Intervention by Article 36 at the Geneva Consultations on EWIPA
By Simon Bagshaw
Article 36 statement
Delivered by Simon Bagshaw, Geneva, 7 April 2022
Article 36 would like to briefly respond to a couple of points that have been raised by some delegations.
First, in response to the position of some delegations that the declaration’s scope should be limited solely to the “indiscriminate” or “unlawful” use of explosive weapons. We believe such an approach would undermine the humanitarian value of the future declaration by reducing it to a simple political reaffirmation of states’ obligation to follow the law. And it is still further flawed in important respects:
First, States calling for this limitation have not explained how they have determined that civilian harm only results from indiscriminate or unlawful attacks. There has been an ongoing pattern of harm to civilians documented as resulting from the use of explosive weapons in populated areas. Such data gathering faces numerous challenges, yet the broad pattern of harm has remained consistent in different contexts and over many years.
A significant number of the incidents that have produced civilian harm would likely be considered illegal if subject to legal prosecution. However, it is not possible, based solely on data regarding weapons used and resulting casualties, to determine if an attack was illegal under international law.
Such a legal determination also requires knowledge of a host of other considerations. For many incidents of explosive weapon use, those states calling for a limitation of the declaration’s focus do not have access to the necessary information and have no capacity to formally determine whether the attacks were indiscriminate or not.
Second, focusing only on “indiscriminate use” risks politicizing the experience of civilian harm by selectively asserting which attacks are illegal, based not on detailed evidence or formal legal judgements, but rather on the basis of the identities of the parties in question. As a result, civilian harm arising from the actions of one’s own or allied forces may be treated skeptically or dismissed, or incidents explained away, whilst the label of “illegality” is quickly applied to the actions of parties that one is opposed to. Such a politicizing approach is not a good basis for developing a declaration intended to strengthen civilian protection generally.
Third, a focus on indiscriminate use implies that civilian harm from attacks that are not illegal is not worth consideration – yet people are killed and injured and experience long term suffering from so-called “incidental harm”.
The fact that the attack that caused the harm is not judged to be illegal does not erase the reality of that experience or lessen its practical impact on the lives of those affected. It runs directly counter to the object of this process to “strengthen the protection of civilians” to remove from consideration how civilian harm might be avoided or minimized in attacks that are considered lawful.
Finally, states calling for this limitation have also not explained what humanitarian benefits could be expected from this approach and how it would strengthen the protection of civilians. Proponents of this approach should be wary that they are promoting a position that cannot be supported by evidence, that is corrosive of established international law, and that exposes them to awkward political questions.
Like others, we support the broad framing, as currently reflected in the draft declaration, which allows for a declaration that functions as an important practical tool for the promotion of stronger civilian protection and strengthens operational practice in support of the existing legal framework.
The other point we wish to respond to is the concern of some delegations that the political declaration should not refer to or address so-called “novel concepts” because they are not recognized as formal legal terms.
The aim of the political declaration is to strengthen the protection of civilians and to reduce civilian harm from the use of explosive weapons in populated areas. In order to do so, the declaration must accurately describe the scope and nature of the harm to be addressed and the specific characteristics of explosive weapons that give rise to such harm.
Existing legal terminology does not provide us with the tools for this task. First, “indirect effects” does not properly capture the cumulative and knock-on effects that result from the use of EWIPA – as compared to “reverberating effects” a term that we and others, including a number of States, the UN Secretary-General and the ICRC, have used for several years and which has been the subject of considerable analysis and discussion.
Similarly, “wide area effects” (again, a term that has been widely used for several years) describes physical characteristics of certain explosive weapons in certain contexts that have a direct bearing on the likelihood and likely severity of civilian harm. Militaries recognize in policy and practice that certain weapons, due to the scale of their area effects, will present an elevated likelihood of civilian harm if used in a populated area. We can recognize this in a political declaration and work together to strengthen consideration of those factors in practice.
Failure to properly describe the problem and its causes will inevitably result in incomplete responses. Moreover, the political declaration is seeking to respond to the broad range of harms resulting from the use of explosive weapons in populated areas. Its strength lies in the fact that as a political declaration it can be dynamic and progressive, both in terms of how it presents and describes those harms; and in terms of the responses that it proposes to address them, through the articulation of policy commitments to be implemented at the national level and not the creation of new legal obligations.
Again, we see certain states calling for a political declaration – but one that only uses legal terms and does not saying anything different from existing law. This is not a basis for strengthening civilian protection – it is a basis for saying absolutely nothing.
If we are a community that is genuinely committed to protecting civilians then we need to do better than this.