In April 2015, Mayors for Peace and the Town of Ypres commemorated the 100th anniversary of the first mass use of gas during World War I with a three-day conference,  one day of which focused on the mass destruction of cities under the banner “cities are not targets”. In a session on “populated areas and international law”, Thomas Nash of Article 36 and the International Network on Explosive Weapons (INEW) presented on the global problem of the use of explosive weapons in populated areas and the response to this issue by INEW and a growing number of states.

His remarks are reproduced in full below:

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International law is actually reasonably vague and is interpreted in different ways. Even in extreme cases it is frequently contested whether a violation has occurred. As a result of this and for other geopolitical reasons, there is very little follow up on what most of us would see as violations of international law.

Some actions have been subjected to legal scrutiny – the International Criminal Tribunal for the former Yugoslavia (ICTY) is an example and cases have featured the bombing and bombardment of populated areas. But the inadequacy of existing scrutiny over what should be widely considered as unacceptable actions in conflict is a good reason why new crosscutting normative standards are required on the use of certain weapons or certain practices.

Today I want to talk about the work that is being undertaken internationally to establish new normative standards on bombing and bombardment of towns and cities – the use of explosive weapons in populated areas. The International Network on Explosive Weapons(INEW) is a partnership of NGOs that are concerned with the impact on civilians of the use of explosive weapons in populated areas. It was set up in 2011 by a number of NGOs including Save the Children, Oxfam, Action on Armed Violence (AOAV), Norwegian People’s Aid, Handicap International, and Human Rights Watch (HRW).

The bombing and bombardment in populated areas is not a new problem. Here in Ypres, we are reminded of that very strongly. Bombing and bombardment kills and injures civilians at the time of the attacks. It destroys houses and infrastructure vital to that civilian population. The problem is familiar to organisations working in conflict and post-conflict environments, to war fighters, and in media representations of conflict. This past year we have seen it quite starkly in Gaza, Syria, Iraq, Ukraine. In those conflicts it is bombing and bombardment that has been the main driver of humanitarian harm.

Despite this on-going harm, the broad trajectory in international rules since World War II has been towards better civilian protection – we need to maintain and further that. This is why we feel this initiative is worthwhile. It is not a new problem, but recognising that the use of explosive weapons in populated areas causes a distinct pattern of harm opens up the potential to better prevent that harm.

The characteristics of explosive weapons, as a category, are starting point for our analysis. It includes IEDs and manufactured explosive ordnance, from hand grenades right up to multiple launch rockets and aircraft bombs. It is a broad category.

Explosive weapons affect the area around the point of detonation with a combination of blast and fragmentation. This makes them different to firearms that strike at a point. And although it is a broad category, we should recognise that this categorical distinction from firearms is already clearly accepted in the common practice of states. Firearms are commonplace as an option for lethal force in a law enforcement context. Explosive weapons are reserved for use by the military and for the context of war-fighting. Blast and fragmentation effects around the area of detonation would put at risk members of the public that the state has a responsibility to protect from harm. So the transition to use of explosive weapons means we are crossing a boundary beyond which civilian protection is going to become more difficult and more pressing.

Over a number of years now NGOs have been systematically gathering data on the humanitarian impact of explosive weapons. Based on English language media reports, in 2011 AOAV recorded at least 21,500 civilians killed or injured internationally by explosive weapons. Where attacks took place in populated areas 84% casualties were civilians, compared with 35% elsewhere. In a follow up report looking at 2012, AOAV documented some 27,000 civilians killed or injured. With 91% of casualties in populated areas being civilians. In 2012, this pattern was spread across 58 countries or territories, with Syria standing out as the most severely affected location. So there is a consistent pattern of elevated harm when explosive weapons are used in populated areas in cities, towns and villages.

Data such as this provides an important perspective on the issues, but we need to remember that these numbers reflect real human experiences. 
Ali Shiba, a carpenter from Misrata, Libya, lost his eldest son in June 2011. His wife was also badly injured, when a rocket struck their home. His son was born the day before the attack. He was named Ibrahim after the son who was killed.

We should remember when we look at numbers of injured that these people and their families may need long-term assistance. In all contexts, it is important that we address the rights of victims. And both the statistics I drew upon earlier, and the experiences of individuals, should remind us of the importance of casualty recording and impact documentation.

In addition to direct deaths and injuries, the use of explosive weapons in populated areas also causes wider problems. It causes displacement – Save the Children has documented this in the context of Syria. It damages schools, housing, water and sanitation systems all of which causes longer-term harm and exacerbates the suffering of conflict. The ICRC’s Healthcare in Danger study identified explosive weapons as the leading cause of damage to healthcare facilities.

The use of explosive weapons in general in populated areas is problematic, but the use of heavy explosive weapons that have wide area effects is a particular concern. Heavy indirect-fire weapon systems such as artillery and multiple launch rockets, or unguided aircraft bombs, can create effects that are more difficult to control, because they are inaccurate, or the zones of blast and fragmentation are very large, or because multiple weapons are used to saturate an area with explosive force.

The casualties we interviewed in Misrata, Libya, were linked to a specific type of explosive weapons – Grad rockets, a type of multiple launch rocket system, an indirect fire weapon. In Syria, much of the bombardment has come from the use of high explosive artillery or large calibre mortars and large unguided aircraft bombs.

Here a couple of slides here to illustrate these type of wide area effects. Here we have the building we are in now:

This is an illustration of how a Grad Rocket strike might affect this area if targeted on this conference centre, with 40 rockets, each with a blast radius of approximately 30m landing across an area of roughly 500m by 250m. We can see that with this conference centre, a large building, as the target of this attack, a very substantial effect would be caused across the surrounding area. The Grad system creates a wide area effect mainly because of the inaccuracy of the individual rockets, and because of the use of multiple rockets in a strike:

Other weapons, such as the OFAB 250-270 aircraft bomb that has been used recently in urban areas of Syria, pose a threat because of inaccuracy, but also because of the very large blast radius of these weapons (155m in this case):

These slides are simply for illustration, they don’t take into account all the factors, but they make the point that there are explosive weapons with wide area effects and that it is hard to see how their use in populated areas like this can be acceptable.

Some people might argue that these specific weapons are already prohibited from use in populated areas under existing rules of international humanitarian law (IHL).

IHL rules, the prohibition on indiscriminate attacks and the principle of proportionality, apply when it comes to deciding whether to use explosive weapons in populated areas. But IHL doesn’t give clear judgements or guidance on particular means & methods of warfare being unacceptable in particular contexts – it requires a case-by-case weighing of factors in attacks.

We think we need to get beyond that in order to improve civilian protection. We are working to build a realisation that when explosive weapons with wide area effects are used in populated areas the civilian harm will be very high, the risk of illegality will be very grave,
and so there should be a recognition that such attacks are unacceptable. There is a need to draw a line, to set a standard. This does not need to be a legal line. Such a recognition could be seen as helping states ensure IHL works to protect civilians rather than developing new law.

We need to build a shared recognition of a political line that use of wide-area explosive weapons in cities, towns and villages is not how responsible actors conduct themselves. When thinking about increasing the political cost, a significant part of the harm from the use of explosive weapons comes from non-state actors using IEDs in public places.

It is very challenging. But by emphasising constraints on use of explosive weapons in populated areas, we can strengthen agreement that these bombings are a source of humanitarian suffering and regardless of political motivations and political labels, they need to be recognised as such.

When talking about wide area effects of explosive weapons, it is worth noting impact of incendiary weapons. These are not considered explosive weapons as such, as they don’t have blast and fragmentation effect, although some explosive weapons have an incendiary effect as well. There are a number of reasons why we are concerned about incendiary weapons. They cause superfluous injury: with white phosphorous burns, wounds can reignite when bandages taken off. They have indiscriminate effects, cover wide areas, cause fire that can spread widely. Existing rules from Convention on Certain Conventional Weapons Protocol III provide some restrictions, but these are inadequate – for example white phosphorous is not covered as it is not “primarily designed” for use against individuals. The rules don’t cover all situations – the use of ground-launched shells for example is not banned. HRW work on this is comprehensive and illustrates quite painfully why these weapons should, in our view, be prohibited for use.

But back to the topic of explosive weapons in populated areas, there is a three stage political process underway: acknowledgement of problem; discussion of the issue and possible solutions; political process to develop commitments. 
Currently beginning the discussion stage, as awareness continues to build.

Around 40 countries have explicitly acknowledged the harm from explosive weapons in populated areas, most during the Security Council open debates on the protection of civilians in armed conflict. We are not calling for a ban on explosive weapons, or even a wholesale ban on their use in populated areas. We want to discuss with states, NGOs, the UN and the Red Cross movement how to draw some lines that can be used to encourage stronger civilian protection whilst recognising the current needs of military forces from different backgrounds.

We are not expecting discussions to result in a sudden shift in practice in Syria, Gaza, Ukraine etc., but discussions can start to frame expectations of acceptable and unacceptable conduct. They can also encourage practical actions for military and civilian organisations to prevent means and methods of warfare that push the burden of harm too far onto the civilian population. We have already seen a number of policies in Afghanistan and Somalia for instance where states involved in conflict have moved away from the use of explosive weapons in populated areas. There are surely many more examples.

In terms of discussions on this issue with states and others, Chatham House and OCHA held an expert meeting London September 2013; Norway in June 2014 in Oslo; ICRC in February 2015; there will be a protection of civilians debate this summer at the UN Security Council which is likely to feature this topic heavily; and the next expert meeting will be held in Vienna in September 2015. 
We are seeking a political declaration by a group of likeminded states articulating their aspiration not to use these types of explosive weapons – with wide area effects – in populated areas.

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Read more:

Visit the website of INEW and learn more about the problem

See our publications on explosive weapons in populated areas