The United States (US) has acknowledged the harm caused by the use of explosive weapons in populated areas (EWIPA) and committed to action on the issue.
Statements
During the Interactive Dialogue with the UN Special Representative of the Secretary-General for Children and Armed Conflict at the Human Rights Council in September 2012, the United States expressed concern at the use of EWIPA.[1]
At the UN Security Council Open Debate War in Cities: Protection of Civilians in Urban Settings on 25 January 2022, the United States noted that explosive weapons “have made it devastatingly easy to threaten and kill civilians” and said that “armed actors exploit this,” putting schools, hospitals, and other infrastructure in deliberate danger.[2] It also noted its participation in the diplomatic process to develop a political declaration on the use of EWIPA.
The US participated in the Vienna Conference on the Protection of Civilians in Urban Warfare in 2019. On this occasion, the United States asserted that there are “positive” outcomes from using EWIPA, such as “liberating” cities. It argued that belligerents often deliberately choose urban areas for fighting, and do not observe international humanitarian law (IHL). The US delegation further said that it would be prepared to share the military practices that it has found to be effective and has a paper to contribute in that regard. It stated that a “meaningful” declaration must be broader than just focusing on specific weapons, or else it risks giving the false impression that the way forward on civilian protection has been adequately addressed.[3]
Political declaration
The US also participated in the first round of consultations in Geneva in 2019.[4] On that occasion, it submitted a joint statement with France, Germany, Belgium, and the United Kingdom named Practical Measures to Strengthen the Protection of Civilians During Military Operations in Armed Conflict, in which it (i) recognised the key IHL requirements for the protection of civilians; (ii) identified general measures that states can take to strengthen implementation of existing legal requirements and to improve civilian protection in military operations; and (iii) identified specific “good practices” that states can implement to improve civilian protection in military operations.
During the second round of consultations in Geneva in 2020,[5] the US made the following remarks:
- It argued that the political declaration should not focus on the use EWIPA but more broadly on the protection of civilians in urban warfare. In this sense, it made suggestions such as: the title should say “strengthen or promote” not “ensure” protection of civilians, because ensure sets an “unrealistic objective” due to “tragic but unavoidable” civilian causalities; the title should also refer to “military operations in armed conflict, including urban warfare,” because “EWIPA” is not clear and “not the only problem” and because nearly all areas are populated to some extent; it suggested replacing the impact of explosive weapons with “impact of armed conflict on civilians”; it suggested replacing EWIPA with urban warfare; it suggested replacing “use of EWIPA” with “military operations including in urban warfare” and said the difficulty should refer to directing military operations in urban areas.
- Regarding non-state actors (NSAs), it suggested replacing “increasing urbanisation” with “NSAs that have increasingly based operations in populated areas”; and it said 1.7 should refer to NSAs because many states doing best to comply with IHL.
- It said data does not need to be disaggregated.
- It said good practices could go beyond IHL and suggested after “good policy and practice” to add “designed to strengthen implementation of IHL and to protect civilians.” It also suggested adding a new element (2.4 bis) to capture legal obligations mentioned in 3.1, 3.2, 3.4, and 3.6. It suggested wording that “We each reaffirm our IHL obligations and other IL obligations, including our obligations to not use weapons that are inherently indiscriminate, abide by IHL armed conflict rules, and CCW protocol V.”
- Regarding victim assistance, it asked to insert “war” before “victims”, and to replace “rights of victims with disabilities” with “situations of disabilities”.
- It said it would not support a review procedure in which states or entities would review US implementation of IHL obligations, such as human rights body mechanisms. It said it only supports voluntary, non-politicised discussions that each state deems appropriate.
Those suggestions were reflected in its written submissions delivered in February 2020[6] and March 2021.[7]
The US participated in the webinar hosted by Ireland in September 2020 on Protection of Civilians in Urban Warfare—Explosive Weapons in Populated Areas (EWIPA): Issues, Policy and Practice. At this event, the representative of the US Department of State said that the US is concerned with the framing of the use of EWIPA and that due to the complexity of the causes of harm to civilians, the political declaration cannot be “reduced” to the use of explosive weapons. She further argued that it would be “impractical” to try and “stigmatise” the use of explosive weapons as such, as this could have negative impacts on efforts to protect civilians; and that a political declaration should not create new norms or renegotiate existing IHL obligations. She further asserted that civilian harm can be caused by a variety of factors, including the deliberate targeting of civilians, the use of human shields, and “incidental harm” as a result of lawful attacks. She asserted that “deliberate and careful” use might entail less incidental harm than combat involving non-explosive weapons. She explained that the US advocates for a positive approach focused on promoting good practices to prevent civilian harm in urban warfare, and expressed hope that the political declaration will initiate the sharing and strengthening of good practices.[8]
The US participated in the consultations for a political declaration on the use of EWIPA in 2021. It argued that “not all explosive weapon use” harms civilians—and therefore, no restrictions are necessary. It supported—along with Australia, Canada, France, Israel, Lithuania, and the United Kingdom—qualifiers throughout the text indicating that harm “can” potentially arise from the use of EWIPA—not that it does. It also argued that: “In some circumstances, the use of explosive weapons with wide area effects could actually be the best means for minimizing civilian casualties” and called for the declaration to recognise this as part of the “full range of good policies and practices that contribute to such protection.”[9]
It agreed with France’s suggestion to delete “wide area effects” in the entire text and argued the text should deal with all explosive weapons. It argued that otherwise, the scope of the political is too narrow and would exclude improvised explosive devices (IEDs). It again expressed concern with the use of the phrase “populated areas,” as it is not defined under IHL. The US further noted the importance of protecting civilians outside of populated areas as well.
The US argued that, unlike certain other weapons (e.g., chemical weapons), explosive weapons are not unlawful under IHL; it is their misuse, not their use, that is problematic. It argued that damage to infrastructure doesn’t automatically impact essential services. In contrast, it said that “direct and reverberating effects” of the use of explosive weapons referred to and proscribed particular operational practices—a process that should be left for the follow-up to the declaration rather than the declaration itself.
It said the aim of the declaration is to strengthen protection of civilians through enhancing existing IHL, not by establishing new rules, concepts, or mechanisms. It further argued that restrictions on the use of explosive weapons in 3.3 exceed what’s required by IHL and repeatedly raised concerns that language in Sections 2 and 3 could be read as setting new standards under IHL, including in 3.4.
It made similar observations as Israel, which argued that humanitarian consequences of “urban warfare” arise to a great extent from non-state armed groups that use human shields and operate in urban areas, which should be reflected in the political declaration. The US also argued that, in 3.3, “avoid” should be changed to “mitigate,” as harm cannot always be avoided. Unlike other participants, it specifically spoke against a review mechanism and stressed the importance that data collection be “operationally feasible”.
[1] Permanent Mission of the United States to the United Nations (2012). ‘Statement to the Human Rights Council’. https://geneva.usmission.gov/2012/09/11/successes-of-children-and-armed-conflict-process-include-the-freeing-of-over-10000-child-soldiers/.
[2] Ray Acheson, Reaching Critical Will (2022). ‘UN Security Council Debates War in Cities and the Protection of Civilians’. https://www.reachingcriticalwill.org/news/latest-news/16009-un-security-council-debates-war-in-cities-and-the-protection-of-civilians.
[3] Reaching Critical Will (2019). ‘States Commit to Take Political Action on Explosive Weapons at Vienna Conference’. https://reachingcriticalwill.org/news/latest-news/14061-states-commit-to-take-political-action-on-explosive-weapons-at-vienna-conference.
[4] Reaching Critical Will (2019). ‘Towards a Political Declaration on the Use of Explosive Weapons in Populated Areas: States Need to Ensure that Expressed Commitments Translate into Real Impacts on the Ground’. https://reachingcriticalwill.org/news/latest-news/14451-towards-a-political-declaration-on-the-use-of-explosive-weapons-in-populated-areas-states-need-to-ensure-that-expressed-commitments-translate-into-real-impacts-on-the-ground.
[5] Ray Acheson, Reaching Critical Will (2020). ‘Impacts, not Intentionality: The Imperative of Focusing on the Effects of Explosive Weapons in a Political Declaration’. https://reachingcriticalwill.org/news/latest-news/14658-impacts-not-intentionality-the-imperative-of-focusing-on-the-effects-of-explosive-weapons-in-a-political-declaration.
[6] Permanent Mission of the United States to the United Nations (2020). ‘Elements of a Political Declaration to Strengthen the Protection of Civilians from Humanitarian Harm Arising From Military Pperations During Armed Conflict, Including in Urban Warfare’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/ewipa/declaration/statements/10Feb_US.pdf.
[7] Permanent Mission of the United States to the United Nations (2020). ‘Written Submission’. https://reachingcriticalwill.org/images/documents/Disarmament-fora/ewipa/declaration/documents/US-March2020.pdf.
[8] Katrin Geyer, Reaching Critical Will (2020). ‘Ireland’s Webinar on Explosive Weapons Keeps Momentum on the Process for a Political Declaration on the Protection of Civilians’. https://www.reachingcriticalwill.org/news/latest-news/14761-ireland-s-webinar-on-explosive-weapons-keeps-momentum-on-the-process-for-a-political-declaration-on-the-protection-of-civilians.
[9] Ray Acheson, Reaching Critical Will (2021). ‘Report on the March 2021 Consultations on a Political Declaration on the Use of Explosive Weapons in Populated Areas’. https://reachingcriticalwill.org/news/latest-news/15213-report-on-the-march-2021-consultations-on-a-political-declaration-on-the-use-of-explosive-weapons-in-populated-areas.