CCW Report, Vol. 4, No. 2

Editorial: The evolutionary imperative of the CCW
13 December 2016

Ray Acheson

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The good news is that during the opening general discussion at the Fifth CCW Review Conference, states indicated concern with the humanitarian harm caused by a number of weapons covered by the treaty, or by the development of future weapons. This included specific reference to conflicts in Syria, Libya, Ukraine, and elsewhere, making a rare connection between “debate” in the CCW and reality.  The bad news is that there seems to be limited agreement on how to deal with these problems. In the meantime, casualties are mounting and damage to cities, towns, and communities is increasing. Aleppo was subjected to “doomsday bombardment” on Sunday night and Monday, with non-stop artillery shelling described by one resident as “slaughter on air”. The remaining humanitarian volunteers operating in Aleppo have written an appeal for safe passage, noting that they “are with 100,000 civilians trapped in an area of five square metres with non-stop bombs, shells and advancements on the ground. In one building more than 500 people are sheltering. People have been underground for days.”

Despite this, the use of explosive weapons in populated areas received scant attention during the CCW’s general debate. Austria, which is leading international efforts towards the development of a political commitment to prevent humanitarian harm from the use of explosive weapons in populated areas, noted that this issue urgently needs increased attention. Ireland highlighted the need to study secondary and tertiary consequences of explosive weapon use, and gendered impacts. WILPF has conducted a study into the gendered impacts of the use of explosive weapons in populated areas, and as a member of the International Network on Explosive Weapons calls for states to end this practice, which inevitably violates international humanitarian law and human rights.

We are seeing the destruction caused by massive explosive violence not just in Syria but also in Yemen, where the Saudi-led bombing campaign has resulted in a humanitarian catastrophe. Several CCW states parties are profiting wildly from the conflict. The UK has climbed the ranks to number four international arms dealer due to its arms sales to Saudi Arabia since its bombardment of Yemen began. During the general debate, the UK delegation acknowledged that deliberately targeting civilians or killing civilians through the indiscriminate use of weapons constitute violations of IHL. But the UK government has denied “evidence” of IHL violations in Yemen, despite the reams of evidence produced by a UN panel of experts, the International Committee of the Red Cross, Médecins Sans Frontières, civil society organisations such as Human Rights Watch, and journalists to document and expose the effects of the Saudi-led bombing campaigns in Yemen.

At this time, it seems that states are more interested in dealing with the use of improvised explosive devices (IEDs), in particular when used by non-state actors. Under Amended Protocol (AP) II on mines, booby-traps, and other devices, a group of experts has drafted a declaration on IEDs that it is recommending for adoption by this Review Conference. Among other things, the declaration indicates that the High Contracting Parties to AP II will take all necessary steps to “prevent the diversion of precursors and components that may be used for the manufacture of IEDs for committing terrorist acts or indiscriminate acts;” to exchange information on measures to mitigate the threat of IEDs and IED attacks; to raise awareness and explore synergies with international organisations and networks; to pursue IED risk education campaigns; and to provide financial and technical capacity building support.

IEDs wreck havoc around the world, killing civilians and damaging civilian infrastructure, and increasing destabilisation throughout affected communities. However, as the delegations of Ireland and New Zealand emphasised, it is imperative that efforts to mitigate harm from weapon systems focuses not on the user of a particular weapon type, but on its use and the harm caused by its use. IEDs are not used exclusively by non-state actors, or exclusively for “acts of terrorism”. States also use IEDs, most recently and graphically demonstrated by the Syrian government’s use of barrel bombs in populated areas.

Meanwhile, states remain divided over the best approach to address the horrific humanitarian harm resulting from the on-going use of incendiary weapons. During the general debate, a range of states, together with Human Rights Watch and WILPF, indicated support for a review of Protocol III on incendiary weapons to discuss strengthening its provisions. Russia, on the other hand, said it is still sceptical about the call to review Protocol III, arguing that “all the existing concerns can be lifted through a rigorous and unconditional implementation” of this protocol. But recent use of incendiary weapons in Syria, Iraq, and Yemen suggests that Protocol III is not sufficient to prevent human suffering from it use. As Human Rights Watch has found, “Attacks using these weapons in Syria have escalated since Russia began its joint operation with government forces at the end of September 2015. For at least a few weeks in mid-2016, incendiary weapons were used almost every day in attacks on opposition-held areas.”

Even when states acknowledge or express concern at civilian harm from incendiary weapons, it does not seem to necessarily curtail their use. For example, the US delegation expressed concern about incendiary weapon use but US forces have used white phosphorus munitions in Iraq. More is needed to protect against the painful burns, permanent disfigurement, and psychological harm caused by incendiary weapons. An outright prohibition of these excessively injurious weapons is necessary.

States expressed significantly more support for convening a Group of Governmental Experts on lethal autonomous weapon systems in 2017. The vast majority of states speaking on this subject indicated their preference for more formal, intensive work on autonomous weapons. However, a few states remain hesitant to endorse this approach, indicating that they would participate in future discussions but appearing concerned about where such discussions might lead.

17 states so far (with the new additions of Argentina, Panama, and Peru from the general debate), and the Campaign to Stop Killer Robots, argue that these discussions should lead to the negotiation of a prohibition of fully autonomous weapons. Based on the ethical, legal, political, and technical issues raised by states and civil society here and at meetings of experts over the past three years, it is clear that human beings must retain meaningful human control over weapons and attacks. Most states that have participated in these meetings have supported this in one configuration or another, recognising the threat to human rights and international humanitarian law, as well as ethics, posed by autonomous machines able to select and engage targets without human intervention.

As the International Committee of the Red Cross noted during its general statement, the CCW is a living treaty designed to adapt as weapons technology evolves. It is imperative that states use this Review Conference to ensure it lives up to this promise. The basic premise of its provisions and protocols is, as New Zealand articulated, that parties to armed conflict do not have the unlimited right to choose methods and means of warfare. “Against this backdrop,” said the New Zealand delegation, “it is essential that this Conference presents an honest review of the past five years and, even more importantly, that it positions the CCW to be more effective and responsive in its protection of civilians and combatants over the coming period.” Civilians in Syria, Yemen, and elsewhere are losing their lives to weapons that should be regulated or prohibited under the CCW and other international instruments. This unacceptable state of affairs must end now.

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