Categorical and specific rules on explosive weapons

The first part of this report shows that explosive weapons are regulated in an incoherent and fragmentary manner in international law and policy.

Existing regulatory categories and notions are at times vague, ill-defined and overlapping and do not formally recognize the shared fucntioning of explosive weapons through blast and fragmentation. Standards built around the category and term “explosive weapons” would bring greater

387 Security Council, UN document S/PV.6790 (Resumption 1), 25 June 2012, statement by Ms. Juen (Austria), p. 16.

388 ICRC, International Humanitarian Law and the challenges of contemporary armed conflicts, document 31IC/11/5.1.2, October 2011, p. 41.

389 INEW, “INEW advocacy ahead of Security Council debate on protection of civilians”, 14 May 2012, <www.inew.org/news/inew-advocacy-ahead-of-security-council-debate-on-protection-of-civilians>

clarity and coherence and allow for a categorical treatment of this weapon category.³⁹⁰

Making the explosive effects of weapons explicit in standards governing the use of weapons and in standards on the protection of civilians would provide more focused attention to this specific humanitarian issue. Existing standards on the protection of civilians from the use of explosive weapons inadequately recognize the risks to civilians from blast and fragmentation.

Under half of the 49 international texts that reflect a standard on the protection of civilians from explosive (and other) weapons contain an explicit reference to explosive characteristics of weapons.³⁹¹ In the issue areas “law enforcement/human rights” and “protection of civilians/conduct of hostilities” over two thirds do not contain such an explicit reference.³⁹² All of these texts also reflect a standard on the use of weapons.³⁹³ How can standards that do not explicitly acknowledge the explosive characteristics of weapons effectively protect civilians against blast and fragmentation effects?

In relation to law enforcement, acknowledging the blast and fragmentation effects of explosive weapons would demarcate this weapon technology as generally incompatible with human rights standards on the use of force, particularly with regard to the rights of bystanders. Their explicit and categorical exclusion from law enforcement would reinforce the sense that state use of explosive weapons, particularly in populated areas, marks the crossing of an important boundary. Implicit in the transition from “normal”

law enforcement to a situation where the population is exposed to this increased risk of harm is a change in the relationship between the state and

390 “The GICHD [Geneva International Centre for Humanitarian Demining] hopes that one day an overall treaty will be feasible which includes all explosive weapons. It could be based on the work of the International Network on Explosive Weapons (INEW), a collective of NGOs which is calling for stricter rules about bombing in inhabited areas”. Luigi Jorio, “Landmines: the legacy of war that goes on killing”, swissinfo.ch, 14 August 2012, <www.swissinfo.

ch/eng/politics/foreign_affairs/Landmines:_the_legacy_of_war_that_goes_on_

killing.html?cid=33298876>

391 Only eight of 49 texts do not refer to such characteristics, nor can a distinction be inferred.

392 Eighteen of 26 texts (69 %) dealing with the protection of civilians and/or the conduct of hostilities.

393 See p. 89 on a similar finding regarding standards on the use of weapons.

the population among which force is used.³⁹⁴ Particularly the use of heavy explosive weapons heralds a humanitarian protection crisis, characterized by potentially large numbers of civilians killed or severly injured, of public infrastructure being damaged or destroyed, populations displaced, and land contaminated with UXO. It also signals that the violence may be of such intensity as to have reached the threshold of an armed conflict.

In relation to armed conflicts, making the explosive characteristics of weapons explicit could further a categorical approach to protecting civilians from their effects, both in terms of direct death and injury, and with regard to indirect or longer-term impacts. Under existing IHL, the standards on the protection of civilians are generally not weapon-specific and focus on the direct impacts of individual attacks. The use of explosive weapons in populated areas does not attract a uniform applicable set of consequences.

Whereas area bombardment is prohibited under customary law and cluster munitions are banned under treaty law, the use, in populated areas, of other heavy explosive weapons is not specially regulated. States’

views on which explosive weapons may be used in such a context vary.

Consider in this respect, the report issued by the Swiss federal government in support of ratifying the CCM. The government stressed that given the rapid progress of urbanization in Switzerland future combat operations would mainly be carried out in built-up areas. Accuracy and precision, the government argued, were of the utmost importance in such a context and cluster munitions did not fulfil these requirements. At the same time, however, the government reassured that Switzerland’s indirect artillery fire capabilities would be fully retained, without discussing the disastrous humanitarian consequences that such use in built-up urban areas—even if accurately delivered—would undoubtedly entail.³⁹⁵ Focus on the notion 394 For a detailed elaboration of this argument, see Richard Moyes, Explosive Violence, The Problem of Explosive Weapons, Landmine Action, 2009, pp. 46–50.

395 Swiss Federal Council, Message relatif à l’approbation de la Convention sur les armes à sous-munitions ainsi qu’à la modification de la loi sur le matériel de guerre, 11.036, 6 June 2011, pp. 5935–5936. A parliamentary postulate raises the point that artillery is used from a long distance of up to 20km and hence causes the munitions to disperse in all directions. In inhabited areas, the parliamentarians caution, artillery fire would cause grave damage to buildings, persons and infrastructure. The Swiss government is expected to report on the future of artillery by the end of 2013. Security Policy Committee of the Swiss Council of States, Avenir de l’artillerie, Curia Vista 11.3752, 4 July 2011.

Along similar lines, UK Ministry of Defence, The Joint Service Manual of the

of explosive weapons with wide area effects would further a coherent way of addressing humanitarian harm and could constitute an important boundary in efforts to find leverage towards reductions in civilian harm from explosive weapons.³⁹⁶

4.2. RECOGNIZING THE PARTICULAR PROTECTION CONCERNS