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Like other determinations of customary international law, whether a weapon is calculatedto cause superfluous injury is to be determined in light of the practice of States, and in particular,whether States have declined to use the weapon or similar weapons because they are believed tohave this effect. 141 The consideration of the military utility of the weapon and the suffering theweapon inflicts should be compared to other destructive mechanisms that States have used orretained for use and consider to be lawful.A State’s acceptance of a treaty prohibition against a weapon should not be understood asnecessarily reflecting that State’s conclusion that the weapon is calculated to cause superfluousinjury. For example, the CCW and its Protocols generally do not reflect a conclusion that theweapons prohibited or restricted by them are calculated to cause superfluous injury. 142 On theother hand, a prohibition or restriction in a treaty can be relevant in determining that a weapon isnot calculated to cause superfluous injury. For example, the CCW Amended Mines Protocolprohibits mines, booby-traps, and other devices that are designed or of a nature to causeunnecessary suffering. 143 Thus, this prohibition implicitly recognizes that not all mines, boobytraps,and other devices are calculated to cause superfluous injury. 144 In addition, even if a treatythat declared that certain weapons were calculated to cause superfluous injury, such treatylanguage would not necessarily mean that the weapon was prohibited by customary internationallaw. For example, specially affected States might decline to ratify the treaty and decide to retainthe right to use the weapon. 1456.6.3.4 Superfluous Injury Rule – the Circumstances to Be Assessed and DesignIntent. In determining a weapon’s legality, the weapon’s planned uses and the normalcircumstances in which it would be used should be considered. 146 It is not necessary to assess allpossible uses or all possible circumstances.suffering. The comparison of, and balancing between, suffering and military effectiveness is difficult in practicebecause neither side of the equation is easy to quantify. Inevitably, the assessment will be subjective even whensufficient agreed factual data are available on wound effects and military effectiveness.”).141 1956 FM 27-10 (Change No. 1 1976) 34b (“What weapons cause ‘unnecessary injury’ [within the meaning ofHague IV Reg. art. 23(e)] can only be determined in light of the practice of States in refraining from the use of agiven weapon because it is believed to have that effect.”).142 Refer to § 19.21.1.3 (CCW and Customary International Law).143 Refer to § 6.12.4.1 (Mines, Booby-Traps, and Other Devices Calculated to Cause Superfluous Injury).144 Article-by-Article Analysis of CCW Amended Mines Protocol, 11, Enclosure A to Warren Christopher, Letter ofSubmittal, Dec. 7, 1996, MESSAGE FROM THE PRESIDENT TRANSMITTING THE CCW AMENDED MINES PROTOCOL,PROTOCOL III ON INCENDIARY WEAPONS, AND PROTOCOL IV ON BLINDING LASER WEAPONS 11 (CCW AmendedMines Protocol art. 3(3) “reiterates a proscription already in place as a matter of customary international lawapplicable to all weapons. It also implicitly makes clear that mines, booby-traps and other devices are not, per se, ofa nature to cause unnecessary suffering, for if that were considered to be the case, no such rule would be necessaryand they would be prohibited entirely.”).145 Refer to § 1.8.2.3 (Specially Affected States).146 WILLIAM BOOTHBY, WEAPONS AND THE LAW OF ARMED CONFLICT 62 (2009) (“So, in the context of superfluousinjury and unnecessary suffering, the comparator [or excessiveness] must be determined by ‘the generic purpose orpurposes for which the weapon has been designed or adapted, or the purpose or purposes for which that weapon willgenerally be used’. The word ‘generic’ is used here to show that we are specifically not referring to the use of theweapon on a particular occasion in prosecution of a specific mission. The word ‘generally’ indicates that it is the339