Lisa Wang, Harvard Law School’s International Human Rights Clinic
The penultimate consultations on a new political declaration on the use of explosive weapons in populated areas recently concluded, leaving Ireland, which chairs the process, with the task of developing a revised text for adoption in June.
Participants were largely united in their condemnation of the war in Ukraine, and images from that conflict have provided added impetus to address the civilian harm caused by the bombing and shelling of cities and towns. But divisions around certain commitments and terminology in the declaration remain to be resolved.
More than 65 states, international organizations, and civil society organizations convened at the United Nations in Geneva from April 6-8 to debate the March 2022 draft of the political declaration. The document seeks to address the humanitarian consequences caused by the use in populated areas of explosive weapons, such as rockets, missiles, and aircraft bombs.
The consultations marked the first face-to-face meeting of the process since February 2020, and delegates uniformly expressed their gratitude towards Ireland for its continued persistence on the declaration throughout the COVID-19 pandemic.
A few key areas of contention emerged, however. As expected, the core operative provision about how to govern the use of explosive weapons in populated areas was the subject of strong debate. States also extensively discussed the relationship between the political declaration and international law and the use of the term “reverberating effects.” Ireland will have to grapple these and other issues as it amends the text over the next few weeks.
Avoiding the Use of Explosive Weapons with Wide Area Effects in Populated Areas
Many delegates criticized operative Paragraph 3.3 as being too weak to protect civilians. As currently drafted, the paragraph calls for “policies and practices to avoid civilian harm, including by restricting or refraining from the use of explosive weapons in populated areas, when the effects may be expected to extend beyond a military objective.” Such language is underprotective because it allows states to choose between “restricting” and “refraining from,” and the term “restricting,” in particular, does not adequately limit a practice that is well-known to have devastating humanitarian consequences.
The paragraph also does not focus on the explosive weapons that cause the greatest harm to civilians, i.e., those with wide area effects. Weapons with wide area effects have a wide blast or fragmentation radius, are inaccurate, or deliver multiple munitions at once.
Some states and a majority of organizations, including the International Committee of the Red Cross, UN Office of Office for the Coordination of Humanitarian Affairs (OCHA), and International Network on Explosive Weapons (INEW), called for strengthening the commitment by using the verb “avoiding,” instead of “restricting or refraining from.” They also supported re-introducing the concept of wide area effects, which had been previously deleted.
Indiscriminate Use of Explosive Weapons in Populated Areas
Some more military active states sought to narrow the political declaration’s scope and focus on the indiscriminate or illegal use of explosive weapons in populated areas. As currently drafted, the declaration refers broadly to “the use of explosive weapons in populated areas.” These states, however, emphasized that explosive weapons are permissible under international humanitarian law, when used responsibly, and argued that the political declaration should not go beyond existing law.
Other delegations responded that qualifying the use of explosive weapons in this way would strip the declaration of its significance. Current practices, which are claimed to be legal, result in civilian suffering and destruction of an unacceptable magnitude. To address the pattern of harm caused by the use of explosive weapons in populated areas, these delegations argued, the declaration needs to establish policy commitments that do more than restate existing law.
Reverberating vs. Indirect Effects
The consultations also illuminated different views regarding specific terminology, especially the term “reverberating effects.” The term has been widely used for many years in the context of explosive weapons in populated areas research, and it refers to harm experienced beyond the initial moments of impact, such as long-term damage to infrastructure, which can interfere with basic services, and in turn infringe on human rights. The draft political declaration equates it with “severe and long-lasting indirect effects.”
Some delegations said the term “reverberating effects” would generate confusion because it is not part of international humanitarian law. They argued it should be replaced with “indirect effects,” especially in the operative paragraphs. Other delegations stressed the importance of capturing the concept of reverberating effects whatever term is used.
Other Areas of Debate
Other notable areas in which opinions diverged included:
- The presence of caveats that weaken the paragraphs on data sharing;
- Calls for additional types of data collection, including tracking harm to civilian objects as well as civilian casualties, and gathering information on the operational use of explosive weapons; and
- The parameters of follow-up meetings.
At the conclusion of the recent consultations, Ireland announced it will revise the draft political declaration based on the oral statements made and written submissions it receives and disseminate the new version in May. It the expects to hold a final one-day conference in early June, where only minor text changes will be made before the declaration is put forth for adoption. For a more detailed summary and analysis of the consultations, see reporting from the International Network on Explosive Weapons and Reaching Critical Will.