7 April 2022 Geneva Consultations: INEW Daily Summary

Negotiations on the political declaration aimed at strengthening the protection of civilians arising from the use of explosive weapons in populated areas continued on 7 April in Geneva with discussions on the remaining sections of the draft declaration text.

After delegations finished providing comments on all four draft sections of the declaration, Ireland, the chair and convener of the negotiations, said it was optimistic and heartened by participants’ commitment to the process. This view reflects a shift in the collective tone set by states since the last round of negotiations, with more governments explicitly committed to strengthening the protection of civilians through the declaration, likely as a response to the bombing and shelling of Ukrainian towns and cities and the resulting widespread condemnation of explosive weapon use by Russia.

Despite this commitment, some states – including Belgium, Canada, Denmark, Israel, Republic of Korea, Sweden, Turkey, United Kingdom and United States – have nonetheless worked to weaken declaration provisions that aim to accurately and fully describe and acknowledge civilian harm from the use of explosive weapons in populated areas, as well as operative commitments that would increase the protection of civilians in armed conflict. In some cases, suggested changes to declaration provisions would not only fail to strengthen the protection of civilians but would also fall short of already existing legal obligations.

To that end, some states continued to express concern that the declaration aims to create new legal commitments that extend beyond international humanitarian law. Some states argued that the draft text containing the core commitment to restrict or refrain from the use of explosive weapons in populated areas would harmfully constrain militaries. However, most delegations were clear that the point of the declaration is to change military behaviour in order to prevent civilian harm, which requires going beyond existing law and creating new policy commitments. In response, WILPF made clear that this declaration could help save lives, “but only if it goes beyond restating existing obligations and commits states to undertake policies and practices that put civilian protection at the forefront.”

Morning discussions largely focused on the fourth section of the draft declaration, which addresses the collection and sharing of disaggregated data on harm to civilians and civilian objects, the provision of victim assistance, humanitarian relief and access, and a commitment ensuring an effective follow-on process for the declaration to review implementation through regular meetings.

Positively, states generally acknowledged the importance of providing assistance to victims of explosive weapon use, as well as including within the draft text measures to address the harm that the use of explosive weapons in populated areas has already caused. Most states agreed that the revised version of the draft text was much improved from its 2020 iteration, and a some made suggestions on ways in which it may be strengthened. The declaration could also explicitly provide, for example, a description of what victim assistance includes. The text could be clearer, for instance, that victim assistance includes ensuring that basic needs are met, and safe and timely access to the provision of emergency medical care, physical rehabilitation, psychosocial support and socio-economic inclusion, as well as support towards the full realization of the rights and full participation of victims in society.

Less constructively, some states continued to call for qualifiers about the harm caused by the use of explosive weapons in populated areas to be added, reinserted or repositioned within the text. These qualifiers weaken state commitments and are dismissive of the extensive and widely documented civilian harm experienced in conflicts throughout the world. For example, a number of states expressed the need for qualifiers in the draft text regarding commitments in paragraph 4.2 to collect data on the direct and indirect, or reverberating, effects on civilians and civilian objects involving the use of explosive weapons in populated areas, to make the commitment more reflective of the operational and/or national security challenges associated with collecting and sharing this information.

States, however, have a moral imperative to take responsibility for harm caused by the use of explosive weapons in populated areas, as well as to understand the impacts of explosive weapon use on civilians to promote both effective responses and accountability. Collecting data is crucial to this endeavor, as noted by some states. As such, references to “where feasible” in relation to collecting and sharing data should be removed not just in the last section of the draft text, but also in the preambular section which should aspire to higher standards.

States, as users of explosive weapons, also have a moral responsibility to collect data on the use of explosive weapons, including types, locations and quantities used, as well as the general locations of known and probable unexploded ordnance, as noted in part by a small number of states. Gathering this information is important for the protection of the civilian population, including from the risks and effects of explosive ordnance and for building understandings of impacts of explosive weapon use.

Many states spoke strongly about the need for a follow-up process to assess implementation, discuss measures for evaluating impacts and identify how to adapt policy and practice to account for these impacts in military operations. There were diverging views on the best format for this process, and some states reiterated their views that this follow-on process focus on the exchange of good practice, either by states or by militaries, such that draft text language committing states to review the implementation of the declaration on a regular basis is unnecessary or, for one state, inconsistent with the politically binding nature of commitments expressed in political declarations more generally. A number of states noted, however, that the Safe Schools Declaration includes a provision committing states to, “Meet on a regular basis, inviting relevant international organizations and civil society, so as to review the implementation of this declaration and the use of the guidelines.” References to implementation are not uncommon in political declarations.

Afternoon discussions focused on core commitments of the political declaration found in the third section of the text, an operative section that directly tackles state military policy and practice. The commitment at the heart of the declaration, in paragraph 3.3, was a key point of divergence among states and other delegations. While some states were satisfied with the current formulation of this commitment that commits states to “restrict” or “refrain” from the use of explosive weapons “when the effects may be expected to extend beyond a military objective,” others made clear that a commitment to “avoid” explosive weapon use in these circumstances is the best way to provide clarity and boldness to this core commitment and, in doing so, help to ensure the strongest protection to civilians.

Though this commitment would also strongly benefit from a specific focus on the use of explosive weapons with ‘wide area effects’, many states spoke out against this proposed change to the draft text. The insertion of the reference to ‘wide area effects’, along with an expanded description of the meaning of the term – effects that extend beyond “and occur outside” of the military objective – would clarify that the effects encompass not only those from a wide blast and fragmentation radius, but also those due to issues of inaccuracy of delivery, and from the use of multiple munitions across a wider area.

Within this section, there was some general agreement on proposed changes. In commitment 3.3, for example, many states made clear their support for removing the phrase “in accordance with international humanitarian law” from the end of the commitment.

With one day remaining in the negotiations this week, states will work under the leadership of Ireland to find common ground on key areas of divergence in the draft text of the declaration. In this process, civil society will continue work to strive for the highest possible standards for the protection of civilians from the use of explosive weapons in possible areas to be reflected in the final text.

Documents and statements are being made available on the Reaching Critical Will website as they are published. You can also watch the full morning and afternoon sessions on the Irish Foreign Ministry’s YouTube channel and find more information on the Irish website for the declaration.