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Towards a political declaration on the use of explosive weapons in populated areas: states need to ensure that expressed commitments translate into real impacts on the ground

This report was written by Katrin Geyer of Reaching Critical Will, WILPF, and first published here.

The first round of consultations on possible elements of a political declaration to address the humanitarian harm arising from the use of explosive weapons in populated areas (EWIPA), hosted by Ireland, took place in Geneva on Monday, 18 November 2019. In a fully packed room, over 200 participants, including states, international organisations, UN agencies, and civil society organisations came together in the recognition that more needs to be done to ensure the protection of civilians when explosive weapons are used in populated areas. The half-day consultation included 36 interventions. Most offered substantive and practical proposals for the development of a political declaration.

A political declaration will bring together various milestones achieved on this issue in recent months and years, as observed by Malaysia. Participants referred to the Vienna conference on protecting civilians in urban warfare held in early October 2019, as well as concerns expressed by the UN Secretary-General in both his Agenda for Disarmament and his report on the protection of civilians released in May 2019. Participants also highlighted the joint First Committee statement, endorsed by more than 70 states, and the recent joint appeal by the UN Secretary-General and the President of the International Committee of the Red Cross (ICRC). While the high rate of attendance and engagement at the consultation demonstrates states’ acknowledgement of the increased complexity of urban warfare and the devastating humanitarian impacts on civilians and civilian infrastructure, views differed on how to best address the issue, as outlined below.

Ireland presented a timeline for the political declaration process. It asked participants to submit written contributions on possible elements for a political declaration by 6 December 2019. Based on contributions during the consultation and written submissions, Ireland will publish a first draft text reflecting areas of convergence and divergence in mid-January 2020. It announced that it plans to hold the next informal consultation mid-February 2020, with a third consultation in early April. Ireland hopes to adopt the declaration towards the end of May 2020 in Dublin. It also informed that it will seek to set up a website to host statements, working papers, and other documents that are submitted on the topic.

Some states, civil society organisations, and the ICRC contributed working papers to this consultation. Reaching Critical Will is hosting all available statements and documents of the political declaration process on EWIPA on our website.

Humanitarian impacts

Almost every delegation that took the floor expressed deep concern about the devastating humanitarian consequences caused by the use of explosive weapons in populated areas. Most delegations called for the inclusion of this recognition in the political declaration. Mexico, in its joint statement on behalf of eight Latin American countries, as well as Ecuador, New Zealand, Austria, the ICRC, International Network on Explosive Weapons (INEW), and the UN Office for the Coordination of Humanitarian Affairs (UNOCHA) on behalf of 20 UN and other organisations engaged in humanitarian action, amongst others, specified that the declaration should acknowledge the humanitarian impact of explosive weapons with wide area effects.

The majority of states urged that the declaration include recognition of the direct impacts of the use of EWIPA. Austria, Belgium, Peru, Costa Rica, Ecuador, Malaysia, New Zealand, Chile, UNOCHA, and INEW said the declaration should address indirect, long-term, and reverberating effects of EWIPA, such as displacement, disruption of essential services, increased poverty, destruction of the environment, contamination through explosive remnants of war, psychological trauma, disabilities, and similar issues.

International humanitarian law

Austria, the Netherlands, Poland, Switzerland, the United Kingdom (UK), Canada, Sweden, Belgium, and France, amongst others, said the declaration should stress that existing international humanitarian law (IHL) provides a sufficient framework to address the problem of EWIPA. Austria, Australia, Norway, Switzerland, Malaysia, Sweden, Germany, the US, France, and the Latin American joint statement said that the objective of the declaration should be to strengthen IHL. Many of these stressed the need for compliance with the IHL principles of proportionality, distinction, and precaution, and suggested these should be mentioned in the declaration. The Netherlands argued that IHL principles must be implemented in a holistic manner and advised against selectivity and listing of specific rules of IHL only.

The joint Latin American statement, Costa Rica, Mexico, Ecuador, and INEW believe the political declaration should set a strong international standard of behaviour. Chile argued that the declaration should reiterate signatories’ commitment to IHL and clarify their interpretation of IHL. Ecuador made similar remarks. Chile and Mexico also suggested that the declaration should encourage each state to clarify their interpretation of IHL in their doctrines, tactics, orders, and rules of procedure, and to develop guidelines to ensure IHL compliance.

The UK, Egypt, Turkey, and Canada asserted that the political declaration should not aim to create new norms. Canada argued that the application of IHL is sufficiently clear. It acknowledged this is a point of contention but said it would detract from “important conversations”.

The Latin American joint statement called for greater compliance with international human rights law (IHRL) and to consider gender- and age-based perspectives. Mozambique also said that the declaration should be based on gender, IHL, and IHRL considerations.

The ICRC observed that the patterns of grave civilian harm when explosive weapons with wide area effects are used in populated areas points to serious questions about interpretation of and compliance with key rules of IHL. New Zealand said that the declaration should address the high likelihood of harm posed to civilians when explosive weapons with wide area effects are used. Chile argued that explosive weapons are not designed to be used in urban settings and noted that it is difficult to guarantee compliance with IHL in such contexts. The ICRC argued that restrictions and limitations of the use of explosive weapons with wide area effects are needed if any meaningful reduction of civilian casualties is to be achieved. Humanity and Inclusion (HI) asserted that if the political declaration only restates compliance with IHL and doesn’t provide concrete measures to protect civilians, it does not see it having an impact in addressing harm caused by explosive weapons.

Switzerland said that the declaration should address the challenges posed by the urbanisation of violence, where civilians and combatants intermingle. Switzerland, France, and the US argued that it is often not possible to choose to conduct military operations outside this setting.

Views on limitations on types of conventional weapons

Austria noted that the use of explosive weapons with wide area effects should be avoided when there is a strong likelihood of the weapon’s indiscriminate effects. Chile asserted that the declaration should not seek to establish a prohibition of the use of a specific weapon but establish a threshold of their use to reduce damage to civilians. INEW made similar remarks. The ICRC argued that the technical characteristics of the types of weapons concerned entail a high risk of indiscriminate effects due to their high explosive yield, the inaccuracy of the delivery system, and the delivery of multiple munitions. The UN Office for Disarmament Affairs (UNODA) said that the declaration could identify types of weapons that cannot be placed in populated areas due to their inherent characteristics, and “should be subject to the highest presumption of non-use.” UNODA also suggested that the declaration could commit states to develop guidance on the non-use and non-placement of certain types of conventional weapons in areas with a high concentration of civilians.

Poland and Brazil argued that it is important not to limit the legitimate use of weapons. The UK and Australia asserted that the declaration should not assume that any use of EWIPA would be contrary to IHL. Belgium, Egypt, and Malaysia said that the declaration should not “stigmatise” certain types of weapons. The US stated that the stigmatisation of certain types of weapons is not “productive” and that the declaration should take into account complex sources of risk to civilians, including lawful versus unlawful use of explosive weapons. France argued that the declaration should not try to focus on categories of weapons independent of the way in which they are employed. Rather it should try to distinguish between what France referred to as legal employments of weapons and those that are indiscriminate. The Netherlands also argued that the focus on a wide range of weapons differing in effects and radius under a “catch-all term” would run the risk of losing sight of the “real objectives.”

Views on use

The joint Latin American statement, Chile, Senegal, Ecuador, Costa Rica, Mozambique, Austria, INEW, and UNOCHA said that the declaration should commit states to avoid using explosive weapons with wide area effects in populated areas.

The ICRC reiterated that since 2011 its position has been that parties to a conflict should avoid the use of explosive weapons with wide area effects in populated areas due to the significant likelihood of their indiscriminate effects. It called for the declaration to contain an unequivocal commitment by states to avoid use of EWIPA as matter of policy and good practice and to operationalise their commitment through mitigation measures. Chile, Mexico, and UNOCHA supported the ICRC’s suggested avoidance policy with respect to explosive weapons with long range and/or wide area effects.

The Netherlands and Italy said that the declaration should encourage states to minimise civilian harm in military operations, which can be ensured by strict adherence to IHL.

Israel argued that “that the calls encouraging avoidance of the use of explosive weapons are counterproductive and unreasonable as far as law abiding states are concerned” and insisted that “such calls are legally unfounded” and “unrealistic”. In a similar vein, the US said that a broad articulation of the principle of an avoidance policy would be unhelpful in providing concrete guidance for those making judgements on complex issues on a case by case basis.

Mozambique, Mexico, and Peru noted that avoiding the use of EWIPA would contribute to the achievement of Sustainable Development Goal 16.

Adoption, review, and sharing of practices

Austria, Italy, Switzerland, Mozambique, Belgium, the US, Mexico, Peru, Germany, Chile, the ICRC, and INEW supported a call for the adoption and review of policies and practices—including in military doctrines, tactical instructions, rules of engagement, the testing and development of new weapons, education, and other measures—to enhance protection of civilians and compliance with IHL. Austria said this should include policies and practices to avoid the use of EWIPA with strong likelihood of indiscriminate effects. The ICRC added that foreseeable reverberating effects should be fully considered in planning and executing attacks. UNOCHA called on states to develop operational policies based on the presumption against such use, as recommended by the UN Secretary-General.

The US, along with Germany and the UK, presented a draft document on “Practical measures to strengthen the protection of civilians during military operations in armed conflict.” The US stressed that this is a draft to be refined and encouraged others to endorse the paper. The Netherlands and Belgium commended its suggested practical measures.

The joint Latin American statement, Belgium, Senegal, Norway, Austria, and Chile said the declaration should include encouragement of cooperation among states and/or with civil society to build a community of practice. Canada specified that there was also need for better dialogue with UN agencies and international and national humanitarian organisations, including the ICRC, to better understand protection needs. The Latin American joint statement, Norway, Austria, and Senegal made similar remarks. Canada asserted that access to local knowledge and expertise can minimise harm to civilians. It called for a “population-centric approach” that takes into account diverse needs, including those from women, girls, people with disabilities, and LGBTQI+ persons.

The vast majority of participants said that the declaration should include an encouragement to share practices and policies on the protection of civilians in urban conflict settings.

Data collection

Austria, Chile, UNOCHA, the ICRC, and the joint Latin American statement, amongst others, called for the collection of relevant data, including disaggregated data collection on the harm caused by EWIPA on civilians. Chile, Mozambique, and INEW said that the collection of data should be disaggregated by gender, disability, and age. UNODA and INEW said that data collection should also record the types of weapons used. Peru called for data collection to be gender-disaggregated. The Netherlands, Malaysia, and Germany also expressed support for better data collection.

Victim assistance and humanitarian access

HI said that victims and survivors of explosive weapons should be at the core of joint work on EWIPA and at the centre of discussions.

The joint Latin American statement, Peru, Mexico, Costa Rica, Ecuador, Mozambique, the ICRC, UNOCHA, INEW, and HI, amongst others, called for the declaration to recognise the rights of victims and affected communities and to provide appropriate victim assistance to those affected. Mozambique said that this should be done in line with the Convention on the Rights of People with Disabilities. Austria, Malaysia, Chile, and HI also called for the provision of timely and adequate victim assistance in a non-discriminatory manner. Ecuador, Costa Rica, and Mozambique stressed that assistance be extended to family members of victims of the use of EWIPA.

The joint Latin American statement and Chile called for the political declaration to commit states to enable humanitarian access without any restrictions.

Accountability

Austria, Ecuador, Senegal, and Switzerland called for investigating allegations of the use of EWIPA that is in violation of IHL, and, where appropriate, for the due prosecution of perpetrators. Mozambique made similar observations.

Non-state actors and improvised explosive devices (IEDs)

Austria, the UK, Egypt, Turkey, Belgium, Iran, Australia, the US, Senegal, and Chile called for the consideration of non-state actors in the declaration. The US argued that the declaration should also take into account the “cost of inaction” when conflicts are ongoing and non-state actors place military objects in populated areas. Israel also noted that law-abiding states are forced to conduct military operations in urban settings.

The Netherlands said that the growing threat of non-state actors and state actors who knowingly violate IHL cannot be ignored.

France argued that the political declaration should deal with specific problems of explosive ordnance and IEDs. The Netherlands also expressed concern at the impacts of the use of IEDs on civilians. Poland agreed that the distinction should be made, as this is crucial to establish states’ responsibility.

Institutional matters (review and follow up)

Austria suggested that states meet regularly to review the declaration’s implementation and proposed this be on an annual basis. Chile, Malaysia, Mozambique, and INEW also supported the establishment of a follow up mechanism.

Various states, including Chile, Mozambique, and Iraq, appreciated the availability of interpretation, which Chile described as demonstrative of an open and inclusive process.

Other frameworks

UNODA noted that the political declaration could contribute to other relevant initiatives or arms control to prevent acts of gender-based violence, such as the Arms Trade Treaty (ATT). The political declaration could reaffirm that all states should maintain the highest possible standards on exports of conventional weapons; including by implementing the ATT and developing guidelines to minimise impacts of conventional weapons on civilians.

Mozambique called for the declaration to be mainstreamed with the Safe School Declaration.

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