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7 March 2022

From the NS archive: Crimes against humanity

10 June 1977: Which modern weapons contravene humanitarian principles?

By Robin Cook

In June 1977 a conference in Geneva attended by 100 nations on the function of humanitarian law in armed conflict was dissolved, cutting short the work of its “ad hoc committee” before it could agree new restraints, wrote Robin Cook, an MP and future foreign secretary. The committee had agreed that weapons must not be used indiscriminately, but discussions of weapons such as napalm had divided the industrialised nations – which had typically been doing the bombing – from the developing countries, which typically had been the victims of such violence. Such division, Cook wrote, “reflects a deep suspicion on the part of the developing nations that ever since Hiroshima the West has used its Asian wars to acquire expertise in many of the arms now suspected of contravening humanitarian law”. What’s more, a lack of empirical data made it difficult for the states to agree on the impact of different weapons, and while it was more feasible to obtain the necessary agreement to ban a weapon before it was deployed, it was these weapons on which data was most scarce.

This weekend delegates from the 100-odd nations represented at the Diplomatic Conference on Humanitarian Law Applicable in Armed Conflict should be packing their bags and moving on from Geneva. Their departure marks the end of the conference’s fourth session, which the Swiss hosts had vowed would also be its last. In the course of the past four years their labours have produced substantial agreement on two protocols updating the Geneva and Hague Conventions on the conduct of war, but have received scant attention from the national press or politicians. Our own media showed a brief flicker of interest this spring when the conference adopted by majority an article extending prisoner-of-war status to captured guerrillas, but then promptly reverted to a studied lack of interest.

This sad neglect is all the more regrettable in view of the pioneering groundwork of the conference’s ad hoc committee on conventional weapons, which has been grappling, albeit in vain, with the elusive task of identifying which modern weapons contravene humanitarian principles. The last serious attempts at such a definition were the Hague conventions of 1899 and 1907, the former of which successfully outlawed dum-dum bullets that flattened on impact to rend a particularly foul flesh wound, and also imposed a five-year moratorium on the development of projectiles to be dropped from balloons.

The science of war has moved on since 1907. The widespread employment of machine-guns in the First World War consumed casualties which would have been beyond the aspirations of riflemen armed with even the most murderous bullets, and the advent of flying machines rendered bombardment by balloons obsolete almost before the end of the moratorium. The Second World War subsequently witnessed a profound shift in military technology, which became less interested in halting hostile combatants than in frying their civilian populations. Yet throughout the entire period, with an almost perverse legalism, the major powers have scrupulously refrained from the use of the dum-dum bullet since it contravenes humanitarian law. Clearly the task of extending the list of such weapons is urgent.

The first principle which the ad hoc committee has applied in its examination of contemporary arsenals is that weapons should not lend themselves to indiscriminate use. The clearest example which they could hope to find of an indiscriminate weapon is the incendiary which ravages civilian and combatant alike. Much of the debate at Geneva has therefore centred on napalm, a thickened petroleum jelly which was dropped in large quantities on Vietnam. The napalm firebomb erupts to spatter a thousand square metres with a blazing confetti, which in turn raises a wall of rolling fire that reaches above the treetops. As a UN report laconically notes: “Its destructiveness and psychological impact are therefore great.” Troops seasoned to artillery bombardment have been known to break and flee when attacked with napalm and others have been found to have died by suicide in their bunkers.

[see also: By repudiating Stop the War, Keir Starmer has reclaimed Labour’s history]

Discussion of napalm tends to divide the industrialised nations, which on the whole have been the ones doing the bombing, from the Third World, which has provided most of the targets on whom the stuff has been dropped. This division has frequently recurred at Geneva and partly reflects a deep suspicion on the part of the developing nations that ever since Hiroshima the West has used its Asian wars to acquire expertise in many of the arms now suspected of contravening humanitarian law. There are even those among the advanced states who mutter darkly that the whole business is a conspiracy against the “haves” by the “have-nots”, although it must have been self-evident from the start that any successful conclusion to the negotiations would place more constraint on those nations that possess the technological skills than those who lack both the means of production and the expensive medical service required to bind up the novel wounds inflicted by the new weapons.

A telling argument against banning napalm, though, is the doubtful wisdom of singling out only one form of flame weapon. There is a lively academic controversy over the disabling rate of napalm, but it is agreed that a surprising number of survivors have emerged from the heart of the fireball since only those hit by the jelly are injured. The coming generation of flame weapons, such as triethyl aluminium (dubbed affectionately TEA from its acronym), produce a spasm of heat so intense that the radiated heat alone will burn human flesh. Depending on your point of view they promise to be much more efficient, or even more ghastly, than napalm, and an agreement which stimulated the development of TEA by prohibiting napalm would be a poor service to suffering humanity.

The other major criterion by which the ad hoc committee has been guided in judging which weapons contravene humanitarian law is whether they inflict unnecessary suffering or superfluous injury. A neat example of such a weapon is the coming family of fragmentation bombs that release swarms of plastic flechettes that cannot be detected once embedded in the flesh. The sole consensus agreement achieved in the committee is on the Swiss proposal to outlaw this vile invention, thus making it licit to maim the enemy only with projectiles that can be detected by X-ray.

[see also: Brace for Putin’s next move]

In all other cases agreement has foundered on the inability to define what suffering is superfluous in relation to the military advantage gained. To obtain such a definition it first would be necessary to establish a proportionality between two differing scales of values derived from humanitarian ethics and from military necessity. The intractable problems of doing so are demonstrated by the article proposed by the Arab states in one of the permanent committees, which prohibited the shooting of a pilot who had baled out over enemy territory, but provided that it should be legal to do so if he looked like coming down behind his own lines. This compromise may reflect military exigency but is an affront to humanitarian values. And the draft article has been amended after stout resistance from the British delegation.

The theoretical difficulty is compounded by the failure to agree over empirical data on the suffering inflicted by weapons, as in the case of the high velocity bullet. The impact of a bullet is proportionate to its mass and to the square of its velocity. It is thus militarily attractive to increase the speed at which a bullet is fired, particularly since this permits a reduction in its mass and enables the individual combatant to carry more ammunition. Many modern firearms, such as the American ArmaLite and the British A.85, follow this line of development towards small-calibre high velocity bullets, but it is now said that these replicate the dum-dum effect upon impact.

Unfortunately, the evidence is not conclusive and has been a fruitful source of debate at Geneva. The Swedes, who feel strongly on this issue, were driven by despair to arranging a demonstration shoot of pigs, but this merely provoked a fresh round of dispute over the analysis of the experiment. It has even been hinted that the Swedes specially selected pigs with hides that would produce the most damning wounds. Adherents of Ivan lllich’s views on the medical profession will be delighted by the result of another experiment, which concluded that the extent of flesh lost was not so much a function of the velocity of the bullet as which surgeon extracted it, those taking part revealing a variation by a factor of four. A report of government experts concluded by calling for further experiments that are “tightly controlled, sufficiently numerous and reliably instrumented”.

There is a basic paradox here. Politically, it is more feasible to obtain agreement to ban a weapon before it is deployed, but by definition these are the weapons on which data is most scant and the room for scientific dispute is least confined by hard evidence. The same paradox is illustrated again by fuel-air explosives. These operate by producing an explosive cloud of inflammable liquid or gas which is then detonated. Their attraction, if that is the right term, is that whereas conventional explosives tend to produce a spherical blast, much of which is dissipated upwards, the fuel-air explosive confines its blast to a pancake effect above ground level. It therefore promises a kill rate perhaps double that of high explosive. Despite the manifest desirability of banning it now, it is unlikely that sufficient agreement on its effects will be generated until we have garnered the data provided by the next Asian war.

Frustrated in its attempts to place restrictions on the construction of weapons, the ad hoc committee has channelled its efforts into restraining their operational use. These are certainly welcome moves but they depend for their effect on disciplined observance by field commanders in the heat of battle, and are very much second best to closing the option by removing indiscriminate weapons from the available arsenals. The Dutch proposal would presumably prohibit a repetition of the burning of Dresden, which killed more civilians than Hiroshima, but then even at the time it was a flagrant breach of the Hague conventions: in the event the temptation provided by possession of the technical capability proved considerably stronger than the legal constraints.

As it is, the dissolution of the Diplomatic Conference has cut short the work of its ad hoc committee before it could reach agreement on even these restraints. Last winter one international jurist expressed anxiety that a successful conclusion to the negotiations might encourage civilians to have expectations of humane treatment that would be tragically shattered in any war. The two protocols adopted this month in Geneva should afford some protection to civilians, but the failure to reach agreement in the ad hoc committee should leave combatants in no doubt that the next war could be a particularly vicious experience.

Read more from the NS archive here, and sign up to the weekly “From the archive” newsletter here. A selection of pieces spanning the New Statesman’s history has recently been published as “Statesmanship” (Weidenfeld & Nicolson).

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