Protecting civilians: implementing the declaration on explosive weapons.

In November last year, something significant and unexpected happened: the UK Government signed an international Political Declaration to discourage the use of explosive weapons in populated areas. What impact does this have on protecting civilians?

No one seriously anticipated this move. The campaign for action to limit the civilian harm caused by the use of heavy weaponry in towns and cities had been rumbling on for almost a decade, championed in a few small corners of the United Nations and by a miscellaneous group of NGOs (including my own). But none of the major military powers seemed to take protecting civilians very seriously. The UK Government’s line was clear: the existing international legal framework is sufficient and they would oppose any attempt to create new norms for protecting civilians.

But, then Ukraine happened. As Mariupol, Kherson and other towns and cities came under sustained and brutal bombardment by an invading state, political incentives among NATO governments swung in favour of establishing clear blue water between the standards to which they aspired and the much lower standards of protecting civilians being showcased by Russia.

Predictably, the US position was the key that unlocked everyone else’s. When the final round of negotiations took place in June 2022 in Geneva, the Americans surprised almost everybody by committing themselves to supporting the text of the new Declaration. One by one, most other NATO states, including the UK, duly followed suit.

The political process that got to this point was spearheaded by the Government of Ireland, a state that has a long history of promoting progressive agendas in the peace and security field and, as it came to the end of two-year tenure on the UN Security Council wanted to cement its legacy. So it was in Dublin, in November 2021, that a remarkable 83 governments committed themselves to this new agreement.

What problem is the Declaration trying to address?

 Simply put, war is increasingly urban and the use of explosive weapons in populated areas carries a disproportionately heavy civilian toll. According to the International Committee of the Red Cross, it is one of the main causes of civilian harm in today’s armed conflicts.

The weapons in question are defined by their wide area effects through blast, fragmentation or heat; that is, weapons that have a large explosive yield, that lack accuracy and/or precision or that fire multiple munitions simultaneously over a large area. Such effects are often amplified in built-up areas, where blast can be absorbed, reflected and channelled in and around structures, and where secondary fragmentation is a significant problem. Over the last decade, data show that, across all conflicts, 90% of casualties from the use of heavy weaponry in towns and cities are civilian.

The development of more precise weapons systems shows some militaries recognise the problem. However, the evidence suggests these new systems have not led (yet) to significant reductions in civilian harm. While precision-guidance is undoubtedly an improvement over inaccuracy, it does not remove all dangers for civilians and civilian objects. One issue is the significant challenge posed by the unobservable presence of non-combatants in urban settings, which pertains regardless of the weapon system used. Greater precision and accuracy are also sometimes obviated by the use of larger warheads. Moreover, guidance systems vary in their accuracy and can be affected by external factors, such as weather and lighting conditions, various forms of interference and even the type of construction material in urban environments.

In addition to the civilian casualty rate, urban bombing and shelling have very significant non-lethal physical and psychological impacts. They do long-lasting damage to civilian infrastructure and are a major driver of both mass displacement and loss of livelihoods; for example, damage to bridges, buildings or sewage systems can render schools, hospitals or places of employment inaccessible or unusable for years. They also generate heavy and very costly requirements for UXO clearance.

As a career humanitarian, I have seen enough to know that these so-called “reverberating effects” – or “second- and third-order effects” in NATO parlance – are always far more extensive than could possibly have been envisaged at the time the targeting decisions were made.

What does the Declaration require states to do differently?

 The Declaration requires states to “restrict or refrain, as appropriate, from the use of explosive weapons in populated areas, when their use may be expected to cause harm to civilians or civilian objects”.

Endorsing governments have also signed up to “strengthening international cooperation and assistance among armed forces… in order to develop good policies and practices to enhance the protection of civilians”.  And, importantly, they have agreed to “collect, share, and make publicly available disaggregated data on the direct and indirect effects on civilians and civilian objects of military operations involving the use of explosive weapons in populated areas”.

International Humanitarian Law (IHL) exists to protect non-combatants, yet modern urban conflict so consistently results in substantial, disproportionate and very long-lasting harm to civilians. This suggests either that there is widespread non-compliance with IHL (which is almost impossible to test as no military willingly subjects itself to the level of independent scrutiny required to make a determination) or that compliance with IHL is not sufficient for protecting civilians. Recent wars have shown that operations that appear to be IHL-compliant can still result in the levelling of entire cities. The Declaration is intended to address this issue by providing a pragmatic framework for improving operational practice.

The Declaration’s provisions on the collecting, sharing and publishing of data are particularly critical and will represent new obligations for many of its signatories. Notoriously, the UK Government, for example, has only accepted responsibility for the death of one civilian in the war against ISIS, despite dropping more than 4,000 munitions and claiming to have killed more than 4,000 militants. This claim has been partly exposed by the recent joint investigation by Airwars and the Guardian. To point this out isn’t to seek to undermine the UK, but, rather, to advocate the virtues of transparency and accountability, without which no lessons will ever be learned and too many civilians will continue to be killed and maimed. Moreover, strategic objectives for peace and stability cannot be achieved if militaries do not have an accurate understanding of the harm they cause and a plan for how to alleviate it.

But will the Declaration actually change anything?

The Declaration is such a positive development, first, because it names and defines a problem – that is, the humanitarian harm caused by the use of explosive weapons with wide area effects in populated areas – and, second, because it then establishes a practical framework for working to address and minimise this harm.

The establishment of the norm is the critical first step. The norms against the use of nuclear, chemical or biological weapons, for example, or against the deployment of landmines or cluster munitions, have been helpful in establishing standards. While they are not always honoured, the overall effect of establishing principles of conduct in conflict has been to raise standards and, thereby, to save lives.

The practical action that follows is the critical second step. All militaries clearly have potential to make improvements – by reviewing doctrine and practice, by improving training, by taking a more forensic approach to civilian-harm data, by sharing with and learning from other militaries, and by driving up transparency and accountability.

There are some good, practical examples of progress – of states and even non-state actors adopting stronger standards in certain conflicts. For example, ISAF’s tactical directives in Afghanistan significantly reduced the use of large explosives in built-up areas, while contributing to the coalition’s strategic aims. Positive developments are also being made in the collection of data on civilian casualties and damage to civilian objects, with the US setting the pace.

The Declaration has created focus on this work and given it energy. It has also raised expectations. Over two thirds of NATO states have signed it; eyes are now on them to see that they implement it.

Image details – © T. Nicholson / HI. Daily life continues among destroyed buildings in the Old City of Mosul. The area is still being cleared of mines and ERW, almost 6 years after fighting ended. 16/10/2022, Mosul, Iraq.