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5 Customary Principles—Superfluous Injury and Unnecessary Suffering

From: Weapons and the Law of Armed Conflict (2nd Edition)

William H. Boothby

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 05 December 2020

Subject(s):
Armed conflict, international — Armed conflict, non-international — International criminal law, victims — Warfare, air — Weapons control — Weapons, conventional

This chapter explains in detail the first core principle of the law of weaponry, namely the superfluous injury and unnecessary suffering principle. This customary principle binds all states and protects combatants and others taking a direct part in the hostilities. The evolution of the notion from somewhat under-developed notions expressed in a treaty text in 1868 to its most recent treaty articulation in 1977 is traced. As the Chapter explains, suffering is the normal and inevitable consequence of the use of weapons. It is the aggravation of that suffering, without corresponding military utility, that would exceed the legitimate object to be accomplished by a State in a war, and that would as a result breach the principle. The problem with the practical application of a principle that seems to require comparison of two such incomparable notions as injury and suffering on the one hand and military utility on the other is addressed. Practical guidance is given as to how the principle should be applied, both by those whose task it is to undertake weapon reviews and more generally.

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