A (way) while back Charli posted a link to a report by Landmine Action. The short version is that it is calling for a ban on so-called ‘blast-weapons’ as a method of warfare.

From the outset I’m going to admit that it’s simply not easy to defend things that can blow innocent civilians to smithereens. And I don’t intent to defend the weapons themselves as some kind of fabulous invention. I do, however, wish to take on some of the thinking and insertions in the report as I think that 1) the report is problematic; 2) that there may actually be a case for not banning such weapons – possibly even humanitarian ones. Instead, states AND humanitarians should look to regulation as a more effective alternative.

My response ended up being longer than what I thought so I’m going to attempt to do this over the course of a few posts. I feel that this is important because next year (2011) marks the next round of discussions on the Convention on Conventional Weapons where it is likely that proposals to ban such weapons will be discussed. At recent CCW meetings the inability of ‘militarily significant states’ and restriction-inclined states to agree on bans of certain categories of weapons have lead to separate treaty regimes – famously the 1997 Ottawa Landmines Treaty and the Cluster Munitions Treaty. While the CCW does not get a lot of love or recognition, it will be important for government lawyers and humanitarians to think through these issues now.

In the executive summary of the report it is argued that:

Explosive weapons have a high capacity to damage the social and economic infrastructure on which civilian populations rely. The destruction of housing, power supplies, water and sanitation systems, health facilities, schools, markets, roads and transport links, and energy infrastructure present direct humanitarian problems, deplete local and national capacity for production and growth, and necessitate high levels of reconstruction expenditure, diverting scarce resources from investments necessary to achieving developmental targets

Basically – when bombs land, stuff gets blown up. Sometimes it’s hard to rebuild. This is a major thrust of the report – but it’s hardly rocket science. Blowing something up in war has (or should have) that very purpose – to deplete the capacity of the enemy to resist your will. In doing so, a state is likely to target those things which give the enemy the capacity to resist – which may mean blowing things up which may be hard to rebuild.

So while I don’t object to anything specifically in the above paragraph, I think it is somewhat missing the point. Such actions are usually legal. This doesn’t, of course, make them nice or particularly friendly to populations which will have to rebuild. However, so long as such actions are proportional and militarily necessary, no violation of the law of war is committed.

But there are some very strange passages in the report in which I do strongly disagree. For example:

At the same time, the use of explosive violence by non-state actors is increasing. This report notes that trend and argues that the state-asserted monopoly on explosive weapons is not being maintained in practice. Furthermore the unacceptability of non-state use of explosive weapons is diminished by the failure of states to enact appropriate categorical controls on the use of these weapons in populated areas, or to attend to the relationships of diminished local accountability that such use articulates.

The argument here is that non-state use is effectively legitimized by state use of weapons. To back up this statement, the Report only cites the man who endorses the report in the introduction. (FYI: That’s John Holmes, Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator.)

From an international legal standpoint this argument is flatly and categorically wrong. First, there is the rather obvious point that the legitimacy of your actions depends on who you are as much as what you do in warfare. International law has always made a distinction between state and non-state actors – the former (at least in theory) subject to accountability proceedings, military codes of conduct and, if it all goes wrong, potentially severe penalties. The latter has no means for following/implementing the laws of war, nor any mechanisms for training or enforcement within their ranks. And this is a huge difference that the Executive Summary ignores. The report is effectively comparing an indiscriminate suicide bomb carried out in a market to a weapon used, albeit harshly, that was nevertheless likely subject to legal advice and due diligence.

Secondly, this quote seems to somehow be suggesting that one wrong rights another. It’s clear that the author is speaking on a moral level here – but this is again very much untrue in the laws of war and its a misleading statement at best.

There are other similar and even more globalzationish statements throughout the executive summary. For example, globalisation means that we have to now change the way we think we use weapons (without ever explaining exactly why this is):

A context of globalisation and increased transnational interdependence between peoples and states argues for stronger requirements of local accountability for potential users of explosive weapons, and for increasing the burden of justification, and threshold of acceptability, for explosive weapon use;

Why, exactly? Because more people are watching? Because we can now chat on the internet? Because I can “like” the rebel group that I support on Facebook? There has always been transnational links when it comes to weapons, soldiers mercenaries, etc. This is hardly a new thing and not exactly a powerful argument.

Another paragraph in the executive summary also caught my eye:

There is no doubt that weapon technologies developed over the last 200 years have exponentially increased the capacity of humankind to kill and injure itself. Whilst technology cannot be ‘un-thought’, the same period has also provided some grounds for optimism that identified categories of weapon technology can be rendered less acceptable, and hence less likely to be used, by changes in the social and economic context.

Yes – the invention of chemical, biological and nuclear weapons (not to mention MOABs, napalm, etc) have created the potential for many deaths and significant levels of destruction. However, technology has also rendered precision guidance systems that could not have been imagined even thirty years ago. Whereas in the First Gulf war only 10% of munitions were precision guided, 90% of bombs in the Second Gulf war were PGMs.

By no means does this allow for or guarantee a “clean” war – such as what the Landmine Action advocates seem to be seeking. But to suggest that the progress of weaponry has been in an entirely anti-humanitarian manner is incorrect.

I think this may reflect an overall problem with the kind of thinking in the report – namely that it overlooks (or at least fails to acknowledge) that there are obligations on defenders as well as attackers. Defenders have an obligation to conduct their hostilities away from certain objects – centres of religious worship, hospitals, schools, etc. Their presence legitimately renders an immune target vulnerable. Of course, this is what they want – to cause attackers to hit things which essentially “look bad” and to cause international outrage.
After all, this is what has been at the heart of so much criticism of US bombing campaigns in recent years. (Although this cannot excuse casualties in cases of negligence.)

There are also several related issues to this point that one could highlight. First, “dual use” targets – those things which have both a civilian and military use such as a water tower, railways, some factories, etc. In his account of the war in Kosovo, General Wesley Clark made it clear that this was a major hurdle for the allies to get over. Europeans tend to take a much narrower view as to what constitutes a military target when something may be used for both civilian and military purposes while Americans take a much broader approach.

Second, just how much damage may be done? It usually comes down to the inexact science of ‘proportionality’ of which there are two components. First, there is the proportionality in the jus ad bellum criteria. Is our response proportionate to the overall threat? Second, the proportionality of a specific attack to the necessity of what you are trying to accomplish in a particular strike. There is, quite simply, no objective criterion for making a determination on either front. We might be able to recognize a violation of the principle when it occurs (a daisy cutter in response to a dump truck with an AK-47 would be a slightly absurd example) but even then it would probably have to be argued about in the court of international (and quite possibly domestic) opinion.The report seems to be suggesting that long-term damage is disproportionate, but without any context upon which we can measure proportionality, I would argue that from a legal standpoint this is impossible to know and judge without context.

I’m going to leave it here for now, but will shortly be returning to issues of ‘stigmatizing’ weapons and banning on the basis of intent or effects. Thereafter a post on the problems with weapons bans and the approach taken by some humanitarian organizations.