Analysis of the Draft Political Declaration on the Use of Explosive Weapons in Populated Areas

 

Cross-Cutting Areas of Improvement

We have identified three cross-cutting areas of improvement that are important to maintain and further refine.

First, we welcome the removal of the phrase “wide area effects” from most parts of the declaration because superfluous use of this phrase had narrowed the scope of the previous version of the declaration. For instance, the data collection and sharing addressed in Paragraph 4.2 now encompass the use and effects of all explosive weapons in populated areas in order to determine the best ways to protect civilians. Similarly, the amended title of the declaration refers to explosive weapons broadly to include the whole scope of the problem being addressed.

The phrase “wide area effects,” however, is an essential part of the declaration’s core commitment about how to regulate the use of explosive weapons in populated areas. Wide area effects exacerbate the harm caused by explosive weapons in populated areas and justify a commitment to avoid their use in populated areas. As will be discussed more below, Section 1 should add a description of the term that encompasses (1) weapons with a wide blast and fragmentation radius, (2) weapons that are inaccurate, and (3) weapons that deliver multiple munitions at once. Paragraph 3.3 should restore the phrase “wide area effects” with an accompanying explanation.

Second, we welcome the removal of the word “can” from many places in the declaration. When the word suggests that certain harm is only a potential result of the use of explosive weapons in populated areas, “can” inaccurately understates well-documented humanitarian consequences on persons, property, infrastructure, and communities. A few instances of “can” that should be removed still remain in the draft, however. Sentences that require such amendment have been noted in the commentary on Sections 1 and 3 below.

Third, the new draft provides a more thorough description of the impacts of the use of explosive weapons in populated areas and sharpens its distinction between different categories of harm. Paragraph 1.2 refers to direct effects, which are caused at the time of the attack, and indirect (also known as reverberating) effects, which it describes as being “severe and long-lasting.” The draft declaration provides examples of both and generally uses those terms throughout the rest of its text. Human Rights Watch, the International Network on Explosive Weapons (INEW), and others have often broken the harm into three categories (direct, indirect, and reverberating), and there are advantages to that more nuanced approach.[2] For example, it better captures effects that derive from the direct effects but are one step removed from the initial attack, such as damage to a house that leaves an individual temporarily homeless or an influx of casualties that overstretches hospital resources. What matters most, however, is that the declaration provides a comprehensive explanation of the distinct types of harm in its first section and refers to the different categories consistently throughout the text. We welcome the fact that the latest draft largely does that, and we have noted below a few instances where terms should be changed to maintain consistency with the draft’s current two-category approach.

Title

We welcome the deletion of the word “can” and the phrase “wide area effects” from the title of the declaration for the reasons discussed above.

Section 1

Paragraph 1.1

We appreciate the removal of “can” and “wide area effects” from this paragraph.

Paragraph 1.2

This paragraph better reflects the impacts of the use of explosive weapons in populated areas thanks to the amendments that were made in the latest draft. The removal of phrase “wide area effects” from the first sentence and the removal in multiple places of the word “can” widen the scope of the paragraph and ensure it more accurately captures the consequences of explosive weapons. The refinements to the description of direct and reverberating/indirect effects, discussed above, are also an improvement. This paragraph can still be strengthened in three ways, however.

First, the word “can” should be deleted from the first sentence, which reads, “The use of explosive weapons can have a devastating impact….” Similarly, the second “can” should be removed from the last sentence, which reads “… causing harm to civilians that can extend far beyond a weapon’s impact area.” In these two sentences, the use of “can” inaccurately qualifies and minimizes the well-documented harm to civilians and civilian objects caused by the use of explosive weapons in populated areas.

Second, the phrase “[b]last, debris and fragmentation effects” should be amended because debris, while hazardous to civilians, is not an effect in itself. Instead, debris comes from buildings damaged by explosive weapons’ blast and fragmentation effects. The sentence could be rewritten as: “Blast and fragmentation effects and resulting debris cause….”

Third, we encourage recognizing psychological and psychosocial harm as direct effects of the use of explosive weapons in populated areas. The language currently in Paragraph 1.3 could be woven into 1.2 as follows: “… deaths and injuries, including psychological and psychosocial harm and lifelong disability.”

Paragraph 1.3

Hospitals and healthcare facilities should be added to the list of civilian objects in the first sentence, and the phrase “aggravates civilian suffering” should be changed to “causes civilian suffering.” In addition, the phrase regarding environmental impacts should be rewritten in the active voice, in part to eliminate the use of the word “can,” which, as elsewhere, waters down the description of the harm caused.  

To reflect these proposals, the first sentence could be revised to read: “The destruction of housing, hospitals and other healthcare facilities, schools and cultural heritage sites causes civilian suffering, and the use of explosive weapons in populated areas damages the environment, leading to the contamination of air, soil, water, and other resources.”

As noted above under Paragraph 1.2, the content of the second sentence on psychological and psychosocial harms should be moved into Paragraph 1.2 and defined as a direct effect without the qualifier “can.”

Paragraph 1.4

The reference to the Sustainable Development Goals should be moved to a separate sentence at the end of the paragraph. It currently interrupts the two sentences that address displacement.

The existing second sentence should be refined in multiple ways. It should be grounded specifically in explosive weapons given that they are the subject of the political declaration. In addition, including both “Following the conduct of hostilities” and “long after hostilities have ended” is redundant and may cause confusion. “Unexploded ordnance” should be replaced with “explosive ordnance,” which includes, inter alia, unexploded ordnance, abandoned ordnance, mines, and improvised explosive devices, all of which endanger civilians.[3] This change should also be reflected in Paragraph 3.5, discussed below. Finally, the sentence could be amended to conclude “during conflict and long after hostilities have ended.”

We propose rewriting this paragraph to read: “These effects often result in the displacement of people within and across borders. Explosive ordnance, including from the use of explosive weapons in populated areas, impedes the return of displaced persons and causes casualties during conflict and long after hostilities have ended. The use of explosive weapons in populated areas hinders progress towards recovery and has a severe negative impact on the achievement of the Sustainable Development Goals.”

Paragraph 1.4bis

We recommend adding a paragraph about wide area effects. This paragraph should recognize that the harms caused by the use of explosive weapons in populated areas are exacerbated when the explosive weapons have wide area effects. It should also explain that explosive weapons have wide area effects if they (1) have a wide blast and fragmentation radius, (2) are inaccurate, or (3) deliver multiple munitions at once, or a combination of the above. Paragraph 1.4bis would lay the groundwork for Paragraph 3.3’s operative provision on explosive weapons with wide area effects in populated areas (see Paragraph 3.3 commentary below).

Paragraph 1.5

In order to more accurately reflect current military policy and practice, the first sentence should read, “Some militaries” instead of “Many militaries.”

Paragraph 1.6

We appreciate the inclusion of the reference to tracking civilian casualties in addition to recording them. Tracking suggests monitoring harm and analyzing patterns in real time rather than simply capturing total casualty numbers at a single moment. [4]   

This paragraph can be further improved in three ways. First, the paragraph has too many superfluous caveats that water down its message. Phrases such as “where feasible”—for example, data should be shared publicly “where feasible”—should be removed. Similarly, the paragraph should recognize the importance of recording and tracking civilian casualties, not simply “efforts” to do so.

Second, the declaration should acknowledge the need to collect and share data beyond civilian casualties, both here and in Paragraph 4.2. These paragraphs should apply to data on the range of civilian impacts, including deaths, injuries, and harm to civilian objects, as well as specifics on the operational use of explosive weapons in populated areas, including the types and numbers of weapons used, the locations and intended targets, and the circumstances of use.

Third, the data should be disaggregated along more expansive lines than sex and age. Adding factors such as disability status, economic status, race, and ethnicity would increase understanding of how individuals are affected by the use of explosive weapons in populated areas and improve the ability to reduce disparate impacts.

Paragraph 1.7

We appreciate the restructuring and strengthening of the original version of this paragraph. To avoid confusion and increase consistency across the document, however, the language of “short and long-term humanitarian consequences” should be amended to “direct and reverberating effects,” the phrase used in most other places in the declaration to describe the impacts of the use of explosive weapons in populated areas. The paragraph is also somewhat repetitive and could be shortened for the sake of clarity. The language could be revised to read:

We stress the imperative of addressing the direct and reverberating effects resulting from armed conflict involving the use of explosive weapons in populated areas. We welcome the on-going work of the United Nations, the International Committee of the Red Cross (ICRC) and civil society in this regard.

Paragraph 1.7bis

This declaration should not only “empower and amplify” but also “integrate and respect” the voices of all those affected. It is imperative that the experiences of survivors and other victims play a central role in policymaking.

Section 2

Paragraph 2.1

We recommend including the duty to investigate violations of international humanitarian law.

Paragraph 2.2

We welcome the deletion of “wide area effects” from the sentence “Existing International Humanitarian Law … is applicable to the use of explosive weapons with wide area effects in all operating environments….” This change accurately reflects the status of international humanitarian law as governing all uses of explosive weapons.

The phrase “in particular within populated areas” should be removed, as international humanitarian law applies in all situations of armed conflict.

Paragraph 2.3

We welcome the reference to the obligation to facilitate rapid and unimpeded passage of humanitarian relief. A commitment to supporting rapid and unimpeded access to humanitarian relief, however, should also be included in the operative section (see comments on Paragraph 4.4bis below).

Paragraph 2.4

We welcome the movement of this paragraph from Section 1 to Section 2, as it reaffirms the duties to protect civilians and civilian objects under international humanitarian law.

Section 3

Chapeau

We appreciate the recognition that civilian protection should occur “during and after armed conflict” as well as the removal of the references to “can” and “wide area effects” for the reasons discussed above.

Paragraph 3.1

First, as we mentioned in our February 2021 commentary, we recommend replacing the phrase “with regard to” the protection of civilians with “to maximize,” “to enhance,” or “to promote” the protection of civilians, as this language will clarify and strengthen the commitments on national policies and practices.

Second, we recommend the commitment focus on the key purpose of the declaration, that is, strengthening protections for civilians against the use of explosive weapons in populated areas, rather than enhancing civilian protection more broadly.

Finally, we recommend extending these protections, as the chapeau does, to times “during and after armed conflict” because the harm caused by the use of explosive weapons in populated areas lasts beyond the duration of an individual conflict.

A revised draft could read, “Review, implement, and, where necessary, develop or improve national policy and practice to enhance the protection of civilians during and after armed conflict, in particular from the use of explosive weapons in populated areas.”

Paragraph 3.2

We recommend including a commitment to ensure training on the declaration itself, rather than on international humanitarian law, which is already a legal requirement. In addition, we recommend specifying that this commitment applies to the use of explosive weapons in populated areas in particular. Finally, we recommend that the measures and good practices the paragraph references be applied “during and after armed conflict.”

A revised paragraph could read, “Ensure comprehensive training of our armed forces on this Political Declaration, and on the measures and good practices to be applied during and after the conduct of hostilities in populated areas to protect civilians and civilian objects from the use and impacts of explosive weapons.”

Paragraph 3.3

First, as we have said in previous commentaries, states should strengthen this core commitment to maximize the power of the declaration to protect civilians from harm caused by the use of explosive weapons with wide area effects in populated areas. Although the new language of “restricting or refraining from” is stronger and an improvement from simply “restricting,” the commitment should be strengthened further. States should replace “restricting or refraining from the use,” with “avoiding the use.”

Second, we recommend that the commitment focus on the use of explosive weapons with wide area effects. To achieve that end, states should reinsert the reference to explosive weapons “with wide area effects,” and include an expanded description of what that term means. This paragraph should explain that “wide area effects” are effects that “extend beyond and occur outside” of the military objective. The addition of “and occur outside” clarifies that the effects encompass not only those resulting from a wide blast and fragmentation radius, but also those due to inaccuracy of delivery and the use of multiple munitions across a wide area. As discussed above, including in Section 1 a description of wide area effects that lists these three types of effects would provide further clarity.

Third, we recommend directing this commitment to states generally, rather than only to their armed forces. Deleting the reference to armed forces would make this commitment more consistent with other commitments in the declaration.

Finally, we recommend removing the phrase, “in accordance with International Humanitarian Law” from this paragraph. The central role of international humanitarian law in regulating these conflicts has already been highlighted, and Paragraph 3.3 deals with a political commitment.

A revised paragraph could read, “Adopt and implement a range of policies and practices to avoid civilian harm, including by avoiding the use of explosive weapons with wide area effects in populated areas, that is, effects that extend beyond and occur outside of the military objective.” This paragraph should be placed ahead of Paragraph 3.2 because avoiding use, not ensuring training, is the key commitment of the political declaration.

Paragraph 3.4

First, we recommend directing this commitment to states generally, rather than only to their armed forces. As explained under Section 3.3, deleting the reference to armed forces would make this commitment more consistent with other commitments in the declaration.

Second, we recommend changing “take into account” to “assess and take steps to mitigate” as this language commits states to take action to address rather than merely consider direct and reverberating effects.

Third, the paragraph does not explicitly address the use of explosive weapons in populated areas. As written, the paragraph refers generally to direct and reverberating effects, “which can be reasonably foreseen.” We recommend that the paragraph more explicitly refer to the use of explosive weapons in populated areas and make clear that its direct and reverberating effects “are foreseeable.”

We, therefore, recommend amending the first half of paragraph 3.4 as follows: “Assess and take steps to mitigate the direct and reverberating effects on civilians and civilian objects of the use of explosive weapons in populated areas, which are reasonably foreseeable, in the planning of military operations and the execution of attacks in populated areas...”

In the second half of the paragraph, we recommend removing the clause regarding “battle damage assessments,” which focus on the military effectiveness rather than the civilian impact of military operations. The clause should be replaced either in this paragraph or in a separate paragraph with a commitment regarding to the establishment of civilian harm tracking capabilities. The declaration could adopt the commitment proposed by INEW, a global civil society coalition of which Human Rights Watch is a co-founder and Steering Committee member: “Establish capabilities to track, analyse, respond to, and learn from incidents of civilian harm, including damage to civilian objects.”[5]

Paragraph 3.5

We recommend incorporating a risk education commitment into this paragraph, and moving the phrase “as soon as possible” earlier to encompass all the activities the paragraph references.

In addition, the term “explosive remnants of war” should be changed to the broader term “explosive ordnance.” According to the International Mine Action Standards (IMAS), the latter encompasses not only unexploded ordnance and abandoned ordnance, but also landmines, improvised explosive devices, and booby traps.[6]

A revised paragraph could read, “ensure, as soon as possible, the marking, clearance, and removal or destruction of explosive ordnance, and the provision of risk education.”

Paragraph 3.6

This paragraph should promote the dissemination and implementation of this political declaration on the use of explosive weapons in populated areas, rather than on international humanitarian law more broadly. A revised paragraph could read, “Facilitate the dissemination and understanding of this Political Declaration and promote its respect and implementation by all parties to armed conflict, including by non-State armed groups.”

Section 4

Paragraph 4.1

We welcome addition of a reference to “humanitarian impact assessments” in the sentence about an exchange of expertise and the development of good practice. The shift in emphasis from urban warfare to the use of explosive weapons in populated areas also strengthens the paragraph and tailors it to the topic of the political declaration.

Paragraph 4.2

We welcome the replacement of “with wide area effects” with the phrase “in populated areas” in the reference to the use of explosive weapons. The paragraph could be further improved, however, in three ways. 

First, we reiterate our recommendation to delete the caveat “where feasible and appropriate” from this paragraph because it weakens the commitment to share data. Making data publicly available is vital to understanding the extent of the harm caused to civilians and to planning appropriate and effective responses.

Second, we recommend broadening the scope of data collection and sharing. Data should encompass damage to civilian objects, including property and infrastructure, as well as civilian casualties. The paragraph should be amended to read: “the direct and reverberating effects on civilians and civilian objects.”

Third, states should collect and share data on the types and numbers of weapons used, the locations and intended targets, and the circumstances under which the weapons have been used. This information on the use of explosive weapons in populated areas and its effects is crucial to determining the best way to protect civilians and to respond effectively and efficiently to any harm caused.

These changes could be incorporated into a longer Paragraph 4.2 or split into two paragraphs with a 4.2bis on operational data. We support the language on the latter proposed by INEW:

Collect and record the location of areas targeted using explosive weapons, including the approximate number of explosive weapons used, the type and nature of explosive weapons used, and the general location of known and probable unexploded ordnance.[7]

Paragraph 4.4

This paragraph has been significantly improved. In particular, we welcome the replacement of “make every effort” to assist with “provide, facilitate and support assistance.” We are also encouraged by the more comprehensive understanding of victim, which includes “people critically injured, survivors, families of people killed and/or injured, and communities affected.”

We, however, recommend that the language of the paragraph on victim assistance be strengthened and clarified.

In particular, the paragraph should identify key forms of assistance. They include ensuring: the meeting of basic needs (e.g., safety, shelter, food, water, medical care, hygiene, sanitation, and electricity); safe and timely access to emergency medical care, physical rehabilitation, psychosocial support and measures for socio-economic inclusion; and support towards the full realization of the rights and full participation of victims in society.[8]

While the sensitivity to gender and the rights of persons with disabilities is appropriate, victim assistance programs should also show sensitivity to age.

Paragraph 4.4bis

We acknowledge that states recall their existing obligations under international humanitarian law to allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need in Paragraph 2.3. We reiterate, however, our previous concern regarding the deletion of a paragraph in the March 2020 version of the declaration on access to humanitarian relief under the operative section. Access is a broader concept than passage, which typically refers to the delivery of assistance that has greater geographic and temporal constraints and is less sustained.[9]

We therefore recommend that states clearly commit to providing safe, rapid, and unimpeded access to humanitarian relief by inserting a new Paragraph 4.4bis in the operative section. We support the language proposed for the new paragraph by INEW:

Provide and facilitate safe, rapid and unimpeded access for principled humanitarian relief in line with international norms and standards for providing principled and inclusive humanitarian assistance.[10]

Paragraph 4.6

We welcome that the current draft replaces “periodic basis” with the phrase “on a regular basis.” We recommend, however, that states commit to annual or biennial meetings. Holding meetings on such a timeline can maximize the impact of the declaration while still ensuring that states have sufficient time to gather data and information for the review process. We further recommend that the declaration specify a set deadline for holding the first meeting to ensure the process begins in a timely manner.

We recommend that Paragraph 4.6 make clear that the meeting should focus on the declaration rather than compliance with international humanitarian law. In particular, the paragraph should specify that the purpose of the meetings is to review the humanitarian consequences of the use of explosive weapons in populated areas, assess the progress of implementing the declaration, encourage the fulfillment of commitments, and promote universalization of the standards and commitments made under the declaration.

Paragraph 4.6 should also specify that these meetings are open to international organizations and civil society groups, given the significant expertise they have to offer and the importance of transparency. The most recent draft says that these organizations may participate in a working group to develop good practices, but that measure of inclusivity is far too narrow.

Finally, as we state in our February 2021 analysis, we are concerned about the inclusion of the good practices working group in this paragraph. The good practices working group would not be a “starting point,” as it is called in this paragraph, for the regular meetings to review the implementation of the declaration. Rather, it would be a separate and distinct body and therefore should not be included here. Mentioning specific activities that some actors could perform unnecessarily narrows the scope of different activities that can be undertaken under this declaration.

Paragraph 4.7

We welcome the inclusion of the phrase “its adoption and effective implementation” to replace “adherence to it,” as it emphasizes states should operationalize as well as commit to the declaration.