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Grant No.

19－G54

Research Report
Name : Krasny Jaroslav
Organization (at the start of the grant period): Hiroshima University
Title of Research: International Humanitarian Law in Weapons Control: Examining the Principle of Superfluous
Injury and Unnecessary Suffering.
Purpose of Research:（200 words）
The purpose of this research was to clarify the role of international humanitarian law (IHL), otherwise known as thelaw of armed conflict (LOAC), in restricting and prohibiting specific weapons and ammunition. While certain weapons
are universally banned under customary law, such as chemical and biological weapons, others are merely restricted,
such as incendiaries or mines. A whole category of somewhat controversial weapons remains unregulated. These
include white phosphorus, projectiles with depleted uranium, or nuclear weapons, despite the newly adopted Treaty on
the Prohibition of Nuclear Weapons, binding only the State Parties. One of the reasons behind the customary ban on
chemical weapons is the violation of the most fundamental principles of IHL, i.e., distinction and prohibition ofunnecessary suffering. However, what exactly is the principle prohibiting unnecessary suffering and superfluous
injury? How is unnecessary suffering "measured," and more importantly, why does it apply to a specific category ofweapons and not to weapons of other categories, including nuclear weapons? Therefore, the purpose of the research
was to clarify the nature of the principle prohibiting unnecessary suffering, analyze its evolution from its first
codification in the late 19th century, and assess its applicability to modern and future weapons.
Content/Methodology of Research:（400 words）
Due to the unexpected circumstances and travel restrictions regarding the global pandemic of COVID-19, the study
and its field research were slightly modified. The study is framed as doctrinal legal research including qualitative andpartially quantitative data analysis, i.e., mixed methods including selected case studies. Chronologically the study wasdivided into two phases. In the first phase, the researcher concentrated on case studies and conducted interviews in
Hiroshima and Nagasaki with the survivors of the atomic bombings. The interviews focused on understanding theimpact the bombings still have on the lives of "hibakusha” or atomic bombing survivors. Particular weight was put on
the long-term health effects. The researcher also conducted interviews and collected data at the Radiation Effects
Research Foundation (RERF) in Hiroshima. The second case study took place in Iran, where the researcher interviewed
the survivors of the Iran-Iraq war who were affected by chemical weapons, particularly sulfur mustard, so-calledmustard gas, or yperite. The interviews were conducted with the help of the Tehran Peace Museum, which is active in
the advocacy field for the survivors. The survivors of chemical attacks share analogous characteristics with thehibakusha. Both groups suffer long-term health effects of exposure to either toxic substances or ionizing radiation,
which also causes crippling health anxiety throughout their lives.
In the second phase, the researcher traveled to Geneva to the International Committee of the Red Cross (ICRC) toconduct research in the organization’s archives. Particular focus was given to documents concerning the ICRC
activities in weapon control and weapons prohibition activities based on specific health effects. The researcher studiedand analyzed documents related to the bombings of Hiroshima prepared by Dr. Junod Marcel. Documents related to theuse of chemical weapons during the Iran-Iraq war and documents related to the use of napalm in the course of theVietnam War. These cases were selected according to the legal status of the weapons, i.e., universally banned chemicalweapons, thenceforth restricted, however, lawful incendiaries and arguably lawful nuclear weapons. An integral part ofthis documentary analysis included interviews with the ICRC Arms Unit personnel, Mr. Lovold Magnus, and a legal
advisor of the ICRC, Mrs. Wen Zhou. Finally, the researcher analyzed humanitarian law treaties and conventions,weapons law agreements, and case law, i.e., judicial decisions, which included deliberations on the principle
prohibiting unnecessary suffering. The researcher utilized the Atlas.ti qualitative analysis software for coding anddiscourse analysis throughout the document and treaty analyses processes.
Conclusion/Observation（200 words）
The principle prohibiting unnecessary suffering or superfluous injury as codified in the 1977 Additional
Protocol I to Geneva Conventions of 1949, Art.35(2) applies to combatants and traditionally since its
earliest appearance in the St. Petersburg Declaration of 1868 was unrelated to health effects ofparticular weapons. The principle used to be understood as a comparative rule that had to be weighedagainst military necessity or advantage offered by a particular weapon. In other words, a weapon
would be in breach of the principle if the advantage offered is rather limited vis-à-vis inflicted injury.
Since the dawn of the international human rights law (IHRL) in the '60s and '70s, and on thebackground of the use of napalm or Agent Orange in the course of the Vietnam War, followed by the useof chemical weapons during the Iran-Iraq war, there is an increased focus on particular health effects.
Increasingly the IHL utilizes IHRL mechanisms (courts, committees) for its implementation. This
implementation through human rights courts coupled with increased understanding of long-term
health effects of particular weapons initiated the evolution of the principle prohibiting unnecessarysuffering. Courts dealing with IHL issues started to take into consideration severe and long-term
health effects of particular weapons. This evolution recently culminated in the adoption of the Treaty
on the Prohibition of Nuclear Weapons. Therefore, long-term health effects will play a crucial role when
applying the principles of IHL, particularly the prohibition of unnecessary suffering to particularweapons.