This presentation discusses the rights of parties to a conflict to adopt methods and means of warfare at their choice while also highlighting their limits in this regard.

2. Discussion on IHL Contemporary
Armed Conflict
At
The Observers Research Foundation
Friday, 14th March 2014

3. Discussant
Maj Gen Nilendra Kumar
Director
Lex Consilium Foundation

4. 1. Comments and response on the presentation
2. Means and methods of warfare.
3. Discussion-
a) Drone attacks
b) Iraq war
c) Sri Lanka
4. Points pertaining to India

5. IHL limits the rights of parties to a conflict to use methods
and means of warfare of their choice.

6. Methods and means of warfare relate to the types of
weapons used, the way they are used and the general
conduct of all those engaged in the armed conflict.

7. 1. Hague Convention of 1907
2. The 1977 Additional Protocols to the Geneva
Conventions.
3. A series of agreements on specific weapons.

8.  Means - are tools and weapons of war.
 Methods - concern the manner, or the way, in which
warfare is conducted.

9. Primers concerning conventional weapons as well as
biological, chemical and nuclear weapons.

10. Methods of warfare consist of various general categories
of operations, such as bombing, as well as specific tactics
used for attack, such as high altitude bombing.

11. CUSTOMARY IHL
Rule 17- Each party to the conflict must take all feasible
precautions in the choice of means and methods of
warfare with a view to avoiding and in any event
minimizing, incidental loss of civilian life, injury to
civilians and damage to civilian objects.

12. 1. Timing of attack
2. Avoid combat in populated area
3. Selection of means of warfare proportionate to the
target.
4. Use of precision weapons.
5. Target selection.

13. Injury to individuals and resultant suffering must be
limited to that necessary to win the battle.

14. Such a mandate can be attained by adherence to certain
general principles

15. 1. Distinction
2. Proportionality
3. Protection
4. Military necessity
5. Superfluous injury/unnecessary suffering
6. Precaution
For due observance of such principles, various rules have
been framed.

16. Rule 6- Civilians are protected against attack, unless and
for such time as they take a direct part in hostilities.

17. It is particularly prohibited to employ means or methods
which are intended or of a nature:
 To cause superfluous injury or unnecessary suffering
 To injure military objectives, civilians, or civilians
objects without distinction.
 To cause wide spread long term, and severe damage to
the natural environment.

18. 1. Bullets
2. Cluster munitions
3. Poisons and poisoned weapons
4. Biological and chemical weapons
5. Chemical weapons

19. However, nuclear weapons are not prohibited or restricted
by binding legal instruments of IHL.

20. There are certain methods of waging war that are
prohibited

21. 1. Perfidy
2. Attack on undefended towns
3. Attacks on cultural property
4. Reprisals
5. Starvation of civilians

22. 1. Ruses of war and use of measures necessary for
obtaining information on the opposite party.
2. Psychological warfare
3. Deny the enemy ability to produce weapons

23. Disarmament and humanitarian law efforts have usually
been reactive. They have lagged behind.

24. Sr.
No.
Convention/ Protocol Date First Military Use
1. Prohibition of Bacteriological
and Toxin weapons
10 April 1972 1960s
2. Prohibition of Environmental
Modification Techniques
10 December 1976 Early 1970s
3. Deemed to be exclusively
injurious
21 December 2001 -
4. Non Detectable Fragments
(Protocol 1)
10 December 1980 -
5. Mines, Booby Traps 3 May 1986 Used in WW II
August 1943
6. Incendiary Weapons 10 October 1980 18 January 1915
7. Explosive Remnants of War 28 November 2003
8. Anti- personal Mines 18 September 1997 Used in WW II
9. Cluster Munitions 30 May 2008 Used in WW II

25. CONTEMPORARY ISSUES

26. 1. Attack on civilians and civilian buildings.
2. Execution of combatants and prisoners
3. Enforced disappearances.
4. Child soldiers.

27. DRONE STRIKES
Number of civilians killed are estimated to be around 286 to 890
including 168 to 197 children

28. Degree of Proof
1. Preponderance of the evidence
2. Clear and convincing evidence
3. Beyond a reasonable doubt
4. Near certainty

29. Number of attacks- 369 casualties
a) Militants- 2,29
b) Civilians- 286
c) Unknown- 274
TOTAL- 2,851
As of 25 December 2013 according to New America
Foundation

30. 1. Drone attacks cause collateral damage.
2. A few militants are killed but the majority are
civilians.

31. The attacks are illegal, inhumane, violate the UN Charter
on Human Rights and constitute a war crime.

32. US is involved in an armed conflict with Al -Qaeda, the Taliban
and their affiliates. Use of drone is consistent with self defence
under International Law.

33. 1. Civilian massacres
2. Bombing of civilian targets
3. Terrorism
4. Use of torture
5. Murder of PWs

34. During US invasion of Afghanistan December 2001. Between
250 and 3000 Taliban prisoners in transit were shot and/or
suffocated to death in metal truck containers.

35. 1. White phosphorus use
2. Allegations of beatings, electrocution, mock
executions and sexual assault.

36. Use of depleted Uranium and white phosphorus by the US
military blamed for birth defects and cancers in the Iraqi city of
Fallujah.

37. Killing of two Indian soldiers of 13 RAJ RIF on 8 January 2013 in
Mendhar area of Poonch in J&K. Two soldiers were killed and
their bodies found mutilated, with one decapitated.
The incident was viewed as an additional element of atrocity. It
was described by Indian media as barbaric and inhuman
mutilation of the corpses and as ghastly and dastardly act.

38.  Abu Ghraib torture and prisoner abuse
 Mukaradeeb wedding party massacre
 Planting weapons on non combatants and unarmed Iraqis after
killing them
 Black Water Baghdad shootings.

39. Civilian objects (attacks, use and seizure) e.g. Colombia.

40. 1. NATO 5.56 cartridge
2. Agent defeated weapons of US

41. Designed to target and destroy stock fields of chemicals or
biological weapons without dispersing or releasing them
to surrounding areas.
The bullet is capable of impact at high velocity and yaws
in tissue, fragmenting can result in dramatic wounding
effects.

42. A codification of existing rules of customary international
law on warfare. It introduced a ban on reprisals against
civilians.
Articles 35 to 42

43. Only part of this Protocol that deals with methods and
means is Article 4.

44. The detention and torture of school children who spray-
painted anti government graffiti in a Southern City.

45. 1. Large , homemade incendiary devices in the form of barrel
bombs.
2. Protestors gunned down.
3. Beheadings and sectarian killings.
4. Killing of 11,000 detainees by Syrian authorities.

46. India is not a signatory to AP I and AP II.
Acceptance of IHL instrument not to be used as a tool of
political bargain.

47. Instruments to which India is not a Signatory
 AP I, 1977
 AP I, Declaration Art 90
 AP II, 1977
 ICC Statute, 1998
 Hague Port, 1999
 Mine Ban Convention, 1997

48. AP-I, Art 56, 2(a)
The special protection against attack provided by
Paragraph 1 shall cease-
a) For a dam or dyke only if it is used for others than its
normal function and in regular significant and direct
support of military operations and if such attack is the
only feasible way to terminate such support.

49. Use of subjective words-
1. How does one define normal, regular, significant and
direct.
2. ‘Only feasible way’

50. Lack of clarity-
1. No rules have been formed so far
2. What is the threshold level to declare an area as
‘disturbed’ or ‘dangerous’
3. Absence of clearly articulated rules of engagement:
a) To avoid or minimize the collateral damage by
b) use of automatic weapons

51. New means and new methods of warfare would require
constant scrutiny from IHL prism to avoid and minimize
incidental harm to civilians and civilian objects

52. THANK YOU