ARTICLE 36 PROTECTING FROM THE USE OF EXPLOSIVE WEAPONS IN POPULATED AREAS EXPLOSIVECover image: People WEAPONS stand on the rubble ARTICLE 36 of damaged buildings after an airstrike in the besieged town of Hamoria, Eastern Ghouta, in Damascus, Syria. 9 January 2018. © REUTERS/Bassam Khabieh CONTENTS

03 Executive summary 07 Introduction 11 Part 1. Effects 21 Part 2. Explosive weapons and global crises 25 Part 3. Structures for preventing and responding to harm 37 Conclusion 41 Notes

2 1 EXPLOSIVE WEAPONS EXECUTIVE SUMMARY

Bombing and shelling in towns and cities has a devastating impact on civilians. People are killed and injured. Buildings collapse. Power, water or sanitation infrastructure is destroyed, shutting down the essential services upon which the population depends. People flee, seeking comparative safety elsewhere.

The result is a clear and documented pattern of harm: death, physical and psychological injury, and an erosion of public health. These effects are directly linked to combatants decisions to use explosive weapons – weapons that project blast and fragmentation effects outwards from the point of detonation – in areas where civilians are concentrated.

Over the last decade there has been a growing recog- nition by states and humanitarian organisations of the serious and long-term harm from the use of explosive weapons in populated areas. It has been a central theme of the UN Secretary-General’s reports on the protection of civilians in armed conflict, and is identi- A returnee makes his way through piles of bricks in a heavily damaged part of fied as a leading cause of harm to civilians by over Aleppo’s Old CIty, 5 November 2017. © UNHCR/Susan Schulman 80 states.

2 3 EXPLOSIVE WEAPONS EXECUTIVE SUMMARY

This report brings together the central themes of that Over the last ten years, the pattern of harm from the policy discussion and sets out pathways towards use of explosive weapons in populated areas has stronger protection. It considers the physical become a central humanitarian policy concern. features of explosive weapons – which are central to Relentless bombardment of towns and cities, and the how their use causes harm – and it looks at the resulting humanitarian crises, has highlighted the characteristics of that harm, from the direct and need for action at all levels – from the operational immediate effects on people to the wider societal to the international – to better protect civilian costs. The second half of the report considers the populations from the deadly and destructive effects mechanisms available to limit or prevent such harm in of explosive weapons. the future. International humanitarian law plays a central role, but so too do operational policies and In a context of growing urbanisation, and with strong procedures, and broader political efforts. policy recommendations on this issue from the UN Secretary-General and the International Critical to improving the protection of civilians from Committee of the Red Cross (ICRC), among others, the effects of explosive weapons is a recognition states should take decisive political action now that among responsible actors of the direct relationship will set a stronger standard for civilian protection in between the scale of ‘area effects’ that a will the future. produce and the risk of harm it presents to civilians in a populated area, coupled with a commitment to act. Recognition of this technical reality is already embedded in the operational policies and practices of certain armed actors – policies and practices that should lead them to avoid the use in populated areas of explosive weapons that have wide area effects. Recognition of the technical factors that create wide area effects is also fundamental to any effective implementation of the established legal rules.

As discussion on this theme continues within multilateral policy and legal frameworks, states committed to the protection of civilians need to develop a political instrument that promotes the further development of operational policies and procedures that work to avoid the use of explosive weapons with wide area effects in populated areas. Such a political instrument should also promote efforts to respond to the harm that is caused - from gathering data on harms to ensuring humanitarian access and recognising the rights of victims.

4 5 EXPLOSIVE WEAPONS INTRODUCTION

Over the last century, the international community has become progressively less accepting of the blanket use of explosive force across populated areas. New international rules constraining the bombardment of towns and cities were developed in response to the inhumanity of carpet bombings in World II and the conflicts of the 1960s and 70s.

Over the last decade, civil society organisations, media outlets and, with the birth of social media, civilians living through conflicts have documented the extensive, at times unprecedented, harms caused by the use of explosive weapons in populated areas. The UN Secretary-General, the President of the ICRC, and an ever-growing number of states have acknowl- edged grave human costs resulting from the use of explosive weapons in populated areas, as well as the urgent need to address it. In particular, this acknowl- edgment includes a recognition that explosive weapons presenting wide area effects create a distinct threat to civilian protection when used in populated areas. Widespread blast and fragmentation, or some randomness in where explosive warheads might land, means that civilians are not being adequately

The remains of the MSF Trauma Centre protected when these weapons are used in towns and building in Kunduz, northern Afghanistan, following the 3 October 2015 US airstrike cities. Where such attacks are repeated, or where on the facility that killed more than 20 multiple warheads are detonated across an area, the MSF staff members and patients © Andrew Quilty harm is multiplied still further.

6 7 EXPLOSIVE WEAPONS INTRODUCTION

It is already clearly illegal to carry out attacks Recent decades continue to present stark and that are directed at civilians or civilian objects. tragic examples of where constraint and respect for The problem with using explosive weapons that have international law have broken down. State and wide area effects in a populated area is that these non-state groups have violated existing legal rules and effects may extend beyond the target, and there remains little capacity to ensure accountability the military target may not even be struck, placing for such actions. Other states claim to be fully civilians at a very high risk of harm. implementing international humanitarian law whilst undertaking attacks that have killed thousands of Responsible have already recognised the civilians. In the face of such a situation, responsible direct connection between the scale of a weapon’s states continue to call for law to be respected. area effects and risk posed to the civilian population. But they must also show leadership to develop and It is on that recognition that they have based certain extend the practical operational tools that can avoid operational policies and procedures that work to this pattern of harm. mitigate harms by guiding or controlling the choice of weapons that will be employed. The apparent failure of certain states and With more and more people living in towns and cities, the challenge for the international community is to non-state groups to protect civilians cannot adopt and encourage further such constraint; to justify a failure on behalf of responsible build an expectation that explosive weapons with states to promote operational and proce- wide area effects will not be used where civilians dural measures to strengthen civilian are concentrated, and to promote the practical protection in practice - just as a disregard operational procedures to avoid such use. With rapid urbanisation and an increase in over for legal rules by some does not justify the recent years, it is critical to return to the broader wholesale abandonment of the law by all. moral trajectory – one that makes widespread bombing and bombardment in populated areas less and less acceptable. The current, persistent pattern of harm from the use of explosive weapons in populated areas is not The essential foundation for further constraint inevitable. It is within the power of responsible actors is recognition of the humanitarian problem, to continue the process of promoting constraint in including recognition that explosive weapons share the use of explosive force – building recognition of the common characteristics of blast and fragmentation severity of human suffering, and by working together around a point of detonation; that ‘populated areas’ to develop the practical tools that can avoid that harm describes those areas, such as towns and cities, in the future. where civilians are concentrated; and that this combination of technology and context underpins a pattern of civilian harm.

8 9 ARTICLE 36 PART 1 EFFECTS

This section outlines the technical characteristics of explosive weapons and the forms of direct harm that have been documented from the use of these weapons. Central to this issue is a recognition that the technical characteristics of a weapon have a direct relationship to the threat posed to a civilian population. So whilst the rules of international law apply to the use of all weapons, some pose graver

Views of Beit Hanoun, one of the risks than others – requiring that operational policies neighbourhoods most affected by and procedures limit the risk of harm that they the bombings in northern Gaza. © Yann Libessart/MSF may cause. 10 11 EXPLOSIVE WEAPONS PART 1

Blast and fragmentation effects “Wide area effects” There is broad agreement that wide area CHARACTERISTICS OF Because they function by the detonation of The powerful effects of explosive weapons effects from explosive weapons result from EXPLOSIVE WEAPONS high explosive material, explosive weapons radiate outwards: they affect an area three characteristics, either individually or create a distinct set of physical effects. around the detonation, rather than striking in combination: The term ‘explosive weapons’ represents a These can be modified by changing the type a point in the manner of a single bullet. broad yet distinct category of weapons that and quantity of , the shape of the How far these effects extend has a direct × A substantial blast and fragmentation use the detonation of explosive materials explosive charge, the casing material of the bearing on the number of people or objects radius resulting from a large explosive to affect targets – usually through the pow- weapon and through changes to external affected -- in other words, on the degree content (such as might be produced by erful forces exerted by blast and fragmen- factors, such as whether it will detonate of humanitarian harm and damage they large aircraft ); above or below the ground. The basic im- will inflict. tation. They range from the comparatively × Inaccuracy of delivery, meaning that the mediate effects of explosive weapons are: small, such as hand-, through to weapon may land somewhere within a A weapon with wider area effects will, much larger aircraft bombs and ground- wide area (such as might occur with ar- × A ‘blast wave’ – a wave of pressure that assuming an even population density, launched rockets and missiles. Although tillery systems); the term ‘explosive weapons’ encompass- radiates out from the detonation at high necessarily affect a larger population es numerous subcategories used in the speed; than a weapon with narrower area ef- × Use of multiple warheads or multiple fects. This simple mathematical fact firings that spread explosive force across classification and management of weap- × Fragmentation – material is broken makes weapons with wide area effects, a wide area (such as occurs with ons, this broad category shares a common up and projected outwards from when used in populated areas, a multi-barrel rocket launchers). central mechanism of harm. The power of around the point of detonation, creating particular issue of concern. explosive weapons, and their tendency to high-velocity fragments – this can Weapons with very high explosive content affect an area around the point of detona- include both ‘primary fragmentation’ tend to project explosive force across a tion, means that they are primarily the (such as shrapnel from the munition wide area, which may extend significantly tools of the military and of warfare rather itself) and ‘secondary fragmentation’ beyond the actual object being attacked. than of policing. (such a debris from the For weapons that are dropped from aircraft surrounding area); or fired from the ground, the impact area of a weapon is further extended by × Heat – the detonation of explosives uncertainty about where the actual detona- creates high temperatures. tion will take place.3 Not only does the operator need to place the aim-point of the These effects cause harm to people and weapon correctly in relation to the desired damage buildings and other objects in the location for the strike, but weapons that CLASSIFICATION SYSTEMS ‘Explosive weapons area of the detonation. Blast, fragmenta- are dropped or fired are then subject to tion and heat can kill and injure people with wide area effects variation in where they land compared with The term ‘explosive weapons’ creates directly, but they can also cause fires and are prone to cause harm where they are aimed. 4 This statistical a classification based on the central the collapse of buildings which may extend variation can mean that, in certain situa- mechanism for causing damage or beyond the targeted the harmful effects of the weapon.2 tions, an explosive warhead can be more harm. Weapons are classified in military objective and Whilst explosives can be engineered to likely to detonate amongst the surround- many different ways. Common distinc- focus effects very specifically, such as in put civilians at grave risk ing population than to detonate on a specif- tions include whether weapons are the ‘shaped charges’ used to penetrate of death or injury when ic target. This risk to civilian populations is air-dropped or ground launched, armoured vehicles, the generally tendency amplified by the use of multiple warheads whether they are ‘guided’ or used in areas containing of explosives is to project blast and frag- and repeated firings to compensate for ‘unguided’, whether they are fired at a mentation outwards, into the area around concentrations of civilians such uncertainties and inaccuracies. target ‘directly’ (line of sight) or ‘indi- the detonation. due to scale of explosive rectly’ (in an elevated arc) 1 or wheth- er they are professionally manufac- force, inaccuracy of tured (explosive ordnance) or delivery or use of improvised (IEDs). All of these differ- multiple warheads.’ ent classification approaches co-exist, being useful for different communi- ARES (2016), “Explosive weapons in ties for different purposes. populated areas: Technical considerations relevant to their use and effects”, pre- pared for the International Committee of the Red Cross.

12 13 EXPLOSIVE WEAPONS PART 1

Immediate effects of explosive weapons By extending the weapon’s effects beyond CHARACTERISTICS OF HARM on the human body the intended target these factors create a The death and injury of civilians is the most high likelihood of severe civilian harm at The use of explosive weapons in populated immediate and visceral form of harm the time of the attack. They also increase areas causes broad, substantial and ongo- caused by explosive weapons. Medical the likelihood of damage to surrounding ing harm to civilians. Immediate mortality authorities have described the ability of structures, including infrastructure critical and injury, as well as longer-term damage explosions to inflict “multi-system for the civilian population. This greatly in- and destruction, will vary depending on life-threatening injuries on many persons creases the indirect effects that can result, specific factors such as the magnitude of simultaneously”.11 Civilians next to the such as from the destruction of housing, the explosion, the proximity of victims and detonation of a large explosive weapon are schools, hospitals, and systems of water whether the explosion took place in a almost inevitably killed, their bodies so torn and sanitation. Thus, wide area effects closed or open environment. But the char- by the blast force that rescuers, medical greatly elevate both the direct and indirect acteristics of such harm in conflicts ranging workers and family members may be harm likely to result from an attack. from Syria and Iraq to Somalia and Ukraine unable to find and identify their remains. nevertheless fit a recurring pattern unique There are four primary mechanisms of to explosive weapons. This pattern encom- direct harm from explosive weapons: passes both immediate and ongoing physi- POPULATED AREAS cal and psychological suffering.8 × Heat from an explosion can cause severe burns to those at close range. The impact of explosive weapons is Direct harms Such burns can be severe and very of particular humanitarian concern difficult to treat. when they are used in ‘populated A pattern of civilian suffering × The blast wave of explosive force can areas’. In an area where civilians are The collection of data on civilian harm in cause traumatic amputation of limbs concentrated, the wider the area ef- situations conflict and sustained violence and fatal blood-loss, traumatic brain in- fects of a weapon, the greater the risk is notoriously difficult. Efforts made to track juries, and systemic air embolism (the to that civilian population. Although the casualties caused by use of explosive most common fatal primary there is no single agreed definition, weapons internationally, based on En- among those who initially survive the “(densely) populated area” and “con- glish-language media-reporting, suggests explosion).12 Other internal organs, par- centration of civilians” are well-estab- there has also been a steady rise in civilian ticularly gas and fluid-filled structures lished legal notions in relation to the deaths over recent years. Data collected in such as the ear and abdomen, are also INDIRECT FIRE WEAPONS protection of civilians and the regula- 2016 suggests that of those reported killed vulnerable to blast damage that can re- tion of the conduct of hostilities5. and injured by the use of explosive weap- sult in death or permanent injury. Indirect fire weapons, such as field CCW Protocol III on incendiary ons in populated areas, 92% were civilians and mortars, fire projectiles weapons states that “concentration – a figure which has been at this consistent- × Weapon fragments (or ‘shrapnel’) and towards a target that the operator of civilians” means “any concentra- ly high level over the past five years.9 It is other material are projected by an explo- might not be able to see. They can be tion of civilians, be it permanent or notable that the proportion of civilians sion into the bodies of those in the used to strike at targets over a long temporary, such as in inhabited parts amongst reported casualties is far greater vicinity, particularly in urban or built-up distance, firing the projectile up into of cities, or inhabited towns or villag- in these attacks taking place in populated areas where damage to buildings and the air for it to land down in the target es, or as in camps or columns of refu- areas as opposed to those taking place other objects and can create additional area. This method of delivering fire is gees or evacuees, or groups of no- elsewhere. A significant number of these flying debris. Fragments can cause subject to numerous technical and mads”.6 The unanimously adopted casualties will result from attacks that de- traumatic amputations, puncture environmental factors that limit accu- UN Security Council Resolution 2139 liberately target civilians (or are not target- wounds and lacerations. racy and precision, which come on on Syria made appeals against the ed at any specific military objective) - a vio- × People can also be propelled into other top of the technical challenges of employment of weapons in ‘populat- 10 lation of international law. Many others, objects or crushed by collapsing or aiming at a target one might not be ed areas’.7 The term ‘populated areas’ however, result from the use of weapons heavily damaged structures, resulting able to see directly. There are tech- is accepted as political language that where effects extend beyond, or strike in death or life-altering injuries including niques that can be used to mitigate can be used to control the use of around, any intended target. In both cases, complex fractures, and spinal or these challenges, but indirect fire weapons, and in “concentrations of the scale of these area effects increases brain damage. weapons are prone to creating wide civilians” it has a parallel in interna- the number of people exposed to harm. area effects. tional law.

14 15 EXPLOSIVE WEAPONS PART 1

Longer-term harm to people Systemic harms Housing and shelter EFFECTS OF BLAST AND directly affected Use of explosive weapons in populated ar- FRAGMENTATION ON CHILDREN For survivors, the injuries they suffer can The impact of explosive weapons reaches eas frequently damages or destroys homes result in long-term debilitating physical con- beyond those immediately and directly af- to the extent they become uninhabitable. The impact of blast and fragmenta- ditions including loss of limbs, blindness, fected by a detonation; further effects on The loss of shelter dramatically increases 16 tion wounds can be especially acute loss of hearing and brain trauma. Beyond communities and infrastructure extends civilian vulnerability to natural hazards and in children, whose smaller, younger the sustained, often permanent, impact of their impact, in different forms, to a wider violence, and may directly force people into bodies are more vulnerable and for these physical injuries, those exposed to population and over a longer period of time. displacement. whom treatment can prove more diffi- explosive weapons – including first re- 13 cult. As their bones are more pli- sponders and medical personnel – can Explosive weapons have significant capaci- Destruction of shared spaces able, and their bodies still growing, also suffer severe mental trauma and pat- ty to damage social and economic infra- The destruction of shared spaces, including physical injuries can be difficult to terns of psychological harm including structure and, after intensive or extended places of worship and commercial facilities, 17 treat and rehabilitate. Exposure to post-traumatic stress disorder. This can use, can completely devastate cities, leav- can further fracture communities, eroding explosive weapons use can also be have far-reaching consequences, with sur- ing large swaths uninhabitable.20 The de- social support networks and undermining particularly traumatic to children at a vivors struggling to function in an occupa- struction of housing, health facilities, financial stability, with predictably negative critical time in their psychological de- tion or in social settings, and suffering ele- schools, markets, roads and transport knock-on effects to the psychosocial well- 18 23 velopment, with long-term effects on vated risks of chronic disease. Deepening links, and utilities such as power, water being of survivors. The financial losses their mental health. the challenges, many conflict-affected and sanitation, results in an additional pat- and livelihood insecurity incurred when states lack the medical and social service tern of suffering for affected populations. market places, business centres or facto- infrastructure to provide ongoing and lon- In the short term, the impact of explosive ries are hit also persist. This destruction of ger-term support for survivors suffering weapons on buildings, places of commerce the built environment constitutes a large- physical or psychological harm. and transport routes can deprive civilians scale loss of capital that many conflict-af- The multiplicity, severity and complexity of of basic necessities such as access to fected states struggle to recover from over wounds present a significant challenge to healthcare, clean water, electricity, food an extended period. immediate medical care. Damage and on- EXPLOSIVE REMNANTS OF WAR and shelter, which serves as a further driv- going use of explosive weapons can also After the immediate violence has er of displacement.21 In the longer term, it Impact on healthcare services render large areas inaccessible to emer- ceased, explosive remnants of war – can undermine local and national capacity Explosive weapons pose a key threat to gency services and others, making reach- including weapons that failed to deto- for production and growth, and thereby the public health and healthcare in situations ing the dead and wounded extremely diffi- nate on impact, or munitions that broader state economy. At a time when gov- of armed conflict, and can severely under- cult for first responders in the immediate have been abandoned or left in stock- ernments, civil society and businesses are mine the right to health for civilians living aftermath. Even where treatment is possi- piles by fighters – continue to pose a together working with the UN to mobilise in conflict-affected or post-conflict areas. ble, the number of casualties can over- threat to civilians. Not only do they efforts to achieve the Sustainable Develop- This is true whether health centres are de- whelm medical resources in societies that threaten death or injury on detona- ment Agenda by 2030, the widespread use liberately targeted or whether they are are resource-poor or beset by conflict. As a tion, but their presence can compli- of explosive weapons in populated areas is damaged in the course of an attack on an- result, civilian access to assistance and cate or inhibit attempts at reconstruc- severely impeding, even rendering impossi- other target. A 2011 study by the ICRC emergency relief can often be severely cur- tion and community rehabilitation by ble, the achievement of numerous Agenda identified the use of explosive weapons as 14 tailed over sustained periods. This is com- rendering contaminated areas un- goals, leaving civilians in conflict-affected the leading cause of damage to healthcare 19 24 pounded by attacks on healthcare services safe. states vulnerable to being left behind.22 facilities in around the world , and in and workers, and by the impact of explo- 2016 a UN Security Council Resolution con- sive weapons on the healthcare system. demned attacks on medical facilities and The ICRC has identified attacks on health- The physical and psychological harm to personnel, noting the increase in such at- care facilities, vehicles and personnel as people directly exposed to explosive force tacks over recent years.25 Direct damage to common features of conflict 15, and has is the most immediate set of effects from hospitals, clinics, ambulances and trans- identified explosive weapons as a primary explosive weapon use. However, the effects port infrastructure makes accessing health- cause of impairment to healthcare systems get extended to a significantly wider popu- care difficult or impossible.26 Damage to at a time when these systems are needed lation, and present in a wider variety of key utilities, such as water and electricity the most. forms, as a result of the capacity for explo- supply, can leave medical facilities without sive weapons to destroy buildings, infra- light, heat, and basic sanitation. structure and the interconnected systems Communications between hospitals, and that sustain society.

16 17 EXPLOSIVE WEAPONS PART 1 with ambulance services, can be cut by Reverberating effects The use of explosive weapons in populated damage to phone towers and lines. Where Demographic factors: areas can critically impair or completely attacks and shelling are ongoing, hospitals Children Where explosive weapons damage social destroy components of vital infrastructure can become severely understaffed as both infrastructure, whether deliberately or as a on which civilians rely, with wide and long- medical and skilled repair and reconstruc- These systemic harms affect whole result of their effects extending beyond the term effects on health and wider social and tion workers are killed or prevented from populations, but are particularly intended target, this can cause further economic functioning. travelling to medical sites. acute in relation to children who are waves of harm. Destruction of hospitals, rendered especially vulnerable by the housing or schools has a direct effect on Given the concentration and interconnec- Destruction of water destruction of safe spaces such as access to healthcare, shelter and educa- tion of infrastructure systems in towns and sanitation structures homes, hospitals and schools. They tion. Where explosive weapons damage and cities, explosive weapons, in particu- The destruction of water and sanitation face long term damage to their edu- infrastructure critical to the provision of lar those with wide area effects, have an systems causes immediate and lon- cation, and therefore future opportu- power, water and sanitation, it causes a elevated likelihood of causing extended ger-term public health effects. An upswing nities, as well as their physical and further harm, cutting off services that de- harm when they are used in these in infectious, sanitation-related diseases mental health.30 The bombing and pend on these capacities. Destruction of densely populated areas. including cholera and typhoid has frequent- shelling of schools and universities vital power, water, sanitation and transport ly been observed in populated areas sub- disrupts not only the education of infrastructure can cause health, social and jected to bombardment.27 Clogging of sew- those who attended a particular economic effects far beyond the immediate ers by debris and disruptions to wastewater school, but many more children area or the immediate time and place of systems or treatment plants can pollute whose parents keep them home rath- the blast. the natural environment and agricultural er than expose them to the risk of land, contaminating drinking water and being killed or maimed by explosive Referred to as ‘reverberating effects’ by the food sources.28 attacks. In Syria, the UN estimates ICRC 33, such effects show how damage that one in four schools has been caused by explosive weapons can propa- Increased toxicity in the environment attacked, and disruption to education gate through the interconnected infrastruc- The broader environmental legacy of con- posed by the bombing has led some tures that support populated areas, extend- flict is challenging to document, but the to warn of a “lost generation”,31 lack- ing the harm caused both in time and long-term harm to human health posed by ing both education and socio-eco- geography. Extended damage to social, toxic remnants of war introduced or re- nomic prospects. economic and health systems means that leased into the environment by explosions, explosive weapons inflict harm not only including hazardous chemicals, heavy met- Demographic factors: through blast and fragmentation, but also als, and fuel hydrocarbons, is increasingly Women from increases in disease due to poor sani- recognised.29 tation and impaired healthcare, or through Women have been identified as expe- the vulnerabilities experienced by people riencing increased exposure to vio- displaced from their -damaged lence and exploitation when forcibly homes. When they rise to a certain scale, displaced. In contexts where wom- such effects undermine not just basic hu- en’s opportunities for employment man rights but strike at efforts to achieve are culturally limited, death or injury key global developmental targets including of a (usually male) breadwinner can the Sustainable Development Goals.34 create economic impoverishment that is difficult to address. Women are also exposed to specific health risks such as miscarriage or death during childbirth due to inadequate health- care.32

18 19 EXPLOSIVE WEAPONS PART 2. EXPLOSIVE WEAPONS AND GLOBAL CRISES

The extensive use of explosive weapons in populated areas is central to some of the last decade’s greatest humanitarian and political crises, including mass displacement, entrenched cycles of conflict, and violence associated with extremist movements and state efforts to defeat them. Whilst the use of explo- sive weapons is typically a symptom of political crisis, it has served to translate political problems into exten- sive human suffering, often extending political crises in the process. Whilst the use of explosive weapons may seem a ‘normal’ or ‘inevitable’ component of how certain political problems manifest themselves such a normalisation should be resisted as it risks masking both a full understanding of the problem and potential opportunities more effectively to mitigate harm. For example, in the section below we consider how the use of explosive weapons in populated areas serves as a specific driver of displacement, but we also A civil defence member runs at a site hit by an airstrike in the rebel-held besieged consider the potential for attention to the use of Douma neighbourhood of Damascus, explosive weapons to provide a more effective Syria, 23 November 2016. © REUTERS/Bassam Khabieh indicator of political crises developing.

20 21 EXPLOSIVE WEAPONS PART 2

in their neighbourhoods rapidly becomes Whilst recognising that the categorical A PROBLEM: untenable. Compounding these direct boundary of armed conflict is often uncer- IMPROVISED FORCED DISPLACEMENT effects is often a recognition that further tain or contested, still it is of central impor- EXPLOSIVE DEVICES use of explosive weapons is likely, threaten- tance to international policy debates and ing further risk of death and worsening of can play a role in determinations of the The use of explosive weapons clearly Relentless bombardment of towns and cit- the difficulties civilian populations are appropriate legal framework. Distinctions intersects with concerns around ‘acts of ies in conflict zones is contributing to un- already facing. around whether a country is experiencing terror’ typically associated with extremist precedented levels of mass displacement. armed conflict or ‘mere’ unrest, and wheth- groups and non-state actors (NSAs) The number of people forced from their Extended use of explosive weapons in pop- er the conflict is international or internal, or more broadly. Armed groups have for homes globally is thought to be 65.6 mil- ulated areas can also lead to secondary or some hybrid of the two, inform and guide decades used explosive violence to 43 lion, a record high.35 According to the UN, even multiple displacements as civilians the responses proposed. deadly effect and are currently protago- among them number some 22.5 million continue to move in search of safety and nists in some of the world’s most violent 39 refugees, 55% of whom come from Syria, access to basic services. Once forced to In this context – and given that explosive conflicts. The use of certain improvised Afghanistan, and South Sudan36: three flee, a lack of infrastructure and livelihoods weapons are generally excluded from the explosive devices (IEDs), such as car- countries currently suffering extensive ex- can prevent those displaced from returning. normal function of domestic policing – the bombs and person-borne suicide bombs, plosive weapon use. Explosive remnants of war can also transition to using explosive weapons by a to strike at targets in towns and cities, 44 contaminate civilian places of work and state marks the crossing of a threshold. create shocking and high-profile inci- The specific drivers of displacement during shelter, further impeding the safe return of Where a state uses explosive weapons dents. Such attacks continue to be a conflict can be myriad and complex and civilians and prolonging their displacement. within its own territory it suggests a distinct major cause of harm. In many cases are often the result of interrelated factors. movement from internal civil unrest to- these attacks have been directed at ci- But among these, the use of explosive wards armed conflict. Such a shift in the vilians, in clear violation of international weapons in populated areas has been AN OPPORTUNITY: choice of weapons considered acceptable law. Where large explosive yields are identified as a major cause of initial and or necessary should be recognised as a used, spreading the blast and fragmen- protracted displacement. CONFLICT WARNING clear indicator of escalation to conflict. The tation across a wide area, the risk to use of explosive weapons communicates a civilians is elevated regardless of wheth- × Bombing and shelling of homes and Over recent decades, increasing efforts lack of state control over a situation and a er the target is civilian or military. neighbourhoods is a major factor in civil- have been dedicated to developing struc- comparative disregard for the safety of the ians’ decisions to flee their homes.37 tured mechanisms to prevent, prepare for, surrounding population. In data gathered on reported incidents mitigate and resolve armed conflict. Con- × The destruction of housing and critical of explosive weapon use in populated temporary conflicts are, however, rarely for- Transition to explosive weapon use, from areas a significant proportion of attacks infrastructure is a substantial barrier to mally declared. Instead, there is more often a generally accepted position that non- their return. are attributed to the use of IEDs. Yet, a grey area between peace and conflict, use of explosive weapons is a character- due to a methodology based on specifi- with the transition from one to the other istic of social and political ‘normality’, is cally reported individual incidents, such 40 The use of explosive weapons has clear murky and ill-defined. This is particularly a distinct and readily verifiable indicator data gathering mechanisms systemati- implications for the initial displacement of true in cases of non-international armed of political crisis developing. Such an in- cally under-report more widespread use 41 civilians.38 Living under the threat of bomb- conflict (or ‘civil wars’), in contexts where dicator should be explicitly incorporated of explosive weapons. This results in ing and shelling is terrifying: people flee states undertake attacks abroad against into conflict warning frameworks and certain IEDs such as car-bombs and per- areas under attack due to the fear of being specific individuals or non-state groups, should be an explicit consideration in the son-borne IEDs, which are often used in killed or injured, a fear often sharpened by and where organised criminal and gang categorisation of a violent situation as an clearly distinct attacks, presenting as a the death or injury of a loved one or neigh- violence produces militarised state armed conflict. greater proportionn of overall explosive 42 bour. Homes caught in the blast zone can responses. weapon use than is really the case.45 be rendered uninhabitable, while damage to or destruction of commercial property Using a blanket category of ‘improvised and means of production, such as facto- explosive devices’ (IEDs) can also mask ries, can undermine livelihoods. important distinctions between, for ex- ample, car bombs and improvised rock- The impairment of critical infrastructure, ets or ‘barrel bombs’. As a category, the including through damage to sanitation defining feature of IEDs is their ‘impro- facilities and disruption of access to clean vised’ (rather than conventionally water and electricity, can mean that for ci- manufactured) mode of production. vilians caught in conflict zones remaining

22 23 EXPLOSIVE WEAPONS

Where IEDs are proposed as a policy ‘problem’, such a defining feature inevi- PART 3. tably suggests ‘solutions’ or ‘responses’ that focus on limiting or preventing ca- pacity for improvised production, rather than on behaviours in the use of weap- STRUCTURES ons that can provide more wide-ranging options for stronger civilian protection. FOR PREVENTING In a similar vein, a focus on ‘barrel bombs’ in certain contexts risks drawing attention away from the fact that such weapons are simply one (improvised) AND RESPONDING example of an air-dropped explosive weapon with wide area effects. There is a danger that focusing on non-conven- TO HARM tionally produced weapons and their us- ers is politically convenient for states unwilling to curb the use of wide area explosive weapons in populated areas more generally.

There are also dangers in linking the problem of explosive weapons use in populated areas simply with the actions of high-profile armed groups. It risks amalgamating all non-state armed actors together and associating all such actors with illegal attacks on civilians. This can mask the fact that some non- state armed groups may not deliberately target civilians and may even expressly seek to avoid or minimise the humani- tarian harm caused by their use of ex- The patterns of harm described in the previous plosive weapons.46 It can also lead to a sections of this report should be the focus of a focus on IEDs at the expense of recog- concerted international response. Recent years have nising the common use of commercial- seen international political work aimed at steering ac- ly-manufactured explosive weapons by non-state armed groups.47 tion towards stronger civilian protection from the use of explosive weapons in populated areas – work that is focused on promoting practical commitments to prevent and respond to harm. This final section of the report considers the key structures that frame such a response – the constraints provided by international law, the established obligations of states towards ‘victim assistance’, and the potential of military policy and practice to be developed to offer greater protection for civilians.

24 25 EXPLOSIVE WEAPONS PART 3

Aside from direct attacks on civilians IHL further prohibits the employment of a Precautions in attack: IHL requires that INTERNATIONAL LAW (which are clearly illegal), use of explosive weapon whose effects cannot be limited as those who plan or decide upon an attack weapons in populated areas exposes the required under IHL, as well as ‘area bom- take all feasible precautions in the choice Explosive weapons are not defined or regu- civilian population and infrastructure ‘to bardment’, which treats a number of clear- of means and methods of attack with a lated as a category under international heightened – and even extreme – risks of ly separated and distinct military objectives view to avoiding or minimising, incidental law48, but their use must comply with inter- incidental or indiscriminate death, injury or located in a populated area as a single mili- civilian harm.60 Choices regarding the national legal rules, including those of in- destruction’.55 Such use may in some tary objective.57 ‘Area weapons’ like type, fuze-type or -setting, aim ternational humanitarian law (IHL) and in- circumstances fall within the confines of munitions or multi-barrel rocket launchers point, impact angle, and many other ternational human rights law (IHRL).49 the law. However, the high levels of civilian are designed to affect a wide area, and if a factors will determine the risk of incidental harm documented across a range of con- heavy bomb is dropped to damage a single civilian harm. International Human Rights Law (IHRL) temporary armed conflicts raises urgent building within a city neighbourhood, the Although IHRL standards on the use of questions about the interpretation and im- blast and fragmentation effects will likely Key question: force do not explicitly exclude explosive plementation in present practice of the ba- damage neighbouring structures.58 weapons from policing operations, their sic IHL rules of distinction, proportionality × What is done to characterise adequately deployment in such situations is rare, with and precautions in attack (including ques- Key questions: how such choices affect the risk of states struggling to justify their use even in tions about the assessment of long-term civilian harm and what level of risk is situations where law enforcement officials harm in the application of legal rules). × Within a populated area, when are deemed to comply with this rule? confront suspected ‘terrorists.’50 Use of the effects of an explosive weapon explosive weapons can negatively impact Distinction: IHL prohibits attacks that are deemed to be sufficiently limited? The current tendency for conflict to be the enjoyment of a range of human rights, not directed at a specific military objective, × When does the use of an ‘area weapon’ fought in population centres - which puts most immediately the right to life, because as well as the employment of a weapon amount to ‘area bombardment’? civilians at significant immediate and the hazard they pose to humans is usually which cannot be directed at a specific mili- longer-term risk - is unlikely to change in greater than can be justified to achieve a tary objective (a weapon that is ‘indiscrimi- 51 the near future. Weapons designed to cre- legitimate law enforcement aim. As a nate by nature’).56 Unobserved, unguided, Proportionality: The principle of propor- ate explosive effects over a large area are result, their use is difficult to reconcile with long-range artillery fire, for example, has tionality aims to limit the harm caused to clearly unsuited for use in such settings: the legal requirement to plan law enforce- well-known limitations in terms of precision civilians by prohibiting attacks where the to effectively protect civilians, armed ment operations involving the use of force and accuracy. anticipated incidental civilian harm would actors will need to adapt their tactics and in such a way as to minimise the risk of be excessive in relation to the concrete and procedures – several already are. loss of life among suspected offenders and Key questions: direct military advantage sought.59 bystanders.52 At the political level, efforts should be × When is an explosive weapon Key question: made to promote such a revision of opera- International humanitarian law (IHL) deemed to be dirigible enough and suffi- tional policies and procedures to better In contrast to policing operations, states do ciently directed? × What is done to adequately characterise understand how area effects of explosive commonly use explosive weapons for mili- the systemic and ‘reverberating effects’ × What levels of accuracy and precision weapons related to the risk of civilian harm, tary combat during armed conflict. Such of explosive weapon use, and how are are required? and to avoid the use, in populated areas, of use must comply with IHL, which protects these factored into the proportionality explosive weapons that have wide area civilians against dangers arising from mili- × Which explosive weapons in common assessment of any individual attack? effects. This would strengthen the protec- tary operations, and requires that all par- usage are deemed ‘indiscriminate by tion of civilians, and promote respect for ties to an armed conflict - states and non- nature’ in the context of a populated IHL and IHRL by drawing a normative state actors alike - distinguish civilians and area? civilian objects from combatants and mili- boundary against practices of armed vio- tary objectives, and only attack the latter.53 lence that bear “a significant likelihood of 61 Civilians are, thus, protected against attack indiscriminate effects”. (unless and for such time as they take a direct part in hostilities). To ensure respect for IHL, all states have a legal obligation to prosecute and punish those responsible.54

26 27 EXPLOSIVE WEAPONS PART 3

General approaches avoiding VICTIM ASSISTANCE As victim assistance is now broadly understood, MILITARY POLICIES harm from explosive weapons victims include those who have been killed by, AND PRACTICE There are a number of operational Recent legal instruments responding to the or have been injured and survived the use of procedures used by militaries that focus harm caused by certain types of weapons have specific weapons, as well as their families and We indicated at the conclusion of the on restricting or otherwise reducing the 63 built a recognition that such a response needs wider affected communities. In the context of section above on international law that area effects of weapons as way of reducing to address the harm experienced by people. explosive weapons, this would also include there was a need to develop military the expected level of civilian harm in any The concept of ‘victim assistance’ has devel- those forcibly displaced. The range of activities policies and procedures to ensure that given attack. Similar procedures and oped as a mechanism for promoting and guid- involved in victim assistance should include: the area effects of explosive weapons mechanisms are also used to protect ing how states fulfil their obligations to enable data collection to understand the extent of are considered in efforts to spare civil- ‘friendly forces’ from harm. people affected by violence to fully enjoy their needs and challenges; emergency and ongoing ians, and to avoid the use in populated human rights. healthcare, rehabilitation measures and psycho- area of those weapons that have wide × Collateral damage estimation (CDE) logical support; measures for socio-economic area effects. There are already strong methodologies, are tools employed by The high number of people suffering from the inclusion; and the development of relevant laws conceptual and practical foundations some militaries to estimate the risk of harm and destruction caused by the use of ex- and policies by states with participation of vic- for such an approach, as we outline in harm to civilians. This is then weighed 64 plosive weapons presents a significant chal- tims and their representative organisations. the section below. against the anticipated military advan- lenge for responding to the needs of victims in tage of a planned or deliberate attack the immediate aftermath of an attack and in the Political commitments to provide victim assis- A common feature across many military as part of the evaluation of ‘proportion- longer term. Yet the scale of this challenge can- tance should promote activity and raise stan- policies and procedures controlling the use ality’ required by international humani- not be a justification for abandoning the human dards, including for the participation of victims of weapons is a recognition of the direct tarian law (IHL). Such methodologies rights-based principle that the needs of victims and representative organisations in national relationship between the use of explosive factor in assumptions about the size and survivors must be addressed. The concept and local planning. Based on past experience, weapons, the scale of their area effects, and density of the civilian population in 68 of ‘victim assistance’ in international law has such processes do not duplicate or create paral- and the risk this presents to surrounding an area, and draw on the area effects evolved over the last 20 years. Developed pri- lel systems or special treatment for any group civilian populations. There is clearly capaci- of weapons as a central and direct tech- marily through the two treaties that now prohibit but can drive action within existing structures ty for basic agreement that in towns and nical factor that influences the likelihood 69 specific explosive weapons - the Mine Ban Trea- where they are available. It is a policy field that cities, where there are large numbers of and likely levels of civilian harm. Not ty, and more substantially in the Convention on is underpinned by principles of inclusion and civilians and a concentration of civilian in- all militaries employ this procedure how- 65 Cluster Munitions (CCM)62 - it obliges states to non-discrimination. frastructure, certain weapons pose elevat- ever, and those that do, do not always meet the immediate and long-term needs of ed risks of civilian harm. At the operational evaluate the actual impact of attacks people affected by specific weapons. Its non-dis- Recommendations for addressing victim assis- level, a recognition of these risks – and the against these estimations. Militaries criminatory framing and history of implementa- tance in a future international commitment by benefits of reducing them – is evident in have acknowledged that these proce- tion provides guidance for how the rights of vic- states to protect civilians from the use of explo- various policy and procedures employed by dures are not undertaken for certain tims can be approached in the context of sive weapons in populated areas have been de- certain militaries. Strengthening and fur- explosive weapons beyond a certain lev- 66 explosive weapons more broadly. veloped by Humanity and Inclusion (HI). Draw- ther promoting such approaches should be el because their wide area effects mean ing on consultations with a wide range of a central component of efforts to strength- that the risk of civilian harm cannot be 70 Obligations and guidance for implementation stakeholders, as well as the standards set by en civilian protection from the use of mitigated further. the Convention on Cluster Munitions, the com- under these frameworks have emerged over the explosive weapons. × Escalating the level of command mitments they recommend include ensuring past two decades through the work of states, authority required for the use of certain that the basic needs of survivors, families and advocacy organisations, and victims directly. weapons in certain contexts, and ensur- communities are met (including safety and shel- States have the primary responsibility to ad- ing sufficient accountability mecha- ter); that access is provided to support services dress the rights and needs of victims living in nisms, has also been used to manage for healthcare, rehabilitation and inclusion; and their territories. Other states have also accepted risks of harm. By ensuring that a more that assistance is provided to compensate for a responsibility to help affected countries meet senior commander needs to authorise the loss of homes and livelihoods.67 these obligations, where they are in a position the use of certain weapons, such as to do so. International organisations and NGOs those that may have wide area effects, also can, and frequently do, contribute to an additional layer of scrutiny can be put victim assistance, particularly where state in place to ensure that potential civilian capacity is low. harm has been fully assessed and all possibilities to avoid that harm have been considered.71

28 29 EXPLOSIVE WEAPONS PART 3

× More stringent rules of engagement can Specific operational policies restricting Wider approaches to promoting restrict the use of certain explosive the use of explosive weapons in civilian protection INTERNATIONAL weapons in populated areas for specific populated areas Alongside specific operational policies and POLITICAL ACTION operational contexts. The articulation of Operational directives and ‘lessons learned’ procedures, a focus on tracking the impact such rules is often driven by militaries have highlighted the risks posed by certain of military operations on local populations A commitment to avoid the use of explosive themselves, and has been associated types of explosive weapons and have pro- has offered additional opportunities for ci- weapons with wide area effects in populat- with reduced civilian harm.72 The San moted efforts to reduce these.74 Where im- vilian protection. Civilian casualty tracking ed areas requires political will at the inter- Remo Handbook on Rules of Engage- plemented, such policies and procedures mechanisms have already been successful- national level. Recognition of the harm ex- ment proposes a mission-specific policy have limited the use of explosive weapons ly employed by militaries to better under- plosive weapons cause is not lacking: many for controlling indirect fire such that with wide area effects in populated areas stand the level and nature of civilian harm, states and multilateral organisations have “use of all indirect fire is prohibited in … through a range of practical steps, includ- and to develop plans and actions more ef- expressed concern over the past decade. populated areas”, suggesting these ing direct restrictions on the use of specific fectively to limit this.80 No strike policies In 2009 the UN Secretary-General empha- concerns are more broadly echoed weapons in particular contexts. In 2010, have also been used to avoid harm to civil- sised the humanitarian devastation caused among military experts in this area.73 AMISOM forces in Somalia responded to ians by identifying infrastructure, buildings by explosive weapons in populated areas, rising levels of civilian casualties by adopt- and other entities deemed as sensitive particularly those with wide area effects, ing an indirect fire policy that limited the such as medical facilities, hospitals, key and urged member states consider the is- use of mortars and other indirect fire infrastructure, housing, and religious build- sue further.83 This concern was echoed in weapons in populated areas.75 Forces were ings that should not be attacked – though the UN Secretary-General’s report ahead of to “avoid” the use of indirect fire weapons states must be cautious that such lists do the 2016 World Humanitarian Summit, – which include many surface-to-surface not erode the legal obligation to presume which described the use of explosive weap- weapons such as artillery and mortars76 – civilian status for people and objects in ons in populated areas as “the primary kill- unless in situations of “extreme situations where there is doubt. More er of civilians in conflict”.84 Other high-level self-defense”.77 broadly, specific policies on civilian protec- UN officials including the Emergency Relief tion can also change operational mind-sets Coordinator and the Special Representa- In Afghanistan, the International Security by, for example, working against a “shoot tive to the UN Secretary-General on Chil- Assistance Force (ISAF) developed and im- first” mentality81 and promoting tactics dren and Armed Conflict have similarly plemented tactical directives restricting the such as “tactical patience” that can save drawn attention to the issue.85 This has use of air-to-ground and indirect fire weap- civilian lives.82 been echoed among states: around 80 ons. Specific restrictions on the use of have publically expressed concern against these weapons in residential compounds A political commitment to develop, adopt the backdrop of stark examples of harm, were put in place, coupled with the adop- and promote operational policies and most recently in Afghanistan, Cote d’Ivoire, tion of an assumption that areas with civil- procedures to avoid the use of explosive Gaza, Iraq, Syria, Ukraine and Yemen, to ian buildings are inhabited unless demon- weapons with wide area effects in populat- name just a few. strated otherwise and elevating the level of ed areas would be a significant step to- authority for approval of strikes to com- wards stronger civilian protection. Such a manders.78 Other efforts to reduce civilian commitment should also be partnered casualties have included: avoiding indirect with practical measures that assess and fire explosive weapons when alternatives monitor civilian protection in conflict situa- are available; additional training in the use tions – measures many militaries already of indirect fire weapons; promoting the use undertake. Doing this properly, however, ‘Stop the use of of ‘low collateral damage’ munitions; in- requires dedicated capacity as well as creasing the safety zone around targets presence on the ground in the area of op- heavy explosive from which civilians should be excluded; erations. A commitment at the political and other technical adjustments aimed at level would consolidate and build on exist- weapons in improving accuracy.79 In both of these op- ing military practice, as well as promote erations, the use of policies of avoidance transparency and the sharing of practices populated areas.’ and restraint highlighted broader concerns aimed at better civilian protection. By en- over the use of specific types of explosive couraging robust operational policies to Action-point six from the 2015 joint warn- ing issued by the The Secretary-General weapons systems for both humanitarian reduce civilian harm at a national level, a of the , Ban Ki-moon, and military-strategic purposes. political commitment would in turn pro- and the President of the International Committee of the Red Cross (ICRC), Peter mote a stronger expectation of civilian pro- Maurer 86 tection more widely in the future. 30 31 EXPLOSIVE WEAPONS PART 3

Moving from concern to action tion jointly agreed a core commitment to Towards a political declaration – a basis Content of a declaration In 2011 the International Network on “promote and enhance the protection of for stronger civilian protection × Discussions on the content of a declara- Explosive Weapons (INEW) launched with a civilians and civilian objects…for instance In 2013 the UN Secretary-General called tion are starting, including the type of call to prevent human suffering from the by working to prevent civilian harm result- on states to engage constructively in ef- actions needed by states in order effec- use explosive weapons in populated areas, ing from the use of wide-area explosive forts towards developing a ‘political com- tively to address this humanitarian prob- and a commitment to build the political will weapons in populated areas...”.93 mitment’, as a means to start addressing lem. Those states pursuing a declara- to make this achievable. INEW is a civil so- this problem. Such a commitment would tion broadly agree that it should set a ciety project that provides a framework for Data collection take the form of a shared political declara- political and operational direction non-governmental organisations from a Several states have also committed to tion – through which states recognise the against the use in populated areas of range of backgrounds to work together to collecting data on civilian harm as well as problem and set out concrete actions that explosive weapons with wide area ef- address issues raised by the use of explo- sharing examples of good policies and les- they will take in response. Political declara- fects, as those that expose civilians to sive weapons in populated areas. Since sons learned to protect civilians. They also tions are not binding in the same way as the gravest risks. INEW has suggested 2011, a wider range of actors have adopt- agreed to develop effective measures to international law – but they can be a tool that a political declaration be developed ed a call to ‘avoid’ or ‘refrain’ from the use address civilian harm from explosive weap- for mobilising action and building stronger as a vehicle to: of ‘explosive weapons with wide area ef- ons, including an international political dec- norms. Austria has taken leadership in a fects’ in populated areas as a direct means laration.94 Recognising the importance of process to start developing such a political × develop operational policies and pro- to address severe human suffering. There reliable information on the immediate and declaration and has engaged other states cedures to stop the use of explosive has also been a growing recognition that, long-term human impact of the use of and civil society partners in expert consul- weapons with wide area effects in alongside avoiding certain use, the collec- explosive weapons in populated areas, civil tations on what such a declaration populated areas; tion of robust data and the sharing of society organisations have already put sig- should contain. × provide assistance to victims and good practice are key to consolidating a nificant effort into collecting and analysing affected communities; framework around the use of explosive data from conflict and post-conflict environ- Function of a declaration weapons that adequately protects civilians ments.95 It is important however that states × enable humanitarian and × The development of an international po- from harm. also gather data to assess any use of protection measures; litical declaration can help to set a new explosive weapons and resulting harm to international standard, serving as a tool × support and undertake data Avoiding use of explosive weapons with civilians, as well as to build understanding to drive forward positive policies and gathering; wide area effects in populated areas of the victim and survivor populations in practice at a national level, establishing INEW has noted that stopping use of the their territory. × build a community of practice, includ- new norms, and building a community of worst types of explosive weapons in popu- ing through regular meetings to dis- positive practice. It can also help to stig- lated areas – those with wide area effects Sharing policy and practice cuss the issue and progress towards matise harmful behaviour and communi- – will provide the most effective way to pro- The sharing of knowledge and expertise, reducing harm. cate the type of behaviour it is seeking vide additional protection to civilians in including experiences, good practice, and to stop. This approach has been seen on conflict.87 This is in line with recommenda- policies, will be crucial as more and more other issues addressed through political A political declaration should be seen as a tions from the ICRC88 and the UN, where states, and notably their militaries, move to instruments, including the Safe Schools tool for driving forward change by encom- Security Council Resolutions89 and succes- address the severe harms caused by the Declaration aimed at protecting educa- passing a series of action-oriented commit- sive Secretary-Generals have called on use of explosive weapons in populated ar- tion from attack. ments on a variety of issues. Whilst it will states to ‘avoid’ or ‘refrain’ from the use of eas. As a first step, armed actors will need not change the pattern of harm from explo- explosive weapons with wide area effects to review, develop and share policies that sive weapons overnight, nor necessarily in populated areas.90 address the use of explosive weapons in change behaviour of the worst offenders, it populated areas, not least so that both the can draw attention to this distinct issue Support for this position is also evident deficiencies and past successes in civilian and provide specific policy and operational amongst a diverse and growing number of protection may be identified.96 recommendations that can shift behaviour states.91 Most recently, at a late-2017 re- in a positive direction over time. gional conference in Mozambique, a group of 19 African states jointly committed to “avoid the use of explosive weapons with wide area effects in populated areas”.92 This builds on the 2016 World Humanitari- an Summit where 28 states as well as re- gional bodies including the European Union and the Organisation of Islamic Coopera-

32 33 EXPLOSIVE WEAPONS PART 3

TIMELINE (POLITICAL ACTION)

April 2012

May 2009 UN Security Council resolutions Nov 2010 2042 and 2043 call upon the Syrian government to cease use of all heavy The UN Secretary-General first raises concern over the The UN Secretary-General reiterates weapons in population centres. humanitarian impact, stating that “the use in densely concerns over the use of explosive populated environments of explosive weapons that have weapons in populated areas, and so-called “area effects” inevitably has an indiscriminate recommends states consider the and severe humanitarian impact” in terms of the “risk to issue of explosive weapons closely, civilians caught in the blast radius or killed or injured by including the systematic collection of damaged and collapsed buildings” and “of damage to data and analysis of the human cost infrastructure vital to the well-being of the civilian population of their use, and urges states to issue such as water and sanitation systems”. The Secretary- “policy statements that outline the May 2012 Aug 2013 Sep 2013 97 General urges states to further consider the issue. conditions under which explosive weapons might be used in populated The UN Secretary-General urges par- The report of the UN Special Rep- The first expert meeting on reducing areas”. 99 ties to conflict to refrain from using resentative on children and armed the humanitarian impact of the use explosive weapons with a wide area conflict raises specific concerns over of explosive weapons in populated Sept 2009 impact in densely populated areas. the use of explosive weapons in pop- areas was convened in London, by The report recalls the that the Emer- ulated areas and the challenges this the UN Office for the Coordination gency Relief Coordinator called upon presents to child protection, including of Humanitarian Affairs (OCHA) and “Explosive violence: the problem of parties in Côte d’Ivoire, , the killing and maiming children, and Chatham House. It noted the devel- explosive weapons” report published Sudan and the Syrian Arab Republic access to education. 104 opment of a presumption against the by Landmine Action, is the first report to refrain from using explosive weap- use of those explosive weapons with to extensively conceptualise the ons in densely populated areas. 103 wide-area effects in populated areas humanitarian problems related to the as a theme in reducing the humani- use of explosive weapons in populat- tarian harm from the use of explosive ed areas, and challenges all actors to weapons in populated areas. 105 address it. 98

March 2011 April 2011 Feb 2014

The International Network on The UN Secretary-General, in his UN Security Council resolution 2139 Explosive Weapons (INEW) is formed, report on children and armed conflict, on Syria calls on parties to cease all calling for immediate action to raises concern over the number of attacks on civilians including the in- prevent human suffering from civilians, and particularly children, discriminate employment of weapons the use of explosive weapons in being killed from the use of explosive in populated areas, including shelling populated areas. weapons in populated areas. 101 and aerial bombardment.

Oct 2014 Oct 2011 June 2014 The UN Secretary-General sends March 2011 a Note Verbale to all UN Member The International Committee of the States requesting that they make Red Cross (ICRC) publishes its pa- Norway and OCHA convene the sec- UN Security Council resolution 1975 available relevant information per on challenges in contemporary ond expert meeting on protecting on Côte d’Ivoire urges parties to pertaining to practice and policy armed conflict, and concludes that civilians from the use of explosive prevent the use of heavy weapons 106 that either expressly governs, or despite the absence of an express weapons in populated areas. against the civilian population. 100 otherwise places limits on, the use legal prohibition, due to the signif- by armed forces of explosive icant likelihood of indiscriminate weapons with wide-area effects in effects, “explosive weapons with a populated areas. 107 wide impact area should be avoided in densely populated areas”. 102 34 35 EXPLOSIVE WEAPONS PART 3

TIMELINE (POLITICAL ACTION)

Feb 2015 June 2015 Nov 2017 May 2018

The ICRC convenes an expert meet- The UN Secretary-General’s report on the protection of 19 African states gathered at the Ma- The UN Secretary-General’s report on the protection of civil- ing on humanitarian, legal, technical, civilians in armed conflict extensively documents the harm puto regional conference on protect- ians in armed conflict once again calls on parties to conflict and military aspects over the use from the use of explosive weapons in populated areas, with ing civilians from the use of explosive “to avoid the use of explosive weapons with wide-area effects of explosive weapons in populated examples from Afghanistan, Libya, the occupied Palestinian weapons in populated areas issue a in populated areas”. The report also recommends the inclu- areas, publishing key findings later in territory, the Sudan, the Syrian Arab Republic, Ukraine, Ye- joint Communiqué committing them- sion in national policy frameworks of “a clear presumption the year. 108 men and elsewhere, and reiterating the call to refrain from selves to “avoid the use of explosive against [the use of explosive weapons with wide-area effects using explosive weapons with a wide area effect in populated weapons with wide area effects in in towns, cities and other populated areas]”, based on the areas. The UN Secretary-General urges states to develop pol- populated areas” and “fully support “high degree of civilian harm and other, broader, negative icy standards to curb or limit the use of explosive weapons the process that will lead to the ne- consequences they incur”, as well as “the potential for such with wide area effects, and “to begin discussing the possible gotiation and adoption of an interna- use to violate the prohibition of indiscriminate and dispro- scope and content of a declaration on the humanitarian im- tional political declaration on the use portionate attacks”. This presumption should be “based on pact of explosive weapons in populated areas” and encour- of explosive weapons in populated a clear understanding of the area effects” of explosive weap- ages states to “engage constructively in that initiative”. 109 areas” among other actions. 116 ons and the risks they pose to civilians in the immediate and longer term. 117

The ICRC, in its statement to the UN Security Council’s open debate on the protection of civilians in armed conflict, urges Sept 2015 States and parties to armed conflicts to avoid the use of explosive weapons that have wide area effects in densely populated areas. The ICRC refers to this as the “avoidance Austria and OCHA convene the third principle”, whereby it suggests a presumption of non-use of expert meeting on protecting civilians such weapons due to the high risk of indiscriminate effects from the use of explosive weapons in and of consequent harm to civilians. 118 populated areas.

Dec 2015 Feb 2016 May 2016 June 2016 Nov 2016

The ICRC’s report on challenges in The report issued by the UN At the World Humanitarian Summit, 28 states, the European The independent commission of inquiry on Gaza, raises An unprecedented joint warning on armed conflict notes a pattern of Secretary-General ahead of the World Union and Organisation of Islamic Cooperation, and many concern over the use of explosive weapons with wide area the impact of today’s conflicts on increasing harm in contemporary Humanitarian Summit organisations, commit to core commitment two, to “promote effects in populated areas, including artillery, tank shells, civilians is issued by the UN Secre- armed conflicts from the use of ex- identifies “the use of explosive and enhance the protection of civilians and civilian objects, mortars, rockets and air dropped high explosive munition tary-General and the President of the plosive weapons in populated areas. weapons in populated areas as the especially in the conduct of hostilities, for instance by work- and resulting civilian casualties. The commission calls on the ICRC calling on parties to armed con- The report notes that hostilities are primary killer of civilians in conflict” ing to prevent civilian harm resulting from the use of wide-ar- government of to conduct a thorough review of policies flict to stop the use of heavy explosive increasingly being conducted in and as a top humanitarian issue ea explosive weapons in populated areas”. 112 including on the use of explosive weapons with wide area weapons in populated areas. 115 population centres, thereby exposing needing urgent attention. 111 effects in densely populated areas, and to develop legal and civilians to heightened risks of harm. A specific joint commitment on the use of explosive weapons policy standards that would limit the use of explosive weap- This trend of contemporary armed in populated areas led by Austria, and joined by Costa ons with wide-area effects in populated areas with a view to conflicts is only likely to continue with Rica, Ireland, Liechtenstein, Luxembourg, Mexico, Mozam- strengthening the protection of civilians during hostilities. 114 growing urbanization. 110 bique, , and Zambia, commits to raise awareness about the challenge to protection of civilians in armed conflict posed by the use of explosive weapons in populated areas, collect data on harm and reverberating effects, contribute to exchanges on good practice to minimise impacts on civilians, and continue to pursue effective international measures on this issue, including through an international political declaration. 113

36 37 EXPLOSIVE WEAPONS CONCLUSION

As societies – and war – become increasingly urbanised, civilians are confronted on a daily basis with bombing and shelling in the places where they live. In some towns and cities, the experience of conflict has become so ingrained that this seems normal and unavoidable. In certain situations, where there appears to be scant regard for the basic rules of international humanitarian law, there seems little prospect for introducing, let alone successfully enforcing, more restrictive expectations of behaviour.

Yet, processes of building stronger protection for civilians can never rest on appeals to the worst offenders. Nor should the rejection of basic norms of behaviour by certain state and non-state actors precipitate a wholesale rejection of such norms. Rather, the international community needs to make the norms of behaviour that protect civilians stronger A young girl peeks out of the door to her makeshift home, built after her real house and more effective, by building on the commitment was destroyed in the Ezbet Abed-Radu area of Gaza. A huge proportion – about of responsible actors to adopt policies and practices 75 per cent - of the population of Gaza is under 25, so thousands of children and that lead by example. Progressively curbing the young people were heavily affected by the conflict. This particular town was razed scale of explosive force that is considered acceptable almost entirely to the ground during Oper- in populated areas is essential for improving ation Cast Lead in January 2009. © Marc Garlasco civilian protection.

38 39 EXPLOSIVE WEAPONS ARTICLE 36

Whilst militaries may fear the adoption of constraints that could limit their options in times of acute crisis, such fears should not bar the way to recognising certain technical facts: the size of area that an explosive weapon may affect has a direct relationship to the risk posed to the surrounding population; a wider area of effects, and a greater concentration of civilians, will produce a greater level of immediate harm; a wider area of effects, often resulting from greater explosive power, will produce a greater likelihood of destroying buildings and infrastructure on which the civilian population depends, further extending – both temporally and geographically - the harm that will be caused.

These technical realities are increasingly coming to bear on what is considered acceptable in conflict. Certain weapon systems have such wide area effects that it is not plausible to claim that they can be directed towards a specific target within a populated area. Others have area effects that make any such claims fraught with risk. In an international context of contested claims to truth about conflict and the application of legal rules, the more concrete questions of what weapons are being used, how and where, take on increased significance as indicators of responsible behaviour or otherwise.

People subject to the effects of explosive weapons in the towns and the cities where they are trying to live their lives deserve a more ambitious response than the international community has thus far mustered. We should not lower ourselves to accepting the experience of conflict-affected communities as inevitable. Instead, their suffering should act as imperative to setting stronger expectations of civilian protection for future generations. Abs hospital airstrike aftermath, Hajjah, Yemen, 19 August 2016. A hospital work- er salvages the remains of undamaged medication and equipment left in the emergency room after the 15 August Saudi-led coalition airstrike which de- stroyed the hospital killing 19. © Rawan Shaif 40 41 EXPLOSIVE WEAPONS NOTES

1. The NATO Glossary of Terms and Definitions (2014) defines 7. Security Council Resolution 2139 (2014) adopted unanimous- “indirect fire” as “fire delivered at a target which cannot be ly on 22 February 2014 demands that parties to the conflict seen by the aimer.” in Syria cease “the indiscriminate employment of weapons in populated areas.” Whilst legally this formulation is highly 2. For a more detailed analysis for the ‘damage mechanisms’ problematic (as all indiscriminate attacks are illegal) it does of explosive weapons see ARES (2016), “Explosive weapons demonstrate that the term ‘populated areas’ can be used as in populated areas: Technical considerations relevant to their a policy formulation for managing the use of weapons. In a use and effects”, prepared for the International Committee of 2017 report of the UN Secretary-General (S/2017/982) on the Red Cross, pp.13-17. the implementation of Security Council Resolutions relating to 3. This in turn depends upon the size of the military objective Syria (including Resolution 2139) it was noted that, “explosive and the extent to which it can be separated from the civilian weapons continue to be fired into populated areas, indiscrim- population and its buildings and infrastructure. inately killing and injuring people, destroying and damaging vital infrastructure and leaving thousands of communities in 4. Such variation is usually represented in terms of the sta- areas littered with explosive remnants of war that continued tistical likelihood of the warhead landing within a certain to kill and injure civilians and impede humanitarian access distance of the point where it is aimed. There are numerous years after their intended use.” factors that contribute to this variation; some are systemic to the weapon, such as variations in the barrel through which 8. See, for example, Save the Children (2017) “Invisible Wounds: the munition is fired, others are specific to individual firings, The impact of six years of war on the mental health of Syria’s such as alignment of the weapon, variations in the munition, children”; Harvard Law School International Human Rights weather conditions or crew performance. Some factors can Clinic and PAX (2017), “Operating Under Fire: The effects of be mitigated, but for any weapons system there will always be explosive weapons on health care in the East of Ukraine”; some degree of variation in where repeated firings land. The Action on Armed Violence (AOAV) (2016), “Patterns of Harm: effect of any inaccuracy of delivery is always combined with Five years of explosive violence 2011-2015”; Humanity and the blast and fragmentation radius of the warhead—at what- Inclusion (HI, formerly Handicap International) (2016) “Syria, ever scale that operates. Further analysis of factors that can a mutilated future”; AOAV (2011), “100 Incidents of Humani- affect the accuracy or precision of a weapon can be found tarian Harm: Explosive weapons in populated areas”. in GICHD (2017), “Explosive weapon effects – final report”, 9. AOAV (2017), “Explosive Truths: Monitoring explosive violence Geneva, pp.25-39 and ARES (2016), “Explosive weapons in in 2016”. populated areas: Technical considerations relevant to their use and effects”, pp.28-34. 10. See section “International law”, p 26. 5. UNIDIR (2012), “Protecting Civilians from the Effects of Explo- 11. Centers for Disease Control and Prevention, “Explosions and sive Weapons: An analysis of international legal and policy Blast Injuries: A primer for clinicians”. standards”, p 125. 12. Ibid. 6. United Nations, Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be 13. Save the Children (2015), “Nowhere safe for Yemen’s chil- dren: The deadly impact of explosive weapons in Yemen”. Street scene in Aleppo, from April 2013. Deemed to be Excessively Injurious or to have Indiscriminate © MSF Effects, Protocol III, Article 1 (2).

42 43 EXPLOSIVE WEAPONS EXPLOSIVE WEAPONS

14. ICRC (2015), “Health Care in Danger: January 2012 to De- 30. In 2015, UNICEF UK reported the wide range of often over- 47. Ibid. The study by Geneva Call confirmed that non-state actors 2017, though without the detailed provisions included in the cember 2014”. See also the ICRC’s Health Care in Danger looked impacts explosive violence can have on children: are also using commercially manufactured explosive weap- CCM. Victim assistance is also grounded in the principles of project at https://bit.ly/1N8ZYxW , and Insecurity Insight’s “Unremitting anxiety and exposure to violence can undermine ons. the Convention on the Rights of Persons with Disabilities. Aid Work in Danger project at https://bit.ly/2vOfUqo. children’s psychological development, impairing cognitive and 48. Certain types of explosive weapons are, however, subject to 63. See CCM Article 2 sensory growth. It is now largely accepted that exposure to vi- 15. ICRC (2011), “Health Care in Danger: Making the case”. express legal restrictions, such as IEDs, landmines and clus- olence can threaten the development of children’s brains and 64. Handicap International (2014), “Victim assistance in the ter munitions (under 1996 Amended Protocol II to the Con- 16. See, for example, HI (2014), “Causes and types of injuries lay the foundations for cycles of intergenerational violence.” context of mines and explosive remnants of war”. vention on Certain Conventional Weapons, the 1997 Conven- encountered by Handicap International while working with UNICEF UK (2015), “Keeping Children Safe in Emergencies”; tion on the Prohibition of the Use, Stockpiling, Production and 65. ibid. Internally Displaced Persons in Syria: A focus on the impact Save the Children (2015), “Nowhere safe for Yemen’s chil- Transfer of Anti-Personnel Mines and on their Destruction, of explosive weapons”; OCHA & AOAV (2015), “State of Crisis: dren: The deadly impact of explosive weapons in Yemen”; and the 2008 Convention on Cluster Munitions”, respectively) 66. Handicap International (2016), “Victim assistance in the Explosive weapons in Yemen”; OCHA & PAX (2015) “Shat- Save the Children (2016), “Childhood under siege: Living and context of the use of explosive weapons in populated areas”. tered lived: Civilians suffer from the use of explosive weapons dying in besieged areas of Syria”. 49. IHRL applies at all times, whereas IHL only applies in situa- in Libya”; OCHA & PAX (2015) “Collateral: The human cost of tions of (non-international or international) armed conflict. 67. ibid. p10-11 31. Save the Children (2016), “Childhood under siege: Living and explosive violence in the Ukraine”. dying in besieged areas of Syria”. 50. In a case dealing with a “counter-terrorism operation” in a 68. Article 36 and PAX (2016), “Areas of harm: understanding 17. Article 36 (2013), “The impact of explosive violence on men- region of Turkey subject to a state of emergency, the Euro- explosive weapons with wide area effects”, contains a more 32. For more, see: Women’s International League for Peace and tal health and psycho-social well-being”; Save the Children pean Court of Human Rights (ECtHR) found that, although detailed analysis based on US policy as laid out in Chairman Freedom (2014), “Women and explosive weapons”. (2017) “Invisible Wounds: The impact of six years of war on recourse to lethal force may have been justified, the right to of the US Joint Chiefs of Staff, 2012, Instruction – No Strike the mental health of Syria’s children”. 33. See, for example, ICRC (2017), “Proportionality and precau- life of one of the alleged terrorists had been violated because Policy and Collateral Damage Estimation, 12 October 2012, tions in attack: The reverberating effects of using explosive the state failed to demonstrate that the force used did not online at https://publicintelligence.net/cjcs-collateral-dam- 18. Landmine Action (2009) “Explosive Violence: The problem of weapons in populated areas”. See also UNIDIR (2016), “Un- go beyond what was absolutely necessary and strictly propor- age/. explosive weapons”. derstanding the reverberating effects of explosive weapons: A tionate. ECtHR, Mansuroğlu c. Turquie, Judgment (App. no. 69. For example, US policy guidance to its commanders on con- 19. HI (2015), “Kobani: A city of Rubble and Unexploded Devic- way forward”. 43443/98), 26 February 2008, §§98, 100. ducting collateral damage estimates has raised challenges es”. 34. Christina Wille (2016), “The Implications of the Reverberating 51. 1990 UN Basic Principles on the Use of Force and over the viability of conducting accurate estimates for certain types of explosive weapons – notably cluster munitions, rock- 20. The extensive use of mortars, rockets and other unguided Effects of Explosive Weapons Use in Populated Areas for by Law Enforcement Officials (BPUFF), in particular, Principles et-assisted projectiles, extended range artillery, mortar and munitions – fundamentally inaccurate weapons – in the battle Implementing the Sustainable Development Goals” 5 and 9. naval guns – because of difficulties in controlling the area over Mosul devastated the city, with reports that 40,000 35. UNHCR (2017), “Global Trends: Forced displacement in 52. See, e.g. ECtHR, McCann et al. v. The , Judg- effects of these weapon systems, which presents particular civilians died. , “Iraq/US-led Coalition: 2016”. ment (Grand Chamber) (App no. 18984/91), 27 September problems when used in urban areas. The policy also proposes Weapons Choice Endangers Mosul Civilians”, Human Rights 1995, §194; ECtHR, Esmukhambetov v. , Judgment the use of weapons with reduced area effects, particularly on Watch, 8 June 2018; “The Massacre of Mosul: 40,000 feared 36. Ibid. (App no. 23445/03), 29 March 2011, §146. smaller targets to reduce the risk of a munition landing in the dead in battle to take back city from Isis as scale of civilian 37. Human Rights Watch (2014) “Deadly cargo: explosive weap- surrounding area. As above. casualties revealed”, Independent, 19 July 2017. In Raqqa, it 53. 1977 Additional Protocol I to the Geneva Conventions (API), ons in populated areas”; HI (2017) “Everywhere the bombing was reported that 20,321 munitions were dropped on the city Arts 48, 51(1) and 51(2). 70. Chairman of the US Joint Chiefs of Staff, 2012, Instruction – followed us”. over a five-month period, amounting to about 133 munitions No Strike Policy and Collateral Damage Estimation, 12 Octo- 54. GC I-IV common articles 1 and 49/50/129/146. every day, making 80% of the city uninhabitable. “Interna- 38. In recent research by Humanity and Inclusion (formerly Hand- ber 2012, online at https://publicintelligence.net/cjcs-collat- tional airstrikes and civilian casualty claims in Iraq and Syria icap International), Syrian refugees testified to the impact of 55. International Committee of the Red Cross (ICRC), ‘Internation- eral-damage/ – October 2017”, Airwars, 22 Nov. 2017; “Syria Crisis: North- bombing and shelling of their homes and cities. HI (2017), al Humanitarian Law and the Challenges of Contemporary 71. In , Iraq in 2003, UK forces treated the city of Basra east Syria Situation Report No.16 (1-30 September 2017)”, “Everywhere the bombing followed us” and “Qasef”. Armed Conflicts’, Report submitted to the 31st International as a “restricted fire area” and only one regiment among UK UNOCHA, 30 Sept. 2017. Conference of the Red Cross and the Red Crescent, Geneva, 39. Human Rights Watch, “Turkey: Open border to displaced forces was authorised to use 155mm artillery, and any use Switzerland, 28 November - 1 December 2011, October 21. Article 36 (2013), “Damage to the built environment from the Syrians shelled by government”, 20 April 2016; HI (2017), required permission from the regiment commander - above 2011, p. 41. use of explosive weapons”. “Everywhere the bombing followed us”. the usual level for artillery. See: Action on Armed Violence 56. For example, V1 and V2 rockets, Scud missiles and Katyusha (2013), “A Tale of Two Cities: the use of explosive weapons in 22. UNIDIR (2016), “The implications of the Reverberating Effects 40. The most accepted definition of armed conflict among social rockets are often cited as weapons that cannot be specifically Basra and Fallujah, Iraq, 2003-4”. of Explosive Weapons Use in Populated Areas for Implement- scientists appears to be that of UCPD, who define conflict as: directed and are therefore ‘indiscriminate by nature’, yet they ing the Sustainable Development Goals”. “a contested incompatibility that concerns government and/ 72. Article 36 and PAX (2016), “Areas of harm: understanding are not currently specifically prohibited. J.-M. Henckaerts and or territory where the use of armed force between two parties, explosive weapons with wide area effects”. 23. Article 36 (2013), “Damage to the built environment from the L. Doswald-Beck, Customary International Humanitarian Law, of which at least one is the government of a state, results use of explosive weapons”. 2 vols (Geneva, International Committee of the Red Cross, 73. Institute of Humanitarian Law, San Remo (2009), “San Remo in at least 25 battle-related deaths.” International Peace 2005), vol. II: Practice, Practice relating to Rule 71. Handbook on Rules of Engagement”, p.37 on Series 27: Un- 24. ICRC (2011), “Health Care in Danger: A sixteen country study” Research Institute, Olso (PRIO), “UCDP/PRIO Armed Conflict observed Indirect Fire and Observed Indirect Fire, Rule 27(A). Dataset Codebook”, Version 4- 2013, p 1. 57. Arts 51(4)(c) and 51(5)(a), API 25. Security Council Resolution 2286 (2016) on Protection of 74. For a more detailed overview see UN OCHA (2017), “Compi- Civilians in Armed Conflict, available at: http://undocs.org/S/ 41. See, for example, the current conflict in Syria. 58. ICRC Commentary to Additional Protocol I (1987), §1963. lation of military policy and practice: Reducing the humani- RES/2286(2016) 42. Geneva Declaration (2008), “Global Burden of Armed Vio- 59. Arts 51(5)(b) and 57(2)(a)(iii), API tarian impact of the use of explosive weapons in populated 26. Harvard Law School International Human Rights Clinic and lence” areas”. 60. Art 57, API PAX (2017), “Operating Under Fire: The effects of explosive 43. For example, during the Northern Ireland “troubles”, Northern 75. This policy required AMISOM to “avoid” the use of indirect fire weapons on health care in the East of Ukraine”. 61. “[T]he ICRC is of the view that explosive weapons with a wide Irish paramilitaries saw the “troubles” as a war, but this view weapons, forbidding in particular the use of 107mm mortars impact area should not be used in densely populated areas 27. See, for example, “Cholera in Yemen: war, hunger, disease… was not reflected in Westminster or among the British public. in salvoes, and required the designation of residential areas, due to the significant likelihood of indiscriminate effects, and heroics”, The Lancet, August 2017. markets, hospitals, schools, religious places of worship, and 44. For more, see Landmine Action (2009) “Explosive Violence: meaning that their use against military objectives located in public gatherings as No Fire Zones on AMISOM maps due 28. ICRC (2017), “The impact of explosive weapons on urban The problem of explosive weapons” p 7. populated areas is likely to fall foul of the IHL rules prohibiting to the likelihood of civilian presence. See UN OCHA (2017), services: Direct and reverberating effects across space and indiscriminate and disproportionate attacks.” ICRC, “Interna- 45. This is made clear in the original report that introduced the “Compilation of military policy and practice: Reducing the time”. See also UNDP post-disaster needs assessments, tional humanitarian law and the challenges of contemporary media-report-based methodology for gathering data on in- humanitarian impact of the use of explosive weapons in for example UNDP (2014), “Detailed Infrastructure Damage armed conflicts”, doc no 32IC/15/11, October 2015, p 4 cidents of explosive weapon use, Landmine Action (2009), populated areas”. Assessment” p.11-12. “Explosive Violence: The problem of explosive weapons”, 62. See “Convention on the Prohibition of the Use, Stockpiling, 76. These present distinct operational challenges and humanitar- 29. For more details, see: Toxic Remnants of War (2014), “Pol- p.22. Production and Transfer of Anti-Personnel Mines and on ian concerns as the target is not visible to the operator mak- lution Politics: Power, Accountability and Toxic Remnants of their Destruction,” Article 6 and “2014-2019 Maputo Action 46. Geneva Call (2017), “In their words: Six armed non-state ing it difficult to discern the presence of civilians in the area. War”. Plan”; the “Convention on Cluster Munitions” Articles 2 and actors share their policies and practice with regards to pro- 5 and the “2015-20 Dubrovnik Action Plan”. The standard 77. UN OCHA (2017), “Compilation of military policy and practice: tecting civilians from explosive weapons” of requiring victim assistance was also recently reiterated in Reducing the humanitarian impact of the use of explosive the Treaty on the Prohibition of Nuclear Weapons, adopted in weapons in populated areas”.

44 45 EXPLOSIVE WEAPONS ARTICLE 36

78. Article 36 and PAX (2016), “Areas of Harm: Understanding uncategorized/maputo-regional-conference-on-the-protection- 111. Report of the Secretary-General for the World Humanitarian explosive weapons with wide area effects”. of-civlians-from-the-use-of-explosive-weapons-in-populated- Summit (2016, A/70/709) areas. 79. ibid. 112. Aligned with by States: Austria, Brazil, Chile, Croatia, Cyprus, 93. Aligned with by: Austria, Brazil, Chile, Croatia, Cyprus, Czech Czech Republic, Denmark, European Union, Finland, , 80. This includes collecting, analysing and disseminating a stan- Republic, Denmark, European Union, Finland, Greece, Ice- Iceland, Italy, Liechtenstein, Luxembourg, Madagascar, Mex- dardised set of data on civilian casualties horizontally and land, Italy, Liechtenstein, Luxembourg, Madagascar, Mexico, ico, Monaco, , New Zealand, Norway, Poland, vertically, and investigating all allegations regardless of their Monaco, Netherlands, New Zealand, Norway, Poland, Portu- , Romania, Slovakia, Slovenia, Somalia, Sweden, source. It puts an emphasis on learning from civilian casualty gal, Romania, Slovakia, Slovenia, Somalia, Sweden, Switzer- Switzerland, Turkey, as well as International organisations incidents, as well as near misses by identifying actions that land, Turkey. and UN agencies: Food and Agriculture Organization of the can be taken and any changes necessary in techniques and United Nations (FAO), International Fund for Agricultural procedures. It also requires immediate action to investigate 94. World Humanitarian Summit commitment on explosive weap- Development (IFAD), International Labour Organization operations, within a set timeframe and transparency in inves- ons in populated areas (2015), https://www.agendaforhu- (ILO), International Organization for Migration (IOM), Joint tigations. See UN OCHA (2017), “Compilation of military policy manity.org/commitment/495. United Nations Programme on HIV/AIDS (UNAIDS), OCHA, and practice: Reducing the humanitarian impact of the use of 95. This has included including data on both direct deaths and Organisation of Islamic Cooperation (OIC), UN Special explosive weapons in populated areas”. long-term impact from reverberating effects from destruction Representative of the Secretary-General for Children and 81. See: Action on Armed Violence (2013), “A Tale of Two Cities: of critical civilian infrastructure. See INEW resources page: Armed Conflict (SRSG CAAC), UN-HABITAT -United Nations the use of explosive weapons in Basra and Fallujah, Iraq, http://www.inew.org/learn-more-about-inew. Human Settlements Programme, United Nations Children’s 2003-4”. Fund (UNICEF), United Nations Development Programme 96. In 2010, the UN Secretary-General, in his report on the pro- (UNDP), United Nations Entity for Gender Equality and the 82. UN OCHA (2017), “Compilation of military policy and practice: tection of civilians in armed conflict (S/2010/579), asked Empowerment of Women (UN WOMEN), United Nations High Reducing the humanitarian impact of the use of explosive Member States to issue policy statements that outline con- Commissioner for Refugees (UNHCR), United Nations In- weapons in populated areas”. ditions for which where explosive weapons might be used dustrial Development Organization (UNIDO), United Nations in populated areas: http://www.inew.org/site/wp-content/ 83. Report of the Secretary-General on the protection of civilians Office for Project Services (UNOPS), United Nations Office uploads/SG-PoC-report-2010.pdf This was followed in 2014 in armed conflict (2009), S/2009/277, p.8. for the Coordination of Humanitarian Affairs (OCHA), United by a Note Verbale requesting that they make available rele- Nations Office of the High Commissioner for Human Rights 84. Report of the Secretary-General for the World Humanitarian vant information pertaining to practice and policy that either (OHCHR), United Nations Office of the High Representative Summit (2016, A/70/709). expressly governs, or otherwise places limits on, the use by for the Least Developed Countries, Landlocked Developing armed forces of explosive weapons with wide-area effects in Countries and Small Island Developing States (UN-OHRLLS), 85. INEW (2012), UN concerned over impact of explosive weap- populated areas. See: UN OCHA (2017), “Compilation of mili- United Nations Peacebuilding Support Office (PBSO), United ons in populated areas. tary policy and practice: Reducing the humanitarian impact of Nations Population Fund (UNFPA), United Nations Relief 86. “World at a turning point: Heads of UN and Red Cross issue the use of explosive weapons in populated areas”. and Works Agency for Palestine Refugees (UNRWA), United joint warning”, 31 October 2015. 97. Report of the UN Secretary General on the protection of Nations World Food Programme (WFP). See https://www. agendaforhumanity.org 87. See INEW’s statement to the meeting of High Contracting civilians in armed conflict (2009, S/2009/277) Parties to the UN Convention on Conventional Weapons, 98. Landmine Action (2009), Explosive violence: The problem of 113. World Humanitarian Summit website, https://www.agenda- November 2017. explosive weapons forhumanity.org/commitment/495 88. Drawing on field expertise and experience, the ICRC’s position 99. Report of the UN Secretary General on the protection of 114. Report of the detailed findings of the independent commis- on this issue since 2011 has been that despite the absence civilians in armed conflict (2010, S/2010/579) sion of inquiry established pursuant to Human Rights Coun- of an express legal prohibition, and due to the significant cil resolution S-21/1 (A/HRC/29/CRP.4) likelihood of indiscriminate effects, “explosive weapons with 100. www.inew.org a wide impact area should be avoided in densely populated 115. ICRC (2015): World at a turning point: Heads of UN and Red 101. Report of the UN Secretary-General on children and armed areas”, see https://www.icrc.org/eng/assets/files/red-cross- Cross issue joint warning conflict (2011, S/2011/250) crescent-movement/31st-international-conference/31-int-con- 116. Angola, Botswana, Cameroon, Central African Republic, ference-ihl-challenges-report-11-5-1-2-en.pdf. 102. ICRC (2011), International Humanitarian Law and the chal- Congo, Ethiopia, Ghana, Kenya, Liberia, Madagascar, Mali, lenges of contemporary armed conflicts 89. These include UN Security Council resolutions on Cote d’Ivoire Mozambique, Nigeria, Senegal, Somalia,, Togo, Uganda, Zambia, Zimbabwe issued the Communique which can be and Syria which have called (in various formulations) on par- 103. Report of the UN Secretary-General on the protection of found here: http://www.inew.org/uncategorized/maputo-re- ties to the armed conflict to avoid the use of heavy explosive civilians in armed conflict (2012, S/2012/376) weapons in populated areas. For example, resolution 2139 gional-conference-on-the-protection-of-civlians-from-the-use- 104. Report of the Special Representative of the Secretary-Gener- was adopted by the UN Security Council in 2014, demanding of-explosive-weapons-in-populated-areas al for Children and Armed Conflict (2013, A/68/267) that all parties to the conflict in Syria “immediately cease all 117. Report of the UN Secretary-General on the protection of attacks against civilians, as well as the indiscriminate em- 105. OCHA (2014), Expert Meeting on the Humanitarian Impact civilians in armed conflict (2018, S/2018/462) ployment of weapons in populated areas, including shelling on the Use of Explosive Weapons in Populated Areas, Sum- and aerial bombardment, such as the use of barrel bombs, mary Report 118. ICRC statement to UN Security Council open debate on pro- and methods of warfare which are of a nature to cause super- tection of civilians in armed conflict, https://www.icrc.org/ fluous injury or unnecessary suffering, see: Security Council 106. OCHA (2015), Informal Expert Meeting on Strengthening the en/document/icrc-statement-un-security-council-open-de- Resolution 2139 (2014), S/RES/2139. http://www.un.org/ Protection of Civilians in Populated Areas, Summary Report bate-protection-civilians-armed-conflict en/ga/search/view_doc.asp?symbol=S/RES/2139(2014 107. OCHA (2014), Compilation of Military Policy and Practice: 90. See Reports of the UN Secretary-General on the protection of Reducing the Humanitarian Impact of the Use of Explosive civilians in armed conflict, 2015-2018. Weapons in Populated Areas 91. State acknowledgements of harm from the use of explosive 108. ICRC (2015), Explosive Weapons in Populated Areas: Hu- weapons in populated areas: www.inew.org/acknowledge- manitarian, Technical, Legal and Military Aspects, Expert ments. Meeting Report 92. The Maputo Communique on the protection of civilians from 109. Report of the UN Secretary General on the protection of the use of explosive weapons in populated areas was adopt- civilians in armed conflict (2015, S/2015/453) ed by 19 states, including: Angola, Botswana, Cameroon, Cen- 110. ICRC (2015), International Humanitarian Law and the chal- tral African Republic, Congo, Ethiopia, Ghana, Kenya, Liberia, lenges of contemporary armed conflicts Madagascar, Mali, Mozambique, Nigeria, Senegal, Somalia, Togo, Uganda, Zambia, Zimbabwe, see: http://www.inew.org/

46 47 Published August 2018 ARTICLE 36

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48 1 EXPLOSIVE WEAPONS

2