CYIL 2011

PETRA OCHMANNOVÁ CYIL 2 ȍ2011Ȏ engagement and explore possible deficiencies to address its potential humanitarian impact. 3. Basic rule on means and methods of warfare First starting point is to evaluate whether UAVs does or does not belong to generally prohibited means and methods of warfare. Primary hypothesis for evaluation of whether employment of new technology on battlefield is in accordance with LOAC is, whether it complies with condition set in the Article 35 of API. 27 The rule refers to a general limitation of parties of the conflict by stating that their right to choose means or methods of warfare is not unlimited. Even though existence of such rule does not represent a historical breakthrough, 28 it may be considered as one of the most significant limitation that modern LOAC codification comprise, as it explicitly reaffirms the law already in force. 29 A legal evaluation, whether employment of UAVs does not violate the Article 35 of API naturally, starts with a detailed clarification of the essential terms used therein. Firstly, the key term which needs to be clarified is the notion of “means and methods” of warfare. Unfortunately, API or other LOAC convention does not contain any definition of such notions. Nevertheless according to the Commentary to the API the words shall be used in “the widest sense” possible, since “a weapon can be unlawful in itself, or it can be unlawful only under certain condition” . 30 The HPCR Manual considers UAV as aircraft, because defines aircraft as “any vehicle whether manned or unmanned” . 31 Based on assumption that in aerial warfare aircraft executing an attack is generally as such regarded as “means” of warfare, it is concluded that under international law UAVs are considered as a “mean” of warfare, as actually any instrument capable of attack may represent it. 32 What “methods” of warfare notion concerns, the HPCR Manual provides thoughtful definition stating, that contrary to “mean” of warfare which refers to an instrument used to conduct an attack, “method” of warfare refers more to how such instruments are used and actions are conducted. 33 27 Additional Protocol to the Geneva Conventions of 1949, relating to the Protection of Victims of International Armed Conflicts of 1977 (API). 28 As the first limitation concerning means and methods of warfare may be considered St. Petersburg Declaration of 1868, which for the first time introduced a treaty prohibition on the use, in time of war, of explosive or inflammable projectiles with a weight of less than 400 grammes. 29 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva 1987, p. 390, para 1382. 30 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva 1987, p. 398, para 1402. 31 Section A: 1) d) of HPCR Manual on International Law Applicable to Air and Missile Warfare, 2009, p. 1. 32 This has to be interpreted in a very wide sense, as even aircraft providing targeting data is considered as a mean of warfare, for example AWACS. Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, version 2.1. March 2010, p. 41, 55. 33 Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, version 2.1. March 2010, p. 43-44.

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