Recognizing the particular protection concerns

Recognizing the specific concerns that arise in the context of populated areas would enhance the protecting of civilians and reduce humaniatian harm. Existing standards already reflect concern about locations containing crowds or which are densely populated. Of 49 texts that reflect a standard on the protection of civilians only 10 make no reference to locations containing concentrations of civilians. Surprisingly, though, only 26 of the 39 texts that mention populated areas also clearly apply a standard of protection to such places that differs from the standards applicable in other contexts. Under IHL, not all places likely to contain concentrations of civilians enjoy equally specific protection, and civilians in populated areas remain at risk of harm from attacks on military objectives in their vicinity.

Law of Armed Conflict, document JSP 383, 2004, para. 5.23.3, discussing the prohibition on indiscriminate attacks by area bombing cities towns or villages, notes: “There is nothing to prevent the use of artillery covering fire” in such a context, although of course, precautionary measures would have to be taken. Note also, that despite the adoption of a new indirect fire policy by AMISOM, commentators recently identified “ongoing use of indirect fire … in civilian areas” as a remaining key challenge to the protection of civilians in that context. Walter Lotze and Yvonne Kasumba, “AMISOM and the Protection of Civilians in Somalia”, Conflict Trends, no. 2, 2012, p. 24.

396 INEW, “UN Security Council response to violence in Syria”, 28 May 2012, http://www.inew.org/news/un-security-council-response-to-violence-in-syria. See also, John Borrie and Maya Brehm, “Enhancing civilian protection from use of explosive weapons in populated areas: building a policy and research agenda”, International Review of the Red Cross, vol. 93, no. 883, September 2011, p. 28, which underlines the risk that, without informed understanding of the effects of explosive weapons as a category and in the absence of rigorous examination of user claims about these weapons, military interventions authorized by the United Nations Security Council involving the use of explosive weapons for the purposes of protecting civilian populations against the use of explosive weapons may breed cynicism.

Descriptions of populated areas in regulatory texts vary across issue areas, but broadly speaking they identify places where civilians live, work or gather, and places or objects that fulfil an important social function. The descriptions highlight different factors that affect the likelihood and severity of civilian harm, which standards on the protection of civilians should take into account.

The characterizations of populated areas shown in table 4³⁹⁷ indicate that civilian harm is often a function of population density. References to population or traffic density, gatherings or assemblies, stress that an explosion in the presence of a high number of civilians increases the likelihood of civilian harm. But reference to markets, farming land, health or other public infrastructure, and places of public use, also point to the function these places fulfil in society. Damage to infrastructure in such places bears a high risk of causing indirect civilian harm, potentially over a long time, through the denial of access to services essential to the survival and well-being of the civilian population.³⁹⁸

397 A text can include more than one description. In relation to judicial decisions, only descriptions used by the court were counted.

398 Consider the IATG description of “vulnerable buildings” as large educational facilities, hospitals, multi-story apartment buildings, major transport centres, major public utilities facilities for mass meetings and built-up areas. United Nations, IATG 05.20:2011(E), p. 13.

Table 4. Frequency of formulation used to refer to populated areas in texts which reflect a standard on the protection of civilians, by issue area

Human

Existing notions under IHL convey the sense that protection hinges on the presence of civilians at the time of attack. 1980 CCW Protocol III describes “concentration of civilians” as “permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages, or as

in camps or columns of refugees or evacuees, or groups of nomads”.³⁹⁹ The term “populated” areas reinforces this impression. But considering the importance of shelter, livelihoods and public services for the survival and well-being of communities in the short and long term, the protection of objects and infrastructure should not end if the civilian population has fled, been evacuated, or has been forcibly removed. Note, for example that the prohibition on area bombardment in Additional Protocol I refers to areas containing a concentration of civilians or civilian objects.⁴⁰⁰ The definition of “public place” in the Terrorist Bombings Convention refers to a place being accessible or open to the public, rather than to the presence of a high number of civilians in that place.⁴⁰¹ The question is not merely academic, as the example of the Afghan villages Tarok Kolache, Khosrow Sofla and Lower Babur dramatically illustrates. The US Air Force droped 49,200lbs of rockets and bombs on them instead of clearing IEDs they suspected to have been placed there. No casualties were reported, but the villages were completely flattened and erased from the map.⁴⁰²

Care should be taken not to reduce humanitarian concerns around the use of explosive weapons in populated areas to the issue of “urban warfare”.

Explosive violence in cities presents certain particularities that should be recognized, but the use of heavy explosive weapons raises concerns in urban and in rural settings alike. The capacity of heavy explosive weapons to reduce the built environment to rubble profoundly affects communities.

Beyond direct and indirect death or injury, such use constitutes an assault on shared or public spatiality, an attack on the possibility of

being-with-399 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III to the CCW), 10 October 1980, art. 1(2) (emphasis added).

400 Consider also ICRC, Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, September 1956, art. 10, one of the sources for Additional Protocol I’s prohibition on area bombardment, which refers to “elements of the civilian population, or dwellings”.

401 International Convention for the Suppression of Terrorist Bombings, 1997, art. 1(5).

402 Spencer Ackerman, “25 Tons of Bombs Wipe Afghan Town Off Map [Updated]”, Danger Room, 19 January 2011, <www.wired.com/dangerroom/2011/01/25-tons-of-bombs-wipes-afghan-town-off-the-map/>; Spencer Ackerman, “’Why I Flattened Three Afghan Villages’”, Danger Room, 1 February 2011, <www.

wired.com/dangerroom/2011/02/i-flattened-afghan-villages/>.

others, and is part of a process of erasing the memory of collective life as a community.⁴⁰³