of civilians and for the benefit of our future generations or to think about the state of the combatants-their mortality and allow the usage of such weapons. Such contradictions have come up in various international law cases also.

We can take the instance of The Nuclear Weapons Case6, where in the dissenting opinion given by Justice Higgins, she says that there has to be respect for human rights in International armed conflict and the "unnecessary suffering principle" should also be kept in mind. The weapons, which over the years have been banned by one treaty or the other, should be heeded to and the provisions must be obliged with. Contrary to the above decision, the Japanese Court in the Shimoda v. The State7 case says, "The use of a certain weapon, great as its inhuman result may be, need not be prohibited by international law if it has a great military effort.

Therefore we see how dual opinions about the usage of weapons have arisen in the world. However, the table stipulated on the subsequent page will give us a clear concept and understanding about the finality of the position of the law of weaponry as it exists today.

WEAPONS SPECIFICALLY BANNED IN TREATIES:

Footnotes

1 Bill Boothby, "The Law of Weaponry – Is it adequate?" in International Law and Armed Conflict: Exploring the fault lines-Essays in Honor of Yoram Dinstein

2 Grotius, De jure belli ac pacis, 1625

3 Article 22

4 Fenrick, "The Conventional Weapons Convention: A modest but useful Treaty", international Review of Red Cross, No. 279 (November-December 1990), 498, 499.

5 http://www.icrc.org/eng/resources/documents/interview/2013/05-10-drone-weapons-ihl.htm   (26.06.2014 ; 9:32 pm)

6 Nucleur Weapons Case, ICJ Reports, (1996), p. 583-585 (Higgins J. dissenting.)

7 Shimmoda v. The State, 32 ILR 626 at 634.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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