Weapons under International Human Rights Law

Edited by Stuart Casey-Maslen

Cambridge University Press, 2014
633 pp
ISBN 978-1-107-02787-9 (hardcover)
ISBN 978-1-107-53806-1 (paperback)

Reviewed by Natalia Jevglevskaja (University of Melbourne)

States party to Additional Protocol I to the Geneva Conventions (‘AP I’) have an obligation to determine whether weapons that they intend to use in armed conflict are compatible with their obligations under international law.[1] In 2006, the International Committee of the Red Cross (‘ICRC’) published a document on the interpretation and practical implementation of this rule — A Guide to the Legal Review of New Weapons, Means and Methods of Warfare (‘Guide’).[2]  The Guide planted a seed of an idea in the minds of two people, Dr. Robin Coupland, a surgeon and a long-time ICRC staff member, and Professor Andrew Clapham, Director of the Geneva Academy of International Humanitarian Law and Human Rights. They recognised the need for a discourse on the legal framework applicable to weapons used outside the context of an armed conflict. In particular, they believed it was timely to analyse — in a way akin to the Guide’s style — how international human rights law (‘IHLR’) impacts on weapons use.

The book reviewed here, Weapons under International Human Rights Law, is the realisation of that idea. This result, the joint efforts of the editor, Stuart Casey-Maslen from the Geneva Academy, and a number of contributors, may have well surpassed the expectations of Dr Coupland and Professor Clapham. In terms of volume alone, the book exceeds the number of pages of the ICRC’s Guide by nearly 27 times. The study — comparable in its comprehensiveness to a commentary — offers a solid evaluation of the legality of weapons use in a wide range of settings.

The book consists of 19 chapters, arranged into six parts, covering a broad array of different scenarios: the use of weapons in law enforcement and anti-piracy operations, as well as in psychiatric, juvenile or immigration centres, just to name a few. The reader is introduced to a variety of weapons, projectiles and platforms, ranging from rubber bullets, sticky foam and sound guns to howitzers and unmanned aerial vehicles. A number of interesting practical legal questions are addressed. To begin with, should police doctrine on new weapons draw its primary inspiration from the military, as it has largely happened in the US? Raising this question in the very first chapter of the volume, Stuart Casey-Maslen observes the worrying tendency towards the increasing militarization of police through equipping them with ever more powerful weaponry and ammunition. When is a warning shot at a suspected pirate vessel prohibited? This is just one of the issues Alice Priddy looks into when exploring the extent of force admissible in counter-piracy operations (chapter 5). Can armed non-State actors or transnational corporations commit human rights violations? This matter is addressed by Andrew Clapham and Ralf Steinhardt in chapters 6 and 17 respectively.

While necessarily selective in the choice of legal issues covered in each chapter, the thorough and comprehensive style of the book is striking. Also, a clear distinction is maintained throughout the chapters between what the law says, what it does not say, and what — in the authors’ opinion — it should say. Each individual contribution delivers a self-contained account and could be studied without recourse to other chapters or published as a free-standing article in a law journal. Nonetheless, having all the contributions not only compiled in the same volume but also presented in a certain order is precisely what helps one follow the development of the underlying argument which is intentionally provocative.

As implied in the editor’s preface, weapons and their development have been historically associated with waging wars, defeating the enemy or keeping it away from one’s own sphere of influence. Weapons have been seen as a symbol of power, supremacy in weapons often dictating the outcome of the battle, leading to recharting of borders and redistribution of capital. It is the editor’s major assumption that a different state of affairs prevails these days because weapons are far more often used in what we refer to as ‘peace time’. While weapons developed or acquired for the use in armed conflicts will undergo review by the States party to AP I under Article 36, it is unclear how States decide to proceed if the same weapons are adopted, for example, for law enforcement purposes. The editor and contributors believe that IHRL has advanced to provide the most appropriate answer to such a scenario. And so, the preface as well as the concluding chapter assert that IHRL ‘offers an overarching international legal framework to help determine the legality of any weapon’. Such a statement appears natural with regard to the use of firearms or riot control agents in law enforcement (see chapters 1 and 11 respectively). However, as will be shown below, it is doubtful whether IHRL also provides an overarching framework for weapons in an armed conflict.

Given the length of the volume, I cannot explain here how each of the book’s chapters supports its principal argument. Instead, I would like to focus on a limited set of issues which highlight the book’s merits but also challenge its underlying assumption. I will first consider the notion of ‘weapon’ and the intricate challenges associated with regulating advancement in weapons technologies. I will then address the claim put forward by Stuart Casey-Maslen, Neil Corney and Aby Dymond-Bass in chapter 14. They argue that human rights, above all the right to life, and the prohibition of torture and other forms of cruel, inhuman or degrading treatment, would need to be considered in reviewing legality of weapons deployed by the military in an armed conflict. As I will explain below, the authors fail to persuasively advance and support their argument.

Analysing how IHRL applies to and regulates weapons is a challenging task in many respects. To commence with, the concept of ‘weapon’ is less clear than it may appear at first sight. There is no commonly accepted definition of the term. Some international treaties focus on specific types of weapons (such as the Land-Mine Convention[3] or Convention on Cluster Munitions[4]). Others regulate the use of weapons, means and methods of warfare in general, without, however, further defining any of these terms (for example, the 1899/1907 Hague Regulations[5] or AP I). Domestically, States tend to adjust their understanding of what qualifies as a weapon depending on the regulatory context. Thus, penal law will often use a more generic notion of a ‘weapon’ when criminalising, say, aggravated assault than, for example, a statute aimed at regulating the use and possession of firearms. Although to some extent the definitions might overlap, their scope will not necessarily be identical. Moreover, the concept of weapon is not static; it is fluid. As technology develops, the notion of weapon transforms and adjusts to new circumstances. Thus, a packet of binary code engineered to accomplish surreptitious tasks through software-operated machines, such as computers, mobile phones, or industrial equipment, may become a ‘cyber-weapon’. Since almost anything can be turned to a weapon (a pillow can be used to suffocate a person; eagles are employed by the Dutch police as intelligent, adaptive anti-drone weapons),[6] it is important to be clear about the subject of discussion and outline its parameters prior to analysing how IHRL applies. The editor mindfully does so in the preface by adopting a broad definition of a weapon. Accordingly, a weapon is

[a]ny device constructed, adapted, or used to kill, harm, disorient, incapacitate, or affect a person’s behaviour against their will, or to damage or destroy buildings or materiel. A weapon acts through the application of kinetic force or of other means, such as the transmission of electricity, the diffusion of chemical substances or biological agents or sound, or the direction of electromagnetic energy. The term ‘weapon’ includes cyber weapons that damage computer systems and networks or result in physical harm to people or objects. (at xx)

Such a broad definition makes it possible for the contributors to address a wide range of time-honored but also modern technologies.

Classifying certain device as a weapon is merely a preliminary step which cannot be done in isolation from addressing specific legal instruments or regime(s) tailored to govern that particular weapon. Examining the legality, for instance, of blinding laser weapons proceeds from the specific set of arms control rules, such as Protocol on Blinding Laser Weapons,[7] to the more general rules of the law of armed conflict (‘LOAC’) or international humanitarian law. In that regard, analysing the impact of increasingly sophisticated technological systems on the enjoyment of human rights could be tricky, as it might require delving into regulatory frameworks which may still be in a rudimentary, nascent phase. To illustrate, States’ reliance on the internet is today almost ubiquitous, making cybersecurity and development of cyber capabilities an issue of critical importance. While the cyber domain gradually emerges to a field where law enforcement agencies of States become more and more active, the applicable normative framework is currently just evolving with many of its civil and criminal law regulations yet to be shaped, detailed and tested.

Legal review of weapons is crucial for military and law enforcement agencies alike to ensure that the use of weapons complies with existing legal standards. Whilst military weapons have been subject to a review under Article 36 of AP I since the late 1970s,[8] no equivalent international regulation exists when it comes to the use of weapons by the police. So, in chapter 14, Casey-Maslen, Corney and Dymond-Bass undertake a long overdue initiative. They suggest a normative framework for the review of the legality of weapons used in law enforcement. So, any weapon used by the police has to comply with what the book terms ‘international law of law enforcement’, which comprises:

  • treaty-based IHRL, especially rights to life, liberty, security, to peaceful protest (an umbrella right comprising a number of independent rights), and to freedom from torture and other forms of cruel, inhuman, or degrading treatment or punishment;
  • customary international law, derived from, inter alia, criminal justice standards, especially the 1979 Code of Conduct for Law Enforcement Officials and the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; and
  • general principles of law, which reflect core principles of national criminal law across democratic nations (at xvi-xvii).

It remains to be seen whether suggested the framework will ever be moulded into a single provision of a regional or an international agreement. Governments might be reluctant to accept the authors’ assertion that all of the stipulations laid down in 1979 Code of Conduct for Law Enforcement Officials and the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials are reflective of customary international law (at 55, fn 12). Moreover, States’ obligations under human rights treaties do not provide any guarantee for their uniform implementation. Depending on a human rights treaty, the content of individual rights may vary; also, different States are parties to different treaties. In other words, there will always be some risk that the legality of the use of certain weapons will be adjudged differently by different States. This is not to deny the value of the proposal advanced by the authors: it certainly serves as a good starting point for a discussion on, perhaps, a more detailed overall legal framework governing the use of weapons by the police.

I now turn to the claim referred to above and advanced by the authors in chapter 14, namely that IHRL not only governs the use of weapons by the police but may equally have ‘significant implications for certain uses of weapons’ in warfare (at 421). It is important to give this statement a careful reading and thought.

To start with, weapons reviews under Article 36 of AP I focus on the means and methods of warfare to be employed in the use of force during an armed conflict. While certain LOAC provisions incorporate human rights norms or expressly allow for IHRL to apply (for instance, the prohibition on torture or ill-treatment of persons detained), there is a significant recognition amongst States that, with regard to the conduct of hostilities, LOAC remains the primary source of authority. The criteria against which a weapons review analysis is commonly undertaken by States include:

  • specific treaty or customary law prohibitions on the use of weapons (e.g., the Protocol on Blinding Laser Weapons cited above);
  • prohibition on weapons of a nature to cause superfluous injury or unnecessary suffering, Article 35(2) of AP I;
  • prohibition on indiscriminate weapons, Article 51(4)(b) and (c) of AP I;
  • prohibition on weapons which may be expected to cause wide-spread, long-term and severe damage to the natural environment, Article 35(3) of AP I;

The reviewer will predominantly focus on the weapon’s characteristics and the legality of its intended or normal use. It is not the task of the reviewing body to provide advice on alternative uses of the weapon or applicable targeting rules, such as that attacks must be conducted in a discriminate fashion, in accordance with the principle of proportionately and with all the necessary precautions appropriately taken into account at a relevant time. This is because scenarios where weapons may be employed not as intended vary and their full range simply cannot be contemplated at the time of the review. Moreover, almost any weapon can be used indiscriminately and the level of precautions necessary to be taken into account is highly context-dependent.

Now, how can IHRL influence the outcome of such a weapons review analysis? For those used to applying LOAC when assessing the legality of a weapon, recourse to IHRL is hardly self-evident. One would struggle to think of scenarios where, for instance, a bullet could become prohibited in an armed conflict as a result of IHRL even when is fully compatible with LOAC, especially where it does not contravene the prohibitions of expanding bullets[9] and generally of weapons of a nature to cause superfluous injury. Expanding bullets are prohibited on grounds that they cause more severe injuries than non-expanding ones.[10] The prohibition does not apply, however, to the fragmentation of full metal jacket small arms ammunition, which is a common effect seen in high-velocity bullets in use by most armed forces in the world.[11] In an armed conflict, categorizing wounds produced by the high-velocity ammunition as a severe pain and suffering amounting to torture in the sense of IHRL would not only effectively ban such ammunition from the operational use but above all entirely displace more detailed and specific weapons law by human rights norms. In other words, it would be nothing less than a seismic shift in the way IHRL informs and alters the interpretation of LOAC. Last but not least, how is compliance with the obligation to respect the right to health of combatants or civilians possible in an armed conflict the essence of which is to kill, injure, and maim?

Notably, while the authors correctly identify the relevant criteria applicable to weapons reviews under Article 36 (at 418–20) their analysis is insufficient and reveals only a partial understanding of the nature of weapons review procedure.

The authors commence their examination by looking into the right to life guaranteed by major human rights treaties. They argue that pronouncements of the European Court of Human Rights (‘ECtHR’) on the use of explosive weapons in situations amounting to non-international armed conflicts will impact on a weapon reviewer’s decision-making process. The authors refer specifically to Isayeva et al. v. Russia[12] and Isayeva v. Russia[13], where the Court spoke of the ‘apparent disproportionality in the weapons used’,[14] ‘the operation … [not being] planned and executed with the requisite care for the lives of the civilian population’,[15] and particularly the ‘massive use of indiscriminate weapons [which stands] in flagrant contrast with the aim to protect lives from unlawful violence … and [thus running afoul of] the standard of care prerequisite to an operation of this kind involving the use of lethal force by State agents’.[16] The authors argue that in carrying out weapons reviews States should examine the compatibility of the proposed weapons with Article 2 European Convention on Human Rights[17] protecting the right to life.

What the authors ignore, however, is that even though placed in the context of IHRL, the grounds for the decision, if translated into LOAC standards, were non-compliance with the law of targeting, particularly the principle of proportionality along with inadequate precautions taken to minimize the harm and damage caused by attacks. As has been explained above though, the law of targeting falls outside the scope of Article 36 analysis which by its nature is confined to consideration of weapon’s inherent characteristics in light of its normal or intended use. In that regard, ECtHR’s reference to the weapons employed by the Russian Government as ‘indiscriminate’ does not suggest that they should be judged in those precise terms under LOAC. Notably, the authors admit this in a footnote (at 422, fn 42). Although different types of weapons were used in the course of events underlying Isayeva v. Russia (from ‘Grad’ multiple missile-launchers, mine-launchers to FAB-250 and FAB-500 heavy aviation bombs), nowhere does the Court specify which of them it considers indiscriminate let alone provide reasons for such a conclusion. Reading the judgment as a whole reveals that it were not the weapons as such that, in the Court’s opinion triggered a violation of the right to life but above all the choice of weapons and the manner in which they were employed by the Russian Government in the particular circumstances.

Whilst a legal adviser to the operational commander may well be aware of the Court’s case law and possibly — where relevant — consider its application, it is unlikely that these two and potential future ECtHR’s findings on targeting issues will make their way into a weapons review analysis. Constituting a peace time obligation, a weapons review procedure under Article 36 is principally different to the States’ obligation to insure that legal advisers are available to commanders in times of armed conflict to advice on compliance with the LOAC (Article 82 AP I). Had the authors clarified that the cited case law plays into the analysis of targeting rules and potential parallel violation of States’ obligations under IHRL, the examples of case law they provide would be pertinent. In its current version, however, the analysis is based on an erroneous understanding of the concept of weapons review under Article 36.

In the second step, the authors address the prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment. They argue that electric shock devices (stun guns, batons, and shields) are ‘inherently prone to misuse’ in a manner that is ‘torturous’ and hence ‘should be prohibited’ (at 425). While particular uses of contact electric shock devices may be found torturous in scenarios of domestic law enforcement, it is questionable whether these devices will reach an Article 36 review in the first place, unless a weapons review mechanisms is equally mandated to examine weapons used by the police. While, for example, the Swedish Delegation for International Law Monitoring of Arms Projects reviews weapons employed for law enforcement purposes along with the military weapons, the majority of the States which have a weapons review procedure in place focus, however, on weapons employed by the military.  But even then a State is not required to foresee or analyze all possible misuses of a weapon, for almost any weapon can be misused in ways that would be prohibited. In fact, the ‘inherently prone to misuse’ argument could apply to any weapon (as was duly acknowledged by the drafters of Article 36 during the negotiations of AP I).

It remains to be concluded that despite firmly promoting the value of considering IHRL in the review of military weapons, the authors fail to offer a strong and supported argument that IHRL is applicable to weapons reviews under Article 36 of AP I.

Apart from this, there is not much the editor and his team of contributors could be criticised for. Readers will observe a rather heavy reliance on the Western case law, with the normative and judicial developments in the US and UK at the forefront of many discussions on the book’s pages. One searches in vain for references to the dynamics, for example, in Russia or the Asian countries, which are noticeably underrepresented in the volume. Considering the Anglo-Saxon background of the dominant part of the contributors, such inclination appears explicable. Still, a more diverse group of contributors could have promised a more comprehensive coverage of different jurisdictions.

While Weapons under International Human Rights Law cannot be used as a concise practical guidance like the 2006 ICRC Guide, it can be viewed as a comprehensive handbook or commentary on the IHRL issues that a lawyer would need to consider when examining the legality of particular weapons. Although not all of the chapters specifically deal with how weapons are employed, a reader will have a good opportunity to engage with a broad spectrum of related issues, for example, the implications of arms acquisitions for economic, social and cultural rights, or how arms transfers impact on the enjoyment of human rights.

To conclude, the book is undeniably a welcome, original addition to the field of international law regulating the use of weapons. Its circle of readership will undoubtedly be wide-ranging, as it would appeal to academics and students of international law, particularly IHRL and LOAC, as well as legal advisers and other officials working for national governments, international organisations and human rights NGOs. Not only does the book raise a wide range of thought-provoking questions based on an extensive set of different scenarios, it also persuasively displays, chapter by chapter, the growing relevance of IHRL in clarifying the permissible boundaries of the use of force in law enforcement. The elaboration on the normative framework applicable to the use of weapons by the police in Chapter 14 could be, in my opinion, considered the pinnacle of the entire volume. All in all, I cannot but congratulate the editor and the contributors on the present achievement and hope that these joint efforts will amount to a precursor to a future Guide on Legal Review of Weapons Used for Law Enforcement Purposes.

[1] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (entry into force 7 December 1978) 1125 UNTS 3, Article 36.

[2] International Committee of the Red Cross, A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977 (2006), reprinted in 88 International Review of the Red Cross (2006) 931.

[3] Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, signed 18 September 1997, 2056 UNTS 211 (entered into force 1 March 1999).

[4] Convention on Cluster Munitions, opened for signature 3 December 2008, 2688 UNTS 39 (entered into force 1 August 2010).

[5] Hague Regulations concerning the Laws and Customs of War on Land, singed 29 July 1899, 189 CTS 429 (entered into force 4 September 1900); Hague Regulations regarding the Laws and Customs of War on Land, singed 18 October 1907, 205 CTS 277 (entered into force 26 January 1910).

[6] Sam Thielman, ‘Eagle-eyed: Dutch Police to Train Birds to Take Down Unauthorised Drones’, The Guardian (online), 2 February 2016, <https://www.theguardian.com/world/2016/feb/01/dutch-netherlands-police-birds-unauthorized-drones>.

[7] Protocol on Blinding Laser Weapons [Protocol IV], signed 13 October 1995, UN Doc CCW/CONF.I/7 (entered into force 30 July 1998).

[8] Article 36 AP I requires that all new weapons be systematically assessed on their compatibility with the applicable international law. This is ensured though establishment of permanent procedures, in other words standing mechanisms that are automatically activated any time that a State is developing or acquiring a new weapon. See also Kathleen Lawand, ‘Reviewing the Legality of New Weapons, Means and Methods of Warfare’ (2006) 88 International Review of the Red Cross 925.

[9] Declaration (IV, 3) Concerning Expanding Bullets, signed 29 July 1899, 187 CTS 459 (entered into force 4 September 1900); Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law (Cambridge University Press, 2005) vol 1, Rule 77, 268.

[10] See, e.g., Nils Melzer, ‘Targeted Killings in Operational Law Perspective’ in Terr D Gill and Dieter Fleck (eds), Handbook of the International Law of Military Operations (Oxford University Press, 2010) 277, 297.

[11] Geoffrey S Corn et al, The Law of Armed Conflict: An Operational Approach (Wolters Kluwer, 2012) 208.

[12] Isayeva et al. v. Russia, Judgment (App. No. 57947/00, 57948/00 and 57949/00), 24 February 2005.

[13] Isayeva v. Russia, Judgment (App. No. 57950/00), 24 February 2005.

[14] Isayeva et al. v. Russia, supra note 11, para. 197.

[15] Ibid, para. 199.

[16] Isayeva v. Russia, supra note 12, para. 191.

[17] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).