The
SIrUS Project:
Progress Report on "Superfluous Injury or Unnecessary Suffering"
in Relation to the Legality of Weapons Robin M. Coupland,
FRCS, and Peter Herby Buried or “point-detonating” anti-personnel
mines are the only weapons in widespread use that cause specific and severe injury
resulting in specific and permanent disability. The treatment of the injury requires,
on average, twice as many operations and four times as many blood transfusions
as an injury from other weapons [1]. During the last
years of the Cold War, the full extent of the impact of mines on whole societies
was as yet unknown. New international legislation to ban the devices was not being
discussed. Meanwhile, hospital teams in the field were faced with long and difficult
operations which entailed excising large amounts of damaged tissue or amputating
limbs. The appalling and somehow excessive nature of the injuries caused as a
function of the design of these weapons led to abhorrence for the weapons themselves.
In 1990, the International Committee
of the Red Cross (ICRC) was alerted to the development of blinding laser weapons,
a development which was founded on the notion that it would be better to blind
an enemy soldier than to kill him or her. According to expert opinion, even in
the best ophthalmological centres there was no effective treatment for laser-induced
retinal hemorrhage. Here was another weapon system that, as a function of its
design, would produce severe, permanent disability. (Fortunately, blinding lasers
were banned in 1995; unfortunately, this ban came after the first such weapons
had been produced.) It was becoming clear that however severe the effects of bullets
or fragmentation munitions, there existed weapons that were, in some indefinable
way, worse, causing “superfluous injury or unnecessary suffering”--a
fundamental concept of international humanitarian law governing weapons [2].
The stigmatization of anti-personnel mines as abhorrent, and much of the subsequent
thrust of the campaign to ban them,
have quite rightly been based on the argument that they kill or injure both combatants
and non-combatants without distinction and continue to do so long after the conflict
has ended. The nature of the injuries caused by a weapon, however, should also
be a basis for deeming a weapon illegal. If the injury or suffering resulting
from a weapon’s nature or technology could be proved to be excessive compared
with the military advantage gained from its use, according to this argument, the
weapon would be illegal whether the victim were a soldier or a civilian.
New weapon technologies are appearing on the horizon, such as beams and waves
that could produce certain specific effects on the central nervous system, including
depression and convulsions. Do armies really need such weapons? Are they “abhorrent?”
What can or should doctors do about them? What constitutes “superfluous injury
or unnecessary suffering?” Doctors trying to understand this phrase
step into the no-man’s land between the effects of weapons on health and
the international law of war. One way--perhaps the only way--to navigate this
no-man’s land is to translate a field surgeon’s concept of abhorrent
weapons into a tool that can be used for making a legal determination of whether
a specific weapon will inflict “superfluous injury or unnecessary suffering.” The
Origins of the SIrUS Project The medical profession has a responsibility
to use health-related data to help the international community define objectively
which weapons are inherently “abhorrent” and which weapons cause “superfluous
injury or unnecessary suffering.” This was one of the major findings of a
symposium
on the medical profession and the effects of weapons, organized by the ICRC
in Montreux, Switzerland, in March 1996 [3].
The Montreux symposium, which represented the start of the SIrUS
Project, addressed this responsibility by drawing together data and expert
opinion from the fields of weapons, medical ethics, trauma surgery, and law. The
project takes its name from that which it seeks to prevent. It is an attempt to
bring objectivity to the legal notion of “superfluous injury or unnecessary
suffering” and so aims to facilitate the review of the legality of weapons
[4]. A Study of the Effects of Weapons
The group of experts who worked on the SIrUS Project, most of whom were health
professionals, collated data relating to the effects of weapons used in conflicts
over the past 50 years. These data originated from both military medical publications
and the ICRC wound database of 26,636 weapon injuries. In relation to different
causes of injury, the following information was retrieved: - the proportion
of large wounds (according to the Red Cross wound classification);
- overall
mortality;
- the relative proportions of central and limb injuries;
- the
duration of hospital stay;
- the number of operations required;
- the
need for and volume of blood transfusions;
- the number of lower limbs
amputated among the survivors.
From these data, the expert group
found that the weapons which cause injury by explosions or projectiles but which
do not target a specific part of the body as a function of their design:
- do not cause a field mortality of more than 22% nor a hospital mortality of
more than 5%;
- cause grade 3 wounds (as measured by the Red Cross wound
classification) in less than 10% of those who survive to hospital ; and
- cause
wounds that can be treated for the most part by well established medical and surgical
methods.
High-mortality or large wounds can be caused by legitimate
weapons such as rifle bullets and fragmentation munitions under certain circumstances.
Whether an individual is wounded slightly or severely, or is killed by such weapons,
is determined by the design of a weapon, how it is used and random factors such
as his or her proximity to the detonation (of a munition) and the part of the
body that is hit. The data in the SIrUS Project about the effects of weapons commonly
used in recent conflicts take all these factors into account. The SIrUS
Project has established that the following effects of weapons on humans have not
been seen commonly as a result of armed conflicts in the last five decades:
- disease other than that resulting from physical trauma from explosions or
projectiles;
- abnormal physiological state or abnormal psychological state
(other than the expected response to trauma from explosions or projectiles);
- permanent
disability specific to the kind of weapon (with the exception of the effects of
point-detonated anti-personnel mines--now widely prohibited);
- disfigurement
specific to the kind of weapon;
- inevitable or virtually inevitable death
in the field or a high hospital mortality rate;
- grade 3 wounds among
those who survive to hospital;
- effects for which there is no well-recognized
and proven medical treatment that can be applied in a well-equipped field hospital.
Some weapons can be expected to inflict certain effects virtually all the time.
These effects result specifically from the nature or technology of the weapon,
i.e., they are design-dependent. Examples include: - exploding bullets,
which are usually lethal or cause grade 3 limb wounds;
- chemical and biological
weapons, which inflict specific diseases or abnormal physiological states;
- blinding
laser weapons, which cause specific permanent disability to the eyes and have
effects for which there is no proven medical treatment;
- “point-detonated”
anti-personnel mines, which result in a severe (grade 3) injury to the foot or
leg, which in turn results in specific disability and disfigurement.
International
Law and the SIrUS Project States have an obligation to review the legality
of the weapons they intend to use. This principle, as it applies to new weapons,
is enshrined in Article 36 of Protocol
I additional to the Geneva Conventions of 1949. One reason that a weapon might
be deemed illegal is that it causes “superfluous injury or unnecessary suffering.”
Since the 1868
Declaration of St. Petersburg, the principle that the only legitimate purpose
of war is to weaken the military forces of an opponent has been an accepted fundamental
principle of international humanitarian law [5].1
It was established that this purpose would be served by disabling enemy combatants
and that it “would be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men, or render their death inevitable”
[5]. This principle has been reaffirmed in various international instruments in
the form of a prohibition on the use of “weapons, projectiles and material
and methods of war of a nature to cause superfluous injury or unnecessary suffering”
[6,7]. In 1996, the International Court of Justice stated
that this rule constitutes one of the “intransgressible principles of international
customary law” and is a fundamental rule to be observed by all States [8].
Despite the firmly established nature of this prohibition, its application has
often been difficult or has not even been attempted due to the difficulty for
lawyers, weapon designers, and political leaders to determine the degree of human
injury or suffering inflicted. Judgments as to whether a specific weapon causes
“superfluous injury or unnecessary suffering” have most often been made
primarily on the basis of subjective influences, often prompted by generalized
public abhorrence of a particular weapon, rather than an appraisal of whether
the weapon’s effects might outweigh military need.
The notion of “superfluous injury and unnecessary suffering”2
relates to the design-dependent effects of specific weapons on health. Indeed
the prohibition refers to weapons “of a nature to cause”3
these effects. Although much of humanitarian law is aimed at protecting civilians
from the effects of armed conflict, this rule of customary international law constitutes
one of the few measures intended to protect combatants from certain weapons which
are deemed abhorrent or which inflict more suffering than required for their military
purpose. All weapons whose use is already controlled or prohibited under
international humanitarian law cause injuries that exceed the baseline of weapon
injuries seen in recent conflicts, as described by the SIrUS Project. Had such
an approach existed when the problems related to these weapons were being discussed,
their control or prohibition might have occurred through a more rational and efficient
process. Subsequently, consensus on and universalization of the relevant rules
might also have been achieved more rapidly. ICRC Proposals
In May 1999, the ICRC convened a meeting of government experts in international
humanitarian law and of military and civilian medical experts to consider the
proposals contained in the SIrUS Project. On the basis of discussions in this
meeting and bilateral consultations, the ICRC made a set of proposals for consideration
by the States, the International Red Cross and Red Crescent Movement, and other
concerned organizations. The proposals were submitted to the 27th International
Conference of the Red Cross and Red Crescent, held in Geneva in October-November
1999. Proposal 1
States, when reviewing the
legality of a weapon, should take the above facts into account by : - establishing
whether the weapon in question would cause any of the above effects as a function
of its design, and if so:
- weighing the military utility of the weapon
against these effects; and
- determining whether the same purpose could
reasonably be achieved by other lawful means that do not have such effects.
Proposal 2
States should make new efforts: - to build a
common understanding of the norms to be applied in the review of new weapons,
and
- to promote transparency in the conduct and results of such reviews.
The ICRC has presented the SIrUS Project and the above proposals to national governments,
the medical community, and concerned organizations and individuals as a means
of promoting, over time, both debate and consensus on a health-based approach
to weapons under international humanitarian law. States will be encouraged to
take the available data concerning the nature of injury in recent conflicts into
account when determining, as called for under Article 36 of Additional Protocol
I of 1977, whether a proposed weapon, by its design, causes effects on health
which may constitute “superfluous injury or unnecessary suffering.”
The ICRC will also ask States to make new efforts to build a common understanding
of the norms to be applied in the review of new weapons, and to promote transparency
in the conduct and results of such reviews. National Red Cross and Red Crescent
Societies and national medical associations will be urged to strengthen respect
for the prohibition of weapons that are inherently abhorrent or of a nature to
cause “superfluous injury or unnecessary suffering” and to promote effective
implementation of international humanitarian law through discussion and endorsement
of the SIrUS Project. The SIrUS Project has been endorsed by a growing
part of the international medical community. In October 1998, the World Medical
Association called on all its member national medical associations to endorse
the criteria contained in the SIrUS Project. Thirteen national medical associations
and 16 other medical institutions had endorsed the SIrUS Project as of April 1999.
By doing so, these institutions recognize the validity of the study and recommend
that the findings be used when making a determination of which weapons cause “superfluous
injury or unnecessary suffering.” References
1. Coupland RM. Abhorrent weapons and “superflous injury
and unnecessary suffering”: from field surgery to law.” BMJ 1997;315:1450.
[Return to text]
2. Coupland RM.
Towards a determination of which weapons cause “superfluous injury or unnecessary
suffering.” M&GS 1998;5:27-34. [Return to text]
3. International Committee of the Red Cross. The medical profession
and the effects of weapons (symposium in Montreux, Switzerland, 1996). Geneva:
ICRC. 1996. [Return to text]
4. International
Committee of the Red Cross. The SIrUS project: Towards a determination of which
weapons cause “superfluous injury or unnecessary suffering. Geneva: ICRC.
1997. [Return to text]
5. Declaration
renouncing the use, in time of war, of explosive projectiles under 400 grammes
weight. St. Petersburg. 1868. [Return to text]
6.
Protocol additional to the Geneva conventions of 12 August 1949, and relating
to the protection of victims of international armed conflicts (Protocol I). [Return
to text]
7. Convention
on prohibitions or restrictions on the use of certain conventional weapons which
may be deemed to be excessively injurious or to have indiscriminate effects.
1980. [Return to text]
8. International
Court of Justice. Advisory
opinion on the legality of the threat or use of nuclear weapons. New York:
UN General Assembly A/51/218. 15 October 1996. [Return to text] Footnotes
1. Even before 1868, the ancient laws of war in India, Greece,
Rome, and the Middle East had prohibited poison weapons because of their excessive
effects. The 1863
Lieber Instructions : Instructions for the Government of Armies of the United
States in the Field (General Orders No. 100, of 24 April 1863) also “wholly
excluded” this means of warfare on the same grounds. [Return
to text]
2. Both terms are translations from the single
French concept of “maux superflus” contained in the 1899 and 1907 Hague
Regulations Respecting the Laws and Customs of War on Land, Article 23 (e).
The French text is the only authentic text of the 1899 and 1907 Hague Regulations.
[Return to text]
3. This term is
translated from the original French “propres à causer.” The term
was incorrectly translated into the English “calculated to cause” in
the 1907 Hague Regulations, which introduced the subjective element of the weapon
designer’s intention. This error was corrected when the original “of
a nature to cause” was restated in Protocol I of 1977, Article 35, para.
2. [Return to text] RMC is a
surgeon and adviser on the effects of weapons with the ICRC Chief Medical Officer.
PH is coordinator of the Mines-Arms Unit in the ICRC Legal Division. Address correspondence
to Robin M. Coupland, FRCS, International Committee of the Red Cross, 19, Ave.
de la Paix, CH 1202 Geneva, Switzerland; e-mail: rcoupland@icrc.org.
Adapted from articles originally published in the International Review of the
Red Cross 1999;835:583-592. © 1999 International
Committee of the Red Cross. Reused with permission.
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