Blog: Arms and Armed Conflict
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December 6, 2022
In a new article for the International Review of the Red Cross, Bonnie Docherty, lecturer on law and director of the Clinic’s Armed Conflict and Civilian Protection Initiative, examines the evolution of the concept of victim assistance and the impact of its implementation. Co-authored with Alicia Sanders-Zakre, the article analyzes the contributions of three treaties—the Mine Ban Treaty, the Convention on the Rights of Persons with Disabilities, and the Convention on Cluster Munitions—in shaping the development of victim assistance standards and practices. It also identifies lessons from these treaties for implementing and interpreting the victim assistance obligations under the Treaty under the Prohibition on Nuclear Weapons. The article “concludes that the three treaties have collectively established assisting victims as a feature of disarmament law, helped persons with disabilities realize their rights, and laid the groundwork for adapting victim assistance to new challenges.”
The full article, “The Origins and Influence of Victim Assistance: Contributions of the Mine Ban Treaty, Convention on the Rights of Persons with Disabilities and Convention on Cluster Munitions,” is available here. It is part of a special International Review of the Red Cross issue addressing persons with disabilities in armed conflict.
November 28, 2022
This article was first published on Just Security.
Last week, more than 80 countries endorsed a new international commitment to address one of the greatest threats to civilians during armed conflict: the use of explosive weapons in populated areas. Explosive weapons include aircraft bombs, artillery, rockets, and missiles, and their use in cities, towns, and villages causes thousands of civilian casualties around the world each year.
The political declaration, which 82 countries signed at a ceremony in Dublin Castle on Nov. 18, goes beyond calling for better compliance with existing international humanitarian law by committing the endorsing countries to take additional measures to prevent and remediate the devastating humanitarian consequences of the use of explosive weapons in populated areas.
The success of the endorsement conference warrants celebration, but it also marks the beginning of a new phase of work. Governments, international organizations, and civil society groups now need to focus on universalizing, interpreting, and implementing the document.
A New Political Declaration to Protect Civilians
While not legally binding, the declaration is a milestone for efforts to advance humanitarian disarmament and curb human suffering during armed conflict. It sets international standards for restricting the use of explosive weapons. It demands military training and changes in national policies and practices that have the potential to reduce the harm from a method of war that causes direct and indirect, or reverberating, effects. It also includes commitments on victim assistance, data collection and sharing, and follow-up meetings.
The declaration is the product of a three-year process led by Ireland. Its signatories come from every region of the world and include countries affected by armed conflict and major military powers. Six of the world’s top eight arms exporters — the United States, France, Germany, Italy, the United Kingdom, and South Korea — have joined, as well as 24 of 30 NATO Member States.
Ukraine expressed its support at the conference for the declaration’s spirit and principles, but said that it would only be able to endorse the instrument after its conflict with Russia ended and it regained sovereignty over its territory.
The Cost of Explosive Weapons
The use of explosive weapons in populated areas has high costs for civilians both at the time of attack and long after. The weapons’ blast and fragmentation cause widespread civilian casualties and inflict psychological trauma. According to Action on Armed Violence, when explosive weapons are used in populated areas, an average of 90 percent of those killed or injured are civilians.
Damage to or destruction of civilian infrastructure, including power, water, and sanitation facilities, interferes with basic services, such as health care and education, even long after the conflict ends. The lack of services in turn infringes on human rights, such as the right to education or to quality, available, and accessible health care.
The use of explosive weapons also causes harm to the environment. Bombing and shelling of industrial facilities, for example, releases toxins into the air or water sources. Explosive ordnance lingers long after conflict. The threat of immediate death and injury as well as the reverberating effects discussed above drive mass displacement.
All of these consequences are exacerbated when the explosive weapons have wide area effects, that is, when their impacts cover a broad footprint. Explosive weapons have such effects if they have a wide blast or fragmentation radius, are inaccurate, or deliver multiple munitions at once. The political declaration recognizes these factors as increasing the risk of “a devastating impact on civilians and civilian objects” (paragraph 1.2).
Human Rights Watch and other groups have documented the direct and indirect effects of explosive weapons in recent armed conflicts, including in Afghanistan, Armenia, Azerbaijan, Gaza, Iraq, Libya, Somalia, Sri Lanka, Syria, Ukraine, and Yemen.
A New Challenge Ahead: Implementing the Declaration
As countries translate the declaration’s words into actions, they should stay true to the declaration’s goal of strengthening civilian protection. Safeguarding Civilians, a recent report co-published by Human Rights Watch and the Harvard Law School International Human Rights Clinic, for which I work, examines several of the declaration’s key commitments and interprets them through a humanitarian lens. Some of its findings are presented below.
The core, and most debated, provision of the declaration calls on countries to adopt “policies and practices to help avoid civilian harm, including by restricting or refraining as appropriate from the use of explosive weapons in populated areas, when their use may be expected to cause harm to civilians or civilian objects” (paragraph 3.3). We, and others, argue it is “appropriate” for countries to “refrain from” the use of explosive weapons with wide area effects in populated areas, given that the harm of such weapons can always be expected. Countries should then “restrict” the use of all other explosive weapons in populated areas.
In addition, under paragraph 3.4, countries should take into account the direct and indirect effects of the use of explosive weapons in populated areas when planning and executing attacks because these effects meet the declaration’s threshold of being reasonably foreseeable.
Remediating the humanitarian consequences of the use of explosive weapons demands comprehensive victim assistance measures, another key element of the declaration (paragraph 4.5). Assistance should be provided to affected individuals, families, and communities and take a variety of forms. It should be integrated, inclusive, and gender sensitive.
Data collection and sharing are essential to both preventing and remediating the harm caused by the use of explosive weapons in populated areas. An accurate and in-depth understanding of effects can inform lessons learned, help identify the kinds of victim assistance needed, facilitate international cooperation and assistance, and promote monitoring and compliance.
Countries should make clear that they will collect and share operational data about weapons and targets as well as information about the range of effects of explosive weapons. Both are necessary to achieve the declaration’s goals. While the declaration says data should be collected and shared “where feasible and appropriate” (paragraph 4.2), rather than use that caveat as an excuse to avoid transparency, countries should work to ensure that data collection and sharing are feasible and presume they are appropriate unless they risk further harm.
Finally, countries should live up to their commitment to engage in follow-up work on the declaration, including through regular meetings (paragraph 4.7). Those meetings are essential opportunities to exchange views on policies, practices, and interpretations of the declaration, provide updates on progress, share collected data, and promote implementation. Maintaining the inclusiveness that has characterized this process to date will add value to the discussions.
At the Dublin conference, Norway announced that it will host the declaration’s next meeting in 2024. That date may seem far way, but the declaration’s first major test will be how much can be accomplished by then to carry out its provisions. While addressing the humanitarian consequences of the use of explosive weapons in populated areas is a challenging process, countries that signed the declaration should strive to realize their commitments effectively and efficiently with that date — and especially civilian lives — in mind.
November 8, 2022
Protect Civilians from Incendiary Weapons: Report Finds Stronger Law Needed to Govern Weapons Causing Horrific Burns
Countries concerned by the severe injuries caused by incendiary weapons should strengthen their calls for action to address the human costs, Harvard Law School’s International Human Rights Clinic and Human Rights Watch said in a report published today.
States party to the Convention on Conventional Weapons (CCW) should revisit the issue when they convene for their annual meeting at the United Nations in Geneva, from November 16 to 18, 2022. The 16-page report, “Unchecked Harm: The Need for Global Action on Incendiary Weapons,” addresses Russia and Cuba’s opposition to a widely supported proposal by Ireland to hold diplomatic talks on Protocol III to the CCW, the only international law specifically governing incendiary weapons. The inability to hold discussions of incendiary weapons has frustrated the many countries concerned by the weapons’ humanitarian consequences.
“The failure of countries to even discuss the effectiveness of existing law on incendiary weapons highlights the weaknesses of consensus-based diplomacy at the United Nations,” said Bonnie Docherty, the Clinic’s associate director of armed conflict and civilian protection and a senior arms researcher at Human Rights Watch. “Governments should urgently address the horrific effects of incendiary weapons and make addressing their humanitarian concerns a top priority.
In recent years, Human Rights Watch has documented the use of incendiary weapons in Afghanistan, Gaza, Iraq, Syria, Ukraine, and Yemen. Video and photographic evidence of strikes and remnants since Russia’s full-scale invasion of Ukraine in February 2022 identified at least 40 surface-launched incendiary weapons attacks. It is not possible to attribute responsibility for this use, but Russia and Ukraine both possess 122mm Grad incendiary rockets, which were used in the attacks. The same type of 122mm Grad incendiary rockets were used in eastern Ukraine in 2014 and in Syria in 2013 to 2019.
Incendiary weapons are among the cruelest weapons in modern warfare. They contain various chemical compounds that inflict excruciating burns, respiratory damage, and psychological trauma. The burning of homes, infrastructure, and crops causes socioeconomic harm. People who survive often experience lifelong suffering.
Convention on Conventional Weapons Protocol III on Incendiary Weapons contains two loopholes that undermine its ability to protect civilians. First, the protocol’s definition does not encompass multipurpose munitions, such as those containing white phosphorous, which are not primarily designed to set fires or burn people but cause the same horrific incendiary effects. Second, while the protocol prohibits air-dropped incendiary weapons in populated areas, it has weaker regulations for the use of surface-launched incendiary weapons in those areas under certain circumstances.
Survivors, medical professionals, and civil society groups have also demanded action, the Clinic and Human Rights Watch said. In recent years, individuals and organizations have used open letters, online briefings, joint statements, and other means to draw greater attention to the need to strengthen international law regulating incendiary weapons.
To begin addressing the serious concerns raised by incendiary weapons, CCW states parties should hold informal consultations that at a minimum assess the adequacy of Protocol III and consider ways to create stronger international standards.
“Countries should renew their calls to dedicate diplomatic time to discussing concerns about incendiary weapons,” Docherty said. “They should remain motivated by the words of survivors to advance the protection of civilians from these cruel weapons.”
October 26, 2022
Preventing Civilian Harm from Explosive Weapons: Report Calls for Endorsement and Strong Interpretation of New Political Declarations
All countries should endorse a new political commitment aimed at protecting civilians from the bombing and shelling of cities and towns during wartime, Harvard Law School’s International Human Rights Clinic (IHRC) said today in a report released with Human Rights Watch.
The 23-page report, “Safeguarding Civilians,” examines the Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences Arising from the Use of Explosive Weapons in Populated Areas, which opens for countries to endorse in Dublin, Ireland on November 18, 2022. Governments should endorse the declaration and interpret its provisions to be most protective of civilians in their statements to the conference in Dublin and beyond.
“The declaration on explosive weapons in populated areas offers a valuable tool to safeguard civilians from one of the greatest threats in contemporary armed conflict,” said Bonnie Docherty, IHRC’s associate director of armed conflict and civilian protection. “All countries should endorse the declaration at the highest levels and in the strongest terms to demonstrate their commitment to its success in practice.”
Civilians account for the vast majority of people who are killed or injured when explosive weapons, such as aerial bombs, rockets, artillery and mortar projectiles, and missiles, are used in populated areas. The immediate impacts include deaths, injuries, and psychological harm, as well as damage to and destruction of homes and other civilian structures.
All countries should endorse a new political commitment aimed at protecting civilians from the bombing and shelling of cities and towns during wartime, Harvard Law School’s International Human Rights Clinic (IHRC) said today in a report released with Human Rights Watch.The indirect, or reverberating, effects caused by the use of explosive weapons in populated areas include damage to or destruction of critical civilian infrastructure, such as power plants, healthcare facilities, and water and sanitation systems. This interferes with the delivery of basic services, such as health care and education, infringing on human rights. Explosive weapons also harm the environment and drive displacement of civilians.
The declaration finds that the wide-area effects of certain explosive weapons heighten the risk of “devastating impacts on civilians.” Explosive weapons have wide-area effects if they have a large blast and fragmentation radius, are inaccurate, or deliver multiple munitions at once, or have a combination of these characteristics. Examples include certain air-delivered weapons, large-caliber artillery, multi-barrel rocket launchers, mortars, artillery, and rockets that fire unguided munitions.
IHRC, Human Rights Watch, and other groups have documented the direct and indirect effects of explosive weapons in recent armed conflicts, including in Afghanistan, Armenia, Azerbaijan, Gaza, Iraq, Libya, Somalia, Sri Lanka, Syria, Ukraine, and Yemen.
Recognizing the acute need for action, more than 70 countries began a political process in 2019 to address the civilian harm inflicted by the bombing and shelling of towns and cities.
Governments agreed to the final text of the draft declaration on the use of explosive weapons in populated areas at the United Nations in Geneva on June 17, 2022.
Under the declaration’s core commitment, countries agree to adopt and implement national policies and practices that strive to avoid civilian harm by “restricting or refraining from” the use of explosive weapons in towns, cities, and other populated areas.
“Governments should pledge to refrain from using explosive weapons with wide-area effects in populated areas due to the foreseeable harm to civilians,” said Docherty, also a senior arms researcher at Human Rights Watch. “Explosive weapons with wide-area effects are a completely inappropriate choice for use in populated areas as they pose a heightened risk of harm to civilians.”
Countries should further state they will restrict the use of all other explosive weapons in populated areas when civilian harm is expected.
IHRC and Human Rights Watch also interpret other key commitments of the declaration in their report. Governments should pledge to take both the direct and indirect effects of the use of explosive weapons in populated areas into account in planning and executing attacks because they are reasonably foreseeable.
Governments should adopt robust and inclusive victim assistance programs and collect and share operational data as well as information on the effects of explosive weapons. They should, in addition, clarify the regularity and substance of their future work on the declaration, including meetings to promote the declaration’s commitments.
Human Rights Watch is a co-founder of the International Network on Explosive Weapons, the coalition of civil society groups that has pushed for such a political declaration since 2011.
“This declaration goes beyond simply restating existing international law by committing states to take additional steps that help advance humanitarian ends,” Docherty said. “Countries should interpret the declaration in a way that will maximize its goal of civilian protection as a critical first step toward ensuring it is effectively carried out.”
Bonnie Docherty co-authored and supervised the production this report. IHRC students Madeleine Cavanagh JD ’23, Gayane Matevosyan JD ’23, Hina Uddin JD ’24, and Laila Ujayli JD ’24 also contributed significantly to the research and writing of this report.
June 15, 2022
Posted by Bonnie Docherty
When the First Meeting of States Parties (1MSP) to the Treaty on the Prohibition of Nuclear Weapons (TPNW) convenes in Vienna from June 21-23, much of the discussion will center on how to implement the treaty’s positive obligations to remediate the contaminated environment and assist victims.
These provisions are critical because nuclear weapons wreak havoc on the environment and the people who live in it. Radioactive contamination from the weapons’ use and testing devastates ecosystems; causes death, disease, and psychological trauma; displaces entire communities; destroys cultures; and more.
To respond to this harm and inform the 1MSP’s debate, the Harvard Law School International Human Rights Clinic (IHRC) and the Conflict and Environment Observatory (CEOBS) have released a new report entitled Facing Fallout: Principles for Environmental Remediation of Nuclear Weapons Contamination. The report identifies 19 principles for implementing remediation measures and includes an in-depth commentary with explanation and precedent for each.
Facing Fallout complements a 2020 report by the same authors entitled Confronting Conflict Pollution: Principles for Assisting Victims of Toxic Remnants of War. Victim assistance directly addresses the harm nuclear weapons cause to humans, while environmental remediation responds to its major underlying cause, i.e., radioactive contamination. Collectively, the reports set up a framework for a long-term response to the consequences of nuclear weapons.
A new IHRC fact sheet, also released today, summarizes the environmental
remediation and victim assistance principles and lays out measures for initiating implementation to which TPNW states parties should commit at the 1MSP. In particular, the 1MSP should agree to: assess needs and state capacity, create a national infrastructure for environmental remediation and victim assistance, establish an informal intersessional working group, promote inclusivity, and uphold guiding principles of implementation. The fact sheet’s recommendations are similar to those put forth in a working paper by 1MSP co-facilitators Kazakhstan and Kiribati.
IHRC and CEOBS based the principles in Facing Fallout on humanitarian disarmament law, international environmental law, international human rights law, and related policies. Where appropriate, they adapted these models to the distinctive characteristics of nuclear weapons.
The principles are especially relevant for TPNW states parties, but they are also applicable to any state that seeks to remediate nuclear weapons contamination in its territory. They are summarized below according to their six categories:
Purpose and Character
Environmental remediation should address existing harm and unacceptable risks of future harm to the environment and affected communities caused by contamination from the use and testing of nuclear weapons. States should follow the precautionary principle and an iterative approach, adopt international standards and best practices, and use best available technologies.
Definition of Harm
The harm caused by nuclear weapons contamination should be understood broadly to encompass, inter alia, environmental degradation; loss of biodiversity; physical and psychological injuries and death; social marginalization; economic loss; loss of access to natural resources; obstacles to participation in cultural life; displacement of local communities; and substantial impairment of the realization of the human rights.
Framework of Shared Responsibility
Affected states should bear primary responsibility for environmental remediation of territory under their jurisdiction or control, while other states should provide technical, material, and financial assistance to help affected states meet their responsibilities. States and non-state actors should exchange scientific and technical information and promote capacity building.
Steps of Environmental Remediation
Affected states should begin by creating a national plan and assessing, surveying, and recording the problem, although plans and assessments may need to be updated over time. Affected states should also conduct an optimization analysis in which they evaluate different options and implement the one that produces the greatest benefit to affected communities and the environment. The analysis should take into account environmental, human health, social, cultural, and economic considerations as well as the preferences of affected communities and other stakeholders.
Affected states should ensure risk education is available. They should break, disrupt, or remove pathways by which people are exposed to contamination, such as through marking and fencing and controlling food and water sources. If robust remediation is necessary and appropriate, they should address the contamination itself through containment and other treatment measures. Taking care during handling, transport, and removal of waste as well as long-term site management is also critical.
Handling of Information
Affected states should collect and disseminate information about affected sites and communities and remediation measures, and preserve it for the conceivable radiological life of the contaminated waste.
Affected states should meaningfully consult with and actively involve affected communities, their representative organizations, nongovernmental organizations, and other stakeholders at all stages of the remediation process. They should adhere to the principle of non-discrimination and ensure transparency of the process.
TPNW states parties should take advantage of next week’s 1MSP to make concrete commitments to begin the process of operationalizing the treaty’s positive obligations. But in the intersessional period and beyond, they should start looking to the future and develop a long-term framework for environmental remediation and victim assistance. The IHRC-CEOBS principles and commentaries provide in-depth and well-grounded guidance for that endeavor.
Bonnie Docherty, associate director of armed conflict and civilian protection IHRC was co-author and editor of Facing Fallout. A number of IHRC students contributed significantly to the conceptualization, research, and writing of the report: Naima Drecker-Waxman, Andie Forsee, Gillian Hannahs, Amy Hayes, David Hogan, Lavran Johnson, Jillian Quigley, Erin Shortell, Dane Underwood, Theo Wilson, and Jack Jaehyuk You. CEOBS provided guidance and review of the report.
March 23, 2022
Bonnie Docherty, Clinic’s Associate Director of Armed Conflict and Civilian Protection, testifies before Congressional subcommittee about weapons use in Ukraine
Posted by Bonnie Docherty
On March 16, 2022, Bonnie Docherty testified at a House Foreign Affairs Committee, Subcommittee on Europe hearing about early signs of of war crimes and human rights abuses committed by the Russian military during the full-scale invasion of Ukraine. She described Russia’s use of cluster munitions and explosive weapons in populated areas, highlighted the effects of the indiscriminate attacks, and called on the United States to condemn Russia’s actions and improve its own policies with regard to these weapons.
Watch Docherty’s testimony before Congress below.
To read Docherty’s written testimony, click here.
March 23, 2022
Russia’s Use of Cluster Munitions and Other Explosive Weapons Shows Need for Stronger Civilian Protections
Posted by Bonnie Docherty
This article was first published on Just Security.
In the current armed conflict in Ukraine, Russian forces have relied heavily on two types of weapons that are notorious for the unacceptable and often unlawful harm they inflict on civilians. The weapons are cluster munitions, which have been banned by most countries in the world, and explosive weapons with wide area effects, which when used in populated areas are among the major causes of civilian casualties in contemporary armed conflict.
Attacks with these weapons have already killed and injured hundreds of civilians, turned buildings into rubble, and led to mass displacement. Judging by the experience of past conflicts, they will most likely also leave Ukraine with a legacy of harm that lingers long after active hostilities end.
Cluster munitions, large weapons that contain dozens or hundreds of smaller weapons called submunitions, endanger civilians for two reasons. First, they have a wide area effect because they spread their submunitions over a broad footprint, commonly the size of a football field. These submunitions cannot distinguish soldiers from civilians when used in populated areas. Second, many of their submunitions do not explode on impact, becoming de facto landmines that pose threats to civilians for months, years, or even decades after a conflict. These so-called “duds” are frequently detonated by children who think they are toys, farmers who hit them with their plows, or refugees who return home.
The immediate harm caused by cluster munitions has already been evident in Ukraine. Human Rights Watch (where I am a senior researcher) documented a strike by Russian forces near a hospital in Vuhledar in the Ukraine-controlled Donetska region on Feb. 24. A 9M79-series Tochka ballistic missile delivered a 9N123 cluster munition warhead, containing 50 submunitions. The attack killed four civilians and injured another 10, including six healthcare workers. It damaged a hospital building, an ambulance, and civilian vehicles.
Four days later, on Feb. 28, Russian forces launched 9M55K Smerch cluster munition rockets in three neighborhoods of Kharkiv, Human Rights Watch found. Each of these rockets, which are often fired in volleys of 12, carries 72 9N235 submunitions. The United Nations reported nine civilian deaths and 37 injuries in attacks across the city that day.
Russian forces launched Smerch and Uragan cluster munitions into the city of Mykolaiv on Mar. 7, 11, and 13, reportedly killing nine civilians in line at a cash machine on the last day alone, according to more recent Human Rights Watch research. Other organizations and journalists have also reported cluster munition attacks in Ukraine.
International humanitarian law (IHL)’s rule of distinction requires parties to a conflict to distinguish between civilians and combatants and between civilian objects and military objectives. The use of cluster munitions, at least where civilians may be present, violates this rule. Human Rights Watch and others argue they are inherently indiscriminate. At the time of attack, the wide-area effect of these weapons prevents them from distinguishing between combatants and non-combatants. In addition, the unexploded submunitions they leave behind makes them indiscriminate because their effects cannot be limited. Attacks using cluster munitions in populated areas may also violate the principle of proportionality, which prohibits attacks in which expected injury to civilians or damage to civilian objects is excessive in relation to anticipated military advantage.
Due to the unacceptable harm cluster munitions cause and their indiscriminate nature, the 2008 Convention on Cluster Munitions bans their use, production, transfer, and stockpiling. Although Russia and Ukraine have not joined the treaty, 110 countries are party, including most NATO countries (although not the United States).
The convention also obligates each state party to “promote the norms it establishes and … make its best efforts to discourage States not party to this Convention from using cluster munitions.” In compliance with this provision, at least 15 states parties have condemned or expressed concern about Russia’s use of cluster munitions in Ukraine.
The president of the Convention on Cluster Munitions, which is currently the United Kingdom, along with the NATO Secretary-General, the UN High Commissioner for Human Rights, and the European Union have also condemned the use of cluster munitions in Ukraine.
Explosive Weapons in Populated Areas
While cluster munitions are especially horrific for civilians, they are just one type of explosive weapon. The broader category of explosive weapons, which encompasses artillery shells, mortar rounds, rockets, missiles, enhanced blast (aka thermobaric) weapons, and aerial bombs, among others, has caused the bulk of the conflict-related damage in Ukraine.
The use of explosive weapons in populated areas has grave humanitarian consequences both during and after attacks. Those effects are magnified when the weapons have wide area effects because: they have a large blast or fragmentation radius; they are inaccurate; they deliver multiple munitions at once (e.g., cluster munitions); or they have a combination of the above.
Russia’s bombing and shelling of Ukraine’s cities and towns has taken a physical and psychological toll on the civilian population. According to Human Rights Watch, Russian artillery shelling and airstrikes killed or injured more than 450 civilians in the city of Kharkiv in the first 11 days of the conflict. The attacks have also leveled homes, apartment buildings, and other primarily civilian structures and infrastructure, and damaged the environment.
The costs of this method of war, however, extend beyond its direct effects. The use of explosive weapons with wide-area effects in populated areas also causes indirect and reverberating effects. The destruction of infrastructure can interfere with essential services and in turn infringe on an array of human rights.
In 2016, I co-authored an in-depth report on the effects of explosive weapons’ use on health care in the earlier conflict in eastern Ukraine, which was published by Harvard Law School’s International Human Rights Clinic (where I teach) and PAX. We found, for example, that damage to power plants and communication lines seriously affected hospitals and the provision of health care, and thus undermined the right to health. Such reverberating impacts will almost certainly be more severe in the current – much larger – conflict.
The use of explosive weapons in populated areas also exacerbates displacement. As of Mar. 18, more than three million people had fled Ukraine as a result of the conflict, according to the UN Refugee Agency (UNHCR). The attacks on urban centers with explosive weapons are one of the driving factors.
In a statement to the UN Security Council, a representative from the UN Office for the Coordination of Humanitarian Affairs (OCHA) noted that many of these effects were already being felt by Feb. 28. “As we all feared, civilians are already paying the price,” he said. “The scale of civilian casualties and damage to civilian infrastructure, even in these very early days, is alarming.”
Explicitly highlighting the dangers of the use of explosive weapons with wide-area effects, he continued, “Civilians will undeservedly suffer the most from these attacks on densely populated urban centres. . . . And the longer this goes on, the greater the cost will be for civilians.”
Using explosive weapons with wide-area effects in populated areas can be expected to result in indiscriminate attacks with a high loss of civilian life. The patterns of harm to civilians that these weapons cause, including their reverberating effects, are well documented and heighten concerns that attacks will also be disproportionate. In addition, the use of explosive weapons with wide area effects in populated areas is generally counter to the IHL duty to take all feasible precautions to minimize civilian harm. Those who are responsible for using explosive weapons unlawfully with criminal intent are committing war crimes.
While explosive weapons, unlike cluster munitions in particular, are not banned by any instrument of international law, countries have been working toward a political declaration that addresses the humanitarian consequences of their use in populated areas. The next round of negotiations of this Ireland-led process, which had been postponed by the Covid-19 pandemic, are now scheduled for April 6-8.
The events in Ukraine underscore how important it is for countries to include in the declaration a commitment to avoid the use of these weapons in populated areas. This political commitment, although non-binding, would set important standards for dealing with a deadly practice of modern war.
The concern regarding Russia’s use of explosive weapons in Ukraine’s urban centers from countries including Austria and Ireland, and as stated in the UN Human Rights Council resolution of Mar. 4, demonstrates the growing support for these standards.
Cease and Condemn
The horrific images and accounts emerging from Ukraine offer a glimpse of the immediate harm that Russian cluster munitions and explosive weapons are inflicting on Ukraine’s civilians. Documentation of the effects of these weapons in past conflicts suggest the harm will be long term.
To prevent furthering the humanitarian crisis, Russia should immediately cease the use of cluster munitions and avoid using explosive weapons with wide area effects in populated areas. Other countries and the United Nations should support documentation efforts to ensure domestic and international accountability for any violations of IHL and international human right law and in particular support the International Criminal Court’s Ukraine investigation.
Other states and the United Nations should also explicitly condemn the use of cluster munitions and explosive weapons with wide area effects in populated areas. Such focused criticism will not only increase pressure on Russia to change its practices in Ukraine. It will also strengthen the international norms against these means and methods of war.
It will bolster the Convention on Cluster Munitions, increasing its influence among countries that have not already joined; encourage the adoption a robust political declaration on explosive weapons in populated areas; and in so doing, help improve protections for civilians in future conflicts.
February 9, 2022
By Bonnie Docherty, Harvard Law School’s International Human Rights Clinic and Human Rights Watch
From the Humanitarian Disarmament website
While the year 2021 ended on an intense and draining note, with the Sixth Review Conference of the Convention on Conventional Weapons (CCW), 2022 has begun slowly for humanitarian disarmament. The COVID-19 pandemic, which continues to affect progress in the field, has postponed planned negotiations and milestone meetings.
Nevertheless, barring further pandemic-related interference, the new year promises to advance several key humanitarian disarmament issues. It should produce a new political declaration on the use of explosive weapons in populated areas, see states parties convene for their first meeting under the Treaty on the Prohibition of Nuclear Weapons (TPNW), and mark a turning point in efforts to address the threats posed by autonomous weapons systems.
Explosive Weapons in Populated Areas
A new international instrument is on the horizon for dealing with the use in populated areas of explosive weapons, such as mortars, artillery shells, rockets, and air-dropped bombs. This method of war causes extensive civilian harm both at the time of attack and long after. That harm is exacerbated when the explosive weapons have wide area effects because they are inaccurate, have a large blast or fragmentation radius, or deliver multiple munitions at once.
Ireland initiated a process in 2019 to develop a political declaration to protect civilians from the use of explosive weapons in populated areas. Draft versions of the declaration recognized the harm this practice inflicts and included commitments for restricting the use of explosive weapons with wide area effects, providing victim assistance, and collecting data.
While the latest draft should be strengthened, the negotiations for the final version have been at the mercy of COVID-19. The consultations to conclude the document, originally scheduled for late March 2020, were the first major disarmament meeting to fall victim to the global pandemic. After at last being able to reschedule the consultations for February 2022, Ireland was compelled to postpone them once again when the Omicron variant meant that the relevant state and civil society representatives would be unable to attend an in-person meeting in Geneva.
Although a new date has not yet been set, Ireland reportedly aims to hold the negotiations in the first half of 2022. If it succeeds, humanitarian disarmament will have another instrument in its toolbox—a political commitment that addresses one of the most significant humanitarian concerns of contemporary armed conflict.
In addition to celebrating the “Banniversary” of the Treaty on the Prohibition of Nuclear Weapons, the first anniversary of its entry into force, on January 22, states and civil society have been busy preparing for the treaty’s First Meeting of States Parties (1MSP). The meeting was previously moved from January to March 2022, and Austria, president of the meeting, recently announced it will need to be rescheduled again, most likely until mid-year.
Whenever it takes place, the 1MSP will be a crucial moment in the life of the TPNW. It provides states parties the opportunity to set priorities for the years ahead and to begin the process of turning the treaty’s obligations into actions.
Discussions around the TPNW’s “positive obligations” for victim assistance, environmental remediation, and international cooperation and assistance will be particularly important for advancing the humanitarian disarmament agenda. These obligations ensure that the treaty provides a comprehensive response to the consequences of nuclear weapons, i.e., addressing the harm from past use and testing as well as preventing future harm. The 1MSP’s declaration and action plan should commit states parties to establishing an implementation framework, approving an intersessional workplan, developing reporting guidelines, and including affected communities at all stages.
A working paper from Kazakhstan and Kiribati, which Austria appointed co-facilitators of the 1MSP’s work on the positive obligations, recommended addressing these and other measures in the 1MSP’s outcome documents. Many states parties and civil society organizations expressed their support in written submissions, and consultations are ongoing.
Other important areas that the 1MSP will deal with include universalization and deadlines and verification procedures for dismantling nuclear arsenals.
For killer robots, the significance of 2022 is the opportunity it presents for supporters of a new treaty to change direction.
Weapons systems that select and engage targets based on sensor processing rather than human inputs raise a host of moral, legal, accountability, and security concerns. As a result, the majority of states at the CCW’s Sixth Review Conference called for negotiations to create a new legally binding instrument on the topic. Most called for a combination of prohibitions on weapons that lack meaningful human control, prohibitions on autonomous weapons systems that target people, and restrictions on all other autonomous weapons systems to ensure that they are never used without meaningful human control.
The failure of the conference to adopt a negotiation mandate underscored the shortcomings of that forum and the inability of this consensus body to make real progress on a matter of grave and urgent humanitarian concern. After eight years, CCW discussions on lethal autonomous weapons systems have more than run their course.
It is time, therefore, for states that support a legally binding instrument on these emerging weapons to pursue negotiations in an alternative forum. They can look for models to the origins of other humanitarian disarmament treaties, notably the independent processes that led to the Mine Ban Treaty and the Convention on Cluster Munitions, and the UN General Assembly process that led to the TPNW.
Many states said that they could not consider alternative forums until after the Review Conference, but that moment has passed and the CCW has failed to produce results. This year presents a clean slate. It is time for all supporters of a treaty to shift their sights and for champion states to step up and take the lead on a new process.
While the pandemic is likely to play a role in the timing of progress this year, humanitarian disarmament—not a global disease—should determine 2022’s developments.
Participants in the negotiations of the explosive weapons political declaration should ensure the final draft maximizes civilian protection. States, international organizations, civil society groups, and survivors should work together to produce strong 1MSP outcome documents that help the treaty live up to its humanitarian potential in practice. Finally, proponents of a new legally binding instrument on autonomous weapons systems should start fresh and focus on what process can best lead them to the strongest humanitarian outcome.
January 19, 2022
IHRC’s Bonnie Docherty Shares Thoughts on the Sixth Review Conference of the Convention on Conventional Weapons
By Sarah Foote with Bonnie Docherty
Countries party to the Convention on Conventional Weapons (CCW), a major international disarmament treaty, convened last month at the United Nations in Geneva for its Sixth Review Conference. They focused much of their attention on two topics: killer robots, which they refer to as lethal autonomous weapons systems, and incendiary weapons. Students from the International Human Rights Clinic, under the supervision of Bonnie Docherty, have contributed to civil society efforts to push for negotiations of a new treaty on killer robots, which would select and engage targets without meaningful human control. The Clinic and Human Rights Watch have also spearheaded advocacy to initiate a process to revisit and strengthen CCW Protocol III, which governs incendiary weapons. That protocol has loopholes that undermine its ability to protect civilians from the horrors of incendiary weapons, the source of excruciating burns and lifelong suffering.
In the conversation below, Bonnie Docherty reflects on the Review Conference, its outcomes, and the next steps for these critical humanitarian issues.
Q. You weren’t able to travel to Geneva for the Review Conference of the Convention on Conventional Weapons held last December due to COVID. Were you able to watch the talks?
Bonnie Docherty: I watched all of the sessions from 4 am -12 pm for two and a half weeks through the UN Web TV live stream. Delegates from some countries and organizations did attend in person. However, due to COVID and Omicron, many civil societies representatives and diplomats did not attend for safety reasons. I participated actively through text messages, What’s App, emails, and meetings via Zoom with diplomats and colleagues. I used these tools to advocate for our issues and keep up-to-date with the people on the ground.
Although I could not make remote interventions myself, a Human Rights Watch representative read a statement that expressed our position on killer robots and incendiary weapons. A colleague from Mines Action Canada also delivered a statement I wrote on behalf of eight civil society organizations regarding incendiary weapons.
Q. What were the most important takeaways from the CCW discussions?
Bonnie Docherty: With regard to incendiary weapons, the outcome of the Review Conference on paper was disappointing because Russia refused to agree to put Protocol III on the agenda for next year. CCW operates by consensus so any one state can block progress. It was very discouraging after our all efforts to put forward a reasonable request—to hold dedicated discussions of the topic next year.
That said, there were powerful and encouraging statements from many states who supported having these discussions. There were impassioned pleas to stop the cruelty that incendiary weapons can cause. These countries understood the true human impact these types of weapons have, and this was important progress. They also recognized victims and the harm they have suffered.
Regarding autonomous weapons systems, the Review Conference made clear that progress on this issue cannot be made in a consensus body. Hopefully, the failure of the Conference to agree to negotiate a legally binding instrument will inspire states to go to a different forum and adopt a new treaty to make real change.Continue Reading…
December 7, 2021
New Voices against Incendiary Weapons: Healthcare Professionals, Burn Survivor Groups Demand Stronger Law
Posted by By Nick Fallah, JD’23, and David Hogan, JD ’22 Harvard Law School International Human Rights Clinic From the HUMANITARIAN DISARMAMENT website
Incendiary weapons, which produce heat and fire through the chemical reaction of a flammable substance, cause grievous injury and long-term suffering for civilians. Protocol III of the Convention on Conventional Weapons (CCW) prohibits and regulates certain uses of incendiary weapons, but it contains loopholes that have limited its effectiveness.
As CCW states parties prepare to discuss these weapons and Protocol III at the CCW’s Sixth Review Conference, scheduled for December 13-17, 2021, healthcare professionals and burn survivor organizations have an opportunity to add their voices, expertise, and moral authority to the debate. They should sign an open letter that calls on states to “recognize the unnecessary human cost of incendiary weapons and initiate a process to revisit and strengthen” Protocol III.
The open letter, signed to date by more than 36 individuals and organizations from 7 countries, seeks to bring the views of those who have a unique knowledge of burn injuries to the diplomatic table. According to the letter,
Those of us who are healthcare professionals, including burn specialists, understand the human impacts of such injuries and the challenges of treating them. . . . Those of us who are burn survivors or their family members have directly or indirectly experienced the effects of burn injuries and empathize with those who suffer the immediate and lifelong consequences of incendiary weapons.
As the letter explains, the harm that incendiary weapons inflict on people is nothing short of horrific. These weapons, including those with white phosphorous, can burn people to the bone or smolder inside the body. They frequently cause severe or even fatal burns over more than 15 percent, and often more than 50 percent, of a victim’s total body surface area. The pain to survivors is so great that they often must take the maximum dosage of painkilling medication, and the burns leave victims at severe risk of infection and death. A 2013 incendiary weapon attack on a school in Syria killed several students and wounded many more. The flames burned an 18-year-old student named Muhammad, covering over 85 percent of his body including half his face, neck, back, and both legs and feet. To relieve the suffering of another boy whose throat had been scorched, a doctor intubated and sedated him, although, as the doctor expected, he died within the hour.
The impacts of incendiary weapons can last a lifetime. Thick scars cause contractures, which restrict muscles and joints, impede mobility, and can stunt the growth of children. Severe pain can linger for decades, and survivors may also suffer from skin damage, excessive dryness, either hypersensitivity or loss of sensation, and a range of physical disabilities. The trauma of an attack as well as its long-term physical effects can cause lasting psychological harm, and a survivor’s injuries and scarring can make it difficult to reintegrate into society socially and economically. Long-term harm is exacerbated by the lack of specialist medical personnel in combat zones, and the lack of adequate equipment and resources even when specialists are available.
CCW Protocol III has failed to prevent this kind of harm to civilians at least in part because two loopholes weaken its prohibitions and regulations. First, the protocol’s definition of incendiary weapons excludes most multipurpose weapons with incendiary effects, such as white phosphorus. Second, the protocol has weaker restrictions for ground-launched weapons than for airdropped ones, even though they have the same damaging effects. CCW states parties should amend Protocol III to remove these loopholes and focus the law on the weapons’ effects rather than on their primary purpose or delivery mechanism. Doing so would create stronger international norms that could influence states parties and states not party alike.Continue Reading…
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