Explosive weapons in international criminal tribunal cases: launch of PAX’s “Unacceptable Risk” report
On 28 January, the International Humanitarian and Criminal Law (IHCL) Platform of the T.M.C. Asser Instituut hosted the launch of INEW member PAX’s report “Unacceptable risk: Use of explosive weapons in populated areas through the lens of three cases before the ICTY”. In this report, PAX examines how military experts assessed the acceptability of explosive weapon use in three cases brought before the International Criminal Tribunal for Former Yugoslavia (ICTY). PAX found that many of the experts considered that it was inappropriate to use explosive weapons such as unguided rockets and grenades in cities. However, the report also found that existing legal rules on the protection of civilians leave room for differing interpretations with respect to the use of explosive weapons in populated areas. New international standards on the use of explosive weapons in populated areas are therefore required.
A report of the launch event was posted on the T.M.C. Asser Instituut’s website:
The event was moderated by Onur Güven, Researcher on arms control law at the T.M.C. Asser Instituut, who kicked off the evening and introduced the speakers: Frank Slijper, Policy Advisor at PAX; Maya Brehm, Researcher on weapons law and Consultant for PAX; and Stefan Waespi, Federal Prosecutor at the Office of the Attorney General, Berne, Switzerland and former Senior Trial Attorney at the International Criminal Tribunal for the former Yugoslavia (in a private capacity).
Frank Slijper provided an overview of PAX activities, both thematic and conflict-specific, further elaborating on PAX’ role, as co-founder of the International Network on Explosive Weapons, which is calling for stricter norms on the use of explosive weapons in populated areas.
Maya Brehm, the author of the report, introduced the report’s content and main findings. She explained that the report is about norms in a broad sense, and is meant as a contribution to the ongoing debate on how to reduce civilian harm caused by explosive weapons such as air-dropped bombs, mortar shells, artillery projectiles, cluster munitions and rockets. She explained that, while international humanitarian law provides the legal framework for the targeting of military objectives and prohibits indiscriminate weapons, it remains uncertain which explosive weapons, concretely, are illegal for use in a populated area, in the absence of a weapon-specific treaty.
Maya Brehm then turned to discuss the three ICTY cases analysed in the report: the Galić case, concerning mortar (82mm and 120mm) shelling of Sarajevo, the Martić case, dealing with rocket (launched from the M-87 Orkan MBRL with cluster munition warheads) shelling of Zagreb, and the Gotovina case, focusing on cannon (130mm) and rocket (122mm launched from the BM-21 Grad MBRL) shelling of Knin.
Maya Brehm concluded that broad agreement existed among experts called before the Tribunal to provide expert testimony that the explosive weapons of the type discussed in the report affect wide areas with blast and fragmentation and are problematic due to relatively low accuracy. However, she argued that experts did not agree on where to draw the line between what is acceptable or not in the use of explosive weapons in a populated area, and called for the elaboration of a stricter barrier against the use, in populated areas, of explosive weapons with wide area effects in order to enhance the protection of civilians.
Speaking in a personal capacity, Stefan Waespi, reflected on the report from his experiences at the ICTY. He underlined that of all the cases brought before the ICTY, the cases involving the conduct of hostilities pose the greatest challenges due to the difficulties in retrieving information on military doctrines and practices. He cautioned that even if “it is reasonable to expect that certain practices deemed acceptable in 1995, almost 20 years ago, would not be adopted by many militaries today”, this does not mean that any attack short of flattening a city is acceptable. In his view, the consequences of each and every shell must be evaluated and even sporadic shelling within a civilian populated area is unjustifiable when the military advantage is outweighed by humanitarian considerations. He emphasised that under IHL the military advantage has to be direct and concrete.
Stefan Waespi acknowledged the importance of the report which he considered to be balanced, reflecting the opinions of the defence, prosecution and different judges. Waespi suggested that international judicial bodies, such as the ICC, may soon have the opportunity to review cases involving the use of explosive weapons in populated areas in view of recent armed conflicts and their impact on the civilian population.
He concluded his intervention by making some comments on the recommendations of the report, stating that the goal of persuading States to agree to further restrictions on the use of explosive weapons is very ambitious; and that, in order to achieve this outcome, engagement is needed with militaries and security organisations (NATO) to gain more insight into military doctrines and that the engagement of NGOs in reporting on armed conflicts remains crucial in understanding military practice.
A session of Q&A followed and the event concluded with a reception.