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The political declaration on explosive weapon use must protect civilians, not militaries

Report on the April 2022 consultations on a political declaration on the use of explosive weapons in populated areas

By Ray Acheson
14 April 2022

From 6–8 April 2022, states, international organisations, and civil society groups met at the United Nations in Geneva for the long-awaited resumption of dialogue on explosive violence. Ireland has been leading a process since late 2019 to develop a political declaration on the use of explosive weapons in populated areas (EWIPA). The COVID-19 pandemic stalled negotiations for the past two years, but this fourth round of consultations—during which participants considered the third draft of the declaration—has brought the process close to completion. Ireland anticipates holding one more day of talks on a fourth draft soon, after which the text will be finalised.

As the current draft stands, the declaration would commit states to avoid civilian harm by “restricting or refraining from” the use of explosive weapons in populated areas. It also acknowledges the direct, indirect, and reverberating effects of the use of EWIPA and the harms suffered by civilians when explosive weapons are used in villages, towns, and cities. It contains provisions about data collection, victim assistance, humanitarian access, training for militaries, and a follow-on process to review implementation of the declaration.

The exact wording of these provisions remains contested. Most states that have participated in the consultations since 2019, as well as the UN Secretary-General, the International Committee of the Red Cross (ICRC), civil society organisations with the International Network on Explosive Weapons (INEW), and several UN agencies led by the Office for the Coordination of Humanitarian Affairs (OCHA), have called for a strong commitment for states to avoid the use of EWIPA. They also suggested various amendments to the draft text to ensure the strengthened protection of civilians from explosive violence.

But a handful of states that bomb towns and cities, or that profit from selling weapons that are used to bomb towns and cities, have said the current declaration’s provisions are “unrealistic”. During the latest negotiations, a few delegations—most notably Canada, Israel, Republic of Korea, Turkey, United Kingdom (UK), and United States (US)—sought to water down the draft text. These countries, and many others, condemned Russia’s attacks against civilians in Ukraine, yet in the same breath called for removing language in the declaration that works against the exact behaviour they condemned.

The key states working against the protection of civilians in these negotiations, states which the US delegation described as “militarily active responsible states” (MARS!), argued that the declaration should not put a “burden” on militaries to reduce this harm, and that any commitments in the declaration must “realistically” weigh military necessity against humanitarian considerations. (The US delegation used the word “realistic” at least ten times in three days.)

In this weighting, of course, humanitarian considerations are almost always sacrificed to alleged military necessity. The militarily active states say they must be able to sign onto the declaration in order for it to have any meaning, and yet their suggested amendments to the text risk rendering it meaningless. These states also say that international humanitarian law (IHL) is sufficient, it just needs to be implemented. Of course, they all claim to be fully compliant with IHL whilst dropping bombs on homes, hospitals, schools, weddings, funerals, and marketplaces.

IHL should preclude the use of EWIPA. The principles of distinction, proportionality, and precaution make it clear that civilians should be protected from explosive weapon use. Yet militaries to continue bomb populated areas, turning city streets into battlefields. As records and investigations have shown, thousands of civilians are killed each year from explosive violence. When explosive weapons are used in populated areas, 90 per cent of the victims are civilians. Millions of civilians are also impacted by reverberating effects of bombing, including loss of livelihoods and essential services, displacement, public health crises, food insecurity, and long-term psychological trauma.

As Chile and Mexico jointly said in reaction to US appeals to realism, it is the reality on the ground that shows most victims of the use of EWIPA are civilians, and the commitments in this declaration must be aimed at having an impact in the real world. It is therefore urgent for states to commit to not use explosive weapons, especially those with wide area effects, in populated areas. This is not so much a commitment beyond IHL as it is a clarification of behaviour compatible with IHL.

The following report provides an outline of key discussion points under each section of the declaration. This is not a comprehensive accounting of all positions. Statements, written submissions, and video recordings should be consulted for details.

Section 1

The first section of the declaration’s preamble describes the harm resulting from the use of EWIPA. The current iteration of the text has removed many of the conditionalities previously present, though a few remain. INEW members, the ICRC, and several states called for these to be removed to fully acknowledge the reality of explosive violence. But the militarised states asked for conditionalities to be put back in. For example, rather than explaining that harm “arises” from the use of EWIPA, they would prefer the text say, “can arise”. However, as the ICRC noted, there is no example of the use of EWIPA where the harms described in the declaration do not occur. Thus, qualifiers should not be reintroduced, and the remaining ones should be removed.

Another point of contention was around the concept of reverberating effects. Most participants supported the inclusion of this term, which describes the cascading impacts of long-term harm caused to civilian life by damage and destruction to infrastructure and services. The so-called MARS, however, argued that this is not a legal concept and should not be in the declaration. A few states suggested using the term “indirect effects” instead, which many participants agreed would be fine if it is clear what is meant. As the ICRC noted in relation to terminology, section 1 is not about the law. Civilian suffering and harm is suffering and harm regardless of how it is described by the law, and thus it should be fully reflected in this part of the declaration and not hindered by restrictive terminology.

Other suggestions in section 1 included strengthening the provisions on gendered-impacts and diversity of participation, as well as on environmental impacts. Many delegations also urged that data collection could include other factors beyond gender and age, such as disability and race or ethnicity, as well as the tracking of types, locations, and effects of weapons used.

Section 2

Section 2 describes the applicability of existing international law to the issue of the use of EWIPA. The majority of participants agreed that the declaration should not just give a reading of the existing legal obligations under IHL, but, as Aotearoa-New Zealand suggested, it should “add an additional layer of political commitments that will improve the status quo for civilians in conflict zones, and properly extend to them the full protections of IHL.” Article 36 likewise noted, a political declaration “that only uses legal terms and does not saying anything different from existing law…. Is not a basis for strengthening civilian protection—it is a basis for saying absolutely nothing.”

Within the context of conversation on this section, the most disturbing calls were for the addition of language seeking to legitimise explosive weapons. Israel, Turkey, and other so-called MARS urged the creation of a new paragraph outlining states right to self-defence and clarifying that explosive weapons are legitimate, lawful weapons. The US delegation even said, that if it has explosive weapons, it is going to use them. Many others, however, objected to the inclusion of such a paragraph. Austria and the ICRC argued that a political declaration on preventing civilian harm is not the place to legitimise weapons. The Austrian delegation pointed that no other declaration or instrument on disarmament or arms control declares certain weapons legitimate or lawful. The ICRC also noted that such a provision would disregard the prohibitions of certain explosive weapons including antipersonnel landmines and cluster munitions.

A few delegations noted that the section’s one reference to international human rights law (IHRL) is not sufficient. WILPF suggested a new paragraph could be added to specify that states continue to have obligations to respect, protect, and fulfil human rights in armed conflict, must exercise due diligence when using explosive weapons, and must assess their human rights impacts. Mexico and a few others supported the inclusion of such a reference. Israel, on the other hand, called for the removal of the only reference to human rights law currently in the document, arguing that the application of IHRL during armed conflict is “controversial”.

Section 3

Section 3 contains the declaration’s core commitment against the use of EWIPA (paragraph 3.3), as well as provisions for implementing it. As noted above, the majority of participants have long called for the declaration to commit states to avoid the use of EWIPA. The ICRC has explained that such a commitment “would entail not to use explosive weapons with wide area effects in populated areas unless sufficient mitigation measures have been taken to reduce the weapon’s area effects and the consequent risk of civilian harm.” A few participants have called for even more explicit language around non-use, including WILPF, Project Ploughshares, Red de Seguridad Humana para América Latina y el Caribe (SEHLAC), and a few states. But the militarily active states have resisted what they see as a “new commitment” throughout the series of consultations, and have suggested heavily caveated language that in previous iterations has been difficult to decipher.

The current language in the declaration says, “restricting or refraining from,” which, as several delegations argued last week is problematic as it offers militaries a choice rather than setting a consistent standard. “On the one hand, it may give the impression that states will have a choice between restricting and refraining – which is clearly not the intent,” warned Project Ploughshares and SEHLAC. “On the other, the concepts of restricting and restraining may be read to be synonymous when they clearly are not.”

Another aspect of paragraph 3.3 that is problematic is the final qualifier “in accordance with IHL”. The ICRC pointed out this risks creating confusion between existing legal obligations and the new policy commitment and significantly reduces the added value of the declaration. This would “constitute an underwhelming outcome of a several years-long multilateral process,” warned the ICRC, and “it would actually risk undermining existing legal obligations by reiterating them in the form of a policy commitment.” States such as Israel and the US want it to remain, in order to limit the scope of the commitment, but INEW members and many states agreed with the ICRC that it should be removed.

This aspect of the declaration remains the most contentious and will likely be the focus of the final day of talks in June. In addition, states deliberated extensively on wording about the training of militaries, which also remains to be finalised. INEW urged the addition of a new paragraph committing states to “track, analyse, respond to and learn from incidents of civilian harm, including damage to civilian objects,” to which some states were receptive.

In this section, one of the overarching areas of concern is the continued push by some of the militarily active states to insist that any commitments relate only to the “indiscriminate use” of explosive weapons. Several of those considering themselves to be “MARS” are pushing on this to assert that their responsible behaviour is in accordance with IHL and thus doesn’t need adjusting. The Canadian delegation, which said clearly it does not support the creation of any new standards when it comes to the use of weapons, argued that any commitment beyond avoiding indiscriminate use would tie the hands of armed forces that “fight in accordance with the law” and allow those that violate IHL to stigmatise the “responsible states”.

Chile, Mexico, Norway, and several other delegations also pushed back against limiting the focus of this declaration to indiscriminate use, arguing that the effects of the use of EWIPA are indiscriminate whether or not they are intentional. Article 36 outlined some of the key problems with focusing on indiscriminate use, including that:

  • Civilian harm does not only result from indiscriminate or unlawful attacks;
  • Focusing only on “indiscriminate use” risks politicising the experience of civilian harm by selectively asserting which attacks are illegal, based not on detailed evidence or formal legal judgements, but rather on the basis of the identities of the parties in question;
  • A focus on indiscriminate use implies that civilian harm from attacks that are not illegal is not worth consideration – yet people are killed and injured and experience long term suffering from so-called “incidental harm”; and
  • It is not clear what humanitarian benefits could be expected from this approach and how it would strengthen the protection of civilians.

Section 4

Section 4 of the draft declaration outlines provisions for data collection and victim assistance related to the use of EWIPA, as well as follow-on mechanisms for the declaration’s implementation. Most delegations welcomed the strengthening of these provisions in this iteration of the text; some urged further strengthening while a few others called for its weakening.

The UK, for example, argued that the draft provisions on data collection, particularly in relation to reverberating effects, places burdens on parties to armed conflict (It did not reflect upon the burdens of armed conflict that are placed upon civilians.) Turkey, on the other hand, said only states and the UN should be trusted to collect data, accusing NGOs of gathering information without verification from “terrorists”. Airwars, which is one of the NGOs providing invaluable information on civilian casualties in armed conflict, urged data collection by as many parties as possible.

Some states argued that making data publicly available should be caveated with language such as “where feasible and appropriate,” which is currently in the text. In contrast, civil society groups and other states argued that all data should be shared widely in order to form the most accurate picture possible of civilian harm as well as of the weapons used and their effects.

Switzerland also urged the declaration to establish some accountability mechanisms in section 4. It suggested including a commitment to establish facts in cases of alleged violations of IHL, including through fact finding mechanisms. It also suggested a commitment to use domestic and international measures to hold to account those responsible for serious violations of IHL and collect, compile, retain, and preserve materials necessary to hold those responsible.

In relation to victim assistance, civil society groups and some states, such as Austria, Chile, Germany, Mexico, and Uruguay, urged an expansion of the description of types of assistance in paragraph 4.4. Humanity & Inclusion suggested such elements could include “ensuring basic needs are met, the provision of emergency medical care, physical rehabilitation, psychosocial support and socio-economic inclusion, data collection as well as support towards the full realisation of their rights and full participation in their societies.” A few governments and civil society groups also called for the inclusion of a separate paragraph on providing and facilitating safe, rapid, and unimpeded access to principled and inclusive humanitarian assistance. WILPF, the Philippines, and a few others noted that both victim assistance and humanitarian assistance should be gender-sensitive.

A few delegations, such as Canada, pushed back on strengthening these provisions, arguing that it’s not always possible to provide victim assistance. Canada suggested adding language about making “every feasible effort” to provide assistance.

Most participants spoke strongly about the need for a follow-up process to assess implementation of the declaration discuss measures for evaluating its impacts, as well as how to better take these impacts into account when conducting military operations. Most participants want this to be open to civil society and international organisations. But a few state, such as the US, UK, Canada, Sweden, and Republic of Korea, expressed concern that assessing implementation would be politicised and would suggest that the commitments in the declaration are legally binding.

The US said the declaration should establish a positive, collaborative way forward that focuses on voluntary military-to-military exchanges to improve compliance with IHL and mitigating civilian harm, but said it cannot agree to a forum that “judges” states’ compliance with the declaration or critiques states’ conduct on battlefield.

However, as Aotearoa-New Zealand pointed out, governments are engaged in “an inherently political process of collective choice making. This is what politics and, by extension, diplomacy are.” When it comes to the declaration’s follow-up mechanism, it argued that it “would be quite possible to pitch any future dialogue and process at an appropriate level, one recognising the nature of the document as a set of political commitments, instead of a Treaty-based mechanism. Indeed we have experience of this in other forums.” Austria, Chile, Mexico, and Norway highlighted the Safe Schools Declaration as one such mechanism. But the US delegation said “one of the unfortunate things about” the Safe Schools Declaration is that there are major militarily active states that don’t participate in it, including the US. (Note: the US could easily solve this problem by signing the Declaration and joining the process.)

Conclusion

The core tension in the negotiations of this political declaration clearly lie between those who want to ensure “freedom of action” for their militaries, regardless of civilian harm, and those who want to improve the protection of civilians by changing a particular behaviour that is has been demonstrated to cause an unacceptable pattern of harm. While the so-called MARS are worried about placing a “burden” on their militaries—by constraining their actions or requiring training, data collection, and assistance to victims and survivors—the majority of participants in this process are more concerned with saving lives.

Ireland will be revising the draft text over the next few weeks based on input received during these consultations and through written submissions. It will be imperative that the final text prioritise human lives and well-being over military “freedom”. As WILPF said in its closing remarks, “States that are bombing civilians should not have the final word on what is or is not acceptable, feasible, or realistic. It must be the experience of victims and survivors that guides this declaration’s words and its implementation.”