Article 36 statement

Delivered by Simon Bagshaw, Geneva, 7 April 2022


Article 36 supports the comments provided by INEW and would like to share specific observations on the commitments contained in paras.3.3 and 3.4 of the draft declaration.

As others have mentioned, the commitment in 3.3 is at the heart of the declaration. Like others, we would recommend that it be strengthened to promote a presumption against the use of explosive weapons with wide area effects in populated areas – such as a commitment to avoid such use – as this would have the greatest impact in preventing civilian harm.

It would also be very important for the declaration to provide guidance to States on the specific steps required to implement the commitments in paras. 3.3 and 3.4.

The implementation of the commitment in 3.3 – to adopt and implement policies and practices to avoid civilian harm, including by restricting or refraining from or, we would prefer, avoiding the use of explosive weapons with wide-area effects – would necessarily involve a number of practical steps that should be articulated in the declaration. As well as providing practical guidance, such elaboration might also serve to alleviate some of the anxieties that seem to characterise the positions of certain states on this commitment:

First, militaries should undertake prior assessment of the technical characteristics of explosive weapons to ensure a proper understanding of the scale of area effects that are possible in different operational conditions. Understanding the effects of explosive weapons, including their area effects, is a vital building-block to policies that can reduce civilian harm.

Second, militaries should undertake assessments of the operational context, including both the generic urban environment as well as the specific context of use, and how this will influence the scale and nature of area effects of the weapon. Being able to assess the effects of the weapon in conjunction with an understanding of the military objective in a specific context, is another key building block to better protect civilians.

It is when the effects of the weapon extend beyond, or occur outside the intended military objective that we see wide area effects in practice – effects that in a populated area will predictably fall upon the civilian population. This is the central cause of harm that we are working to avoid.

Third, militaries should review and further develop their doctrine, operational policies and procedures to ensure that these technical assessments of weapons and their effects and the assessment of contextual factors, are reflected in and inform operational planning and decision-making, as well as training.

By including these specific considerations and actions in the declaration – which are aimed at ensuring an understanding of the effects of explosive weapons (including the scale of their area effects) and the urban context of use and how this affects weapon performance – the declaration would establish clear policy requirements that are vital to the protection of civilians in practice.

As concerns the commitment in 3.4 – to take into account or, we would recommend, assess and mitigate the direct and reverberating effects on civilians and civilian objects – implementation of this commitment would necessarily involve the following actions:

First, that militaries review existing operational policies and procedures to ensure that the actual or presumed presence of civilians and civilian objects such as essential infrastructure, as well as foreseeable reverberating effects, are properly accounted for in operational planning and decision-making. Where this is not the case, States should develop and implement the necessary policies and procedures, including through consultation with subject-matter experts.

We would note again that taking these wider effects into account, assessing them and mitigating them, is not asking states to know the unknowable.  Rather it is encouraging us to give broad consideration to the harms that people experience in conflict, because these harms are real and it is civilians that bear the brunt of them.  The declaration is not imposing new legal obligations – but it is asking states to have the confidence to take into account the broader challenges that civilians face, in particular where elements of interconnected infrastructure are destroyed.

Second, implementation of the commitment in 3.4 should also include concerted efforts by militaries to properly understand the actual impact of their operations and the use of explosive weapons on civilians.

In this regard, we note the reference in 3.4 to the conduct of battle damage assessments to identify lessons learned. However, battle damage assessments are a specific practice that is principally intended to understand the impact of an attack on the target and to make recommendations for further attacks.

Our research and that of others has consistently found that battle damage assessments are not regularly used or suitable for providing a comprehensive understanding of the impact of military operations on the civilian population that would, importantly, support changes to tactics, lessons learned, and broader policy development in support of more effective protection of civilians.

We would recommend deleting the reference to battle damage assessments and include instead a commitment to civilian casualty tracking – that is to say a commitment to establish the necessary capabilities to track in real time, analyze, respond to and, crucially, learn from incidents of civilian harm and damage to civilian objects resulting from military operations and the use of explosive weapons.

Civilian casualty tracking is not a new practice and has proven utility for armed forces – as indeed recognized in the preamble.

A commitment to establish the necessary capacity for civilian casualty tracking would reflect and build on recent developments in military policy and practice towards greater predictability and consistency in understanding, responding to and learning from harm to civilians and damage to civilian objects and would significantly contribute to strengthening the protection of civilians.

To conclude – the main direction of our comments here is to encourage states to see these commitments as promoting concrete practical actions – rather than to view them as akin to legal obligations.  This should be quite clear from the way the text is currently framed – pointing in 3.3. as it does to the adoption of policies and practices. We see the adoption of strong commitments here as critical to showing that this community is working seriously to improve protection for civilians.

We will submit these comments and specific text suggestions in writing.