Means of warfare

The expression 'means of warfare' appears often in combination with the expression 'methods 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' (our emphasis) whereas Article 57(2)(a)(ii) on precautions in attack refers to 'means and methods of attack'. (Our emphasis.) The International Committee of the Red Cross' (ICRC) Commentary on 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 Publishers, Geneva 1987, §1401 (footnotes omitted).

It is, however, doubtful that these expressions are given different meanings in practice today. 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 Art. 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. Note the terminology used in 1980 Protocol II to the CCW and 1996 Amended Protocol II to the CCW on mines, booby-traps and other devices. Article 3(8)(b) of the latter refers to the employment of 'a method or means of delivery' (emphasis added).

Means of warfare and weapons are overlapping concepts: As stated in the introduction to this entry, weapons used outside of the conduct of hostilities are not means of warfare, whereas means of warfare is sometimes used in a broader sense than just referring to weapons. For the purposes of the HPCR Manual on International Law Applicable to Air and Missile Warfare, for instance, means of warfare is understood to be 'a broader concept than weapon, for it extends also to platforms and equipment which make possible an attack.' According to that Manual, 'In aerial warfare, means of warfare include weapons, such as bombs, missiles and rockets, and the aircraft executing an attack. Means of warfare include other objects upon which the attacking aircraft directly relies to carry out the attack. For instance, aircraft which provide targeting data and other essential information to an aircraft actually engaging the target, qualify as means of warfare.' Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, Program on Humanitarian Policy and Conflict Research at Harvard University, 2010, 41 and 55.

As to the distinction between means and methods, the ICRC's commentary notes:

The term "means of combat" or "means of warfare" 'generally refers to the weapons being used, while 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 Publishers, 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.

This distinction between means and methods is, however, not always consistently upheld, and 'means' sometimes has a broad meaning that is not limited to weapons, in particular, in early IHL instruments. For example, Article 101 of the 1863 Lieber Code describes deception in war as a 'means of hostility', the 1899 and 1907 Hague Regulations use the term 'means of injuring the enemy' (e.g. Art. 22) to describe a range of military activities not limited to specific weapons, Article 21 of the 1922/1923 Hague Rules on Air Warfare refers to 'The use of aircraft for propaganda purposes' as a 'means of warfare' and Art. 14 of the ICRC's 1956 Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War  contains an article bearing the title 'Prohibited methods of warfare' but pertains to specific weapons.

It should be borne in mind, therefore, that a weapon's effects, with which IHL is ultimately concerned, 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.

Last updated on: 03 June 2014