Legal review of weapons and international law

Dr. William Boothby is an Associate Fellow under the Global Fellowship Initiative (GFI) at the Geneva Centre for Security Policy (GCSP). He formerly held the position of Air Commodore in the Royal Air Force (RAF), UK. He retired as Deputy Director of Legal Services (RAF) in July 2011. In 2009, he took a Doctorate in International Law at the Europa Universität Viadrina, Frankfurt (Oder) in Germany and in the same year published 'Weapons and the Law of Armed Conflict' through Oxford University Press (OUP). He was a member of the Group of Experts convened by the ICRC to discuss Direct Participation in Hostilities and of the Group of Experts who produced the HPCR Manual on the Law of Air and Missile Warfare. Emraan Azad from Law Desk talks to him in Geneva on the following issues relating to the international legal regime governing the use of weapons during armed conflict.

Law Desk (LD): Do ethics have a role to play in war?

William Boothby (WB): I think, there is an ethical dimension to what is acceptable as behaviour in war. Each society has its own interpretation of where the division lies between what is ethically acceptable and what is ethically unacceptable. It would be very difficult for me to chart exactly where that line between acceptable and unacceptable lies around the whole world. What I can say is that there is something that probably the people are universally going to regard as ethically unacceptable. Finally, I would throw in the thought that there is one established philosophy reflected in a piece of text, included in a 1907 treaty and repeated in different language in 1977, seventy years later, in Additional Protocol I to the Geneva Conventions. This text suggests that what is unacceptable in war may not necessarily be reflected in the legal rules that have been so far adopted. The customary principles based on the collective view of States and on what are called the dictates of the public conscience should nevertheless rule whether particular action should be undertaken, or particular technology should be employed. I think, that rule is to identify where the junction exists between the ideas of ethical acceptability and those of legal acceptability.

LD: How do you evaluate the idea of weapons law under the law of armed conflict?

WB: I see it as a part of public international law, as something that has always been there since the commencement of modern international law in the middle of the 19th century. One of the first treaties in modern humanitarian law times was the weapons law treaty dealing with exploding bullets that dated back to 1868. As you go through the decades from that time to the 21st century, you see from time to time weapons law provisions were being agreed upon by the States often in response to humanitarian concerns.

LD: Do you find any differences between weapons law and law of armed conflict?

WB: Well, I have already said that weapons law is part of the law of armed conflict. But the law of armed conflict is wider and deals with, for instance, provisions dealing with targeting by providing responses to questions such as, which objects and persons one can lawfully make the object of attack, or what the prohibition of indiscriminate attacks means, and so on. Equally, there is another part of the law of armed conflict that is specifically concerned with the protection of victims – victims consist, for instance, of wounded and sick on the battle field, or the wounded and shipwrecked at sea, prisoners of war, and civilians who find themselves in the hands of their enemies. What I would say is that you have a variety of elements of the law of armed conflict of which weapons law is only one.

LD: What is the status of treaty law and of customary law in the rubric of weapons law?

WB: The answer is simple. They have the same status as treaty law and customary law rules have in other areas of the law of armed conflict or IHL. In relation to the law relating to weaponry – you have two customary principles. One prohibits the use of weapons which are of the nature to cause superfluous injury or unnecessary suffering, and the other prohibits the use of weapons which are by nature indiscriminate. These are the customary principles in a sense that they bind all the States, and also in the sense that they reflect the general practice of the States accepted as law. Then, we have also a series of different treaties that have been adopted by States at different times during the last 160 years. They deal with certain particular technologies such as dum-dum bullets, asphyxiating gases, chemical and biological weapons each of which was the subject of humanitarian concern.

LD: Do you think the conventional international laws are being successful to deal with the use of new technology in wars?

WB: My view is that it is and ought to remain the way around that the technology needs to be adjusted to suit the law, rather than adjusting the law to suit the technology. The States have a duty to develop their systems in such a way that they become legally complaint. You may well have a new international rule dealing with a particular technology most certainly, and those are being discussed at the moment in Geneva on an annual basis in relation to what they call lethal autonomous weapon systems. That would be with a view to determining what additional law should be developed to deal with the challenges posed by that technology. However, that would be additional law over and above the existing legal rules that we already have, and the new technology would also need to comply with the existing rules.

LD: How do you see the future of weapons law?

WB: I am personally committed to take the body of this law forward and try to teach the law to people who are possibly engaged with the legal review of weapons in different parts of the world. From that perspective, I see the future of weapons law, first of all, in trying to encourage the States legally to review their new weapon systems. Because that is something where many States are not known to have a systematic approach. Secondly, there must be attempts to look at whether the States need to discuss with one another the challenges posed by new technologies. I suppose they do, and I also think that there are all sorts of possible venues whether they can do that at the Conventional Weapons Convention meetings, in the United Nations or indeed at the Conference on Disarmament. What I would like to encourage the States to do is to engage in and to realise that they should be paying proper attention to their legal obligations.

LD: Thank you for your time.

WB: You are welcome.