technology of the weapon, i.e., they aredesign-dependent. Examples include:* exploding bullets, which areusually lethal or cause grade 3 limbwounds;* chemical and biologicalweapons, which inflict specific dis-eases or abnormal physiological states;* blinding laser weapons, whichcause specific permanent disability tothe eyes and have effects for whichthere is no proven medical treatment;* “point-detonated” anti-person-nel mines, which result in a severe(grade 3) injury to the foot or leg,which in turn results in specific dis-ability and disfigurement.
International Law and the SIrUSProject
States have an obligation to review thelegality of the weapons they intend to use.This principle, as it applies to new weapons,is enshrined in Article 36 of Protocol I addi-tional to the Geneva Conventions of 1949.One reason that a weapon might be deemedillegal is that it causes “superfluous injury orunnecessary suffering.”Since the 1868 Declaration of St.Petersburg, the principle that the only legiti-mate purpose of war is to weaken the mili-tary forces of an opponent has been anaccepted fundamental principle of interna-tional humanitarian law .1It was estab-lished that this purpose would be served bydisabling enemy combatants and that it“would be exceeded by the employment of arms which uselessly aggravate the suffer-ings of disabled men, or render their deathinevitable” . This principle has been reaf-firmed in various international instrumentsin the form of a prohibition on the use of “weapons, projectiles and material and meth-ods of war of a nature to cause superfluousinjury or unnecessary suffering” [6,7]. In1996, the International Court of Justice statedthat this rule constitutes one of the “intrans-gressible principles of international custom-ary law” and is a fundamental rule to beobserved by all States .Despite the firmly established nature of this prohibition, its application has often been difficult or has not even been attempteddue to the difficulty for lawyers, weapondesigners, and political leaders to determinethe degree of human injury or sufferinginflicted. Judgments as to whether a specificweapon causes “superfluous injury or unnec-essary suffering” have most often been madeprimarily on the basis of subjective influ-ences, often prompted by generalized publicabhorrence of a particular weapon, ratherthan an appraisal of whether the weapon’seffects might outweigh military need.The notion of “superfluous injury andunnecessary suffering”2relates to the design-dependent effects of specific weapons onhealth. Indeed the prohibition refers toweapons “of a nature to cause”3these effects.Although much of humanitarian law isaimed at protecting civilians from the effectsof armed conflict, this rule of customaryinternational law constitutes one of the fewmeasures intended to protect combatantsfrom certain weapons which are deemedabhorrent or which inflict more sufferingthan required for their military purpose.All weapons whose use is already con-trolled or prohibited under internationalhumanitarian law cause injuries that exceedthe baseline of weapon injuries seen in recentconflicts, as described by the SIrUS Project.Had such an approach existed when theproblems related to these weapons were being discussed, their control or prohibitionmight have occurred through a more rationaland efficient process. Subsequently, consen-sus on and universalization of the relevantrules might also have been achieved morerapidly.
In May 1999, the ICRC convened a meet-ing of government experts in internationalhumanitarian law and of military and civilianmedical experts to consider the proposalscontained in the SIrUS Project. On the basis of discussions in this meeting and bilateral con-sultations, the ICRC made a set of proposalsfor consideration by the States, the
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1. Even before 1868, the ancient laws of war inIndia, Greece, Rome, and the Middle East hadprohibited poison weapons because of theirexcessive effects. The 1863 Lieber Instructions :Instructions for the Government of Armies of the United States in the Field (General OrdersNo. 100, of 24 April 1863) also “wholly exclud-ed” this means of warfare on the same grounds.2. Both terms are translations from the singleFrench concept of “maux superflus” containedin the 1899 and 1907 Hague RegulationsRespecting the Laws and Customs of War onLand, Article 23 (e). The French text is the onlyauthentic text of the 1899 and 1907 HagueRegulations.3. This term is translated from the originalFrench “propres à causer.” The term was incor-rectly translated into the English “calculated tocause” in the 1907 Hague Regulations, whichintroduced the subjective element of theweapon designer’s intention. This error wascorrected when the original “of a nature tocause” was restated in Protocol I of 1977,Article 35, para. 2.