Tag: explosive weapons

Observations from Day One of 3MSP-CMC

At multilateral “Meetings of States Parties (MSP)” conferences, delegates are there to review progress made since the establishment of some treaty standard or another – in this case the Convention on Cluster Munitions (CMC) three years ago (3). In the plenaries, therefore, diplomats praise one another’s efforts to implement the treaty with fancy prepared speeches, congratulate their hosts for a beautifully organized event, call on non-signatories to join the treaty, and generally take stock of how to strengthen adherence to the rules.  But just like at academic conferences, all the really interesting stuff happens outside the plenary, in the corridors, in the bars or in “side events” organized by NGOs. In these informal mini-panel discussions, civil society pitches its ideas about how to trouble-shoot the implementation process, but also – importantly for my research – they incubate ideas for new norm campaigns in related areas.

These conversations are very early steps on a road that may (though won’t always) lead to later multilateral framework conferences designed to create rather than implement international norms. At the 3MSP-CMC Conference this week in Oslo, 80% of the side events have to do with implementing provisions of the CMC, particularly the victim assistance provisions. But the other 20% has to do with other, emerging weapons issues. (I include here break-out sessions at the pre-conference Youth Seminar as well as a side event in the regular conference entitled “Looking Back to Look Forward: The CCM and What it Means for Limiting the Impact of Other Weapons Systems.”) The latter will cover the new explosive violence campaign as well as the now very-much percolating issue of autonomous weapons. In the Youth Seminar the topics covered included nuclear weapons, explosive weapons, and incendiary weapons. The nuclear weapons group drew by far the most youth participants, though whether this was due to the issue’s relative salience or to the fact that it was the only session to be held in Norwegian is unclear. Explosives drew a medium-sized crowd and the incendiary weapons workshop, which I attended, drew the smallest. This variation in salience of these emergent issues is interesting to me because of these three campaigns incendiaries has in objective terms the most ingredients of agenda-setting success, including a) prior adoption by a human security “heavyweight” (Human Rights Watch), b) grounding in existing international law (the Incendiary Weapons Protocol to the Convention on Conventional Weapons), c) ample documented historical evidence of human suffering and d) a recent “trigger event” provided by Israel’s use of white phosphorus in Gaza. (These four factors together seem strong indicators of the likelihood that a civil society campaign has legs.) The other two campaigns each have some of these ingredients but neither yet has all four, yet both are also causing a buzz at the conference.

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Explosive Arguments

Recently, Stephanie made “the case against the case against blast weapons,” – that is, “explosive weapons” as described by Landmine Action’s recent report:

“The short version is that it is calling for a ban on so-called ‘blast-weapons’ as a method of warfare… 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.

I have written a longer riposte to this argument at Lawyers, Guns and Money. But let me just say here that as I understand it, Landmine Action is not calling for a complete ban on the weapons. The report only calls on states and global civil society to “strengthen further an underlying presumption that the use of explosive weapons in populated areas is unacceptable” (p. 14). I recently spoke with Director of Policy and Research Richard Moyes and he confirmed that Landmine Action is not proposing an outright ban such as a codified rule in an Additional Protocol to the Convention on Conventional Weapons. Rather, he said simply, “I’d like to see us establish a terrain in which there is a general concern rather than acceptance about the use of explosives in populated areas.”

In other words, Moyes and Stephanie seem to be on the same page with respect to regulating conventional explosives. Stephanie doesn’t elaborate what regulations she has in mind or why they would be more humanitarian than Moyes’, but some of the organization’s specific proposals include establishing a mechanism to accurately count civilian casualties from explosive violence so some determination can be empirically made about whether these weapons can or cannot be used in a controlled manner; and in particular to reduce their use in specific areas where civilian casualties are likely to be highest.

Stephanie does have two deeper critiques about the report that bear further engagement. I think both may have some validity but in my view, the first doesn’t actually undermine Moyes’ moral point, and the second merely ducks that point (no pun intended). Read my entire response here.

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The Case Against the Case Against Blast Weapons

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.

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The ICC Review Conference : The Belgium Amendment


For those of you who are international law junkies (– and really, who isn’t?) ASIL has a very interesting blog on the ICC Review Conference that took place over the last two weeks in Kampala, Uganda. David Scheffer, a notable scholar on both the ICC and international criminal justice, has a really interesting post summarizing most of the decisions that were made.

Of course one of the most interesting developments is, of course, the crime of aggression. However, what I find to be more interesting is the expansion of the prohibition of weapons banned in international armed conflict (including expanding bullets) in non-international armed conflicts, or NIAC – the so-called “Belgium amendment”.

This may seem relatively straightforward – the law of armed conflict has had regulation of bullets since 1868. As Scheffer himself writes:

These weapons already are included in Article 8(2)(b) for international armed conflicts, without anyone raising any real fuss, and this amendment is a logical extension of such weapons to non-international armed conflicts. So they are barely considered “new” weapons; rather they are long-standing weapons in the Rome Statute now introduced into an additional scenario of armed conflicts.

Yet, in areas of conflict such as Iraq and Afghanistan – where whether one is fighting an international or non-international armed conflict seems to change daily, this could have very serious consequences. It might affect sniper and counter-terrorism operations not only in these areas, but also within states, where the need to have one-shot/one-kill is important for security.

Additionally, incorporating the development of weapons law into the ICC Statute is an interesting new tactic for humanitarian groups. While the Belgium Amendment was formally supported by Austria, Argentina, Belgium, Bolivia, Bulgaria, Burundi, Cambodia, Cyprus, Germany, Ireland, Latvia, Lithuania, Luxembourg, Mauritius, Mexico, Romania, Samoa, Slovenia and Switzerland, there also has been clear support and lobbying from humanitarian organizations, particularly the ICRC.

This development also confirms the trend whereby humanitarians, unable to affect the kind of change they want to see through the ICRC Customary Law Study or the Convention on Conventional Weapons (CCW) Review Process (of which there will be a conference next year), are increasingly turning to alternative international fora. These fora have real binding powers and operate largely two-thirds majority voting system, like the voting proceedure in the General Assembly. This was the general approach of the process that lead to the Ottawa Treaty and Cluster Munitions Treaty. Western countries and militarily affected states have, by and large, favoured consensus approaches over this later system for rather obvious reasons.

It has been my understanding that the US is to issue a statement of understanding on the ICC soon (I’m a little surprised it hasn’t been out already – but perhaps they were waiting for the outcome of the Conference?) However, I have to believe that these kinds of approaches are not helping to bring the US any closer to ratifying – but perhaps the state-parties to the ICC are simply no longer inclined to care or bother trying.

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Worst. Treaty. Name. Ever.

I’m trying to finish up a paper on the 1980 Convention on Conventional Weapons (CCW). But that of course it not the treaty’s full name. No – instead it is:

The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects

Has there ever been a treaty with a worse or more awkward name? Apparently there was some issue as to the name during negotiations on weapons in the 1970s. A Canadian Delegate, William J. Fenwick, suggested an alternate name/acronym: “Causes Unnecessary Suffering [or] Has Indiscriminate Effects” or CUSHIE. Another (American) delegate to the CCW talks notes that “His somewhat facetious recommendation did not meet with success.”

The ICTR Statute has probably one of the longest names I’ve ever seen:

Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994

Long – but it doesn’t seem to quite get to the opacity of the full CCW name. If nothing else, the ICTR name is pretty specific.

Can readers suggest a treaty with a worse name? I’m not sure I can give prizes – but I’ll give you glory… via Twitter…. Amongst my 28 followers…

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Is It Time to Ban Explosive Weapons in War?

UK-based NGO Landmine Action says yes. In a recent report, the organization points out that we do not consider explosive bombs an acceptable tool in police operations, and proposes they be stigmatized as tools of counter-insurgency and military operations other than war as well – at least when used in populated areas.

The report cites evidence of the civilian consequences of explosive violence used in populated areas, an argument with which it’s easy to agree from a human security perspective. Whether the percentage of civilian deaths from explosives are on average 83% as the report concludes or marginally lower, it is clear that when you drop 500 lb bombs in urban areas, collateral damage levels will be unacceptably high.

One of the great strengths of the report, however, is that it doesn’t limit itself to direct civilian casualties but also documents the long-term developmental consequences of destroying civilian infrastructure with explosives.

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.”

Finally, the report also suggests that the appropriation of such violence by non-state actors gives governments an incentive to seize the moral high ground in order to better distinguish themselves from their illegitimate foes:

A stigma against the
use of explosive weapons in populated areas would provide a basis for better
differentiation between those acting on their common responsibility to protect
civilians and those subordinating civilian protection in the pursuit of other goals.

This is an intriguing argument because it counters the conventional wisdom among some scholars and policy-makers – that states must increasingly use heavy-handed means to counter enemies who themselves have little respect for civilians. So I’ll be interested to see how this argument plays as Landmine Action presses its claims. But it sure is good to see members of the NGO community – as well as the United Nations Secretary General – framing explosive weapons as the humanitarian travesty they are.

In analytical terms, this report constitutes an example of “problem definition” – what scholars of agenda-setting would consider an early step toward the development of a global prohibition regime. Yet it’s interesting that Executive Director Richard Moyes, who authored the report and also maintains a blogsabout explosive violence – isn’t calling for an outright ban on the state use of explosive weapons. Instead what is suggested here are baby-steps: states should more clearly articulate the circumstances under which they would be allowable, develop better mechanisms for determining the consequences of their use, and compensate civilians who are harmed by explosions.

What do readers think? Should explosive weapons go the way of landmines in global “civil” society?

Type your summary hereType rest of the post here

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