Talking points on the explosive weapons political declaration ‘elements paper’ for 10 February consultations
The government of Ireland is currently leading the coordination of a process to develop an international political declaration in 2020, through which states will make commitments to better protect civilians from the use of explosive weapons in populated areas. Following a first consultation with states in Geneva in November 2019 to discuss the elements that it would be important to include in such a declaration, Ireland released an elements paper in January 2020 outlining the content proposed for a draft. This will be discussed by states in Geneva at a consultation meeting on 10 February.
Article 36 has released a ‘talking points’ paper analysing the elements paper for those participating in the consultation, which is available here.
Our general comments are:
- Overall, the Elements Paper provides a good overview of the issue, and is a good basis and structure for further discussion – but it requires strengthening in a few key areas if a political declaration, drafted on these elements, is going to set a strong humanitarian standard and improve the protection of civilians in practice.
- The Elements Paper does not establish a clear and unequivocal policy commitment against the use of explosive weapons with wide area effects in populated areas. A clear policy commitment against the use, in populated areas, of explosive weapons with wide area effects is needed in order to strengthen the protection of civilians in armed conflict.
- Building on this point, the Elements Paper does not reflect the main policy recommendations for how to address harm to civilians, in particularly through a commitment to “avoid the use of explosive weapons with wide area effects in populated areas”, as repeatedly recommended by the UN Secretary-General and the ICRC, as well as a commitment supported by 19 African states through the Maputo Communique, and 23 states through the Santiago Communique.
- The Elements Paper does not sufficiently recognise the issue of ‘reverberating effects’ – where the interconnected nature of infrastructure means that damage to one element causes failures elsewhere. For example, where the destruction of water supply infrastructure leads to hospitals being unable to function. Risks of this effect are elevated in populated areas, where infrastructure is densely interconnected, and it can impact a larger section of the population than the original attack. The text should be strengthened to include a commitment to ensure foreseeable reverberating effects are considered in the planning of military operations.
- The Elements Paper has a commitment to assist victims which is welcomed, but its commitment to “make every effort” is too weak and should be strengthened, and the understanding of who is a victim should be expanded to include families of those affected, and affected communities.
- Although the paper highlights a number of specific operational policies and procedures it should highlight the need to assess and where necessary review these in order to enhance the protection of civilians. In particular, at 3.3 it should encourage states to assess the possible area effects of their explosive weapons; to assess how operation factors may influence area effects in different circumstances; review operation policies and procedures to ensure that the factors are reflected in decision making; and to ensure that contextual factors, including the presence of civilians, are also factored into decisions on the use of weapons. Such an approach would ensure that operational policies and procedures are enabling effective decision making – both to enhance the protection of civilians and to promote International Humanitarian Law (IHL) compliance.
- The paper should consistently prioritise ‘enhancing the protection of civilians’ as its primary goal and promoting compliance with IHL as one necessary means for achieving that.
- A political declaration should avoid restating the law – to avoid the risk of weakening existing legal obligations in a politically binding instrument, or of mis-stating existing obligations, presenting only a partial treatment of those obligations and in order to enable a succinct text without redundant paragraphs.
Download this paper
Background note for political declaration consultations
Protecting civilians from the effects of explosive weapons in populated areas: questions of IHL compliance (Background note for political declaration consultations)
Explosive weapons with wide area effects and risk to civilians (Background note for political declaration consultations)
Effects of explosive weapons: Working paper on explosive weapons in populated areas (Working paper for political declaration consultations)
Featured image: Aleppo, Syria – 2013. A building destroyed by repeated shelling, residents have tried to keep their business on the ground floor running. © Hannah Lucinda Smith