6 Customary Principles—Indiscriminate Weapons

Subject(s):

Armed conflict, international — Armed conflict, non-international — International criminal law, victims — Warfare, air — Weapons control — Weapons, conventional

This chapter traces the evolution of the principle discrimination in the law of armed conflict. It also examines its current formulation in the law, and considers its status in customary law. The targeting law and weapons law elements of the discrimination principle are disentangled; it is noted that the weapons law element had not been specifically articulated before 1977 and the implications of this are discussed. The relevance and interpretation of the now customary prohibition of weapons that are by nature indiscriminate are explained. The language of article 51(4) of Additional Protocol 1 is discussed and the terms of the corresponding customary rule are analysed. The applicability of the rule to nuclear weapons is also set forth. Examples of the kinds of weapon that are considered to breach the rule are given.