INEW call commentary

Preventing human suffering from the use of explosive weapons in populated areas – the INEW call.

This policy paper provides a short commentary on the call of the International Network on Explosive Weapons as guidance for those working within this coalition.

The INEW call, adopted on 28 June 2011 by founding members Action on Armed Violence, Handicap International, Human Rights Watch, IKV Pax Christi, Medact, Norwegian People’s Aid, Oxfam, Save the Children is as follows:

The International Network on Explosive Weapons calls for immediate action to prevent human suffering from the use of explosive weapons in populated areas.

States and other actors should:

Acknowledge that use of explosive weapons in populated areas tends to cause severe harm to individuals and communities and furthers suffering by damaging vital infrastructure;

Strive to avoid such harm and suffering in any situation, review and strengthen national policies and practices on use of explosive weapons and gather and make available relevant data;

Work for full realisation of the rights of victims and survivors;

Develop stronger international standards, including certain prohibitions and restrictions on the use of explosive weapons in populated areas.

Commentary:

The International Network on Explosive Weapons calls for immediate action to prevent human suffering from the use of explosive weapons in populated areas.

The top line of the call identifies the central problem of “human suffering from the use of explosive weapons in populated areas.”

INEW does not propose to define specific terms within this call – but working definitions can be drawn from existing legal instruments.

Explosive weapons affect an area around the point of detonation, usually through the effects of blast and fragmentation. As a working definition they can be considered to include “explosive ordnance” and “improvised explosive devices” – both of which are subject to legal rules in the Convention on Conventional Weapons (CCW). The focus here is on conventional explosives rather than nuclear weapons. In general practice of states, explosive weapons are not used for purposes of ‘policing’ but are weapons of war or conflict.

As a working definition, “populated areas” can be considered to equate to “concentrations of civilians” which is defined in the CCW.

Whilst addressing “explosive weapons” as a whole, the INEW call does not mean that all explosive weapons are equally problematic in their effects. Rather it establishes that the starting point for concern should be the category of explosive weapons as a whole.

The introduction does not refer explicitly to ‘civilians’ because it is not only addressing circumstances of ‘armed conflict’ – but in many contexts it is harm to civilians that is the primary concern. The term ‘prevent’ is used because it implies positive action – but it is not meant to suggest that all such human suffering can be avoided. Efforts to reduce human suffering after the fact are also included in INEW’s call.

The reference to “immediate action” indicates that INEW is calling on states and other actors to take steps without delay to prevent harm (such as refraining from the use of certain types of explosive weapons in populated areas for example) and that such steps could be taken while further more lasting policies are developed and adopted.

States and other actors should:

The call is on states and other actors. Other actors can include non state armed groups, transnational security organisations, international organisations, private military companies etc.

Acknowledge that use of explosive weapons in populated areas tends to cause severe harm to individuals and communities and furthers suffering by damaging vital infrastructure;

This first bullet point further develops the problem being addressed – noting that the harm includes both direct deaths and injuries to individuals, wider effects on communities, and long-term or indirect effects due to damage caused. Whilst “severe harm” may not be caused in every instance, there is a consistent pattern of harm that needs to be addressed. “Acknowledgement” of the problem by states and other actors is the first step to working together to address the problem.

Strive to avoid such harm and suffering in any situation, review and strengthen national policies and practices on use of explosive weapons and gather and make available relevant data;

Building on their obligations under existing international law, actors are called upon to work to avoid causing harm and suffering from use of explosive weapons. As part of that process, actors are called on to review their current policies and practices, to make public information, and strengthen policies and practices to improve civilian protection. Such steps might include (but are not limited to):

  • Indicating on a scale which explosive weapons are considered, for existing legal assessments, to present the greatest risk to civilians if used in populated areas (and why);
  • Assessing whether certain explosive weapons should not be used in populated areas (for example, multiple launch rocket systems);
  • Making public ‘danger close’ distances used to protect friendly forces from the effects of different explosive weapons;
  • Indicating whether or not any assessments have been undertaken of the impact of explosive weapons in populated areas from past use, including direct deaths and injuries and indirect impacts from damage to infrastructure; and making public the findings of any such assessments.
  • Commit to making such assessments, on a transparent basis, in the future.

Such steps would represent a response to the call of the UN Secretary-General for Member States to undertake systematic data collection, analysis of this problem, and the release of policy statements regarding their use of explosive weapons.

Work for full realisation of the rights of victims and survivors;

Preventing and reducing the suffering experienced by people is the primary motivation for INEWs work. As such, ensuring that victims and survivors of explosive weapons use are able to fully realize their rights is a goal of INEW. This builds on the themes of victim assistance already established in the Convention on Cluster Munitions and with respect of explosive weapons more broadly in the CCW.

Develop stronger international standards, including certain prohibitions and restrictions on the use of explosive weapons in populated areas.

In order to prevent human suffering, stronger international standards should be developed to restrict this pattern of violence. Such standards will build upon existing obligations in international humanitarian and human rights law – but may need to go beyond the law as currently codified. Such standards could be established in a variety of forms, such as codes of conduct, guiding principles, political declarations and legal instruments.

Amongst the standards that may be developed, INEW believes that states and other actors should recognise that explosive weapons with wide area effects should not be used in populated areas.  Such wide area effects may be caused by the scale of blast and fragmentation from an individual explosive weapon, the inaccuracy of the delivery of individual weapons, the use of multiple explosive weapons in an area, or a combination of these factors.

Certain obligations might also be adopted regarding the use in populated areas of explosive weapons as a whole category (noting that under the CCW states have already accepted obligations to record information on the types and numbers of explosive ordnance they use and the locations where they use them in order to facilitate the work to address post conflict risks).

In 2006, prior to the prohibition of cluster munitions through the 2008 Convention on Cluster Munitions, a group of states proposed that cluster munitions (one particular type of explosive weapon) should not be used in populated areas. Explosive weapons that affect a wide area or that cannot be directed against individual targets in a precise manner are likely to present the greatest risk to civilians.

Against a pattern of explosive weapon use in populated areas causing elevated levels of human suffering, states and other actors should provide evidence to justify which explosive weapons can be used in such a context without predictably causing an excessive level of harm.

 

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