by Sara Gorelli*

After a two-year forced hiatus due to the global pandemic, consultations on the text of the International Political Declaration on Explosive Weapons resumed last month. From 6 to 8 April, the Palais des Nations in Geneva hosted 65 diplomatic delegations from as many countries, representatives of international humanitarian organisations such as the Committee of the International Red Cross, and those of civil society, including INEW, the International Network of NGOs Against Explosive Weapons. For Italian civil society, the Associazione Nazionale Vittime Civili di Guerra (National Association of Civilian War Victims) was present, in turn in a network with Campagna Italiana Contro le Mine and Rete Italiana Pace e Disarmo.

For three days the over 200 delegates formally consulted to accept and reject the contents of the Declaration proposed by Ireland, the state that offered to lead the negotiation process. A process that proved by no means easy and whose partial outcome for the moment leaves many questions about the international community’s real interest in the problem of civilian involvement in conflicts and the actual possibility of guaranteeing truly effective protection systems. The central objective of the INEW Network is to promote at the international level military behaviour and practices by states in conflict to minimise as far as possible the risks to civilians arising from the use of explosive weapons deployed in urban centres. Explosive weapons, in fact, have become an unprecedented humanitarian problem over the past decade. It is no coincidence that the International Red Cross and no less than two UN Secretaries-General (Ban Ki-Moon and Guterres) have repeatedly expressed concern about this issue.

The impact of explosive weapons on civilians

It is a fact that when explosive weapons are used in urban centres or otherwise densely populated areas, large numbers of civilians are unjustifiably killed and injured or suffer the consequences of the destruction of infrastructure and services vital to human survival. This widely documented ‘pattern of harm’ can be found in all the bloodiest contemporary conflicts: Ethiopia, Iraq, Gaza, Yemen, Syria and Ukraine.

The incontrovertible data show that 90% of the victims of urban conflicts are civilians. Whether by air strikes, artillery, rockets or homemade devices, the problem is that explosive weapons are designed for use in open battlefields, not among the narrow streets and buildings of a city. The topographical conformation typical of population centres exponentially amplifies their destructive range and causes civilians and communities suffering for many years after the conflict ends.

It is since 2019 that the issue of the humanitarian harm of explosive weapons has become the subject of a clear diplomatic track. Before then, the widespread perception was that explosive weapons did not constitute a humanitarian problem, because their use is lawful under the law of war, also known as International Humanitarian Law (IHL). It was with the 2019 Vienna Conference that the human costs and suffering caused by explosive weapons in war began to be perceived by the international community as a humanitarian problem to be addressed, and it was on this recognition that the diplomatic path of the International Political Declaration was based.

Still a lot to work to do on the declaration

The objective of the Declaration is to encourage states to agree and adopt ‘conservative’ military practices with respect to the use of explosive weapons, so as to ensure greater protection of civilian populations during warfare operations. This objective is reflected in the structure of the Declaration. The text begins with an acknowledgement of the multiple humanitarian harms and social and environmental consequences of the use of these weapons (Preamble and Section 1), then goes on to examine the relevant international legal framework (Section 2) and finally establishes operational commitments (Section 3) and the system for monitoring them (Section 4). The April consultations served to review the progress of these years of negotiations against each of the four points.

The progress of the April work was rather stormy. Two years after the first meeting, and despite broad recognition of the need for urgent action to address the harm suffered by civilians, substantial differences of opinion remain between countries. These differences, unfortunately, are deep and substantial.
Belgium, Canada, Denmark, Israel, the Republic of Korea, Sweden, Turkey, the United Kingdom and the United States worked to effectively weaken the operational commitments proposed in the draft and to partially reject the substantive recognition framework that motivated the negotiation process itself and the need to develop an ad hoc Declaration on explosive weapons. What is the reason for such hostility?

The commitments on military operational procedures proposed mainly by humanitarian and civil society organisations are based on the ‘presumption of non-use’ concept,  introduced by the International Red Cross. This principle requires a state to totally refrain from using explosive weapons in population centres when it is found that they can have wide-ranging effects. The consequences of wide-ranging effects in urban areas are in fact unpredictable, indiscriminate – i.e. in striking they make no distinction between combatants and non-combatants – and go far beyond the intentions of those launching the attack. The larger the blast area, the greater the number of civilians and civilian facilities and infrastructure that is affected.

If it became a cardinal principle widely shared by armies, the presumption of non-use would have a positive impact on the lives of populations experiencing wars. The problem is that it falls into a grey area of interpretation and application of IHL: while explosive weapons are not banned, their wide-ranging effects cause civilians the very harm IHL aims to prevent. The amendments proposed by the countries listed above are thus based on the logic that using explosive weapons in cities is not explicitly prohibited by the law of war and that the suffering of civilians would be caused not so much by the use of explosive weapons per se, but rather by violations attributable to the other party to the conflict (almost always a non-state entity). According to these states, any restrictive commitment in this regard would be tantamount to creating new international norms that a Declaration has no authority to impose, as a non-binding legal document. Needless to say, these positions led to a stalemate in the negotiations.

Like all such consultations, it is regional affiliation and/or treaties of a commercial or military nature that bear a weight, and can influence the negotiating position of entire groups of states. These consultations were also no exception. This was the case with Chile and Mexico, which, starting from the commitments made in the Santiago Communiqué, a regional agreement precisely on explosive weapons, led the delegations of the Americas countries to clamour for a text with a more decisive humanitarian connotation. The African countries that signed the Maputo Communiqué, whose spokespersons were Togo and Nigeria, moved in the same way.

European countries, on the other hand, deserve a separate discussion, caught between their membership of the European Union, whose orientation is favourable to a ‘protective’ text, and NATO, whose legacy would entail a much more ‘conservative’ approach. With the exception of Austria and the European Union, the positions of the countries of the old continent, primarily France and Germany, have been cautious and conciliatory, although not far from the conservative bloc on the issue of abstaining from the use of explosive weapons with wide-ranging effects.

Italy [where ANVCG is based and operates] aligned itself with the prudent positions of its European counterparts, but with a substantial difference. On 6 April, the Foreign Affairs Committee of the Chamber of Deputies approved a parliamentary resolution binding our country to adhere to the Declaration and recognise the document as the benchmark for standards on the use of explosive weapons. The resolution was strongly supported by civil society organisations that deal with explosive weapons in our country and provided Italy with renewed impetus for participation in the consultative process that, until then, could otherwise have been described as colourless. The resolution made it possible to redefine Italy’s strategic role within the group of European countries, where Italy distinguished itself for the mediation work carried out with Germany to smooth out dissent on certain parts of the text, particularly those concerning reverberating effects or to favour the adoption of monitoring mechanisms that do not involve a commitment by countries with budget constraints on military spending. Even in the case of Italy, however, the knots concerning the presumption of non-use of explosive weapons remain unresolved.

The last and final round of negotiations is scheduled for the first half of June. There, the final text will be presented for voting. At the moment, it is not possible to make predictions as to whether the calculated decision will prevail to present a milder, conservative and substantially weaker text to get all states on board or a bolder and, in some respects, more radical one. Appointment in June.



*= L’Osservatorio – Centre for Research on Civilian Victims of Conflict, a project by ANVCG

Cover image: Wikicommons