CCW Report, Vol. 4, No. 4

Editorial: Existing law is not sufficient
15 December 2016

Ray Acheson

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The discussions on Wednesday morning on incendiary weapons, mines other than antipersonnel mines, and the use of explosive weapons in populated areas followed an eerily similar pattern. In each case, a state suggested a course of action to address the humanitarian harm arising from the use of these weapons; these proposals were then followed by a debate in which others argued that no action is needed because “existing law is sufficient”—states simply need to comply with their obligations, not create new ones.

The pattern provides a clear picture of the main impediment to preventing humanitarian harm from weapons. The mantra that “existing law is sufficient” has unfortunately become a way to avoid articulating new measures, including restrictions and prohibitions. Such measures could actually help governments and military operators have clearer guidance in how to comply with existing law. They could give substance to general principles of the law, clarify the application of existing law in specific situations, or help establish means to ensure compliance. Simply evoking this mantra does nothing to actually compel or assist states or other actors to comply with existing law, but instead provides an excuse for total inaction.

If existing law was sufficient on its own, without further guidelines or commitments, how would the United States, United Kingdom, or France be able to justify their contributions to the Saudi-led military intervention in Yemen, which has bombed weddings, funerals, medical facilities, and schools there? How could Russia or Syria be able to defend their utter destruction of Aleppo, their bombardment of homes, schools, hospitals, and other civilian infrastructure? How could Israel say its conduct during its assaults on Gaza is consistent with the laws of war?

Indeed, the use of explosive weapons in populated areas (EWIPA) provides an excellent example of the problem with the “existing law is sufficient” argument.

For years, states, civil society, international organisations, and the UN Secretary-General have raised concern about the use of EWIPA as a particularly egregious practice resulting in severe humanitarian harm. Since September 2015, Austria has been leading a process towards the development of a political commitment amongst states to address this issue. Now it seems that some states wish to bring the issue within the framework of the CCW.

Germany suggested that the use of EWIPA be included in both the final declaration of the Fifth Review Conference and the decisions of the Conference. The focus on Germany’s proposal is on the use of EWIPA as a failure to comply with international humanitarian law (IHL); its proposal is for the CCW to “mandate a group of experts to discuss the impact of explosive weapons in densely populated areas to minimise the humanitarian harm by ensuring greater compliance with IHL.”

New Zealand, with the support of Austria and Chile—all of which are active in efforts outside of the CCW to mitigate humanitarian harm from the use of EWIPA—proposed some amendments to Germany’s text. They suggested that the group of experts should “consider the impact of explosive weapons with wide area affects in densely populated areas with a view to strengthening respect for IHL and enhancing the protection of civilians.”

The key difference is around the relationship between IHL and the use of EWIPA. Germany’s proposal posits compliance with IHL as the solution to the problem, while New Zealand’s amendments indicate that strengthening IHL compliance is one aspect of the solution but that the overarching goal is enhancing the protection of civilians.

Based on experience monitoring compliance with the application of IHL with respect to the selection and use of weapons in armed conflict, it is clear that IHL is not sufficient on its own to prevent human suffering. This is, in part, why the CCW was negotiated in the first place. The general rules of IHL, as contained in the Geneva Conventions and their amended protocols, have been supplemented by agreements that apply to specific weapons. These subsequent humanitarian disarmament agreements give substance to the general rules and thus become an integral part of IHL. Any international law that applies to the use of weapons in armed conflict is, by definition, part of the law of armed conflict.

However, this body of law, from IHL to the CCW, which applies to the selection and use of weapons, is not alone sufficient to address the problems posed by the use of EWIPA.

States have not been forthcoming about their interpretation of what IHL requires in this context, and thus which practices would be illegal. The rules of IHL do not on their own draw a clear boundary against the use of EWIPA. We can see the widespread civilian harm due to the use of EWIPA by actors who claim such use is in compliance with IHL; the lack of any specific treaty-based restriction that provides clear and universal guidance on the application of IHL to the use of EWIPA; and continued supply of weapons to parties of conflict that have perpetrated gross violations against civilian populations.

Saying that the problem is compliance with IHL is true to some degree—but only if one accepts the fact that IHL is designed to restrain the use of force in order to prevent human suffering, and only if one does not consider other obligations related to human rights and protection of civilians. Yet many of the states that insist “existing law is sufficient” are not themselves complying with IHL. This is why concerned parties have taken up the attempt to draw a clear boundary around the use of EWIPA as a practice that leads to violations of IHL, as well as of human rights law and commitments to protect civilians.

France’s suggested modification to Germany’s proposal is instrumental in this regard.  France proposed that the mandate of a group of experts on this issue should be to only discuss the impact of “indiscriminate and excessive use” of explosive weapons. This suggests a normalisation or acceptance of some use of EWIPA—that the bombing of some civilian infrastructure (which is inevitable if explosive weapons are being used in populated areas) is acceptable within IHL or human rights law. It also moves the discussion away from the inherent properties of the use of EWIPA and makes the discussion all about “bad behaviour”.

This is particularly cynical given the current situation in Syria and Yemen, where civilians are living under relentless bombing and shelling. Shall states only bomb a little bit in populated areas? Shall they have a quota of schools or hospitals they can destroy before it is considered “excessive”?

As civilians and combatants alike in Aleppo await death, detainment, rape, torture, some have been musing on the state of the world that led to the hell they now face. “It’s as if this has become very normal for the international community, you know, a rocket falls, 20 or 30 people are killed, under the rubble, they can’t pull them out—that’s a totally normal thing. In any case, there’s no space for graves to bury them in. Let them be buried under the buildings,” said one resident.

The normalisation of violence, of which states still maintain a monopoly even amidst the rise of non-state actor engagement in armed conflict, is contrary to the objective of the development of IHL, or of human rights law. It must be countered at each and every opportunity—and one of the most significant ways to counter it is through the articulation of further rules, guidelines, and laws.

Conversing about these issues within the CCW is fine, but action is urgently needed. As the civilian in Aleppo ended his message, “I think this will be my last video, because we’ve gotten bored of talking, bored of speeches.” 

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