On 3-5 March, the government of Ireland held the latest round of consultations in the process it is leading to develop a political declaration on protecting civilians from explosive weapons. These online meetings, convening states, international organisations and civil society discussed the latest draft text, released on 29 January 2021.

Final negotiations are expected later in 2021, and the International Network on Explosive Weapons (INEW), which Article 36 coordinates, are calling on states to negotiate stronger rules to avoid the use of explosive weapons with wide area effects in populated areas. Section 3 of the draft declaration is the operational section where this key commitment should be made. In Article 36’s analysis, the current text should be strengthened, and it would also be beneficial to add guidance on the implementation of the commitments.

On 4 March our Policy Advisor Simon Bagshaw gave a statement to the consultations elaborating on these points, which is reproduced below.

INEW’s comments on the latest draft text can be read here, and all the network’s statements to the consultations can be found here.

Article 36 statement on section 3 of the draft text

Delivered by Simon Bagshaw, 4 March 2021

Article 36 aligns itself to 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 para.3.3 is essentially the heart of the declaration. And, like others, we would like to see it strengthened to promote a presumption against the use of explosive weapons with wide area effects in populated areas – such as a commitment to avoid use – as this would have the greatest impact in preventing civilian harm.

We believe it would also be very important for the declaration to provide guidance to States on specific steps required to implement the commitments in paras.3.3 and 3.4, at least as they currently stand.

Thus, the practical implementation of the commitment in para.3.3 – to adopt and implement policies and practices to avoid civilian harm, including by restricting 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:

• First, undertaking prior assessment of the technical characteristics of explosive weapons to ensure a proper understanding of the scale of area effects possible in different operational conditions.
• Second, undertaking evaluations of the operational context, including the specificities of the urban environment, such as the location and type of infrastructure, and how this would influence the potential use of explosive weapons and the scale and nature of their area effects.
• And third, the review and further development of military 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 identifying these specific actions and assessments 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 promote clear policy requirements that are vital to the protection of civilians in practice.

As concerns the commitment in para.3.4 – to take into account or, better still, assess and mitigate the direct and, we would add, indirect, as well as reverberating effects on civilians and civilian objects – this commitment would necessarily involve:

• First, a review of 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, in consultation with subject-matter experts.
• Second, implementation of the commitment in 3.4 should also include concerted efforts to understand the impact of military operations on civilians, including through the establishment of specific capabilities to track, 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.

A conscious and concerted effort to understand the impacts of military operations, including from the use of explosive weapons, is vital in order to learn lessons and continuously work to strengthen the protection of civilians over time.

Again, these specific steps should be articulated in the declaration to guide and assist States in implementing their commitments.

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

Featured image: Interior of an apartment on Syria Street, Tripoli, Lebanon © Lorenzo Meloni/Magnum Photos