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Implementation and Innovation: Humanitarian Disarmament in 2023

2/2/2023

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This is the sixth blog post in a series looking at an array of issues in 2023 related to weapons use, the arms trade and security assistance, often offering recommendations.

(photo, right: 
Bonnie Docherty (author) delivers statement at the endorsement conference of explosive weapons declaration in Dublin, November 2022. Credit: Erin Hunt, 2022.)

This post also is also published on humanitariandisarmament.org’s Disarmament Dialogue blog.  ​
Picture
Bonnie Docherty

The past year underscored the need to have and to ensure respect for strong and effective humanitarian disarmament law. Since Russia’s full-scale invasion of Ukraine, cluster munitions, antipersonnel landmines, and explosive weapons with wide area effects have been used in populated areas, mostly by Russia. Russia has in addition repeatedly threatened to use nuclear weapons.
 
These attacks and threats have inflicted a horrific civilian toll, but they have also generated international opprobrium because they involved weapons banned or practices restricted under humanitarian disarmament treaties and commitments. While more work needs to be done to minimize the civilian suffering in Ukraine and other armed conflicts around the world, demonstrating robust and united support for global civilian protection norms is an important step.
 
Humanitarian disarmament, which seeks to prevent and remediate arms-inflicted human and environmental harm, was advanced as well as reinforced in 2022. States adopted important new standards and commitments on the use of explosive weapons in populated areas, nuclear weapons, and the environment and armed conflict. To ensure that these standards and commitments achieve their potential, 2023 will be critical for implementation. It is also a time for innovation, especially in addressing the risks and dangers posed by autonomous weapons systems.
 
Explosive Weapons in Populated Areas

A political declaration on the use of explosive weapons in populated areas, endorsed by 83 countries on November 18, aims to better protect civilians from humanitarian consequences of the bombing and shelling of cities and towns. It goes beyond urging greater compliance with existing international humanitarian law to establishing guidelines for preventing and remediating the harm from this method of warfare. The use of explosive weapons in populated areas is one of the greatest threats to civilians in contemporary armed conflicts, and the declaration contains strong provisions with the potential to address both direct and reverberating effects. But it will only be as effective as its interpretation and implementation.
 
Over the next year, signatories to the declaration should ensure that they interpret it through a humanitarian lens. Its core provision calls on states to adopt “policies and practices to help avoid civilian harm, including by restricting or refraining as appropriate from the use of explosive weapons in populated areas, when their use may be expected to cause harm to civilians or civilian objects.” According to a report by Human Rights Watch and Harvard Law School’s International Human Rights Clinic, to live up to the declaration’s humanitarian purpose, states should understand the paragraph to mean they should refrain from using explosive weapons with wide area effects in populated areas, and restrict their use of all other explosive weapons in those areas.
 
State signatories should also carry out the commitments they made in the declaration and be ready to report on their progress at the first follow-up meeting in Norway in 2024. They should, for example, review, develop, and improve relevant national policies and practices; train their armed forces on the declaration’s provisions; collect and share data; and provide assistance to victims. Several civil society organizations have published recommendations for how most effectively to implement the declaration’s commitments.
 
Nuclear Weapons

Implementation is also key for the 2017 Treaty on the Prohibition of Nuclear Weapons. The treaty’s landmark First Meeting of States Parties in Vienna last June adopted the Vienna Declaration, reaffirming states parties’ commitment to eliminating nuclear weapons and stressing the treaty’s underlying moral and ethical imperatives. The meeting further agreed to the Vienna Action Plan, which lays out steps to advance the process of implementing the treaty. Expanding support for the treaty remains a top priority. Five years after its initial signing conference, the treaty has 68 states parties and an additional 27 states have signed.
 
Another area of focus is the positive obligations to assist victims, remediate environmental contamination, and provide international cooperation and assistance. The Action Plan identifies initial steps states parties should take to establish an implementation framework. They should assess the harm caused by nuclear weapons use and testing and their capacity to address it, develop a national plan with a budget and time frame, establish a government “focal point” to guide these efforts, and adopt relevant laws and policies. In addition, they should follow principles of accessibility, inclusivity, non-discrimination, and transparency at all stages of carrying out these obligations.
 
Environment and Armed Conflict

New standards were set during the past year with regard to the environment and armed conflict. On December 7, the United Nations General Assembly adopted by consensus the International Law Commission’s Principles on the Protection of the Environment in Relation to Armed Conflicts. The non-binding principles cover situations before, during, and after times of armed conflict.
 
The principles call for designating protected zones, explicitly applying existing international humanitarian law to the environment, and laying out rules to protect the environment during times of occupation. They also underscore the importance of cooperation in developing post-conflict remedial measures.
 
The Conflict and Environment Observatory, which advocated heavily for the principles, said that, “The UN General Assembly’s adoption of the principles and their commentaries represents the transition point between [the principles’] development and the beginning of its implementation phase.” Early steps in this stage include raising awareness about the principles and adopting national measures, such as training armed forces on their content.
 
Autonomous Weapons Systems
​

While the new standards and commitments on explosive weapons, nuclear weapons, and the environment in armed conflict require implementation, the dangers raised by autonomous weapons systems are still not constrained by specific legal rules. Innovation will, therefore, be crucial in 2023. International talks at the Convention on Conventional Weapons (CCW) have been ongoing since May 2014, but no action has been taken. At the CCW’s annual meeting in November, states parties yet again failed to make any meaningful progress despite calls from a majority of states parties, plus the International Committee of the Red Cross and civil society organizations, to open negotiations for a new treaty to prohibit and regulate autonomous weapons.
 
Due in large part to the CCW’s reliance on consensus-based decision making, however, states parties could only agree to discuss—for the tenth year—“possible measures” for addressing the myriad threats such weapons systems pose. States parties will need to break out of the CCW if they want to make progress toward a new instrument on autonomous weapons systems.
 
States need to innovate by changing their tactics for achieving a treaty, and there is ample precedent for taking a different approach. Existing disarmament treaties offer models for successfully adopting legal instruments in alternative forums. As discussed in a recent report by Human Rights Watch and Harvard Law School’s International Human Rights Clinic, states could turn to an independent process outside the UN, as was done for the Mine Ban Treaty and Convention on Cluster Munitions. Or they could initiate a UN General Assembly process, as was used for the Treaty on the Prohibition of Nuclear Weapons. Both approaches have several benefits: a common purpose, voting-based decision-making, clear and ambitious deadlines, and a commitment to inclusivity.
 
In 2023, Costa Rica, Luxembourg, and Austria are all planning conferences outside of the CCW on autonomy in weapons systems. States and others that support creating new law to address the moral, legal, accountability, and security concerns about this emerging technology should take advantage of these meetings to build momentum for negotiations.


Bonnie Docherty is a senior researcher in the Arms Division of Human Rights Watch and a lecturer on law at Harvard Law School, where she is Director of the Armed Conflict and Civilian Protection Initiative in the International Human Rights Clinic. 

Inclusion on the Forum on the Arms Trade expert list and the publication of these posts does not indicate agreement with or endorsement of the opinions of others. The opinions expressed are the views of each post's author(s).

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Humanitarian Disarmament in 2022: Negotiations, Implementation, and a Fresh Start

2/8/2022

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This is the fifth and final blog post in a series looking at an array of issues in 2022 related to weapons use, the arms trade and security assistance, often offering recommendations.

This post was originally published by Disarmament Dialogue.
Picture
Bonnie Docherty

While the year 2021 ended on an intense and draining note, with the Sixth Review Conference of the Convention on Conventional Weapons (CCW), 2022 has begun slowly for humanitarian disarmament. The COVID-19 pandemic, which continues to affect progress in the field, has postponed planned negotiations and milestone meetings.

Nevertheless, barring further pandemic-related interference, the new year promises to advance several key humanitarian disarmament issues. It should produce a new political declaration on the use of explosive weapons in populated areas, see states parties convene for their first meeting under the Treaty on the Prohibition of Nuclear Weapons (TPNW), and mark a turning point in efforts to address the threats posed by autonomous weapons systems. 

Explosive Weapons in Populated Areas

A new international instrument is on the horizon for dealing with the use in populated areas of explosive weapons, such as mortars, artillery shells, rockets, and air-dropped bombs. This method of war causes extensive civilian harm both at the time of attack and long after. That harm is exacerbated when the explosive weapons have wide area effects because they are inaccurate, have a large blast or fragmentation radius, or deliver multiple munitions at once. 

Ireland initiated a process in 2019 to develop a political declaration to protect civilians from the use of explosive weapons in populated areas. Draft versions of the declaration recognized the harm this practice inflicts and included commitments for restricting the use of explosive weapons with wide area effects, providing victim assistance, and collecting data. 

While the latest draft should be strengthened, the negotiations for the final version have been at the mercy of COVID-19. The consultations to conclude the document, originally scheduled for late March 2020, were the first major disarmament meeting to fall victim to the global pandemic. After at last being able to reschedule the consultations for February 2022, Ireland was compelled to postpone them once again when the Omicron variant meant that the relevant state and civil society representatives would be unable to attend an in-person meeting in Geneva. 
Although a new date has not yet been set, Ireland reportedly aims to hold the negotiations in the first half of 2022. If it succeeds, humanitarian disarmament will have another instrument in its toolbox—a political commitment that addresses one of the most significant humanitarian concerns of contemporary armed conflict.  

Nuclear Weapons

In addition to celebrating the “Banniversary” of the Treaty on the Prohibition of Nuclear Weapons, the first anniversary of its entry into force, on January 22, states and civil society have been busy preparing for the treaty’s First Meeting of States Parties (1MSP). The meeting was previously moved from January to March 2022, and Austria, president of the meeting, recently announced it will need to be rescheduled again, most likely until mid-year. 

Whenever it takes place, the 1MSP will be a crucial moment in the life of the TPNW. It provides states parties the opportunity to set priorities for the years ahead and to begin the process of turning the treaty’s obligations into actions. 

Discussions around the TPNW’s “positive obligations” for victim assistance, environmental remediation, and international cooperation and assistance will be particularly important for advancing the humanitarian disarmament agenda. These obligations ensure that the treaty provides a comprehensive response to the consequences of nuclear weapons, i.e., addressing the harm from past use and testing as well as preventing future harm. The 1MSP’s declaration and action plan should commit states parties to establishing an implementation framework, approving an intersessional workplan, developing reporting guidelines, and including affected communities at all stages. 

A working paper from Kazakhstan and Kiribati, which Austria appointed co-facilitators of the 1MSP’s work on the positive obligations, recommended addressing these and other measures in the 1MSP’s outcome documents. Many states parties and civil society organizations expressed their support in written submissions, and consultations are ongoing.      

Other important areas that the 1MSP will deal with include universalization and deadlines and verification procedures for dismantling nuclear arsenals. 

Killer Robots

For killer robots, the significance of 2022 is the opportunity it presents for supporters of a new treaty to change direction. 

Weapons systems that select and engage targets based on sensor processing rather than human inputs raise a host of moral, legal, accountability, and security concerns. As a result, the majority of states at the CCW’s Sixth Review Conference called for negotiations to create a new legally binding instrument on the topic. Most called for a combination of prohibitions on weapons that lack meaningful human control, prohibitions on autonomous weapons systems that target people, and restrictions on all other autonomous weapons systems to ensure that they are never used without meaningful human control.  

The failure of the conference to adopt a negotiation mandate underscored the shortcomings of that forum and the inability of this consensus body to make real progress on a matter of grave and urgent humanitarian concern. After eight years, CCW discussions on lethal autonomous weapons systems have more than run their course.

It is time, therefore, for states that support a legally binding instrument on these emerging weapons to pursue negotiations in an alternative forum. They can look for models to the origins of other humanitarian disarmament treaties, notably the independent processes that led to the Mine Ban Treaty and the Convention on Cluster Munitions, and the UN General Assembly process that led to the TPNW.

Many states said that they could not consider alternative forums until after the Review Conference, but that moment has passed and the CCW has failed to produce results. This year presents a clean slate. It is time for all supporters of a treaty to shift their sights and for champion states to step up and take the lead on a new process.  

* * * * *

While the pandemic is likely to play a role in the timing of progress this year, humanitarian disarmament—not a global disease—should determine 2022’s developments. 
​

Participants in the negotiations of the explosive weapons political declaration should ensure the final draft maximizes civilian protection. States, international organizations, civil society groups, and survivors should work together to produce strong 1MSP outcome documents that help the treaty live up to its humanitarian potential in practice. Finally, proponents of a new legally binding instrument on autonomous weapons systems should start fresh and focus on what process can best lead them to the strongest humanitarian outcome.   


Bonnie Docherty is a lecturer on law at Harvard Law School, where she is Associate Director of Armed Conflict and Civilian Protection in the International Human Rights Clinic, and senior researcher in the Arms Division of Human Rights Watch. 


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    The "Looking Ahead Blog" features comments concerning short- to medium-term trends related to the arms trade, security assistance, and weapons use. Typically about 500-1000 words, each comment is written by an expert listed on the Forum on the Arms Trade related to topics of each expert's choosing.

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