Andie Forsee, Harvard Law School International Human Rights Clinic
Over the past month, Ireland has collected comments on its latest draft of a political declaration on the use of explosive weapons in populated areas (EWIPA). It must now turn its attention to revising the document. Judging by the online consultations Ireland hosted in early March, reconciling states’ positions will not be an easy task. In the discussions and written submissions that followed, differences emerged with regard to the subject, language, and purpose of the declaration. As Ireland prepares a new draft, it should aim to realize the humanitarian potential of the declaration rather than be unduly swayed by a desire to achieve consensus. The declaration in particular should maintain its focus on the use of explosive weapons in populated areas, accurately represent the harm caused, and do more than simply reiterate existing international law. The strongest declaration will be rooted in humanitarian disarmament principles, which center on people and strive to prevent and remediate human suffering.
First, the political declaration should deal specifically with the use of explosive weapons in populated areas. This practice causes “broad, substantial, and ongoing harm” to civilians, and it presents a concrete and discrete problem that can be effectively addressed by a political declaration. The initial decision to focus on the use of EWIPA in this process was intentional. It should not be undermined by a minority of states that have suggested that the declaration should cover all urban warfare. As the majority of states have recognized, the declaration will be most impactful if it deals with the humanitarian consequence of a particular method of war, i.e., the use of explosive weapons in populated areas.
Second, the declaration should clearly acknowledge the humanitarian consequences of explosive weapons. Civilians currently suffer 90 percent of the casualties from the use of explosive weapons in populated areas. These weapons, especially when they have wide area effects, also cause reverberating effects, such as damage to critical infrastructure or disruption of basic services, which exacerbate the harm to civilians. At the March consultations, the majority of states that spoke supported the removal of qualifiers like the word “can” (as in “harm can arise”) from the title and text of the declaration. They noted that the causal link was a matter of fact not possibility. The attempts by a handful of states to reframe the dangers of EWIPA as something that “can” happen minimizes the experiences of civilians who have suffered. Those states have frequently argued the political declaration should not stigmatize a particular class of weapons. As Mexico and Chile aptly replied in a joint statement in March, however, stigmatization would result not from the declaration but from the well-documented effects of the weapons.
Third, the political declaration should clarify and strengthen, rather than simply reiterate, international humanitarian law. Reflecting the view of the majority of states who spoke at the consultations, Chile and Mexico argued that restating respect for existing law is not enough; the declaration should also provide clarity on how to apply international humanitarian law to the use of explosive weapons in populated areas. If the declaration applies only to “indiscriminate” or “unlawful” use of explosive weapons, as some states suggested, it will have no value added. International law already prohibits such use. Switzerland explained that the declaration should address all use because parties to a conflict are obligated to do everything feasible to minimize civilian harm. Heeding the calls of many states, civil society, and the International Committee of the Red Cross, the revised declaration should, therefore, include a commitment to avoid the use of explosive weapons with wide area effects in populated areas. Such a commitment would not create a new legal prohibition on the use of explosive weapons with wide area effects, but it would establish a presumption of non-use in populated areas.
While the pandemic has created uncertainty about the diplomatic calendar, Ireland said it hopes to hold the next round of consultations or negotiations on its revised draft this summer. Recognizing that the online format in March created some barriers to participation, it has pledged to ensure the discussions are accessible and have translation. In so doing, it has acknowledged the importance of inclusivity, a key element of a humanitarian disarmament process. Ireland and the participants in the process should ensure that the text of the declaration also abides by humanitarian disarmament’s principles. They have the opportunity to adopt a strong declaration on the use of explosive weapons in populated areas if they stay focused on the ultimate objective of protecting civilians.