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, December 2018


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


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.


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.


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 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.


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


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.



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   (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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions