This article is written by Bunmi Adaramola, a current LPC MSc student at the University of Law. This article presents a detailed overview of the means and methods of warfare in IHL, the general restrictions which exist on both, and the rationale behind these of limitations. 

1.1 An Overview of War and Conflict

War and conflicts are a part of history and international relations. Disputes exist among nations, some of which end up in war, or apply the use of force and intellectual violence. The only legitimate objective of war, as asserted in the Guide to Humanitarian Law and as defined by the law of armed conflicts, is to ‘weaken and overpower the opponent’s military forces’. In IHL, parties who eventually decide to go to war as a means to resolve conflicts, have right to choose what means and methods of warfare they intend to employ, which is asserted by Meissner in his article on the ICRC blog. However, this right is not fully qualified as there are restrictions on this right. 

So why do such restrictions on IHL rights exist? It is worth considering the history of conflict to ascertain this point. The history of war and conflict out rightly reveals instances of ‘double objectives’, where the target in war or conflict, displays both military and civilian characteristics. This may then unintentionally, cause civilian involvement and destruction within the war, which is never the aim of IHL. Article 8 of Protocol I states that the basic rule of armed conflicts and war is for ‘the protection of the civilian population against the effect of hostilities’. As such, going back to the point as reiterated before, the double objective principle clearly contradicts this rule, where the target has both military and civilian characteristics. Furthermore, war history reveals ‘total destruction of the enemy and the risk of extermination’ to those parties involved, according to Meissner, which IHL intends to limit and reduce. 

1.2 Means and Methods of Warfare

The ‘Guide to Humanitarian Law’ succinctly defines the means and methods of warfare in IHL. The means of warfare are the weapons or weapons systems used in wars. On the other end, the methods of warfare are the tactics or strategies used in hostilities against an enemy in times of war. 

Generally, the limitations on the means exist on weapons or weapons system which:

  1. indiscriminately strike civilians and combatants,
  2. cause extensive or irreversible damage or 
  3. are disproportionate to any specific military advantage. One point for concern here, is that there is no direct reference as to what types of weaponry are prohibited and what weaponry should and should not be developed or created. On the other end of the spectrum, the prohibitions on methods generally revolve around tactics or strategies which are ‘gratuitous and leave wanton violence and destruction’ in its wake as asserted under the Guide to Humanitarian Law. In this vein, the prohibited methods include taking unfair advantage of the presence of the civilian population to promote the conduct of hostiles, starvation, terror, indiscriminate attacks, damage to natural environments, or works containing dangerous forces. However, unlike the means, IHL may impose certain conditions on methods, which must be satisfied for any parties to employ a particular tactic or strategy.

 Such methods must be: (i) justified by a real and direct military necessity. This is often known as the ‘principle of distinction’, to allow a necessary distinction between what a real and direct necessity is, and what it does not constitute. (ii) directed to a military objective. Again, this ties itself neatly with the first condition, which is clear from the definition of this condition as the ‘principle of military necessity’. (iii) proportionate to the threat. This is the principle of proportionality and is usually the principle that generates numerous debates from IHL scholars. For one, how and by what standard do we define proportionality? This question proves the point that this is a subjective test, as proportionality under one standard, may be seen as disproportionate under a different interpretation. 

1.3 International Regulations in IHL which Limit Means and Methods of Warfare.

Various IHL texts and regulations exist which establish principles, rules, and prohibitions on the means and methods of warfare. These ascertain the use of violence, as well as a permitted variety of methods in warfare, especially in international armed conflicts. These documents include: (i) the 1899 and 1907 Hague Conventions (ii) 1949 Geneva Conventions (iii) 1977 Additional Protocols, and for this article, the focus would mainly be on the articles within Protocol I. 

Protocol I sets out the principles of armed conflicts in IHL. These offer the opportunity to examine and assess the various methods and means of warfare, as the principles tie with some of the restrictions and prohibitions placed. For instance, one principle state that during warfare, only military objectives may be achieved and attacked. This places an express bar on involving civilians in any war or armed conflict. The principles also back up the proportionality principle by expanding on the fact that ‘all feasible precautionary measures must be taken to minimize any incidental effect on the civilian population’ (Guide to Humanitarian Law). Protocol I places some constraint on the development of new weapons by states, as this presents a much easier method of directly prohibiting the use of a weapon before it is even incorporated into any state’s arsenal. 

As previously asserted, and backed up by the ICRC’s casebook, some international conventions, particularly the Geneva Conventions and its Additional Protocol, does not prohibit or restrict the use of any specific weapon. Rather, the focus tends to be more on the methods, tactics, and strategies of armed conflicts. Furthermore, international conventions allow the application of the principles and limitations to make a necessary compromise between military necessity and humanity. The problem here is that very often, the lines are usually always blurred as these definitions are not normally defined in these conventions.

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