Impacts, not intentionality: the imperative of focusing on the effects of explosive weapons in a political declaration
14 February 2020
On 10 February 2020, the government of Ireland hosted the second consultation in the international process it initiated last year to develop a “political declaration to ensure the protection of civilians from the humanitarian harm arising from the use of explosive weapons in populated areas.” Ireland used the inputs from states, international organisations, humanitarian groups, non-governmental organisations, and activists submitted during and after the 18 November 2019 consultation to develop a paper containing draft elements for the declaration. This paper provided the basis for input during the second consultation. Delegates provided feedback on the draft elements, which most saw as largely positive and provided input to improve and streamline the future declaration.
The key concern, however, from the perspective of many states and all of the participating civil society groups and international organisations, is that the draft did not contain a clear commitment against the use of explosive weapons that have wide area effects in populated areas. Instead, in various parts it actually risks normalising the use of such weapons and weakening the protection already afforded to civilians in policy and law. This must be addressed in order for a future political declaration to have any meaningful impact preventing human suffering.
The impacts and justifications of explosive violence
Bombing villages, towns, and cities is indisputably devastating for civilians. While it is clear that the targeting of civilians and civilian objects is in violation of international humanitarian law (IHL), the use of explosive weapons in populated areas (EWIPA) results in consistently high levels of civilian death, injury, and destruction. When explosive weapons are used in populated areas, over 90 percent of those killed are civilians. The direct and reverberating effects of explosive violence leave people without hospitals, schools, homes, markets, water and sanitation, and other basic services. It leads to massive forced displacement, death and injury, long-term socioeconomic hardship and psychological trauma, and increased risks of sexual- and gender-based violence.
Yet, this practice is often carried out with complete impunity. Arms producers and exporters are reaping incredible profits selling munitions, planes, missiles, and artillery to those destroying civilian infrastructure and creating this humanitarian catastrophe around the world.
Several governments are currently bombing populated areas, many of which try to justify this by arguing non-state armed groups are operating within cities or towns. During the consultation, Israel argued that when non-state actors conduct their operations within populated areas, this compels states to fight in such settings to protect themselves and their civilian populations. That is, they want their use of EWIPA to be seen as protection of civilians, rather than as something that needs to end in order to protect civilians. Syria similarly argued that we have to be “realistic” about the protection of civilians, arguing that interference in the internal affairs of states means they need to do what is “necessary” to defend their political and territorial integrity.
A commitment against the use of EWIPA
Violations of IHL by one actor cannot justify violations by another. This is a core principle of the law in general. And it is why many states are trying to strengthen the protection of civilians and undertake a standard-setting exercise to establish norms against the use of EWIPA. Most of those participating in the most recent consultation were clear that any political declaration has to have at its core a commitment to avoid the use of wide area EWIPA, and that such a policy would carry with it a presumption of non-use of these weapons.
This is key to ending bombing in towns and cities, enhancing the protection of civilians in conflict, and complying with existing IHL. This call has been articulated by successive UN Secretary-Generals, the International Committee of the Red Cross (ICRC), regional communiqués from African and Latin American states, and the International Network on Explosive Weapons (INEW), amongst others. WILPF, which is a member of INEW, has consistently called on states to end bombing in towns and cities, and to hold to account those governments that engage in this behaviour themselves or sell weapons to others that do. From our perspective, this is a critical part of reducing violence, destruction, and human suffering, preventing war profiteering, and preserving international law.
Intentionality vs. impact
Yet there are certain governments that are resistant to making such a commitment. Some of these, mostly European states guided by France, argued at the consultation that they are concerned only with the indiscriminate use of explosive weapons, not their indiscriminate effects. This means that they are concerned only with the willful violation of IHL—the deliberate targeting of civilians or the use of weapons that have already been prohibited because they have been deemed indiscriminate, for example. This gets to a key question of intentionality versus impact. Whether a hospital is bombed deliberately, or whether the hospital is bombed by accident or because it near a military target and the weapon used to hit that target has wide blast radius that just happens to also destroy the hospital, the impact is the same. The hospital is destroyed, the occupants of the building are killed or injured, the local population is without health services. For those that want to reduce and prevent human suffering, intentionality isn’t the problem. The impact is.
But for those who wish to maintain as much “operational freedom” as possible, intentionality is all that matters. And as we have seen with many military operations, the entity using force will always say that the death of civilians or destruction of civilian infrastructure was not intended. They are just “collateral damage”. As the US delegate said to the consultation, civilian casualties are “tragic but unavoidable”. Or, they willfully ignore the evidence of violations of human rights or IHL. The UK government, for example, has argued in relation to its arms sales to Saudi Arabia that there is no “clear risk” of serious Saudi breaches of international law—even while humanitarian agencies, non-governmental organisations, and the United Nations have documented overwhelming evidence of “widespread and systematic” attacks on civilian targets in breach of IHL by the Saudi-led bombing campaign in Yemen since 2015.
Thus, those arguing that a political declaration on EWIPA should only focus on indiscriminate attacks or indiscriminate use of explosive weapons are in fact arguing that absolutely nothing should change. Attacks that are expected to be indiscriminate are already clearly prohibited under the law, and therefore “restricting” such attacks, as is currently written in the draft elements paper, is not only insufficient but undermines existing legal standards.
Furthermore, intentionality is not a measure of lawfulness, nor of credible efforts to protect civilians or prevent human suffering. Saying, “oops,” after killing families gathered at markets or funerals cannot mitigate the legal and moral consequences of that action, regardless of whether or not it was intentional.
Indiscriminacy, on its own, is also not a measure of lawfulness. As the NGO Article 36 pointed out at the consultation, harm results also from attacks that are not necessarily indiscriminate. The pattern of harm caused by the use of EWIPA stands generally; there no way of evaluating the “legality” of the attacks involved. That is, those using explosive weapons may technically comply with the law but still cause real harm to real people. This can’t just be erased.
Impact, on the other hand, is much easier to measure. We can count the dead. We can understand how turning schools or homes or sanitation facilities into rubble impacts individual civilians, local communities, entire countries. This is why the governments using wide area EWIPA or selling explosive weapons to those that use them in populated areas do not want the declaration’s commitment to be based on effect.
It is also why they don’t want the declaration to include robust commitments on data collection. Most governments, the ICRC, and NGOs active in this process and beyond have called for the collection of gender-, age-, and ability- disaggregated data, as well as data about the types of weapons used and the impacts of those weapons. But the United States, United Kingdom, Israel, France, Canada, and others argued more strongly in favour of protecting data than protecting civilians. They asserted that data is too difficult to collect, or too complicated to disaggregate, or that there might be sensitive operational information that they don’t wish to share. Which begs the question, how do these countries even know who they are killing? They often argue that there are no civilian casualties, that their munitions are “precise” in hitting their intended targets, but if they are also claiming they cannot collect, how can they assert knowledge of the impacts of their weapons?
The understanding that measuring the impact or effects of weapons is much easier and clearer than measuring intentionality is also why the United States argued against the development of any kind of investigative mechanisms or procedures through which other entities would review US implementation of its IHL obligations. It’s also why the US and Israel demanded that the declaration not even focus on the use of EWIPA at all, but instead be about urban warfare more generally. Much like how in the nuclear weapon theatre they argue they cannot possibly disarm until geopolitical and regional tensions are solved, when it comes to explosive violence they say we need to deal with the entire problem of urban warfare.
All of these arguments are part of the long-held strategy to deny harm, deflect responsibility, and defer accountability. It is incredibly frustrating to watch governments deploy these strategies in a space where others are trying to take even a relatively small step towards protecting human beings from unbelievable suffering. But it is also incredibly positive to recognise that many governments, and countless other actors, want to make meaningful change. A political declaration that contains a commitment against the use of wide area EWIPA does not end all conflict, or even urban warfare. It does, however, put us a path towards prioritising people, reducing civilian harm, and preventing certain acts of violence. This is crucial, especially as we seem to find ourselves on a very different path right now, one in which governments and non-state armed groups alike are willfully violating IHL and human rights with total impunity. With this declaration, we have the chance to try to improve this situation. Any sense of humanitarian imperative demands that we make the choice to try.
REPORT ON CONSULTATION INPUTS
The following is not necessarily comprehensive but tries to provide an overview of inputs at the consultation.
- The next consultation will be held in Geneva on 23–24 March 2020.
- The Irish hope the declaration can be adopted in Dublin on 26 May 2020.
- Virtually every delegation said the draft elements paper prepared by Ireland was a good basis for further deliberation.
- Several noted there is some overlap and redundancy between certain elements and sections.
- The European Union (EU) said its members have agreed to give further attention to the issue of the use of EWIPA, to share best practices for the protection of civilians (POC), and to support the continuation of discussions in appropriate frameworks including the CCW and other relevant forums. On the issue of the political declaration (PD), individual EU members have different views.
- African Group said the PD should be actionable, measurable, results-based, with action-oriented commitments that combat impunity, and that it should emphasise deep and long-term impact on civilians and infrastructure and must feature the necessity of taking feasible precautions.
- Mozambique suggested risk education should be indicated as a mitigation strategy.
- ICRC said the correlation between wide area effects of explosive weapons (EWs) and the high risk of civilian harm should be more clearly acknowledged.
- Belgium called for balance between military necessity and humanitarian concern in the PD and said it appreciate concerns with “excessive collateral damage”.
- Cuba and Panama suggested there may be a need for definition of EWs and/or other key terms.
- Austria and Mexico warned against including definitions in the PD. Mexico suggested relying on ICRC’s definitions.
- Cuba suggested the PD should recognise legitimate defense for crimes of aggression, reference UN Charter article 51, respect sovereign equality, non-interference with internal affairs of states, self-determination, peaceful solution to disputes, etc.
- Cuba said the best way to protect civilians is to put an end to war and prevent big powers from causing damage to others.
- Cuba, Iran, and Syria said the PD should be in line with the UN Charter.
- Syria said the PD should be preventative to avoid increase in urban nature of warfare; include clear call to implement UN resolutions on combatting terrorism; respect sovereignty of states, territorial integrity, and non-interference in internal affairs; include a call to end foreign occupation as main cause of suffering of civilians; and reflect imposition of coercive measures on states and consequent inability to respond to needs of civilians.
- The UN Office for the Coordination of Humanitarian Affairs (OCHA) said the elements should better reflect the gendered dimension of EWIPA use, the cumulative nature of harm, and how it gives rise to need for better humanitarian aid and access.
- Humanity & Inclusion (HI) urged the PD to reflect the need for safe and timely access to humanitarian services.
- Panama noted the draft refers to populated areas (PA) but also to “urban context” and urged sticking with PA.
- INEW and WILPF warned the draft paper risks normalising the use of EWIPA, which would weaken POC.
- Panama urged states and organisations to provide international cooperation and assistance for implementing the PD commitments.
- Bulgaria said strengthening international cooperation and sharing best practices would be beneficial to optimise IHL implementation and reduce risks of “excessive use of force”.
- Iran said the increase in use by some states of private military and security companies (PMSCs) is matter of serious concern and should be reflected in the PD.
Focus of PD
- Belgium, Bulgaria, Canada, France, Greece, and Japan are concerned with indiscriminate use of EW in densely populated areas.
- Belgium, Bulgaria, Colombia, Egypt, France, and UK said the PD needs to distinguish between lawful and unlawful use of EWIPA.
- Article 36 pointed out that it is not clear that you could argue that the harm is directly attributable EWIPA where it is indiscriminate—harm results also from attacks that are not necessarily indiscriminate. The pattern of harm caused by EWIPA stands generally; there no way of evaluating legality of the attacks involved. It is dangerous to attribute to legality/illegality. Those using EWs may comply with the law but still cause real harm to real people and it would be wrong from a humanitarian perspective to simply erase that experience.
- Israel and the USA said the PD should not focus on the use of EWIPA but more broadly on the POC in urban warfare.
- Switzerland said it would be appropriate to focus the PD on the conduct of hostilities in urban areas rather than focus on particular system of weapons.
- Austria pointed out this is a PD on EWIPA and while there are other relevant issues regarding urban warfare, these could be dealt with in later processes. WILPF agreed.
Structure of the PD
- Chile, New Zealand (NZ), Panama, and ICRC said the PD needs to clearly distinguish between existing legal obligations and new policy commitments. Most suggested containing legal obligations in section 2 or the preamble and policy commitments in section 3.
International humanitarian law (IHL)
- Chile, Cuba, Iran, Malaysia, Mexico, Netherlands, NZ, Norway, Switzerland, ICRC, and INEW said the PD must not weaken IHL by being selective in references or abbreviating or restating it.
- Chile said the PD should strengthen compliance with IHL through specific policy commitments, the effectiveness of which should be monitored.
- Malaysia noted that IHL provides minimum standards, but more can be done to develop and share standards, practices, and doctrines to mitigate use of EWIPA. Brazil agreed there is room for concrete improvement when it comes to use of EWIPA.
- Brazil noted that strict observance of IHL is obligatory, including in urban warfare—it is neither optional nor conditional on reciprocity or circumstance.
- Israel claimed existing IHL provides a sufficient framework to cope with the challenges of POC in urban warfare and urged the PD to acknowledge the “lawful” use of weapons, including EW, in populated areas when done in accordance with IHL.
- Cuba noted that the use of EWIPA is prohibited by IHL and cannot possibly meet IHL principles, though in the draft elements paper it appears that such use is possible and can be justified.
- UK said IHL doesn’t prohibit the use of EWIPA but they have be used in compliance with IHL.
- Switzerland said the PD should not create impression that we are losing faith in IHL and should condemn only clear violations of IHL. Sweden concurred with the point about losing faith.
- Colombia, Egypt, Japan, and Poland said we don’t need new regulation on EWIPA but rather the full implementation of existing IHL.
- Poland argued humanitarian issues would be effectively mitigated with full implementation of IHL and that adequate preparedness of military personnel is important to this end.
- Bulgaria shares the understanding that existing IHL is a sufficient legal framework to safeguard civilians and strikes balance between military necessity and humanitarian concerns.
- Austria agreed it is important to strengthen implementation of existing IHL and pointed out that a PD cannot create new legal norms.
- WILPF noted that while IHL provides the framework for preventing the use of EWIPA, violations of these rules and norms show this PD is needed as a standard-setting exercise.
- Iran said the use of EWIPA and WMD in cities undermines IHL.
Key policy commitment
These points related to element 3.4, below, but these comments were made during general remarks and not specifically on 3.4.
- Mexico, Panama, ICRC, INEW, and OCHA said the PD should contain a clear commitment to avoid the use of EW with wide area effects in populated areas. The ICRC noted that an avoidance policy means EW should not be used unless sufficient mitigation measures are taken to limit their wide area effects.
- OCHA said this is the only real way to address impacts and enhance POC and noted that such a policy is unreasonable or unprecedented—some militaries have adopted policies and practices to restrict use of EWIPA.
- WILPF said the PD should contain a commitment to end the use of EW with wide area effects in populated areas.
- Cuba said the use of EWIPA is prohibited by IHL and states should be first to abstain from using EWs with wide area effects in populated areas.
- Mexico called for a core commitment to preventing the use of EWs with wide area effects in populated areas.
- Panama called for putting an end to the use of EWIPA.
- African Group would like the PD to clearly spell out substantive political commitments on avoidance of EWIPA when there is potential of indiscriminate impact with reverberating effects.
- Brazil said the PD should commit to restrict the use of explosive weapons with wide area effects in densely populated areas.
- Mali advocated for use of EWIPA that respects IHL by allowing for safe evacuation of civilians and necessary precautions to avoid or minimise damage to infrastructure.
- NZ said PD should articulate a political commitment to reduce the harm these weapons are having on civilians in conflict zones around the world.
Non-state actors (NSAs)
- Israel claimed that the challenges to POC derive primarily from the conduct of NSAs, which often deliberately conduct operations from within populated areas, thus compelling states to fight in such settings to protect themselves and their civilian populations.
- Colombia and Israel urged the PD to call on NSAs to avoid IHL violations.
- France said NSAs must be treated on equal footing in the PD.
- Mali said states need to prevent EWs from reaching NSA hands and prevent them from using these weapons, especially in populated areas.
- Chad said there should be partnership between states and NSAs.
- Cuba said states should be the first to avoid use of EWIPA but NSAs should also be prevented from obtaining or using EW of any kind.
- Switzerland said the role of NSAs should be better reflected.
- Syria said the PD must include a clear article on the root causes of increasing use of urban warfare, foremost amongst which is support to armed terrorist groups that are able to occupy cities and towns using civilians as human shields.
- Japan said it’s important to focus on how to ensure compliance of NSAs with IHL.
- Austria noted IHL is valid for everyone including NSAs and welcomed the relevant language in draft.
- Netherlands called for a stronger focus on NSAs.
- Bulgaria complained NSA actions repeatedly fall outside the scope of IHL.
- WILPF argued the problem of the use of EWIPA is not just about NSAs but all parties to conflict, pointing out that states are often among the worst offenders when it comes to bombing towns and cities. The violation of IHL by some parties to conflict does not justify violations by others.
- Turkey argued against conflation of term NSAs with non-state armed groups (NSAGs). It also argued the PD should not open the door to NSAGs.
Recommendations on specific elements
- ICRC recommended replacing the term humanitarian harm with humanitarian impact, humanitarian consequences, or civilian harm.
- USA said the title should say “strengthen or promote” not “ensure” POC, because ensure sets an “unrealistic objective” due to “tragic but unavoidable” civilian causalities.
- USA also said instead of EWIPA the title should refer to “military operations in armed conflict, including urban warfare,” because “EWIPA” is not clear and “not the only problem” and because nearly all areas are populated to some extent.
- Israel also suggested replacing EWIPA with “urban warfare” throughout.
- Mozambique urged the preamble to recognise relevant materials related to EWIPA, including UN Secretary-General reports, the joint UN-ICRC appeal, commitments from the World Humanitarian Summit, regional communiqués, the Safe Schools Declaration, the Sustainable Development Goals, and other relevant initiatives.
- AG said international, regional, and subregional best practices on POC such as the Kigali Principles and Safe School Declaration should be recognised in the preamble.
- Chile and Uruguay agreed the regional communiqués should be reflected.
- Switzerland suggested highlighting the factors why conflict increasingly takes place in urban areas, such as, “As the world’s population living in urban areas increases and military objectives in urban areas increases, wars are more frequently fought there.”
- Cuba suggested reflecting that the main challenge is to prevent and solve conflicts in a peaceful manner. Therefore, we commit to addressing root causes of conflict, and respect and enforce the UN Charter in particular its principles and goals. Following this, the preamble should reflect that states and other parties to conflict commit to unequivocally comply with existing rules and norms of international law. It could also condemn terrorism or attacks aimed at civilians.
Section 1: Identifying the problem and challenges
1.1: Challenges from the urbanisation of conflict
- Colombia said 1.1 offers a good description of concerns.
- Ecuador said the PD should have greater emphasis about damage caused and could refer to number of civilian victims resulting from use of EWIPA.
- USA suggested replacing “increasing urbanisation” with “NSAs that have increasingly based operations in populated areas.”
- USA suggested replacing reference to where EWs have been used with “when civilians have no opportunity to flee or are prevented of doing so.”
- Malaysia said 1.1 should reference potential future conflicts so the PD is not limited to a particular period of time.
1.2: Impacts of EWs with wide area effects
- Chile, INEW, and Save the Children called for articulation of wide area effects.
- Many delegations, including Austria, Chile, Ecuador, Malaysia, Mexico, NZ, Norway, Panama, Switzerland, Uruguay, HI, ICRC, INEW, Save the Children, and WILPF, urged Section 1 (some recommended 1.2 or 1.1) to reflect the reverberating effects of the use of EWIPA.
- Japan said the reverberating effects of use of EWIPA are detrimental from a humanitarian perspective.
- HI urged the articulation of the extent of harm of use of EWIPA on human bodies and said the PD should address the long-term needs of survivors, including psychological support.
- Ecuador said 1.2 should clearly describe use of EWIPA and cause of civilian harm and damage.
- Chile noted there is no explicit mention of foreseeability of indirect effects, which would allow for potential harm to be taken into account during planning and execution of attacks and when assessing attacks.
- Chile and Save the Children called for recognition of the cumulative effect of the use of EWIPA, which hampers post-conflict reconstruction.
- Ecuador, Mexico, Panama, and Uruguay suggested reflecting socioeconomic consequences of EWIPA use.
- Mexico, Mozambique, NZ, Uruguay, Save the Children, and WILPF suggested reflecting the impacts on the SDGs.
- Finland, Panama, Malaysia, and WILPF urged the PD recognise the environmental impacts of the use of EWIPA.
- Finland suggested a reference to binding obligations to protect hospitals and demilitarized zones, and for the evacuation of civilians.
- Uruguay suggested noting first and foremost, death and psychological trauma, then referring to destruction of infrastructure, before talking about socioeconomic and long-term effects.
- Colombia said since there is no definition of EWs with wide area effects, the PD should talk about categories of weapons instead.
- Canada suggested replacing “EWs with wide area effects” with “when used indiscriminately”.
- UK suggested saying EWIPA “can have” rather than “are having” devastating impacts. Australia and Belgium agreed.
- Switzerland argued the first sentence implies that all uses of EWIPA have same dire impact, which it says are not necessarily the case; could say some users of EWs with wide area effects are having or could have devastating impacts.
- Austria and WILPF argued there is already much certainty that EW are having devastating effects. Austria suggested using the ICRC proposal about “EWs with wide area effects are likely to have” devastating impacts.
- USA suggested replacing the impact of EWs with “impact of armed conflict on civilians”.
- Switzerland suggested adding “tactics designed to exploit the proximity of civilians.”
- Greece suggested adding notion of “disproportionate use”.
- Mozambique called for recognition of internally displaced people (IDPs) due to the use of EWIPA.
- Colombia said 1.3 and other elements that reference explosive remnants of war (ERW) should be modified because it has not ratified protocol V; should instead refer to contamination of specific weapons.
- USA said 1.3 should be moved to 1.2 and a new element on ERW should be created, and that “unexploded ordinance” should replace ERW, because ERW do not necessarily arise from EWIPA. Australia and Belgium agreed.
- Norway said 1.3 should mention the particular challenge of ERW clearance and environmental effects. Austria agreed.
- Greece suggested adding notion of “disproportionate use”.
1.4: Data collection
- UK argued data collection in conflict environments is difficult so the PD should say “all practical measures” so as not impose unreasonable or unrealistic burden. France, Israel, and Netherlands agreed.
- UK argued that rather than trying to provide exhaustive list of ways to disaggregate data it would support a broader reference “disaggregating where appropriate”. France, Israel, and Netherlands agreed.
- Canada said data collection should be done “where appropriate” and the PD should leave it to states to determine what level of collection is feasible.
- Mozambique urged adding “type of impairment” to the list of ways to disaggregate data.
- Save the Children and WILPF urged adding “ability” to the list of ways to disaggregate data.
- WILPF said data should also be collected on the type and effects of weapons used, in order to better track which weapon systems are causing harm and to develop better understandings of the impacts of particular weapons.
- NZ said the PD should include why data collection is so important, suggesting it could acknowledge that it can help understand effects of certain types of weapons and ensure this knowledge is taken into account when decisions about use are being made.
- Ecuador said 1.4 should be moved to section 4.
- USA said data does not need to be disaggregated. It also said to replace “populated areas” with “including in urban warfare”. Israel agreed.
- Syria said data collected should be well documented data and substantiated with evidence.
1.5: Awareness raising
- UK suggested saying “can arise” instead of “arising from” in terms of impacts. Australia agreed.
- USA suggested replacing EWIPA with urban warfare.
- WILPF suggested the word “ongoing” should be removed, as it normalises the idea that the use of explosive weapons in populated areas will continue.
- Canada urged adding humanitarian organisations in the list and that this element should indicate “indiscriminate use of EWIPA”.
- Mexico urged reflection of the difficulties of UN and civil society work on ground.
- Uruguay suggested moving to section 3.
- Save the Children said the PD should recognise that men, women, girls, boys will experience use of EWIPA differently.
- Austria, Save the Children, and WILPF called for the deletion of the word “potential” in relation to gendered impacts.
- WILPF suggested rather than committing to “empower and amplify” the voices of those affected, the declaration could say “amplify, integrate, and respect,” or other terms that suggest such perspectives will be taken on board as credible interventions for policy making.
- Canada urged adding a reference to “agents of positive change,” in order to not make women
- seem like they are inherently vulnerable. Suggested removing the reference to women and girls and adding “the most vulnerable”.
Canada suggested adding language to “underscore the importance of supporting civilian agency including through community-based approaches to protection as part of broader protection efforts.”
- Cuba and Mexico urged extending the people covered in this element.
- Cuba and Uruguay suggested moving to section 3.
1.7: Erosion of IHL
- NZ is uncomfortable with reference to deliberate use of IHL and said that reiterating fundamental principle that IHL applies might risk creating a space whether this was in doubt.
- Switzerland and WILPF urged not saying IHL is being eroded.
- Switzerland suggested the PD “recall that IHL applies to all parties including NSAs and must be respected in all circumstances.” It also suggested expressing concern in particular with deliberate violations of IHL.
- Finland and Netherlands agreed it should say that IHL applies to all parties to all conflicts, including NSAs.
- Austria noted that erosion is a natural phenomenon from wind and weather, whereas these are willful acts that run counter to IHL. Suggested saying “lack of respect for IHL” and said “deliberate” should be deleted. Then want full stop. To recall IHL applies to all parties to conflict, this should be found in legal framework and not identifying the problem.
- WILPF pointed out the expression of concern about “erosion in respect for international humanitarian law” arguably feeds into such erosion. It suggested the PD take a more proactive stance on this issue, saying, “We seek to underline and enhance respect for international humanitarian law and condemn any violations of IHL or actions that undermine IHL.”
- USA said 1.7 should refer to NSAs because many states doing best to comply with IHL.
- Canada suggested reversing the order of the paragraph to start with confirmation of applicability of IHL.
- Cuba said it is ironic that nondeliberate use of weapons exempts people from IHL and this should be deleted.
- Belgium suggested merging with 1.8 and/or moving to sections 2 or 4.
1.8: Improvised explosive devices (IEDs) and human shields
- Austria, Chile, Cuba, and Ecuador argued against singling out use of IEDs for condemnation.
- Canada, Chile, Switzerland, and ICRC pointed out that IEDs are not prohibited by IHL per se. ICRC suggested adding “in violation of IHL” to clarify. Mexico, Norway, and others agreed.
- ICRC said IEDs fall under the umbrella term EW, so while states can agree to sanction practices, doing so in a PD focused on enhancing compliance with IHL might be confusing.
- France said states should make the most of this process to address IEDs, but also later noted that IEDs are EWs and should not be treated separately.
- Chad and Mali said the PD should condemn use of IEDs by NSAs.
- Cuba said it striking that the elements paper unequivocally condemns use of IEDs in 1.8 but then in 2.1 is watered down through justifications according to which difficulty of targeting certain weapons is recognised—cannot support this ambiguity.
- Bulgaria called for more broad inclusion of IEDs.
- Mozambique said this should be moved to the operational part of the PD.
- USA urged refinement of the language, arguing that the use of human shields doesn’t exploit the proximity of civilians to military objects but rather it exploits the desire to protect civilians.
- Switzerland suggested 1.8 should identify problems and challenges rather than condemn selected practices. Should there be a desire to condemn, it should only be about clear violations of IHL by any actors, including use of human shields, use of IEDs, and other actions to exploit proximity of civilians, etc.” and should be in section 4. Cuba agreed with some of this language.
- Austria agreed it could be moved to section 4 and said that it should condemn any violations of IHL, then could say, including in the use of IEDs, etc.
- Netherlands said the PD needs to refer to IEDs, but supports ICRC suggestions to bring text more in line with existing IHL.
- Malaysia noted 1.8 overlaps with 4.1 and that 4.1 is better formulated.
- France said the PD should condemn use of human shields and any exploitation of presence of civilians and civilian objects.
- Cuba said 1.8 weakens the scope of IHL.
- Belgium suggested merging with 1.7 and/or moving to sections 2 or 4.
Section 2: Legal framework
- Ecuador said this section should be geared toward setting out IHL principles relevant for EWIPA.
- France called for three points to be reflected in this section: 1) IHL is sufficient and the PD should recall that if IHL universally complied with, including by NSAs, this would be sufficient to restrict harm to civilains during urban war; 2) Should note there is no legal exception for EWs; IHL governs use of all weapons regardless of operational environment, including in populated areas; and 3) It is necessary to call for sharing of best practices in IHL.
- ICRC welcomes reiterating IHL, but a PD must go beyond reiterating commitments.
- Finland and Mozambique argued the title doesn’t capture the content of section.
- Australia suggested changing title to “existing legal framework”.
- Cuba said it would be better for states to reiterate commitment to complying with and enforcing IHL applicable.
- Saudi Arabia said support for states that fight terrorism should be mentioned in this section.
- Iran said since some states aren’t party to all protocols of the Geneva Conventions they should not be included in the PD.
2.1: EWIPA and IHL
- Ecuador noted IHL applies to all EWs not just those that have wide area effects. Austria agreed.
- USA suggested replacing “use of EWIPA” with “military operations including in urban warfare” and said the difficulty should refer to directing military operations in urban areas. Israel agreed.
- USA said good practices could go beyond IHL. ICRC agreed.
- WILPF argued that including recognition of “the difficulty in directing explosive weapons with wide area effects against specific military objectives within populated areas” risks suggesting that standards for precautions relating to the use of explosive weapons should actually be less stringent, in light of the recognised “difficulty”. This language could have the perverse effect of providing rationale for the expanded and more permissive use of explosive weapons in populated areas. It said 1 should instead make clear that in a populated area, the wider area can be assumed to contain civilian people and objects, and therefore there is a high risk of harm to civilians from the use of explosive weapons in populated areas, requiring a presumption of non-use.
- Cuba said “difficulty directing” should be deleted as it runs counter to humanitarian approach.
- Netherlands said the second part should end after “civilian harm”. Austria agreed. If kept, Austria said it should be about challenges, not difficulty, i.e. “risk to civilians is increased by factors such as…”
- UK suggested it should say difficulty in limiting the effects of EWs.
- ICRC said WAE is not only due to inaccuracy but also destructive radius. It suggested the text should add “or in containing such WAE on the target” and to add “in this respect” at end of paragraph.
- Switzerland suggests stating, “We reiterate existing IHL provides a sufficient or an appropriate framework when hostilities are conducted in populated areas and applies to the use of EWs with wide area effects in populated areas.”
- Switzerland suggested moving third part to section 1 as it reflects one of the challenges.
- UK said we shouldn’t give impression that IHL is just about use of EWIPA; suggested saying “including use of EWIPA” rather than “applies to.” Austria and Belgium agreed.
- UK argued this element is most appropriate to put NSAs.
- NZ noted 2.1 and 2.3 are focusing on existing obligations while 2.2 contains new material. In PD, intro should recall that IHL fully applies while other sections can be about policy.
- Canada argued that the remarks about difficulty might not be operationally accurate because “precision guided munitions” could be used.
- Mozambique suggested after “civilian harm” to add “and growing trend of wars being fought in urban settings.”
- Israel said it should recognise the obligations of all parties to conflict to be compliant with IHL.
- Chile agreed with inclusion of reference to IHL as applicable framework, but the second part is too simplistic when there should be absolute clarity about challenges linked to use of EWIPA in relation to IHL.
- Chile said the references to good policy and practice should be moved to part B where we talk about best practices. Austria agreed.
- Syria said when referencing commitment to IHL need to mention “in all contexts”.
2.2: Sharing practices
- USA suggested replacing “use of EWIPA” with “military operations including in urban warfare.”
- USA suggested after “good policy and practice” to add “designed to strengthen implementation of IHL and to protect civilians.”
- USA suggested changing “foster clarity and enhance” to “strengthen”.
- Sweden suggested replacing “foster clarity” with “strengthen implementation”.
- Sweden argued the word “institutionalising” here may raise questions; suggests new structures are to be established. Greece agreed.
- WILPF recommended removing the phrase “good practice” as there is no good practice for using EWs with wide area effects in populated areas.
- Human Rights Watch (HRW) said 2.2 does little to promote clarity of the law and urged states to seek to see how IHL applies to use of EWIPA.
- NZ is uncomfortable with 2.2, which can be read to endorse or encourage use of EWIPA to enhance implementation of IHL. This normalisation of use of EWIPA is uncomfortable in this PD meant to reduce negative effects on civilians.
- Chile said institutionalising sharing of policy isn’t related to existing law and could be placed in section 4.
2.3: IHL obligations
- Ecuador suggested adding principle of precaution when in close proximity to civilians.
- USA suggested changing populated areas to urban areas.
- Finland said instead of adhering to IHL it should say “respect and ensure respect for IHL in all circumstances.”
- Colombia argued 2.3 should reflect that NSAs carry out indiscriminate attacks and don’t take precautions.
- NZ noted 2.1 and 2.3 are focusing on existing obligations while 2.2 contains new material. In PD, intro should recall that IHL fully applies while other sections can be about policy.
- Canada said the last line is confusing and argued there needs to be more specificity about the obligations referred to; suggested removing it.
- Belgium suggested adding language on the obligation to direct attacks only against military objectives, as well as language on taking all feasible precautions to avoid or minimise civilian casualties.
- Cuba said the existing obligations under IHL listed in 2.3 do not necessarily reflect all of the legal obligations that apply; referring to limited number of obligations would create a nonexistent hierarchy among provisions of international law.
2.4: UN Security Council (UNSC)
- Cuba cannot share enthusiasm for work done by UNSC when some of the members are the primary states responsible for violations of IHL and human rights and stands by when genocide occurs. This para also circumvents work of UN General Assembly (UNGA), which is universal and democratic without vetoes.
- Iran called for deleting reference to UNSC and replace with UNGA.
- Syria said the PD should not “welcome” work of the UNSC but refer to UN Charter and UNSG statement on fight against terrorism.
- USA urged changing “enhance” to “strengthen”.
- WILPF urged that given the UNSC’s problematic track record on preventing harm to civilians, including by using EWIPA themselves or selling weapons that facilitate the use of EWIPA, this element should be deleted.
- Chile said would be better in 1.5 or preamble where all the efforts and challenges are identified.
- USA suggested adding a new element to capture legal obligations mentioned in 3.1, 3.2, 3.4, and 3.6. Suggested wording that “We each reaffirm our IHL obligations and other IL obligations, including our obligations to not use weapons that are inherently indiscriminate, abide by IHL armed conflict rules, and CCW protocol V.”
Section 3: Operational commitments: existing legal framework, military policy and practice, sharing good practice on the POC
- UK suggested saying in chapeau that humanitarian issues “can arise” rather than “harm arising”. Should also add words “as appropriate”.
- USA suggested 3.1, 3.2, 3.4, and 3.6 shift to section 2 and the creation of a new para on promoting respect for all applicable obligations by IHL.
- Chile said this operational part should focus on those actions that would provide added value, not reiterating what has already been said, which gives an impression of weakness or lack of adequacy of IHL.
3.1: Comply with IHL
- Finland suggested it should say “comply with and ensure respect for IHL in all circumstances.”
- Chile said this element is superfluous.
- Switzerland suggested adding “disseminate and promote IHL, including amongst organised armed groups.”
- ICRC fully supports 3.1 as is but proposed moving it to part A in spirit of main comment that statements of IHL/recalling obligations should be kept separate from political commitments.
3.2: Refrain from using indiscriminate weapons
- Chile and WILPF said this is not in compliance with existing law.
- Switzerland said 2 is confusing and recommends bringing it back in line with IHL.
- ICRC recommended 3.2 be moved to part A, but also said the current formulation is unclear and suggested it be reformulated to “do not use any weapon that is inherently indiscriminate.”
- Canada said this commitment is lacking a reflection of “military necessity”.
3.3: Developing policy
- UK argued the focus on rules of engagement narrows the scope and weakens the case we’re trying to make.
- Chile said this should include any document that might be relevant.
- Uruguay suggested replacing “with regard to” with “with a view to avoiding” and add, to avoid unnecessary human suffering.
- WILPF said this point normalises the continued use of EWIPA. It should be deleted, or commit states to developing, reviewing, and implementing policies relevant for preventing the use of EWs with wide area effects in populated areas.
- Belgium said “engagement” is to narrow and urged replacing it with “military directives and procedures”.
3.4: Restricting use of EWIPA
(Also see above section on “core commitment,” which provides relevant comments from the general statements relevant for 3.4)
- UK said “with a view to avoiding and in any event minimising” would be Should do the same in next sentence: “avoid and in any event minimise civilian harm”.
- Colombia said all attacks must be restricted to military targets.
- Spain suggested adding a reference or new element on protection of schools and medical facilities. Ecuador and Uruguay agreed.
- Chile said 3.4 is legally imprecise and inaccurate and needs to be reformulated. If any indiscriminate effects are expected, the weapons should not be used—they are not necessarily prohibited by IHL, but parties must seek to minimise civilian harm. Chile also noted that in accordance with evidence we have, EWs are not mostly designed to be used in urban contexts especially when they have wide area effects, thus it is difficult to comply with IHL principle of avoiding indiscriminate harm. Pattern of harm makes it predictable; must therefore conclude that use of EWIPA requires more rigorous planning. Most effective and efficient way to protect civilians is to establish non-use principle for use of EWs with wide area effects in populated areas.
- NZ also expressed concern this will lower existing standards and urged the PD to be more ambitious to protect civilians.
- Ecuador, ICRC, and Project Ploughshares said the commitment should be to avoid the use of EWs with wide area effects in populated areas.
- WILPF suggested 3.4 should commit states to develop, implement, and promote policies and practices to end the use of EWs with wide area effects in populated areas.
- Human Rights Watch said the PD should clearly state a presumption against use of EWs with wide area effects in populated areas, which would clarify IHL, not create new law.
- ICRC also suggested deleting the first sentence of 3.4 because it is redundant with 2.3 that recalls IHL obligations.
- Peru said the objective of improving military practice should be to prevent the use of EWIPA.
- France said it is important to focus on strict compliance with IHL. As drafted, 3.4 doesn’t dovetail with IHL. France called for a focus on indiscriminate attacks rather than effects. Canada agreed.
- Switzerland said if the aim of 3.4 is to clarify precautionary measures, we must be careful not to weaken IHL. Suggested language indicating that in fulfilling existing obligations under IHL, we will ensure our armed forces are adequately trained to avoid civilian causalities, notably by cancelling or suspending an attack, including when using EWIPA, when it becomes apparent that the objective is not a military one or maybe subject to disproportionate effects. It said this assessment should take into account damage from previous attacks, identify lessons learned for future operations, etc.
- Belgium suggested after “civilian harm” adding “when conducting an attack” and to say “including by restricting use of EWs with wide area effects in populated areas, unless mitigating measures have been taken to minimise or avoid civilian harm.”
3.5: International cooperation and assistance
- Finland suggested adding voluntary exchange of practices.
- Chile reiterated its comments from 1.2 on reverberating effects and foreseeability.
- Belgium suggested adding language on necessity to respect states’ rules about classified info.
3.8: Cooperation between armed forces
- USA urged this begin immediately after adoption of declaration.
- Ecuador said there should be a gendered perspective in various places including involvement of local communities and on victim assistance (VA). Also need intergenerational approach.
4.1: IEDs and human shields
- Chile said this element might pose certain problems; use of IEDs is not prohibited per se, should be reworded.
- WILPF noted the commitment to “call on all parties to put an end to such practices and support measures to hold those responsible for violations of international law accountable” is significant and should be retained, but in relation to all uses of EWIPA not just use of IEDs and human shields.
- Switzerland said this section should condemn violations of IHL, not just a few examples. It suggested saying, “condemn violations of IHL, such as the deliberate targeting of civilians and objects, unlawful use of IEDs, human shields, and call on all parties to put an end to such practices.”
- Switzerland also suggested transforming commitment on accountability into a separate point and that it should include a commitment to establishing facts in cases of alleged violations. To this end, it suggested language such as: “In cases of allegations of violations of IHL, seek clarification and ensure facts are established, including through establishing mechanisms such as international humanitarian fact finding missions” and to “use domestic and international measures to hold those account and collect, compile, and preserve relevant actors accountable.”
- ICRC said its comments are the same as on 1.8.
4.2: Data collection
- Mozambique said data collection should include type of impairment/disability, to facilitate VA.
- Cuba expressed concern that data collection has legal implications that could lead to political manipulation of sensitive issues.
- Panama said data collection should include disabilities and should be clarified if it is result of use of EWs.
- UK reiterated that it is sometimes not possible to share data so should add “where appropriate”.
- Chile said the categories of information collected required should be expanded to help better depict patterns and improve prevention of harm.
- WILPF urged the collection of data on impact and harms from all EWs, including disaggregated data on victims. It should also add a commitment to collect and retain data on EW use, including types and location.
- Project Ploughshares asked what role civil society might play in data collection.
- Malaysia supports a strong call for data collection.
- ICRC said this commitments is good and necessary and recommended adding “and weapons used”.
- Canada reiterated its earlier comments on data collection.
- Belgium suggested adding language on necessity to respect states’ rules about classified info.
4.3: Victim assistance (VA)
- Mozambique said VA should include psychological support and should mention vulnerable groups such as children, elderly, and women.
- Germany said it welcomes the “strong call” to “make every effort” in regard to VA.
- Malaysia said VA must be provided in non-discriminatory matter.
- INEW said the points on VA are welcome but the commitment to make every effort is too weak and the understanding who is victim must be expanded.
- Mexico said the PD needs a humanitarian approach that has broad concept of the word “victim”, including affected communities.
- Panama said VA should be strengthened, drawing on the Mine Ban Treaty, Convention on Cluster Munitions, and other relevant instruments.
- Colombia said “post-conflict stability” goes beyond the scope of this PD and should be deleted.
- USA wants “war” inserted before “victims”.
- USA wants to replace “rights of victims with disabilities” with “situations of disabilities”.
- Ecuador said language on victims and rights should be taken from the Convention of the Rights of Persons with Disabilities.
- Finland supports the language in 4.3 and said attention should be given to needs and rights to all those in most vulnerable situations.
- Chile said the PD should expand who is included in definition of victim, who should all receive assistance on equal terms.
- Peru said language of 4.3 could be strengthened to ensure that every victim of an EW gets assistance and enjoys full exercise of their rights. Uruguay agreed.
- Project Ploughshares called for a more robust commitment to VA.
- WILPF said the declaration should commit states to ensure assistance for victims. Families and affected communities are also considered “victims” and shouldn’t be listed separately. Post-conflict stabilisation should be treated separately from victim assistance.
- WILPF suggested the PD include a commitment to prevent and remediate the environmental and infrastructure-related damage caused by the use of EWIPA in their territories and to provide assistance to other states to this end.
- ICRC supported comments to strengthen VA.
- HI said “make every effort” is too weak. All victims receive adequate assistance based on their needs, on socioeconomic situation, on their rights, etc. VA commitments must recognise that everyone related to the harm is a victim and must receive VA and should acknowledge the right to inclusive/non-discriminatory humanitarian assistance.
4.5: Support those working to address harm from EWIPA
- Canada suggested adding humanitarian organisations.
- WILPF suggested a commitment to consult with affected populations, including women and marginalised communities, on the impacts of use of EWIPA and needs related to victim assistance, environmental remediation, and reconstruction.
- Canada suggested adding “an engagement with local communities on their protection needs and priorities.”
4.7: Follow-up mechanism
- Mozambique suggested a review of declaration should take place every two years to identify progress and challenges and discuss strategies to overcome them.
- Germany suggested the PD could set up a voluntary working group for interested states to develop a “toolbox” for military good practices, to be used as a basis for trainings with armed forces. It said it would be willing to contribute to financing such trainings.
- NZ said PD should have a follow-up mechanism, not with a heavy meeting or reporting burden but an intention to meet and report back on progress, perhaps in margins of other meetings.
- ICRC suggested inspiration could be taken from Safe Schools Declaration, which commits states to meeting on a regular basis to review implementation of PD. Chile agreed.
- Panama said the follow-up mechanism should include periodic meetings and could follow the model of the Geneva Declaration on Armed Violence and Development or Safe Schools Declaration.
- Austria called for meetings on a regular basis to share info and exchange practices and to discuss implementation of the PD commitments. Suggested saying, “meet on a regular basis, inviting relevant international organisations and civil society.”
- USA would not support a review procedure in which states or entities would review US implementation of IHL obligations, such as human rights body mechanisms. The USA only supports voluntary, non-politicised discussions that each state deems appropriate. Mozambique agreed the review should be voluntary.
- Mozambique said PD parties should meet every two years.
- Ecuador and WILPF suggested the establishment of mechanisms for investigation and accountability for use of EWIPA.
- Project Ploughshares indicated support for a review procedure, noting it would help develop a community of practice on this issue.
- WILPF welcomed the commitment to review the implementation of the PD and suggested it should be strengthened to ensure specific meetings, possibly on an annual basis. Such meetings could review both implementation and universalisation of the PD and allow sharing of practices and lessons learned. The text should emphasise an inclusive approach to such meetings, for endorsing states, those yet to endorse, UN agencies, international organisations, and civil society.
- Human Rights Watch said states should create mechanism for review and commit to annual meetings at least in the first few years, as this is when most intense work should be devoted to establishing best practice to protect civilians. It suggested NGOs can play a role in monitoring and reporting.
Additional element on the arms trade
- Mozambique suggested including prevention of diversion of EW in export/import chain, especially to non-state actors.
- African Group said the PD should prevent diversion of arms used in development of IEDs, especially to non-state armed groups.
- Cuba said arms producers bear clear responsibility for use of EWIPA but this document is silent about them.
- WILPF and ICRC urged recognition of the links between arms transfers and the use of EWIPA.
- In this context, WILPF suggested that the declaration should recognise the connection between arms transfers and the use of explosive weapons in populated areas. It could reaffirm that all states must maintain the highest possible standards on their exports of conventional arms, including by adhering to and implementing fully the Arms Trade Treaty (ATT). It could also commit signatories, including those not party to the ATT, to develop specific guidelines to restrict or stop the transfer of certain types or categories of conventional weapons to state and non-state actors.