Doctoral Dissertation
Examining the Interpretation of the Principle Prohibiting
Superfluous Injury or Unnecessary Suffering: From the St.
Petersburg Declaration of 1868 to the Treaty on the Prohibition of
Nuclear Weapons(Summary)

KRASNY JAROSLAV

Graduate School for International Development and Cooperation
Hiroshima University

September 2022

This doctoral dissertation examines the central reasons behind the divergent
interpretations of the principle of the law of armed conflict prohibiting superfluous injury orunnecessary suffering. The research explores the codification processes of the law of armed
conflict, historical landmarks pertaining to the deployment of specific weapons, and pertinent
case law. As a result, the author contends that, whereas military necessity was previously thebalancing principle for evaluating and interpreting the norm prohibiting unnecessary suffering,
this balancing factor has shifted since the Vietnam War to place a greater emphasis on longterm health effects. In addition to examining whether the principle may be interpreted in
medical terms, the dissertation includes medical data to support such an argument. Whilecontroversy remains regarding particular weapons and their correlation with the unnecessary
suffering principle, long-term health effects of individual weapons, most notably nuclear
weapons, are being recognized through jurisprudence as a particular cause of superfluous injury
or unnecessary suffering. This is because of their unceasing, continuous detrimental effect onhuman health and quality of life even after the end of an armed conflict which should also
terminate the application of the law of armed conflict. The author argues that weapons causing
unending long-term harmful effects on human body are in fact violating the principleprohibiting superfluous injury or unnecessary suffering by violating the temporal application of
the law of armed conflict. As a result, the principle is increasingly interpreted by judicial bodies
in medical terms, as opposed to military necessity alone.
The study is structured chronologically reflecting the codification of the law of armed
conflict (LOAC). The original research is contained in Chapters 3, concerned with thecodification of the principle in the 1977 Additional Protocol I and its gradual medicalization,
Chapter 4 discussing medical effects of selected weapons and Chapter 6 following with legaldiscussion and jurisprudence concerning health effects of weapons selected in Chapter 4.
Accordingly, Chapter 1 positions the research within current literature on the subject. Theauthor has selected the literature of the most prominent advocates and scholars representing
each of the interpretative legal positions. Through the literature review, a gap—or, rather, adifference in interpretation of the principle—becomes apparent. This difference appears in theinterpretation of the nature of the principle as divided between, on the one hand, thepredominant and traditional interpretation that weighs military necessity with injury to apredominant focus, on the other hand, on specific health effects of particular weapons regardlessof the military advantage such weapons may offer. Based on identifying this interpretative
division, I proceed to formulate the research questions and set up the study, its objectives,methodology and purposes. Chapter 2 then proceeds with a descriptive analysis of the historicalevolution and codification of the “traditional” understanding of unnecessary suffering underLOAC. Continuing with this chronological order, Chapter 3 proceeds to analyze the“medicalization” of the principle by moving away from the traditional juxtaposition withmilitary necessity to an increased focus on health effects. Chapter 4 forms the core of thisinterdisciplinary research in that it provides medical data and analysis of the health effects ofparticular controversial weapons, including interviews with the survivors. These selectedinterviews with survivors of particularly chemical weapons represent a part of original dataacquired through field research. The weapons were selected based on their legal standing
according to applicable agreements where State parties or a concerned civil society specificallyreferred to “unnecessary suffering” due to particular health effects. Chapter 5 proceeds withlegal analysis of the treaties concerning the same weapons elaborated upon from the medical
perspective in the preceding chapter. This analysis includes the reasoning behind the regulationor outright ban and whether the prohibition of unnecessary suffering played any role whatsoever
during negotiations or travaux preparatoires. Chapter 6 offers primary source legal analysis thatinvokes the principle of unnecessary suffering in judicial decisions of particular cases selectedin connection with the weapons discussed in Chapters 4 and 5. It also examines primary data of
the International Committee of the Red Cross related to the bombing of Hiroshima in order toassess how the organization applied the principle to the use of atomic bombs. While
unnecessary suffering is a fundamental principle of LOAC, this body of law often lacks
effective implementation mechanisms besides traditional “self-help” or the controversial notionof “reprisals.” The author therefore looked for cases in ad hoc, international, regional, andnational judicial and quasi-judicial bodies. Chapter 7 then offers a summary of the major
findings and provides an answer to the research questions as well as limitations of the study andopportunities for future research.