Maya Brehm Article 36
In addition to what Thomas explained, I would like to mention international political ef-forts aimed at addressing this issue: since the use of explosive weapons in populated areas was first identified as a key humanitarian challenge by the United Nations (UN) Secretary-General in his Report on the Protection of Civilians in Armed Conflicts of 2009, this issue has been consistently raised in protection of civilians related debates in the United Nations Security Council, as well as in other multilateral fora, including discussions regarding the protection of children in armed conflict. Furthermore, several expert meetings have been held, including the participation of State representatives: in June 2014, an informal expert meeting was convened by Norway and the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) to explore ways to strengthen the protection of civilians from the use of explosive weapons in populated areas. More recently, in September 2015, Austria, together with UNOCHA, convened a meeting in Vienna, Austria, to explore ways of addressing harm from the use of explosive weapons in populated areas, including through a possible political commitment.
The UN Secretary-General has repeatedly called on parties to conflict to refrain from using ex-plosive weapons with wide-area effect in populated areas. In his last Report on the Protection of Civilians (UN doc. S/2015/453 of 18 June 2015), he recommended that UN Member States should make a commitment to this effect (paragraph 63). In addition, the UN Secretary-General has called for better data gathering on the use and impact of explosive weapons, and he has invited UN Member States to share their national policies and practices on explosive weapons in populated areas, with a view to identifying good practices.
From the perspective of the International Network on Explosive Weapons, States should ur-gently come together to start working on a joint political commitment – in the form of a declaration, for example – that would set out concrete actions for States to take in order to address this humanitarian problem. Such a commitment would, first of all, aim to end the use of wide-area effect explosive weapons in populated areas. It would set a shared and specific standard against which military practice can be judged and can help create a situation where all explosive weapon users, including non-state forces and States not taking part in this initia-tive, can be held to a stronger normative standard of protection.
A joint political commitment would provide a formal framework for engaging further on this issue and supporting programmes that reduce risk of harm and harm to civilians; for promoting the review of national policy and practice, and elaborating good practice; for promoting efforts to improve the situation of victims and survivors of explosive weapons; and for supporting data-gathering and sharing, which is fundamental to our efforts. Indeed, we need to have data to understand the humanitarian impact, but also to provide protection and assistance, and to formulate effective policies in this regard.
Naturally, such a political commitment by States is not going to immediately solve all prob-lems. There are important issues that those working toward addressing harm from the use of explosive weapons in populated areas need to resolve together. How should we understand the notions of ‘populated areas’ and ‘wide-area effects’ for the purposes of enhancing the protection of civilians from explosive weapons? How should the ‘risk of harm to civilians’ be best characterised and assessed, and where should we draw the line between ‘unacceptable harm’ or ‘risk of harm’ to civilians? Should we describe the boundaries of what is acceptable when it comes to using explosive weapons near civilians and civilian infrastructure in terms of the technical features of (certain) explosive weapons (e.g. lack of a guidance mechanism), or in terms of how these features interact with the context (e.g. zone affected by the blast and fragmentation for various munition-fuse-platform combinations in different environments)? Is it possible to articulate a metric standard as we heard during the last panel, and how exactly would we do that?
In addition to these issues of a more conceptual nature, there are also a number of practical challenges to solve. Firstly, military challenges inherent in urban warfare, which were raised in the beginning of this Colloquium. In light of changing operational environments, there is a need to review and adapt military practice and policy to better protect civilians. Then, there are also political challenges. Who should be driving this political process? Which States will support it? Are the States that are most affected by explosive violence involved? What of those most likely to use explosive weapons? On that particular point, we need to be mindful of the different military capabilities of States and how this initiative orients toward that. And of course, there is the question of how to involve non-state actors in work aimed at reducing civilian harm from explosive violence. And, finally, there is the question of how this political initiative relates to existing legal frameworks, in particular to International Humanitarian Law.
Whilst recognising these challenges, I think it is worth reminding ourselves that, historically, there is a clear positive trajectory away from blanketing large areas with explosive force. Area bombardment, as we have seen in the Second World War and afterwards in South-East Asia, for example, is no longer deemed acceptable. In present practice, militaries adopt various
operational and policy measures to reduce harm to civilians from the use of explosive weapons in their vicinity, going beyond preventing clear violations of the prohibition on indiscriminate attacks (including area bombardment).
Furthermore, it is encouraging to observe that different actors concerned about civilian harm from bombing and shelling in cities increasingly frame their concerns in terms of the devas-tating effects of explosive weapons in populated areas. Consider, for example, the report of the Independent Commission of Inquiry on the 2014 Gaza conflict (UN doc. A/HRC/29/CRP.4 of 24 June 2015): in light of the devastation and immense human suffering documented by the Commission, one of its key recommendations to the international community is ‘[t]o ac-celerate and intensify efforts to develop legal and policy standards that would limit the use of explosive weapons with wide-area effects in populated areas with a view to strengthening the protection of civilians during hostilities’ (paragraph 684).
So far, about 40 States have spoken out and publicly acknowledged the humanitarian problem caused by the use of explosive weapons in populated areas. Some of them have publicly en-dorsed the recommendations made by the UN Secretary-General with regard to addressing this issue. About 20 States were represented at the meeting held in Vienna in September 2015 and it is encouraging that there was strong support for starting discussions on a political commit-ment with a view to reducing the human cost of the use of explosive weapons.