States agree to final text of political declaration on the use of explosive weapons
Report on the June 2022 consultations on a political declaration on the use of explosive weapons in populated areas
By Laura Varella
22 June 2022
On Friday, 17 June 2022 in Geneva, Switzerland, states participating in the diplomatic process to develop a political declaration to strengthen the protection of civilians from the use of explosive weapons in populated areas (EWIPA) agreed to a final text. During the meeting, several states expressed support for or declared its intention to endorse the text, including: Aotearoa-New Zealand, Argentina, Austria, Belgium, Brazil, Bulgaria, Chile, Finland, France, Germany, Guatemala, Italy, Japan, Mexico, Netherlands, Norway, Philippines, Poland, Republic of Korea, Spain, State of Palestine, Sweden, Switzerland, United Kingdom, United States, and Uruguay.
The text is a result of three years of negotiations led by the government of Ireland, which included five rounds of consultations. However, as Irish Ambassador Michael Gaffey said, the process has not operated in a vacuum. Several other conferences were instrumental to this outcome, including the explosive weapons talks hosted by Germany, the regional conferences held in Santiago and Maputo, the two Vienna conferences on the use of explosive weapons in populated areas in 2015 and 2019, in addition to the UN Security Council debates on the protection of civilians and children and armed conflict. The international community has been discussing the issue of the use of EWIPA for decades, but as the government of Austria stated, from 2019 onwards the discussion swifted from if to how, as states began negotiating the political instrument text that has now been finalised.
Several states highlighted the important timing of the conclusion of the negotiations. Austria reminded participants that suffering experienced by civilians remains great all around the world, including due to the invasion of Ukraine by the Russian Federation. The Netherlands argued that this war is a horrifying example why international humanitarian law (IHL) needs to be strengthened, and Switzerland added that this and other recent armed conflicts have shown the need to improve the protection of civilians in populated areas. The United Kingdom (UK), the United States (US), and Australia condemned Russia’s actions in Ukraine, with the US affirming that the war makes the protection of civilians even more urgent.
However, as highlighted in our previous report, these three states are among those that have actively requested to remove the language in the declaration that works against the exact behaviour they condemn by Russia. As noted by the Chair, the final version of the declaration is the best degree of consensus that it was possible to achieve. While states like Japan, Poland, Sweden, and Canada stated that the declaration strikes a good balance between military necessity and humanitarian considerations, several other states argued that the declaration could have been more ambitious. Aotearoa-New Zealand stated that the text of the political declaration is not as it would have drafted, but that it understood the many factors were in perspective. In the same sense, Switzerland said that it could have supported a version with stronger commitments, and that it would have wanted a clearer message on the effects of explosive weapons in urban areas, in particular the effects on infrastructure. Ecuador also expressed expectation for a more ambitious declaration, in particular regarding the description of the wide area effects, but that it understood that the declaration was a product of a long negotiation process that involved compromises. Costa Rica also recognised that although not perfect, the draft showed balance in what was possible to achieve.
Despite these issues, states were unanimous in recognising the excellent conduction of the negotiation process by the government of Ireland. Spain, Ecuador, Italy, and Argentina were among the states that congratulated the Irish team on the management of the negotiation process, especially in regard to the inclusivity and transparency of the consultations. Mexico and Chile commended the respectful way in which negotiations took place, and thanked the Irish government for making sure that all voices were heard and that they mattered.
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.
States demonstrated content with several provisions of section one. Chile and Mexico commended the declaration’s recognition of the humanitarian consequences of the use of EWIPA, and its reflection of the fact that the use of these weapons presents challenges to the protection of civilians that need to be addressed. Austria noted that the declaration clearly expresses the unacceptable pattern of harm of these weapons, while making efforts to restrict or refrain their use. It also commended the inclusion of the recognition that the effects of explosive weapon use extend beyond time and space, and that this greatly affects basic humanitarian needs. In the same sense, the State of Palestine expressed support for the clear affirmation that the humanitarian impacts of the use of EWIPA are not limited to death and injury, but also includes the destruction of civilian infrastructure. Argentina highlighted its support for paragraph 1.2, but stated that it would have liked this paragraph to be linked to human rights in a more direct manner.
At least four states mentioned the reverberating effects of the use of EWIPA—which were included both in the preamble and operative sections in previous versions, but remained only in the preamble in the final version. While Australia, Israel, and Belgium argued that there is lack of consensus around the meaning of this term, Argentina said that it would have prefered to see the inclusion of this term in the operative section as well.
Both Switzerland and Ecuador welcomed the inclusion of the factors that increase risk for civilians and civilian objects that arise from the use of EWIPA in paragraph 1.2. The states considered it important that the final version added that the risks increase depending on a range of factors, including the weapon’s explosive power, its level of accuracy, and the number of munitions used.
The inclusion of the impact on the environment was welcomed by Finland, which highlighted that the environment is civilian by nature. The state also welcome the gender sensitive and non-discrimination approach by the political declaration. Norway commended the inclusion of children in 1.3, and Germany noted the importance of the inclusion of the devastating consequences of unexploded ordnance in the after conflict in paragraph 1.6. Finally, the importance of data collection on paragraph 1.8 was highlighted by several states, Ecuador and the State of Palestine among them.
The Chair noted that section 2 had minor editorial changes from the previous draft, and only two additional elements were included. First, the fact that although there is no general prohibition against explosive weapons, any use must comply with IHL. Second, the inclusion of a strong condemnation of any attacks against civilians, protected persons, and civilian objects, which according to the chair is an important addition that brings a lot of added value to the declaration.
The most commented-upon issue was the reiteration that the political declaration does not create new norms of international law, but rather sets out existing obligations. Chile and Mexico highlighted that it would not have been enough to simply declare respect for IHL, and that strengthening the protection of civilians would entail clarity on the interpretation of key IHL provisions and how they would apply to EWIPA, particularly with wide area effects. Austria welcomed the language that goes beyond just abiding existing IHL, and Finland expressed support for the reaffirmation of IHL and international human rights law (IHRL) obligations, including the obligation to hold those accountable for violations. Italy welcomed the reference to the prohibition against indiscriminate and disproportionate attacks, and the obligation to hold accountable those who violate international law.
Australia, on the other hand, affirmed that paragraph 2.1, which refers to “obligations to hold accountable those responsible for violations” of IHL and international human rights law, uses language that in its view is overly broad and lacking in precision. It argued that it could be erroneously interpreted as suggesting a general obligation to hold accountable those responsible for violations, regardless of who committed the violation, the nature of the violation in question, and where that violation was committed. Canada raised concerns over the lack of definition of concepts such as “explosive weapons” and “populated areas,” which leaves armed forces with a degree of uncertainty.
Regarding paragraph 2.3, the United States argued that not all states have signed to those treaties, so it might not apply to all states in the same manner. Israel questioned the inclusion of IHRL on paragraph 2.1, as in its view the application of those rules in armed conflicts remains a “controversial” matter.
Several states also commented on the inclusion of provisions related to non-state armed groups (NSAGs) in this section. Germany and the Netherlands stated that they consider it important that the declaration reflects the responsibilities of these groups. Israel, however, wished the declaration had addressed a common root cause of urban conflict, which is the reality of NSAGs that use human shields and other tactics to explore proximity with civilians. Turkey said that the term “non-state armed groups” is ambigious and can be misused, and that a differentiation between those groups and terrorists should have been included in the declaration. It further noted that the declaration should not pave the way for terrorists groups to use populated areas as safeheavens for their acts.
Section three was one of the most controversial in the declaration, and the discussions demonstrated the divergent views on what kind of commitments should have been included in this section. The Chair clarified that although 3.3 is a significant element of the declaration, it must be read within the context of the instrument. It explained that this paragraph reflects a delicate balance between a broad range of views and ultimately reinforces a shared commitment under IHL and improves the protection of civilians under armed conflict.
Chile and Mexico stated that 3.3 should be implemented as a clear commitment to avoid the use of EWIPA with wide area effects. They argued that a clear commitment would send a fundamental message to the international community on how to strengthen compliance with IHL during hostilities, and would be the commitment that fundamentally addressed humanitarian consequences caused by explosive weapons. They further clarified that an avoidance policy does not imply prohibition or stigmatisation, or create obligations. Ecuador noted that although the text does not have a categorial message on the need to abstain from the use of EWIPA, it does have a commitment to implement policies and practices, and the restriction or avoidance of the use when it goes beyond the military objective. Palestine argued that it remained convinced that ending, or avoiding, the use of EWIPA would be the most effective way to protect civilians, and that it would have preferred an express commitment of states to avoid the use of EWIPA. However, it expressed understanding over the fact that the language of 3.3 strikes a delicate balance between interests, and clarified that under its interpretation, the term “refrain” applies to the use of EWIPA with wide area effects, and “restrict” to all other explosive weapon use.
Australia stated that 3.3 does not suggest a presumptive ban on explosive weapons in populated areas, nor does it seek to introduce new interpretations of existing IHL.
In its view, as drafted, para 3.3 presents non-exhaustive options regarding policies and practices to help avoid civilian harm in situations of armed conflict. It does not alter the position at IHL that military necessity may, in some situations, justify use of explosive weapons, but that such use is only lawful provided it complies with IHL, including principles and rules such as proportionality, distinction, and feasible precaution in attack.
The United States said that 3.3 reflects the commitment by states to adopt and implement a range of policies. Within this context, relevant practice would include measures to refrain or restrict. It argued that 3.3 represents an important policy commitment, but does not reflect a legal principle, an emerging customary rule, or an assumption against the use of EWIPA. Israel argued that the obligation in 3.3 should be interpreted as a positive obligation, and that states have discretion on choosing if they will restrict or refrain from using EWIPA. Israel asserted that using these weapons might be the only available means to accomplish a military mission in certain circumstances. China suggested adding “and” and “in any event minimise” in paragraph 3.3, so that the language would be consistent with the one used in paragraphs 1.7 and 1.8.
Regarding the other provisions of section 3, Ecuador and Italy welcomed the inclusion in 3.1 of the commitment to review and adapt policies and practices to better protect civilians during armed conflict. Italy also welcomed the reference to the training of the armed forces on the application of IHL and relevant policies and good practices in the conduct of hostilities, as done in paragraph 3.2. It also commended the need to ensure clearance and removal of explosive remamnes after conflict, and the provision of risk education. Norway also commended the inclusion of risk education.
States actively discussed the measures to implement the political declaration included in section four. Norway said that implementing practical measures to strengthen the protection of civilians in armed conflict is a priority. The United States said that the success of the declaration depends on the implementation and that it will continue to improve policies and practices for the protection of civilians in armed conflicts. It also said that it will continue to work with allies and that it hopes to share good policies and practices and learn from others. Germany also highlighted the importance of implementing policies and practices to avoid and minimise civilian harm, particularly by setting up a follow up process as provided in 4.6. It also noted the importance of exchanging and collecting existing policies and practices, and that a toolbox of good practices could be used for training armed forces to provide certainty on how to protect civilians in conducting military operations. It also noted that comparing different notions could help identify and measure indirect effects, and that existing policies can help in this process.
Chile and Mexico commended paragraph 4.6 regarding the follow-up process, arguing that it speaks to the legitimacy of the process that states have undertaken. They also argued that any follow-up process should be open, transparent, and include other stakeholders, as translating IHL into action requires a multistakeholder approach. Aotearoa-New Zealand and Italy also expressed value for the involvement of all relevant stakeholders, with the first one arguing that partnerships with civil society organisations should be encouraged. Turkey, on the other hand, stated that stakeholders should have been specified in order to clarify their relevance, and suggested the inclusion of working to the political declaration imposing responsibility for non-governmental organisations to use selected, unbiased, and reliable information and be careful of sources.
Austria, Poland, and the State of Palestine welcomed the commitment laid out in paragraph 4.4 regarding humanitarian access. Palestine also welcomed the inclusion of the provision on victim assistance. Israel, however, argued that states have different obligations under international law, and this paragraph should be read recognising the assistance to protecting victims may vary according to obligations. Turkey asserted that paragraph 4.5 should not affect the sovereignty of states and should not be used for intervening directly or indirectly. Italy, on the other hand, commended the reference to the facilitation and suport of assistance to victims with a hoslitic, gender sensitive and non discriminatory approach.
France said it is convinced that strengthening cooperation, training, and exchange of know-how among states will lead to greater effectiveness in respect of IHL, and that it was pleased that these exchanges are at the heart of para 4.7. The United States said that this provision provides avenues for armed forces to learn from each other and to improve policies and practices. It said that it is eager to enhance collaboration in a non-politicised and contextualised manner. The United Kingdom also expressed interest in sharing policies and practices and that it has experience to offer in this regard. Italy noted that this process can benefit from experience of militarily active responsible states.
The Chair concluded the meeting by informing states that the translations of the political declaration will soon be made available at the Irish mission’s website. He also noted that a signing ceremony will take place in Ireland in autumn, and urged states that are still pushing confirmation within their internal systems to continue doing so.
Read as a whole, the declaration stands as an important contribution to ending the horrific practice of bombing towns, cities, and villages. As WILPF argued in its statement, it is clear that this declaration is categorically opposed to the use of explosive weapons in populated areas and must be interpreted and implemented as such. To read it otherwise is to render the intention void. The goal of the political declaration is to promote a presumption against the use of explosive weapons in populated areas, and that is the manner in which all provisions must be applied.
The Chair and many delegations, including Switzerland, Austria, Germany, the United States, and Ecuador, emphasised that the adoption of the political declaration is the beginning of efforts to protect civilians from explosive weapons, rather than the end. As stated by Ecuador, “The political declaration is just the beginning of the process, and the implementation of the commitments and their follow up will allow an evaluation of the real impact of our decisions on the POC from the use of EWIPA.”