Political Declaration on Explosive Weapons in Populated Areas
Originally designed for regular use in the open battlefield, employing explosive weapons warranted an efficient means of warfare of the belligerents and did not raise eyebrows in the past. However, the proliferation of asymmetric armed conflict incentivised a paradigm shift towards the short-term military advantages of waging non-international armed conflicts in cities with largely inapt explosive weapons. These contemporary armed conflicts have brought the multi-faceted devastating impacts of the use of explosive weapons in populated areas (EWIPA) to the forefront.
The recently adopted declaration is a testimony of the political momentum that renouncing the use of EWIPA has gained in the international sphere. Serbia was among the eighty countries that endorsed the declaration and committed to renouncing these weapons on November 18, 2022 at the Dublin conference. Albeit not imposing too burdensome commitments on States, the initiative can help in shaping state practice on the matter and serve as a generator of debate. Eventually, state cooperation on exchanging expertise and good practice examples of training and data gathering can contribute to a more comprehensive approach on the issue.
This blogpost offers an overview of the use of EWIPA from the lens of the underlying principles of IHL on the conduct of hostilities. It examines the specific challenges in such instances posed by each of the three underlying principles: distinction, proportionality, and precautions.
Explosive weapons in populated areas: coming on the radar
The ICRC and the UN Secretary-General have raised the question of using explosive weapons in populated areas (EWIPA) since 2009, exploring whether the existing principles of IHL offered sufficient tools to meet the realities of modern armed conflicts. The debate was shaped around explosive weapons with a wide impact area, defined through three factors:
the “blast and fragmentation” effect and consequent large destructive radius of the munition, typically missiles
inaccuracy of the weapon, as with artillery or mortars
the capability of a wider zone being targeted by multiple munitions, as is the case of multiple-barrel rocket-launcher systems (MBRLs).
The reference to “populated areas” described any location with concentrated public infrastructure and a higher presence of civilians (Borrie and Brehm, at 811). Along those lines, the ICRC devised the exacerbating effect of employing EWIPA through the “Trinity Model”, as the cumulative result of the inherent characteristics and kinetic factors of the weapon, the civilians’ pattern of life, alongside the environment’s susceptibility to secondary fragmentation. Such use poses a double risk: not only do the weapons’ blast and fragmentation, and the destruction of buildings, induce a specific pattern of direct harm, but they also produce a knock-on effect by prejudicing the essential civilian infrastructure (Borrie and Brehm, at 825).
While certain explosive weapons are regulated by conventions, the category as such is not regulated via a specific treaty. Therefore, the yardstick for the lawfulness of their employment on the battlefield ought to be individually measured on the basis of underlying IHL principles – distinction, proportionality and precaution. It is also one of States’ argumentsagainst the further regulation of EWIPA is that attention be directed at improving compliance with the existing comprehensive legal framework instead.
However, with volatile factors influencing the perception of respect for principles being hindered by volatile factors, accountability rests limited. Alternative avenues in both international and national spheres were sought to curb the use of EWIPA. In 2011, the ICRC construed the “avoidance policy”, by which it encouraged the presumption against using EWIPA, coupled with an accent on mitigation measures which are to minimize civilian harm. Additionally, regulating the use of EWIPA became a subject of a political initiative of 70 States, mirroring a multi-layered awareness over the underlying humanitarian concerns.
EWIPA and the principle of distinction
As the “cardinal principle of IHL” (ICJ Legality of the Threat or Use of Nuclear Weapons, para 78), this principle of customary IHL entails an obligation of belligerents to make military objectives the sole targets of attacks and refrain from indiscriminate attacks (Customary IHL, Rules 1, 7, 11-13). This principle is a reflection of how military necessity and humanity are met in IHL. Therefore, the ultimate objective behind attacks is to take the military advantage over the enemy (ICRC Commentary to Additional Protocol I, para 1958).
It is precisely the urban environment that rendered the features of explosive weapons a topic of concern (Haines, at 282-284). Both the international courts and tribunals as well as fact-finding missions tackled this issue in different contexts (see, for instance, the ICTY judgments in Martić and Gotovina; the ECtHR in Isayeva v Russia and Kerimova et al v Russia, the report of the Human Rights Council Commission of Inquiry on Syria, or the report of the Independent International Fact-Finding Mission in Georgia).
EWIPA and the principle of proportionality
The principle of proportionality is often seen as a balancing exercise, where the direct and concrete military advantage obtained through an attack is weighed against the ensuing humanitarian consequences.
The bedrock of contemporary debates concerning this principle is determining which elements are to be weighted in. Is it solely the direct effects of attacks? Or are attacks to be coupled with equally pervasive knock-on effects on electric networks and health-care systems, as a by-product of the intermingled infrastructure? (International Law Studies, at 352-355) Even though we infer an obligation to factor in the reverberating effects in the proportionality examination both from the text and the purpose of IHL norms, as well as State practice (Robinson and Nohle, at 113-116), the borderlines of such considerations are inconclusive.
Having agreed that any attempt of establishing a definite temporal or geographical framework to such effects necessarily would be inapt, a “foreseeability test” has been accepted as the relevant threshold. Thus, in considering what effects are too remote, attention is to be paid to a reasonable expectation of causality between the attack and the consequence, based on reasonably available information at the time of deliberation.
As the evaluation is made ex ante, it is said that the preceding degree of diligence is to be adjusted to the operational realities on the ground. Thus, particularly higher scrutiny is attached to pre-planned attacks. These enable the commander to take note of a wider breadth of information on both the location of the objective and its interconnectedness with the civilian infrastructure. The notion of objective foreseeability as one incorporating a wider margin of humanitarian consequences (i.e., displacement, economic hardship or psychological harm) is corroborated by the technological developments in the field (Robinson and Nohle, at 130).
EWIPA and the principle of precautions
Precautionary measures, a due diligence standard of both the attacking and the defending party, most often remained below the radar in comparison to discussions surrounding the principles of distinction and proportionality. Part of such legacy is due to its ambiguity in the text of the relevant provision because what is necessary is to take “all feasible measures”. As such, the principle of precautions is an obligation of conduct rather than result, accounting for the unpredictable ‘fog of war’ during military operations (Boothby, at 121-122), as well as the disparities in available resources (International Law Studies, at 377).
While the basic principles are devoid of content, the nature of explosive weapons allows for a greater margin of action through insisting on a higher threshold of feasibility to be reached at the preparatory phase. Such claims are corroborated by the experience of the African Union peacekeeping mission in Somalia (AMISOM) and the NATO security mission in Afghanistan (ISAF), who tailored their rules of engagement and training so as to reduce the civilian harm, and in the latter case led to a casualties reduction of 75% (Muhammedally, at 238).
How could the appropriate use of EWIPA be ensured?
Technological developments particularly in the field of intelligence gathering and data analysis enabled actors to construe a more encompassing overview of the virtues of means and methods used in the battlefield. The computer systems employed both before and after conducting attacks enabled referring to lessons learned in order to optimize future assessments. In addition to the previously mentioned lateral damage estimation methodologies (CDMs), a policy initiated during ISAF was the incorporation of battle damage assessments (BDA), which took note post facto of both the physical and functional damages to the object, as well as the civilian casualties of the attack. Lastly, civilian casualty tracking cells (CCTC) dedicated to investigations of the cause of deaths construed more precisely the pathway from the use of the weapon to its consequences.
Another suggestion could be related to the choice of explosive weapons and the mode of their deployment. Because IHL is technology-neutral, it does not impose an explicit obligation on parties to purchase, let alone employ the most sophisticated weapons on the market (International Law Studies, at 383-384). Thus, parties have a discretion in optimizing their use of their weapons’ arsenal, so long as they warrant for the respect of the underlying principles of IHL (Boothby, at 124). However, even though precision-guided munition (PGM) is not in itself neither an obligation nor an assurance for the respect of the principle of distinction (Haines, at 283-284), its employment might be the only way to proceed with an attack whilst abiding by IHL in certain instances, particularly when it comes to populated areas. Such a step would both impede the aggravating effect of artillery and mortars and additionally offer a practical advantage to the attacker, thus providing for a compliance incentive by way of integrating humanitarian concerns into military interests (International Law Studies, at 377-379).
Finally, efforts could be focused on altering the features of the weapon system designed to deliver a large blast and fragmentation effect. One example of such efforts is the U.S. opting for point-detonating fuses instead of proximity fuses, which are prone to be activated prematurely and cause further damage. Likewise, changing the angle of the attack might lead to the secondary fragmentation not being projected towards an inhabited area, thus mitigating the consequences of the blast effect (Robinson and Nohle, at 143-144).
