CCW Report: From killer robots to incendiary weapons: the CCW Preparatory Committee previews issues for the Fifth Review Conference

2 September 2016

Josephine Roele

From 31 August to 2 September, high contracting parties of the Convention on Certain Conventional Weapons (CCW)—a treaty that restricts or prohibits weapons that have been deemed “excessively injurious” or to have indiscriminate effects—met in Geneva to prepare for the treaty’s Fifth Review Conference, which will be held in December. The highlight of this week’s Preparatory Committee was the widespread support for a recommendation to the Review Conference to set up a group of government experts (GGE) on lethal autonomous weapon systems (LAWS). Participants also engaged in significant discussions about improvised explosive devices (IEDs), anti-vehicle mines (AVMs), and the use of explosive weapons in populated areas. In addition, some states and representatives of civil society questioned the efficacy of the CCW’s Protocol III on incendiary weapons.

Lethal autonomous weapon systems

On Thursday, 1 September, Ambassador Michael Biontino of Germany, chairperson of the informal meeting of experts on LAWS, presented his report to the PrepCom. Bearing in mind that fully autonomous weapon systems do not yet exist, Mr. Biontino noted that a number of states have declared that they had no intention of developing or acquiring such weapons. Some states have called for a prohibition on the development or use of LAWS, whilst others support a moratorium until a regulatory framework on LAWS is established. These proposals all demand a working definition of LAWS, which will require further information exchanges and flexibility from the part of all high contracting parties.

The report highlights the unpredictability of LAWS, particularly in their interaction with each other, and registers the amplification of the asymmetry of conflicts as a direct risk of the development of LAWS. Amb. Biontino also noted a widespread understanding that responsibility for the consequences of the development of LAWS rests with the operating state. Regarding the development of LAWS, the report reflects that some states believe existing weapon reviews are inadequate for assessing LAWS appropriately. As such, Amb. Biontino highlighted the importance of information sharing and transparency as confidence-building measures. The report also comments on the human-machine interface for LAWS, recognising that “designating decisions of life and death to a machine is unacceptable and would have a serious impact on human rights.” Further investigation is needed into meaningful and effective human control over weapon systems.

Amb. Biontino’s report recommended that the Fifth Review Conference should establish an open-ended GGE in 2017 to continue formal discussions on LAWS. The GGE would need to work on a definition of LAWS, as applicable to international humanitarian law, human rights law, effects on future armed conflicts, the risk of an arms race, cyber-operations, and questions of legality, political morality, and accountability.

Throughout the PrepCom, states and others indicated widespread support for the convening of an open-ended GGE in 2017. Algeria, Argentina, Australia, Brazil, Canada, China, Colombia, Cuba, Ecuador, El Salvador, the EU, Finland, France, Germany, Human Rights Watch, the International Committee of the Red Cross, Ireland, Israel, Italy, Japan, New Zealand, Pakistan, Poland, Republic of Korea, South Africa, Spain, Sri Lanka, Sweden, Switzerland, and the United Kingdom explicitly endorsed the recommendation. The President of the CCW Review Conference, Ambassador Tehmina Janjua of Pakistan, also expressed her support for an open-ended GGE on LAWS in 2017. India supported a GGE in less certain language, using the formulation “continued consideration on LAWS by the CCW” instead. The United States also supported continued discussions on LAWS but considered it premature to hold a GGE in a formal format. Instead, the US delegation said the substance of these discussions would be better suited to further informal discussions before moving to a formal meeting of experts. The Russian Federation recognised the need for further discussions but expressed caution in similar terms, recalling that there is no standard definition for LAWS and that these are non-operational weapons. Later in the discussions, the Russian Federation reminded the PrepCom that the establishment of a GGE was a recommendation for the Fifth Review Committee, not yet a requirement. Pakistan asked that the principle of geographical rotation be applied in the appointment of the chairperson for the GGE and was supported in this request by China.

In the interventions related to LAWS, including from high contracting parties and representatives from civil society, there was significant support for discussions about meaningful human control and for thorough investigation into the political, legal, technical, ethical, moral, and security implications of LAWS. Many states recalled the CCW as a forum for the flexible discussion of new weapons technologies and related the credibility of the Convention to its uptake of considerations on LAWS.

Weapons in populated areas, explosive weapons, and victim assistance

The International Committee of the Red Cross reiterated its concern about the humanitarian harm caused by the use of explosive weapons in populated areas and called on states to avoid such use. Ireland highlighted this practice as a growing challenge for international humanitarian law (IHL) and called for an exploration towards minimising civilian harm.

Germany noted that the issue of the consequences of the use of weapons in populated areas crosses a range of weapon types, including incendiary weapons and explosive weapons.

Belgium observed that there was no reference to victim assistance in the draft declaration for the CCW Review Conference, particularly regarding the use of explosive weapons in populated areas or ERWs. Ambassador Matthew Rowland of the United Kingdom, Chair of Main Committee II for the Review Conference, stated that there had been no intention to pare down references to victim assistance in the document and would look into it accordingly.

Iraq spoke briefly about its experience with explosive remnants of war (ERWs) and the negative impact this has had on civilian populations, particularly with regard to displacement and mobility. The delegate from Iraq thanked those who had assisted with explosive remnants of war. France, Italy, and India also expressed concern with ERWs.

MOTAPM

Discussions on mines other than anti-personnel mines (MOTAPM) continued to be divisive, as high contracting parties took up polar positions on the need for additional language on MOTAPM in the CCW. Ireland argued that the provisions of Amended Protocol II were inadequate and limited in protecting against the humanitarian consequences of mines. This was especially in regard to detectability and active life. Ireland proposed a mandate for a group of government experts to continue work on MOTAPM and IHL. Germany, New Zealand, and Switzerland supported Ireland’s proposal. France and Pakistan were among other states that also expressed support, but emphasised the divisive nature of these talks. Sri Lanka said it sees the merit in deliberating on measures to alleviate human suffering caused by MOTAPM.

Belarus stated that such a body or mechanism should only be convened on the basis of broad support for its mandate, “otherwise we run the risk that such an instrument could divide the international community.” Many other states converged on this point and linked the argument to military and strategic defence plans. According to these states, Ireland’s proposal would undermine the CCW as a platform for balancing military necessity with humanitarian concerns. The Russian Federation took this further, stating that a detectable mine would lose its deterrent effect as a defensive weapon, and was therefore pointless. The Russian Federation did not rule out the discussion of MOTAPM in the CCW agenda, but could not support a group of government experts.

Improvised explosive devices (IEDs)

Belgium, Brazil, Colombia, the EU, Finland, France, Germany, India, Ireland, Italy, Poland, the Russian Federation, UNMAS, the United Kingdom, and the United States encouraged further work of the CCW on IEDs, recognising the positive contributions of the Convention to the matter thus far. The United Kingdom thanked France and Moldova for their work on Amended Protocol II.

Ireland noted the disproportionate impact of IEDs on civilians, highlighting the experiences of women and girls in particular. It also noted the impact that the use of IEDs may have on achieving the Sustainable Development Goals. Israel remarked on the particular danger of IEDs in the hands of non-state armed actors.

The UN Secretary-General has just released his first report on IEDs, mandated by last year’s UN General Assembly resolution 70/46.

Incendiary weapons and Protocol III

Canada, Ecuador, France, Ireland, Switzerland, New Zealand, and the United States were among the states that expressed concerns over the use of incendiary weapons in ongoing conflicts, with particular regard to civilian populations in Syria. Human Rights Watch and the International Committee of the Red Cross corroborated these concerns with statistics and accounts to illustrate such attacks. Zambia raised the issue of a differential impact on women and children in the use of incendiary weapons. There was widespread concern for the consequences of incendiary weapons on civilians and consequences. Switzerland suggested that the Fifth Review Conference "should (at least) acknowledge the need to ensure that Protocol III can adequately protect civilians as well as combatants from the severe effects of weapons with incendiary effects, taking into account on the one hand the development of means and methods of warfare since Protocol III was negotiated, and, on the other hand, developments in the field since the last Review Conference."

Canada, Chile, India, Ireland, and New Zealand seemed to agree that a review of Protocol III would be appropriate in the Fifth Review Conference. However, France wondered whether this was a premature conclusion given that the issue had not yet been fully discussed and investigated in Main Committee I. Regarding the use of incendiary weapons, the Russian Federation spoke of its own experiences in “counter-terrorism” operations alongside the Syrian government, asserting that it has acted in full compliance with IHL. The Russian Federation argued that discussions on incendiary weapons in the CCW would be counterproductive, undermining Protocol III and weakening compliance with the CCW as a whole. Human Rights Watch, on the other hand, attributed at least 18 incendiary weapon attacks in Syria to the joint Syrian-Russian operation. HRW called on states to adopt a new mandate on incendiary weapons setting aside time in 2017 to discuss the implementation and adequacy of Protocol III. The group argued that incendiary weapons should be prohibited within or near populated areas and that there should be an effects-based definition of incendiary weapons that encompasses multipurpose munitions, including white phosphorus.

Weapons reviews

Pakistan queried the presence of weapons reviews in the draft declaration, stating that they are not a direct obligation arising from the CCW and are already covered by Article 36 of the Geneva Conventions. Pakistan highlighted the Preamble, paragraph 2; Section I, paragraphs 8 and 12; and Section II, paragraphs 11, and viewed the language in the declaration as unnecessary on the grounds that the CCW is about collective responsibility, while weapons reviews call for individual state commitments. The Russian Federation aligned with this view, and India made further comments that weapons reviews are not a legal obligation and cannot be relied upon in the CCW since there is no uniform practice and states are allowed a degree of confidentiality. China agreed that weapons reviews did not need to be highlighted to this extent in the declaration.

On the other hand, Sweden, the United Kingdom, and the United States supported the presence of legal weapons reviews in the declaration as a means of promoting the objects and purposes of the Convention. The International Committee of the Red Cross recommended for states to share experiences in legal weapons reviews to promote their use, and stated that they are a “logical and necessary element of CCW implementation” as a means of ensuring that militaries of high contracting parties do not acquire weapons that violate IHL principles.

Procedural work

States adopted a programme of work for the Fifth Review Conference, and agreed on chairs for committees and other roles. They also had a brief discussion on improving the digital and audio records of the conferences. President Janjua of Pakistan mentioned that the various committee chairs would be in touch about any outstanding issues during the inter-sessional period.

There was also a discussion on financial matters, where Mr. Hans Baritt presented the Committee with the financial circumstances of the Convention.

The PrepCom adopted a final report.