Blog: Arms and Armed Conflict

August 21, 2018

Clinic and HRW: Killer Robots Fail Key Moral, Legal Test


PRESS RELEASE


Killer Robots Fail Key Moral, Legal Test
Principles and Public Conscience Call for Preemptive Ban


(Geneva, August 21, 2018) – Basic humanity and the public conscience support a ban on fully autonomous weapons, Harvard Law School’s International Human Rights Clinic and Human Rights Watch said in a report released today. Countries participating in an upcoming international meeting on such “killer robots” should agree to negotiate a prohibition on the weapons systems’ development, production, and use.

The 46-page report, “Heed the Call: A Moral and Legal Imperative to Ban Killer Robots,” finds that fully autonomous weapons would violate what is known as the Martens Clause. This long-standing provision of international humanitarian law requires emerging technologies to be judged by the “principles of humanity” and the “dictates of public conscience” when they are not already covered by other treaty provisions.

“Permitting the development and use of killer robots would undermine established moral and legal standards,” said Bonnie Docherty, associate director of armed conflict and civilian protection at the Clinic. “Countries should work together to preemptively ban these weapons systems before they proliferate around the world.”

Cover art © 2018 Russell Christian/Human Rights Watch .

The 1995 preemptive ban on blinding lasers, which was motivated in large part by concerns under the Martens Clause, provides precedent for prohibiting fully autonomous weapons as they come closer to becoming reality.

The report was co-published with Human Rights Watch, for which Docherty is a senior arms researcher. Human Rights Watch co-founded and serves as coordinator of the Campaign to Stop Killer Robots.

More than 70 governments will convene at the United Nations in Geneva from August 27 to 31, 2018, for their sixth meeting since 2014 on the challenges raised by fully autonomous weapons, also called lethal autonomous weapons systems. The talks under the Convention on Conventional Weapons, a major disarmament treaty, were formalized in 2017, but they are not yet directed toward a specific goal.

The Clinic and Human Rights Watch urge states party to the convention to agree to begin negotiations in 2019 for a new treaty that would require meaningful human control over weapons systems and the use of force. Fully autonomous weapons would select and engage targets without meaningful human control.

To date, 26 countries have explicitly supported a prohibition on fully autonomous weapons. Thousands of scientists and artificial intelligence experts, more than 20 Nobel Peace Laureates, and more than 160 religious leaders and organizations of various denominations have also demanded a ban. In June, Google released a set of ethical principles that includes a pledge not to develop artificial intelligence for use in weapons.

At the Convention on Conventional Weapons meetings, almost all countries have called for retaining some form of human control over the use of force. The emerging consensus for preserving meaningful human control, which is effectively equivalent to a ban on weapons that lack such control, reflects the widespread opposition to fully autonomous weapons.

The Clinic and Human Rights Watch assessed fully autonomous weapons under the core elements of the Martens Clause. The clause, which appears in the Geneva Conventions and is referenced by several disarmament treaties, is triggered by the absence of specific international treaty provisions on a topic. It sets a moral baseline for judging emerging weapons.

The groups found that fully autonomous weapons would undermine the principles of humanity, because they would be unable to apply either compassion or nuanced legal and ethical judgment to decisions to use lethal force. Without these human qualities, the weapons would face significant obstacles in ensuring the humane treatment of others and showing respect for human life and dignity.

Fully autonomous weapons would also run contrary to the dictates of public conscience. Governments, experts, and the broader public have widely condemned the loss of human control over the use of force.

Partial measures, such as regulations or political declarations short of a legally binding prohibition, would fail to eliminate the many dangers posed by fully autonomous weapons. In addition to violating the Martens Clause, the weapons raise other legal, accountability, security, and technological concerns.

In previous publications, the Clinic and Human Rights Watch have elaborated on the challenges that fully autonomous weapons would present for compliance with international humanitarian law and international human rights law, analyzed the gap in accountability for the unlawful harm caused by such weapons, and responded to critics of a preemptive ban.

The 26 countries that have called for the ban are: Algeria, Argentina, Austria, Bolivia, Brazil, Chile, China (use only), Colombia, Costa Rica, Cuba, Djibouti, Ecuador, Egypt, Ghana, Guatemala, the Holy See, Iraq, Mexico, Nicaragua, Pakistan, Panama, Peru, the State of Palestine, Uganda, Venezuela, and Zimbabwe.

The Campaign to Stop Killer Robots, which began in 2013, is a coalition of 75 nongovernmental organizations in 32 countries that is working to preemptively ban the development, production, and use of fully autonomous weapons. Docherty will present the report at a Campaign to Stop Killer Robots briefing for CCW delegates scheduled on August 28 at the United Nations in Geneva.

“The groundswell of opposition among scientists, faith leaders, tech companies, nongovernmental groups, and ordinary citizens shows that the public understands that killer robots cross a moral threshold,” Docherty said. “Their concerns, shared by many governments, deserve an immediate response.”

“Heed the Call: A Moral and Legal Imperative to Ban Killer Robots” is available at:
https://www.hrw.org/node/321376

For more Human Rights Watch and International Human Rights Clinic reporting on killer robots, please visit:
https://www.hrw.org/topic/arms/killer-robots

For more information on the Campaign to Stop Killer Robots, please visit:
http://www.stopkillerrobots.org/

For op-eds of the report by Bonnie Docherty, please visit:
Ban ‘Killer Robots’ to Protect Fundamental Moral and Legal Principles, The Conversation
Why We Need a Pre-Emptive Ban on ‘Killer Robots,’ The Huffington Post

For an overview of HRW and IHRC publications on killer robots, please visit:
Reviewing the Record: Reports on Killer Robots

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June 25, 2018

Clinic’s Parliamentary Submission Urges Marshall Islands to Reap Benefits of Nuclear Weapon Ban Treaty

Posted by Bonnie Docherty

Countries gather for the signing ceremony of the Treaty on the Prohibition of Nuclear Weapons at the UN in September 2017. Photo by Bonnie Docherty

The Marshall Islands (RMI), which still suffers from the catastrophic effects of 67 U.S. nuclear tests, has much to gain by joining the 2017 Treaty on the Prohibition of Nuclear Weapons (TPNW).

If it became a state party, the RMI would be entitled to new sources of assistance to address the ongoing human and environmental harm caused by nuclear testing. The RMI would also advance the cause of nuclear disarmament, which the country has historically supported, and become a leader among Pacific and affected states.

While some Marshallese are concerned about the TPNW’s ramifications for the Compact of Free Association between the RMI and the United States, the Compact should not be seen as an insurmountable legal obstacle to joining a treaty that would benefit the Marshallese people and their environment.

The RMI’s parliament (Nitjela) has the power to decide whether to sign and ratify the TPNW. Its Standing Committee on Foreign Affairs and Trade is currently considering Resolution 46, which would approve those steps. In July 2017, the RMI joined 121 other countries in voting to adopt the TPNW at the United Nations.

In a submission made to the parliamentary committee this week, the Clinic encourages the Nitijela to approve Resolution 46, and the country to sign and ratify the TPNW. The submission details the advantages of joining the treaty for the RMI and shows how the TPNW can be understood as legally compatible with the Compact. The Clinic has also released a more in-depth analysis of the relationship between the TPNW and the Compact.

The TPNW’s provisions on victim assistance and environmental remediation, for which the Clinic advocated actively during the treaty’s negotiations, provide the RMI humanitarian incentives become a party. The treaty mandates a range of assistance for affected individuals, including medical care, psychological support, measures to ensure socioeconomic inclusion, and human rights protections. The treaty also requires measures to reduce environmental contamination and exposure to radioactive materials.

The TPNW spreads responsibility for victim assistance and environmental remediation across the countries that are party to the treaty. Affected countries, such as the RMI, bear the responsibility to lead these efforts, but other states parties in a position to do so are required to help them meet their obligations.

While the Compact grants the U.S. “full authority and responsibility for security and defense matters in or relating to” the RMI, the Clinic’s analysis finds that the RMI’s obligations under the TPNW and the Compact are not per se contradictory. It emphasizes that the Compact requires the U.S. to “accord due respect” to the RMI’s foreign affairs authority and responsibility for its people’s well-being. If the U.S. sought to block the RMI’s ratification of the TPNW or withhold aid in response, it would be failing to honor its commitment in the Compact to respect the RMI’s sovereign right to act in the interests of its people.

In March 2018, the Clinic visited the RMI to discuss the TPNW with government officials, civil society members, and individuals affected by testing. The Clinic based its conclusions and recommendations on those conversations and a close analysis of the TPNW and the Compact.

In addition to requiring victim assistance and environmental remediation, the TPNW includes comprehensive prohibitions on activities involving nuclear weapons. The TPNW has been signed by 59 countries and ratified by 10. It will enter into force when 50 countries complete their ratification.

 

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June 7, 2018

New Clinic Reports Call on NATO Members, Sweden to Join Nuclear Weapon Ban Treaty

Posted by Bonnie Docherty

As preparations for a US-North Korea summit highlight the ongoing threat posed by nuclear weapons, proponents of nuclear disarmament should increase their support for the 2017 Treaty on the Prohibition of Nuclear Weapons (TPNW). Momentum has been building. In May alone, three more countries ratified the treaty, bringing the total to 10; another 48 have signed. In addition, several countries have initiated national processes that represent an important step toward coming on board.

In this context, the Clinic is releasing two papers demonstrating why it is legally possible for even allies of nuclear armed states to join the TPNW.

The first paper examines the implications of the TPNW for “nuclear umbrella” states, notably US allies, that wish to join the new treaty. It finds that once a country is party to the TPNW, it may no longer remain under the protection of a nuclear umbrella, i.e., rely on an ally’s nuclear weapons for defense.

In most cases, however, a country may sign and ratify the TPNW without violating its legal obligations under a security agreement with a nuclear armed state. The TPNW would also allow it to continue participate in joint military operations with nuclear armed states as long as it does not assist with prohibited acts, such as possessing, threatening to use, or using nuclear weapons.

A NATO member state that joined the TPNW would therefore have to renounce its nuclear umbrella status, but from a legal perspective, it could remain a part of the existing alliance. The same would be true for other US allies, including Australia, Japan, and South Korea.

A second Clinic paper focuses specifically on the situation of Sweden, which frequently partners with NATO but is not a member state. Sweden has appointed an inquiry chair to examine how joining the TPNW would affect Sweden’s defense policies and its obligations under other agreements. Sweden was one of 122 nations to adopt the TPNW in July 2017.

The Clinic concludes that if Sweden became a party to the treaty, the country could not assist its allies with prohibited activities involving nuclear weapons. It could, however, maintain its relationships with NATO and the European Union and continue to participate in joint military operations without violating the treaty.

Given Sweden’s historically strong support for nuclear non-proliferation and disarmament, Sweden should serve as a role model for other countries in a similar position. It should advance the TPNW’s goal of eliminating nuclear weapons and expedite its entry into force by joining as soon as possible. The treaty will enter into force, i.e., become binding law, once 50 states have become party.

The TPNW absolutely prohibits nuclear weapons. It also establishes positive obligations to assist victims and remediate the environment affected by the use and testing of nuclear weapons.

The Clinic participated actively in last year’s negotiations of the TPNW and has worked closely with the International Campaign to Abolish Nuclear Weapons (ICAN), which received the 2017 Nobel Peace Prize.

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May 21, 2018

Listen: ACCPI’s Bonnie Docherty Discusses Humanitarian Disarmament Career Path on Leading Questions Podcast


Armed Conflict and Civilian Protection Initiative Associate Director Bonnie Docherty spoke with the Harvard Law Record‘s Hannah Solomon-Strauss, JD’18, and Evelyn Douek, SJD Candidate, on their Leading Questions podcast. Docherty discussed her career path from history student to journalist to a teacher and lawyer that most recently helped advise the International Campaign to Abolish Nuclear Weapons (ICAN) in their Nobel Peace Prize-winning efforts in humanitarian disarmament.

When asked what drove her when her goals—such as the historic treaty banning cluster munitions in 2008—felt like a “long shot,” Docherty responded: “I think it was partly having seen the effects of these weapons, both [in] Afghaniston, Iraq, and in Lebanon. And knowing first-hand what they did really did keep me motivated. So intellectually I was motivated by the challenge of crafting treaty text and that was really exciting once we got in the negotiations. But I think [it is] important in this work to remember the humans and not to get lost in the advocacy or the legal details. […] If you remember the humans, it keeps you going.” Below is the full audio of the conversation. 

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April 16, 2018

Commentary: We’re Running Out of Time to Stop Killer Robot Weapons


This piece by Bonnie Docherty, Associate Director of Armed Conflict and Civilian Protection, originally ran in The Guardian, under the headline “We’re Running Out of Time to Stop Killer Robots”

 

It’s five years this month since the launch of the Campaign to Stop Killer Robots, a global coalition of non-governmental groups calling for a ban on fully autonomous weapons. This month also marks the fifth time that countries have convened at the United Nations in Geneva to address the problems these weapons would pose if they were developed and put into use.

The countries meeting in Geneva this week are party to a major disarmament treaty called the Convention on Certain Conventional Weapons. While some diplomatic progress has been made under that treaty’s auspices since 2013, the pace needs to pick up dramatically. Countries that recognise the dangers of fully autonomous weapons cannot wait another five years if they are to prevent the weapons from becoming a reality.

Fully autonomous weapons, which would select and engage targets without meaningful human control, do not yet exist, but scientists have warned they soon could. Precursors have already been developed or deployed as autonomy has become increasingly common on the battlefield. Hi-tech military powers, including China, Israel, Russia, South Korea, the UK and the US, have invested heavily in the development of autonomous weapons. So far there is no specific international law to halt this trend.

Experts have sounded the alarm, emphasising that fully autonomous weapons raise a host of concerns. For many people, allowing machines that cannot appreciate the value of human life to make life-and-death decisions crosses a moral red line.

Legally, the so-called “killer robots” would lack human judgment, meaning that it would be very challenging to ensure that their decisions complied with international humanitarian and human rights law. For example, a robot could not be preprogrammed to assess the proportionality of using force in every situation, and it would find it difficult to judge accurately whether civilian harm outweighed military advantage in each particular instance.

Fully autonomous weapons also raise the question: who would be responsible for attacks that violate these laws if a human did not make the decision to fire on a specific target? In fact, it would be legally difficult and potentially unfair to hold anyone responsible for unforeseeable harm to civilians. Continue Reading…

April 10, 2018

Understanding Victim Assistance and Environmental Remediation Under the Treaty on the Prohibition of Nuclear Weapons

Posted by Bonnie Docherty

The humanitarian impact of the Treaty on the Prohibition of Nuclear Weapons (TPNW) depends on both its comprehensive ban on nuclear weapons and its obligations to assist victims and remediate the environment affected by use and testing. The former aims to prevent future harm, while the latter addresses harm that has already occurred.

The Clinic is releasing new papers on victim assistance and environmental remediation in order to increase awareness of these elements of the treaty. The short publications provide an overview of the provisions in the TPNW and guidance from other humanitarian disarmament treaties as to how they might be implemented.

The TPNW’s so-called “positive obligations” establish a framework of shared state responsibility for helping victims and cleaning the contaminated environment

During last year’s treaty negotiations at the United Nations, the Clinic worked closely with the International Campaign to Abolish Nuclear Weapons (ICAN), which received the 2017 Nobel Peace Prize. A team from the Clinic, along with advocates from Article 36, Mines Action Canada, and Pace University, played a leading role in ensuring that the treaty included the positive obligations.

 

 

 

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March 2, 2018

Bonnie Docherty Launches Armed Conflict and Civilian Protection Initiative


The International Human Rights Clinic (IHRC) is thrilled to announce the launch of the Armed Conflict and Civilian Protection Initiative (ACCPI), which aims to reduce the harm caused by armed conflict through targeted advocacy, leadership development, and the generation of innovative solutions.

Bonnie Docherty, Associate Director of Armed Conflict and Civilian Protection, talking with colleagues.

The ACCPI will be led by Bonnie Docherty, Lecturer on Law and Associate Director of Armed Conflict and Civilian Protection, who is an internationally renowned leader in the field of humanitarian disarmament. Docherty has worked at the heart of almost every major civil society campaign to ban inhumane and indiscriminate weapons, or curtail their use to minimize the impacts on civilians. She was a critical player in the 2008 cluster munitions ban, as well as the nuclear weapons ban, adopted in July of last year.

“Today’s armed conflicts are causing countless civilian casualties, destroying infrastructure and the environment, and driving people from their homes,” said Docherty, who also works as a Senior Researcher in the Arms Division of Human Rights Watch. “This initiative represents a unique opportunity to provide focused support to the movement dealing with these issues, as well as to students interested in making a career in the field.”

Since she arrived at the Clinic in 2005, Docherty has put clinical students at the heart of her advocacy, supervising them on everything from field research in Lebanon to lobbying at the UN. Under her leadership, and through her mentorship, students have gone on to work as field researchers, advocates in peace negotiations, and policy analysts, actively working to protect civilians from the effects of armed conflict.

In the years to come, the ACCPI will create a formal track for HLS students who want to pursue careers in civilian protection. That track will expand on existing offerings, including specialized courses, clinical projects, and trainings; it will also build a career development program that links students with relevant organizations, a network of alumni, and funding for internships and fellowships.

“So many of us have learned the tools of the trade by Bonnie’s side,” said Anna Crowe, LLM ’12, Clinical Instructor and Lecturer on Law, who is actively involved in the ACCPI. “This initiative will strengthen the movement by creating even more opportunities for students to develop into leaders.”

The ACCPI will go broad as well as deep, tackling issues as diverse as environmental damage, refugee rights, and world heritage in times of armed conflict. One of its main areas of focus will be humanitarian disarmament, which strives to end the civilian suffering that certain weapons cause.

This Monday, March 5, the ACCPI’s inaugural conference, “Humanitarian Disarmament: The Way Ahead,” will bring dozens of international experts together to discuss how the movement has developed over the past two decades, and to explore where it should go from here. With its focus on collaboration and innovation, the conference is a window into one of the ACCPI’s central priorities: generating fresh perspectives and creative strategies for lessening the harms of war.

The mostly closed-door conference will include two public events: a keynote conversation with leaders of the Nobel Peace Prize-winning campaigns to ban nuclear weapons and landmines; and a panel that examines current issues in humanitarian disarmament, including efforts to end the urban use of certain explosive weapons, reduce the environmental impact of armed conflict, ban killer robots, and control the unlawful arms trade.

During her time in the Clinic, Docherty herself has gone deep on almost all of these issues, documenting the effects of explosive weapons in Ukraine, teaching about the environmental impacts of war, and making the case for preemptively prohibiting killer robots. Together with Crowe, she led a clinical team during the nuclear ban treaty negotiations last summer; supervisors and students successfully advocated for the treaty to include “positive obligations” that require countries to assist victims and clean up the environment affected by nuclear weapons.

The ACCPI will build on this body of work, focusing on effecting change through advocacy in two areas. First, it will ramp up existing efforts to create new international instruments that protect civilians from problematic weapons. Second, the initiative will promote the development of norms in unsettled areas of law and practice, whether hotly contested or at the intersection of multiple legal frameworks.

Throughout, the ACCPI will adopt an interdisciplinary approach that draws on multiple legal bodies to achieve its ends. It will look to international human rights law, the focus of IHRC and a body of law applicable at all times. It will use international humanitarian law, applicable in times of armed conflict. It will also rely on humanitarian disarmament law, which incorporates elements of both of the above.

In these ways and others, the ACCPI will occupy a distinct niche on Harvard’s campus, combining cutting-edge advocacy with student involvement in all aspects of the work. It is the kind of work that will make Harvard a center for excellence on civilian protection from armed conflict. And her colleagues know: There is no better person to lead it than Docherty, a pioneer from the very start.

“The depth of Bonnie’s impact on her field over the past fifteen years has been remarkable, and she’s done it all with such humility,” said Tyler Giannini, Co-Director of the International Human Rights Clinic. “She’s a tireless advocate, and given the state of armed conflict today, we’re elated to see her launch and lead this critically important initiative.”

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February 26, 2018

Conference next week: “Humanitarian Disarmament: The Way Ahead”


March 5 – 6, 2018

“Humanitarian Disarmament: The Way Ahead”

Inaugural Conference of the Armed Conflict
and Civilian Protection Initiative
at Harvard Law School

12 – 1:30 p.m.
Austin 100 (North), Harvard Law School
Lunch will be served.

Please join us for a conference that brings together international experts in humanitarian disarmament, a movement that strives to end civilian suffering caused by inhumane and indiscriminate weapons. Drawing on first-hand experience in creating international law, conference participants will discuss how the movement has developed over the past two decades and explore where it should go from here.

The conference will include two public events: a keynote conversation with leaders of the Nobel Peace Prize-winning campaigns to ban nuclear weapons and landmines; and a panel that examines current issues in humanitarian disarmament, including efforts to end the urban use of certain explosive weapons, reduce the environmental impact of armed conflict, ban killer robots, and control the unlawful arms trade.

Humanitarian Disarmament: The Way Ahead will launch the Armed Conflict and Civilian Protection Initiative, which is housed in Harvard Law School’s International Human Rights Clinic (IHRC). The conference is co-organized by IHRC, the Harvard Humanitarian Initiative, and Harvard Kennedy School’s Carr Center for Human Rights Policy.

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December 20, 2017

The Nobel Peace Prize Celebrations: Recognition and Reinvigoration for Humanitarian Disarmament Advocates

Posted by Bonnie Docherty


On December 10, 2017, at 1 p.m., uniformed musicians on the grand staircase of Oslo City Hall brought their gleaming trumpets to their lips and the audience to its feet. The clarion salute they sounded heralded the arrival of the king and queen of Norway and a new era of nuclear disarmament.

ICAN Director Beatrice Fihn speaks at 2017 Nobel Peace Prize ceremony in Oslo City Hall. Photo credit: Ralf Schlesener.

In front of dignitaries, diplomats, and dozens of civil society campaigners, myself included, the International Campaign to Abolish Nuclear Weapons (ICAN) received this year’s Nobel Peace Prize.

The award honors ICAN for having “given the efforts to achieve a world without nuclear weapons a new direction and new vigour.” In particular, the prize recognizes the civil society coalition’s “ground-breaking” work to realize a treaty banning nuclear weapons.

More than 70 years after the dropping of atomic bombs on Hiroshima and Nagasaki, the 2017 Treaty on the Prohibition of Nuclear Weapons makes clear that nuclear weapons are illegal as well as immoral and increases the stigma against them. It also shows that real progress in nuclear disarmament is possible.

I had the honor of attending the Nobel ceremony as part of ICAN’s delegation because, along with Clinical Instructor Anna Crowe and a team from the International Human Rights Clinic, I partnered closely with ICAN during last summer’s treaty negotiations. We provided legal advice and successfully lobbied for obligations to address the humanitarian and environmental harm caused by nuclear weapons.

I can best describe my four days in Oslo as magical. In addition to the ceremony, the celebrations included a torchlight parade, a concert in ICAN’s honor, and the opening of a museum exhibition on the coalition. Nobel Peace Prize banners hung from street lamps on the city’s main boulevard, and the lights on a Ferris wheel alternated flashing the Nobel medal and the ICAN logo.

Bonnie Docherty by Laureates’ box after Nobel Peace Prize Concert on December 11, 2017.

The experience was made all the more meaningful because I shared it with friends from around the world with whom I’ve advocated for humanitarian disarmament for more than 15 years.

The genesis of the nuclear weapon ban treaty exemplifies the power of a humanitarian approach to disarmament. After the 1996 adoption of the Comprehensive Nuclear-Test-Ban Treaty, there was minimal progress in advancing the law on nuclear weapons; international discussions continued but produced no tangible results.

In 2010, ICAN and other proponents of a new treaty began to reframe nuclear weapons as a humanitarian, rather than national security, issue. Publications from ICAN and its member organizations highlighted the horrific harm caused by use and testing. A resolution from the International Red Cross and Red Crescent Movement called for using “the framework of humanitarian diplomacy” to work toward a treaty prohibiting nuclear weapons. In 2015, 127 states endorsed the “Humanitarian Pledge,” committing “to promote the protection of civilians against risks stemming from nuclear weapons” and to strive for a world free of nuclear weapons.

This shift in the debate broke the international deadlock. The following year, the UN General Assembly passed a resolution to initiate treaty negotiations, and on July 7, 2017, 122 states adopted a global ban on nuclear weapons. Only one country voted against, and one abstained.

As I explained at a legal seminar held during the Nobel celebrations, the influence of humanitarian disarmament is evident in the treaty’s text as well as the process behind it. The preamble recognizes the overwhelming human and environmental consequences of the weapons, and acknowledges the disproportionate impact on women and girls and indigenous peoples. Continue Reading…

November 20, 2017

Clinic and HRW Document Use of Incendiary Weapons by Coalition of Syrian Government and Russian Forces


PRESS RELEASE

 

(Geneva, November 20, 2017) – Countries should respond to reports of new use of incendiary weapons in Syria by working to strengthen the international law governing these exceptionally cruel weapons, Human Rights Watch said in a report released today.

The 28-page report, “An Overdue Review: Addressing Incendiary Weapons in the Contemporary Context,” documents use of incendiary weapons by the coalition of Syrian government and Russian forces in 2017. It urges countries at a UN disarmament meeting, held in Geneva from November 22 to 24, 2017, to initiate a review of Protocol III of the Convention on Conventional Weapons (CCW). This protocol, which regulates incendiary weapons, has failed to prevent their ongoing use, endangering civilians.

“Countries should react to the threat posed by incendiary weapons by closing the loopholes in outdated international law,” said Bonnie Docherty, associate director of armed conflict and civilian protection at Harvard Law School’s International Human Rights Clinic, which co-published the report. “Stronger law would mean stronger protections for civilians.”

Docherty, who is also senior arms researcher at Human Rights Watch, presented the report’s findings at a side event at the United Nations in Geneva today.

Incendiary weapons produce heat and fire through the chemical reaction of a flammable substance. They can be designed for marking and signaling or to burn materiel, penetrate plate metal, or produce smokescreens. Incendiary weapons cause excruciating burns, disfigurement, and psychological trauma, and they start fires that destroy civilian objects and infrastructure.

For the first time in nearly four decades, countries that are parties to the 1980 treaty have devoted a specific session at their annual meeting to Protocol III. The meeting will also address fully autonomous weapons, or “killer robots.”

States parties should seize this opportunity to hold robust discussions about the harm caused by incendiary weapons and the adequacy of Protocol III, Human Rights Watch said. They should condemn recent use, support a formal review of the protocol, with an eye to strengthening it, and set aside more time for in-depth discussions in 2018.

In 2017, Human Rights Watch documented 22 attacks with incendiary weapons across five governorates of Syria by Syrian government forces or their Russian allies. From 2012 to 2016, Human Rights Watch documented at least 68 attacks by the same forces, as well as several cases of severe civilian harm. While Syria is not a party to Protocol III, Russia is.

As recently as November 12, photographs and video reportedly taken in Syria’s Idlib governorate as well as a report from Syria Civil Defense field workers indicate the use of air-delivered incendiary weapons, although Human Rights Watch has been unable to confirm these specific attacks.

The continued use of incendiary weapons in Syria shows that countries, including Syria, need to join Protocol III and comply with its restrictions on use in populated areas, Human Rights Watch said. The use also demonstrates the need for stronger norms, which can increase the stigma against the weapons and influence even those not party to the protocol.

Protocol III has two major loopholes. First, its definition excludes multipurpose weapons, such as those with white phosphorus, which may be primarily designed to provide smokescreens or illumination, but can inflict the same horrific injuries as other incendiary weapons. White phosphorus, for example, can burn through human flesh to the bone and reignite days after treatment if exposed to oxygen.

In 2017, the US-led coalition used white phosphorus while fighting to retake Raqqa in Syria and Mosul in Iraq from the Islamic State. While Human Rights Watch has not confirmed casualties from these incidents, the New York Times reported that munitions containing white phosphorous hit an internet café, killing approximately 20 people.

Second, while the protocol prohibits the use of air-dropped incendiary weapons in populated areas, it allows the use of ground-delivered models in certain circumstances. All incendiary weapons cause the same effects, however, and this arbitrary distinction should be eliminated. A complete ban on incendiary weapons would have the greatest humanitarian benefits.

In recent years, a growing number of countries have condemned the use of incendiary weapons and called for revisiting or strengthening Protocol III. At the meeting in Geneva, they should expand on their positions, and new countries should add their voices to the debate.

“Existing law on incendiary weapons is a legacy of the US war in Vietnam and a Cold War compromise,” said Docherty. “But the political and military landscape has changed, and it is time for the law to reflect current problems.”

The new report was researched and written by clinical students Allie Brudney, JD ’19, Sofia Falzoni, JD ’19, and Natalie McCauley, JD ’19, under the supervision of Bonnie Docherty.

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