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International weapons law can be seen as a subfield of international humanitarian law and as such it deals exclusively with jus in bello, meaning laws which apply during a conflict. Superfluous injury and unnecessary suffering is the guiding principle for all weapons laws. The law discuss who is protected against the two acts. The view is that combatants shall be protected against both in instances of conflict. Combatants are also the only persons capable of being victims of this crime as civilians would no business here in the first place. Superfluous injury and unnecessary suffering exists when it has an additional effect, aside from disarming the enemy. It also exists when the weapon chosen is not the least injurious/ harmful available. If it is the only weapon available then the legality of the act tells a different story but when there is a choice the least harmful weapon must always be chosen. The three conditions are:
- The existence of additional effect.
- Alternative weapons.
- If the military value sought but the additional injury is not sufficient relative to the effects (lack of proportionality).
When all these three conditions are present then you have superfluous injury and unnecessary suffering making that particular weapon used unlawful. Chemical weapons are considered to be by nature cause of superfluous injury and unnecessary suffering, as are biological weapons.
At this point, it would be good to ask who exactly evaluates the weapon systems. It’s up to each State which develops or adopts a weapons system. Article 36 of Additional Protocol One creates a mandatory weapons review. However, we must remember that only States who have ratified the protocol will be bound by it.
Aerial combat drones are not considered weapons but weapon platforms as they are simply a delivery system. The missile fired from the drone is the active weapon. Hence, fighter jets are also delivery systems rather than weapons. Increasingly, there are experts who condemn the use of drones and the killer robots. It is not, however, the drones or killer robots which are truly problematic it is whether the decision maker is human (for example, the human may have remote control but they do make the final decision). There are machines who make this decision by themselves, in the absence of a responsible human agent. Another important question here would be: can autonomous weapons commit crimes and if so can you put the weapon or the manufacturer on trial? The distinction between automated weapons and autonomous weapons is that with the first the decision was made by humans and the effect is just delayed, the latter involves a lack of decisions made prior and the machine itself will make the call.
Some of those who drafted the weapons ban treaty are hoping it will turn into customary law and will ban nuclear arms. In the meanwhile, those who are against this argue that the political instability of Europe and the Middle East override the humanitarian consequences we are so afraid of. There is, hence, no clear global preference for these weapons to neutralise the deterrence value attached to such weapons and the study of such weapons laws continues to fascinate and lure scholars and students alike into the discussions.