Maya Brehm
The High Contracting Parties to the Convention on Certain Conventional Weapons (CCW) and other stakeholders met last week in Geneva for their annual exchange of views. States parties’ exalted aims are to prevent civilian harm and unnecessary suffering by prohibiting and restricting the use of certain conventional weapons, thereby contributing to progress in disarmament and the realization of the aspiration of all peoples to live in peace. But much of the debate focused on the more mundane tasks of ensuring the financial viability and stability of the Convention’s implementation support structures, and deciding on the modalities of governmental expert discussions ‘related to emerging technologies in the area of lethal autonomous weapons systems (LAWS)’. Concerns about explosive and incendiary weapons were also raised. Despite some theatrics, the CCW offered little to recommend itself.
Exploring possible recommendations on options and aspects of a framework – what?!
In response to pressing concerns about the prospect of weapons that would select and engage targets on the basis of sensor data and computations without human intervention, the states parties decided to endorse a set of eleven so-called ‘Guiding Principles’ and to hold governmental expert discussions (GGE) for 10 days in 2020, deferring the decision on the duration of the 2021 meeting (10 -20 days) to next year. The experts are tasked with adopting ‘consensus recommendations in relation to the clarification, consideration and development of aspects of the normative and operational framework on emerging technologies in the area of lethal autonomous weapons systems’ – a mandate that leaves ample room for initiatives pointing in radically different directions.
To ensure meaningful human control over the use of force, the focus must urgently be placed on the elaboration of international legal rules that constrain certain developments and behaviours (including an anti-personnel prohibition), coupled with rules governing the design and operation of relevant technologies. In the time until the 2021 Review Conference of the CCW, Article 36, a member of the Campaign to Stop Killer Robots, will continue to build political leadership and support for such a normative and operational framework, to be negotiated within the CCW or outside.
In the meantime, industry and investors in dire need of regulatory guidance are left with the ‘Guiding Principles’. Whether these will have any influence on the ongoing push towards increasingly autonomous weapons is questionable, though, given that they neither specify a shared vision or purpose, nor articulate core values, commit to certain behaviours or identify strategies for effecting change in practice. Article 36 has produced a commentary of those Guiding Principles.
Between IHL and weapons control
Whilst the primary concerns regarding autonomous weapons relate to technologies still under development, the weapons that actually kill and traumatize civilians and devastate civilian infrastructure in conflicts every day did not enjoy a dedicated agenda item. Nevertheless, concern about the impacts of weapons that rip people apart and reduce entire neighbourhoods to rubble by projecting blast and fragmentation over an area in locations where civilians are concentrated were raised as an ‘emerging issue in the context of the objectives and purposes of the Convention’. The Final Report tersely notes in this regard that ‘some delegations expressed concern about the issue …. Some other delegations were of the view that CCW was not the right framework to address this issue.’
One of the objections to addressing the use of explosive weapons in populated areas (EWIPA) in the context of the CCW is the claim that the problem is one of IHL-implementation and compliance, not a weapon-specific concern. This line of argument calls into question the raison d’être of the CCW and other disarmament instruments. And of course, as Switzerland pointed out, it does not preclude the CCW from focusing on ‘certain types, uses or consequences of explosive ordnance in populated areas’. There is certainly no shortage of potential candidates for consideration, among them multiple-barrel rocket launchers, heavy air-dropped bombs and the use of unguided, long-range indirect fire weapons.
Irrespective of the CCW’s action or inaction on this issue, this week’s consultations on EWIPA convened by Ireland hold the prospect of a significant normative development in the form of a political declaration to be adopted in Dublin in May 2020. In this framework too, some states emphasized the importance of IHL-implementation and compliance, all the while resisting an explosive weapon-centric problem formulation. As the International Network on Explosive Weapons pointed out, however, to change military practice, a political declaration must go beyond IHL-restatement and exhortations to comply. It must explicate and concretize what the imperative to protect civilians reflected in legal rules implies for the use of EWIPA. This must include a firm commitment by signatories to avoiding the use of explosive weapons with wide areas effects in such settings.
Meanwhile, the world is burning
‘A number of delegations’ also raised concern about the horrific injuries and long-lasting suffering caused by weapons that cause harm through heat and fire, including ‘incendiary weapons’ whose use is limited by Protocol III to the CCW. The Final Report notes that ‘[w]hile some delegations called for the reinstatement of a specific agenda item on Protocol III, some other delegations were of the view that there is no need to include the item on Protocol III on the agenda.’ The conclusion? ‘The Meeting reaffirmed the importance of Protocol III…’.
Delegates who fought to get this language into the Final Report are to be commended. Yet, the controversy over the mere acknowledgment of this grave humanitarian concern, the renewed omission of incendiary weapons from next year’s agenda, and, ultimately, the failure of states parties to strengthen the protection of civilians (and the environment, one should add) by revising Protocol III as Human Rights Watch and others have been demanding for years calls into question the reaffirmed ‘importance of Protocol III’. It also raises wider concerns about the future relevance of the CCW as a whole.
Let’s not allow the performance to become the story
Taking place against the backdrop of a ‘crisis in multilateralism’ and a worrying trend of ‘unweaving’ longstanding multilateral disarmament rules and commitments, last week’s meeting of states parties inspires little confidence in the CCW’s capacity to reduce human suffering caused by the use of weapons in today’s wars, preventing advances in science and technology from turning into tomorrow’s humanitarian catastrophe and promoting disarmament and sustainable security.
The mood in the room was subdued, despite humorous interludes occasioned by a lack of mastery of the new conference room technologies. Neither the flashy desk-displays, nor the spectacle of the burglar alarm going off at the eleventh hour could detract from a sense of unease that taking part in these proceedings enables the performance of deeply troubling hegemonic, militarized masculinity. The high value that most delegates attach to a formal outcome text objected to by none leads them to compromise on core values and norms the Convention is meant to uphold. There is also a disturbing tendency to take pride in bad time-management, with deliberations continuing into the small hours without interpretation or microphones. But whether as a result of exasperation or the desperate search for self-validation and meaning, we must not allow the performance to become the story.