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SIPRI Yearbook 2018: Armaments, Disarmament and International

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SIPRI Yearbook 2018: Armaments, Disarmament and International conventional arms control 381 I. The Convention on Certain Conventional Weapons ian davis and maaike verbruggen Humanitarian arms control Many arms control and disarmament regimes are underpinned by human- itarian norms and principles.1 Much of the focus on conventional technolo- gies in the recent past (1990–2010) was on cluster munitions and landmines, as well as efforts to restrict the proliferation of small arms. These efforts included steps to improve standards in the production, trade and use of weaponry as well as bans on an entire class of weaponry. The 1981 Conven- tion on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indis- criminate Effects (CCW Convention) takes both approaches. The 1997 Con- vention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (APM Convention) and the 2008 Convention on Cluster Munitions (CCM)—which are discussed in sections II and III, respectively—both ban an entire class of weapon, albeit relatively narrow ones. This section reviews the negotiations that took place within the CCW Convention. It also examines ongoing efforts to expand the scope of the CCW Convention, especially the discussions on lethal autono- mous weapon systems (LAWS), the use of explosive weapons in populated areas (EWIPA) and incendiary weapons, which have been the main focus of negotiations on conventional technologies in recent years. Scope of the convention The CCW Convention and its five protocols ban or restrict the use of spe- cific types of weapon that are considered to cause unnecessary or unjusti- fiable suffering to combatants or to affect civilians indiscriminately.2 It is a so-called umbrella treaty, under which specific agreements can be concluded in the form of protocols. As of the end of December 2017 there were 125 states parties to the original convention and its protocols. Afghanistan and Leba- 1 The body of international humanitarian disarmament law was further expanded in 2017 with the adoption on 7 July of the Treaty on the Prohibition of Nuclear Weapons. See the discussion in chapter 7, section I, in this volume. On the broader application of humanitarian norms and principles to arms control see Anthony, I., ‘International humanitarian law: ICRC guidance and its application in urban warfare’, SIPRI Yearbook 2017, pp. 545–53. For a critical, and historically informed, reading of the humanitarian arms control agenda see Cooper, N., ‘Humanitarian arms control and processes of securitization: Moving weapons along the security continuum’, Contemporary Security Policy, vol. 32, no. 1 (2011), pp. 134–58; and Docherty, B., ‘Ending civilian suffering: The purpose, provisions, and promise of humanitarian disarmament law’, Austrian Review of International and European Law, vol. 15 (2010), pp. 7–44. 2 For a summary of the CCW Convention see annex A, section I, in this volume. 382 non-proliferation, arms control and disarmament, 2017 non joined the CCW in 2017. However, not all the states parties have ratified all the amended or additional protocols. The CCW Convention is also important for addressing the challenges posed by the development or use of new weapons and their systems with respect to international humanitarian law (IHL). The convention originally contained three protocols: prohibiting the use of weapons that employ frag- ments not detectable in the human body by X-ray (Protocol I); regulating the use of landmines, booby traps and similar devices (Protocol II); and limiting the use of incendiary weapons (Protocol III). In subsequent years states added two protocols: Protocol IV prohibiting the use and transfer of blinding laser weapons was added in 1996; and Protocol V on explosive remnants of war in 2003. In addition, amendments have expanded and strengthened the convention. Its scope was expanded in 2001, for instance, to situations of intra-state armed conflict. These developments demonstrated that the CCW Convention could— despite often having to tread a careful path between humanitarian and stra- tegic military needs—be a dynamic instrument for responding to advances in weapons technology and developments in the nature and conduct of armed conflict. In recent years, however, it has become increasingly diffi- cult to reconcile humanitarian demands with strategic military needs—in part, because of differing interpretations of ‘strategic military needs’ and the exploitation of the convention’s consensus-based methods of working—with the result that many of the discussions within the convention have become deadlocked. Nonetheless, all CCW states parties meet regularly either at an annual meeting of the high contracting parties (states parties) or at a review conference (every fifth year), in which they also consider the work done by the Group of Governmental Experts (GGE) established in 2001 and convened in various formats since then. At the Fifth Review Conference in 2016, states were divided between those that supported either new measures or reviews of some of the existing protocols to address the humanitarian harm arising from the use of EWIPA, incendiary weapons and new technologies, and those that argued that existing law is sufficient but that compliance needs to be improved. The net result was that the 2016 Review Conference failed to make any progress in addressing these issues.3 In the run-up to the Meeting of the High Contracting Parties to the Con- vention in Geneva on 22–24 November 2017, a number of CCW meetings took place in the city in November 2017: (a) the Group of Governmental Experts on LAWS, on 13–17 November 2017; (b) the Eleventh Conference of the High Contracting Parties on Protocol V, on 20 November 2017; and 3 See the discussion on the 2016 CCW Review Conference in Davis, I. et al., ‘Humanitarian arms control regimes: Key developments in 2016’, SIPRI Yearbook 2017, pp. 554–61. conventional arms control 383 (c) the Nineteenth Annual Conference of the High Contracting Parties on Amended Protocol II, on 21 November 2017. However, the GGE meetings on LAWS planned for April and August, as well as Experts Meetings to prepare for the Protocol V and Amended Protocol II conferences, did not take place for financial reasons. Proposals to address the poor financial situation of the convention were circulated by the 2017 Chair, Ambassador Matthew Row- land of the United Kingdom, in July.4 The underfunding of the convention was due to a combination of outstanding debts by certain member states that had not paid their assessed contributions and the implementation of a com- plex UN financial management system that requires all money relating to a particular meeting to be paid in advance of the meeting itself. Group of Governmental Experts on Lethal Autonomous Weapons Systems The CCW was again the centre of diplomatic discussion on the risks posed by LAWS. 5 Despite several years of ongoing expert discussions, LAWS still lack a generally agreed definition, but they are commonly described by civil soci- ety as weapons that are capable of selecting and attacking targets, including human targets, without the direct involvement of a human operator.6 LAWS have been taken up for international intergovernmental discussion under the framework of the CCW since 2014, and between 2014–16 they were discussed in the context of informal Meetings of Experts. During the Fifth Review Conference of the CCW in December 2016 it was decided that the issue of LAWS would be taken up within a GGE, as recommended by the Meeting of Experts. The Fifth Review Conference also adopted its rec- ommendations on the subjects to discuss. These were first and foremost the identification of characteristics of LAWS and the elaboration of a working definition of LAWS, as well as the application of the relevant principles and rules of international law, in particular IHL. It was also recommended that the GGE examine (a) compliance with international human rights law when applicable; (b) legal and political responsibility and accountability; (c) ethi- cal and moral questions; (d) the effects on regional and global security and stability; (e) the effects on the threshold for armed conflicts; (f ) the risk of an arms race; (g) proliferation risks, including to and by non-state actors; (h) and related risks posed by cyber operations.7 It was decided that the GGE 4 Letter of the Chairperson, Ambassador Matthew Rowland of the United Kingdom, dated 6 July 2017, containing the Non-paper on the financial issue. 5 See SIPRI Yearbook 2014 and SIPRI Yearbook 2017 for earlier accounts of the discussion on the regulation of LAWS: Anthony, I. and Holland, C., ‘The governance of autonomous weapons’, SIPRI Yearbook 2014; and Davis et al. (note 3). 6 For a detailed overview of what LAWS are and how they function see Boulanin, V. and Verbrug- gen, M., Mapping the Development of Autonomy in Weapon Systems (SIPRI: Stockholm, 2017). 7 Davis et al. (note 3), p. 560. 384 non-proliferation, arms control and disarmament, 2017 would meet for 10 days in 2017, with a first session on 24–28 April 2017 or 21–25 August 2017, and a second session on 13–17 November 2017. However, due to the above-mentioned budgetary difficulties, only the second session took place. The GGE was chaired by India’s Ambassador to the Conference of Disarmament, Amandeep Singh Gill.8 There are no agreed definitions of LAWS and many previous diplomatic discussions on the issue have floundered in attempting to reach a working definition. To avoid this deadlock Chair Singh Gill steered the GGE away from discussions on defining LAWS, and instead aimed to develop a better shared understanding of the underlying issues.9 The main body of the pro- gramme of work was made up of three panels on the technological, military, and legal and ethical dimensions of emerging technologies in the area of LAWS.
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