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The expression 'method of warfare' appears often in combination with the expression 'means of warfare' in international humanitarian law (IHL) treaties. For instance, Part III, Section I of 1977 Additional Protocol I to the Geneva Conventions is entitled 'Methods and Means of Warfare'. Under that heading, Article 35 sets out 'Basic rules', two of which explicitly mention 'means of warfare'. Article 36 in the same section bears the title 'New weapons' and refers to the employment of 'a new weapon, means or method of warfare'.
Other provisions of the Protocol use slightly different formulations: For instance, Article 51(4) on indiscriminate attacks refers to the employment of 'a method or means of combat' (out emphasis) whereas Article 57(2)(a)(ii) on precautions in attack refers to 'means and methods of attack'. (Our emphasis.) The ICRC's Commentary on 1997 Additional Protocol I notes that
the drafters preferred the term 'methods and means of warfare' to the term 'methods and means of combat', which was used in the ICRC draft, for the reason that 'combat' might be construed more narrowly than 'warfare'. It is clear that the term 'warfare' encompasses 'combat', a term that is used occasionally in the Protocol. Y. Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Geneva 1987, §1401 (footnotes omitted).
It is doubtful that these expressions are given different meanings when it comes to the use of weapons. The ICRC's commentary uses these terms interchangeably in many instances and notes in one place: 'The term "means of combat" or "means of warfare" 'generally refers to the weapons being used'.Y. Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Martinus Nijhoff Publishers, Geneva 1987, §1957. Noteworthy is also that although Article 57(2)(a)(ii) of the Protocol uses the term means and methods of attack, the corresponding customary norm, as formulated by the ICRC in Rule 17 of its customary IHL study refers to means and methods of warfare.
As to the distinction between means and methods, the ICRC's Commentary notes that:
the expression "methods of combat" generally refers to the way in which such weapons are used.Y. Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Geneva 1987, §1957.
This distinction evokes the difference often made in doctrine between 'inherently' unlawful weapons (weapons unlawful 'per se', or 'by their nature') and the unlawful use of weapons. The commentary provides the following example:
...poison is unlawful in itself, as would be any weapon which would, by its very nature, be so imprecise that it would inevitably cause indiscriminate damage. ...However, a weapon that can be used with precision can also be abusively used against the civilian population. In this case, it is not the weapon which is prohibited, but the method or the way in which it is used.Y. Sandoz et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Martinus Nijhoff Publishers, Geneva 1987, §1402.
The distinction between means and methods is not always consistently upheld, however, and it should be borne in mind that a weapon's effects will always result from a combination of its design and the manner in which it is used.A Guide to the Legal Review of New Weapons, Means and Methods of Warfare, ICRC, Geneva, 2006, 17.
As noted in the introduction to this entry, the use of weapons for purposes other than the conduct of hostilities is not considered a method of warfare. This distinction is explicit in Article I(5) of the 1992 Chemical Weapons Convention, pursuant to which 'Each State Party undertakes not to use riot control agents as a method of warfare.' The ICRC found that state practice establishes the prohibition on the use of riot control agents as a method of warfare as a norm of customary international law applicable in situations constituting military hostilities during international and non-international armed conflicts.ICRC, Customary IHL Study, 2005, Rule 75.
It would appear, however, that the term method of warfare is also used in a broader sense to refer to 'hostile actions' more generally. Section I of Part III of 1977 Additional Protocol I bears the title 'Methods and Means of Warfare'. While not containing provisions regulating particular weapon types (because no agreement could be reached at the time about the legality of specific weapons under the general rules on the conduct of hostilities), it contains provisions that do not directly concern the way in which a weapon is used, including rules on perfidy and ruses of war, on the use of recognized emblems and emblems of nationality, on denial of quarter, safeguarding of an enemy hors de combat, and on the treatment of persons parachuting from an aircraft in distress.Articles 37-42. A contextual reading of the Section suggests that these practices were considered 'methods of warfare' at the time of drafting.For the purposes of the HPCR Manual on International Law Applicable to Air and Missile Warfare 'methods of warfare' are 'a subcategory of military operations' defined as: 'attacks and other activities designed to adversely affect the enemy’s military operations or military capacity, as distinct from the means of warfare used during military operations, such as weapons. In military terms, methods of warfare consist of the various general categories of operations, such as bombing, as well as the specific tactics used for attack, such as high altitude bombing.'
Similarly, the ICRC's customary IHL study identifies a number of rules under the heading of 'specific methods of warfare' that do not only concern use of weapons, including prohibitions on the 'starvation of the civilian population as a method of warfare' and on pillage.ICRC Customary IHL study, Rules 15 to 19. The Swiss Criminal Code, for example, lists the use of human shields under 'Prohibited methods of warfare'. (Art. 264g) 'Targeted killings', 'rape' and sexual violence more generally in the context of an armed conflict are also sometimes described as methods of warfare.See, e.g., S.-D. Bachmann, 'Targeted Killings: Contemporary Challenges, Risks and Opportunities', 2013 Journal of Conflict and Security Law, 1-30.
In particular the description of sexual violence as a method of warfare (or as a 'tactic of war' or a 'weapon of war') has generated debate about the possible implications of this discursive move, both for our understanding and response to sexual and gender-based violence and for our understanding of the notion of methods of warfare.See, for example, S. Meger, 'The Problematic Evolution of UN Resolutions on Women, Peace and Security', e-International Relations, 1 November 2012.
Last updated on: 03 June 2014