A New Political Declaration on Civilian Harm: Progress or Mythical Panacea?

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| Jul 20, 2022

Civilian evacuation Irpin

On June 17, against a backdrop of the Russian invasion of Ukraine that has now killed or wounded over 11,000 civilians in a little more than four months, a group of States, the International Committee of the Red Cross (ICRC), and non-governmental organizations (NGOs) concluded consultations on the final text of the Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences Arising from the Use of Explosive Weapons in Populated Areas (hereinafter the “Declaration”). This Declaration, a result of an almost three-year diplomatic effort, seeks to address “the devastating and long-lasting humanitarian impact of the use of explosive weapons in populated areas.” The Declaration will formally be opened for endorsement by States later this year at a conference to be held in Dublin.

What are we to make of this new political Declaration? Will it enhance protection against civilian harm in armed conflict? Or will it become just another political declaration that is soon forgotten? Will States implement true change or simply pat themselves on the back and declare civilians are now safe from the ravages of war?

My skeptical side is pessimistic this Declaration will result in better protection of civilians. The consultations included mostly “like-minded” States that already take such measures to protect civilians from harm in armed conflict. They did not include States such as Russia that are seemingly indiscriminately bombing civilian targets in Ukraine on a daily basis. My optimistic side, however, is encouraged by the provisions of this Declaration that provide hope that it will enhance protection against civilian harm in armed conflict.

The first part of this post looks at the provisions of this Declaration that, if earnestly implemented, can strengthen civilian protection. It strikes an appropriate balance between military operations and enhancing the protection of civilians. The second part looks at a possible methodology to assess whether this Declaration is making true progress or whether it is just another political declaration that is signed and quickly forgotten.

What is a Declaration?

It is important to clearly understand what this Declaration is and what it is not. It is a political declaration; it is not a new treaty or convention, such as the Arms Trade Treaty or the Convention on Certain Conventional Weapons. A convention or treaty are not the same as a declaration, as the former are legally binding on the States that have ratified them while the latter is a document stating agreed upon standards or practices without imposing any legally binding obligations on a State.

This Declaration represents a political commitment by States. It is not a legally binding document and, as such, does not impose any new legal obligations on the part of signatory States to do anything more or differently than they are doing right now. That said, the Declaration sets out substantive commitments regarding practical improvements that States can take to ensure better implementation and compliance with their legal obligations under the Law of Armed Conflict (LOAC).

The Declaration: Substantive Commitments by States

Section 1

The Declaration consists of two parts and four sections. Part A (sections 1 and 2) constitute the Preamble, while Part B (sections 3 and 4) is the Operative Section. Section 1.1 sets out the problem, namely, that armed conflicts have become “more protracted, complex, and urbanized,” which has increased the risk of harm to civilians. Section 1.1 notes that the risks are caused by a “range of factors, including the use of explosive weapons in populated areas.” Section 1.2 notes that the risks will increase depending on the “weapon’s explosive power, its level of accuracy, and the number of munitions used.”

Sections 1.3 through 1.6 discuss the various types of harm explosive weapons can cause beyond the direct blast and fragmentation effects that cause direct harm to civilians. For example, there is a discussion of what some refer to as “reverberating effects,” those second- and third-order effects that may stem from the destruction of civilian infrastructure (section 1.3). There is recognition that explosive weapons in populated areas can impact “housing, schools, places of worship” and contaminate the “air, soil, water, and other resources” (section 1.5). Finally, these munitions can cause “psychological and psychosocial harm” and result in “displacement.” Meanwhile, unexploded ordnance can “impede humanitarian access, the return of displaced persons and reconstruction efforts” long after the conflict has ended (section 1.6).

Section 1.7 provides much of the basis for the operative sections that follow. It states:

Many armed forces already implement policies and practices designed to avoid, and in any event minimise, civilian harm during hostilities. These can help armed forces to better understand the anticipated effects of explosive weapons on a military target and its surrounding areas, as well as the associated risk to civilians in populated areas. However, there is scope for practical improvements to achieve the full and universal implementation of, and compliance with, obligations under International Humanitarian Law, and the application and sharing of good policies and practices. Broadening and strengthening initiatives designed to share policies and practices on protecting civilians can support the promotion and better implementation of International Humanitarian Law.

This section recognizes that many States already do more than what is required under LOAC to minimize the harm to civilians in armed conflict, but also that there are areas that can be improved to ensure better implementation of LOAC. By sharing of these existing policies and practices amongst each other, States can increase compliance with LOAC and better protect civilians and civilian infrastructure from the scourge of armed conflict.

Section 2        

Section 2 primarily reaffirms States’ obligations under LOAC, including the obligation to hold accountable those who violate LOAC (section 2.1). Section 2.3 recalls the requirement to comply with LOAC in all circumstances, including when conducting military operations in populated areas. It reiterates the rules and principles of distinction, prohibition against indiscriminate attacks, proportionality, and the obligation to take feasible precautions (section 2.3) by both State and non-State actors who are parties to the conflict. Section 2.5 recognizes that “while there is no general prohibition against the use of explosive weapons, any use of explosive weapons must comply with International Humanitarian Law.”

As discussed above, this Declaration is a political commitment that is non-legally binding. Accordingly, it has not created any new LOAC rules or amended any existing ones. It is important to note that those States that eventually sign the Declaration are not parties to the same IHL instruments so the international law obligations referenced in section 2 will not apply or be interpreted in the same manner by each State.

Section 3

Section 3 begins the operative provisions that States agree to implement as part of their commitment to “strengthening the protections of civilians and civilian objects during and after armed conflict, addressing the humanitarian consequences arising from armed conflict involving the use of explosive weapons in populated areas, and strengthening compliance with and improving the implementation of applicable [LOAC]” (Part B). The heart of section 3 is the commitment in section 3.3, which provides that States will:

Ensure that our armed forces adopt and implement a range of 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 (emphasis added).

There are three important aspects to section 3.3. First, States commit to adopt and implement a range of policies and practices to help avoid harm to civilians and civilian objects during military operations, which is broader than focusing on explosive weapons in populated areas. Second, this section calls for “restricting or refraining as appropriate” from the use of explosive weapons in populated areas, which is more narrow than the calls for States to “avoid the use of explosive weapons with wide area effects in populated areas” from the ICRC, the International Network on Explosive Weapons (INEW) and the United Nations. Third, these measures are not limited to situations where the expected harm to civilians may be considered excessive, but rather States commit to take such measures when the use of explosive weapons may be expected to cause incidental harm to civilians and civilian objects at all.

Importantly, under the Declaration States are committing to policies and practices that are not focused solely on the use of explosive weapons, but rather all manner of weapons and means and methods of warfare (e.g. strategies and tactics) that can be used in military operations. The final text of section of 3.3 also strikes a balance between the need to successfully conduct military operations with the enhanced protections for civilians and civilian objects. It does not unnecessarily stigmatize a legitimate and necessary weapon for combat operations by calling for their “avoidance” in populated areas, but relies on responsible commanders and operators to use the force needed to accomplish their mission in accordance with LOAC rules and principles. Finally, the commitment to adopt policies and practices that, as each State determines appropriate, will likely provide more protection than what is required under LOAC principles of proportionality and precautions in attack.

Section 4

Section 4 deals with how States will implement many of the policies and practices found in section 3. The heart of this section is section 4.7, which provides:

Meet on a regular basis to review in a collaborative spirit the implementation of this Declaration and identify any relevant additional measures that may need to be taken. These meetings could include the exchange and compilation of good policies and practices and an exchange of views on emerging concepts and terminology. The United Nations, the ICRC, other relevant international organisations and civil society organisations may participate in these meetings. We encourage further work, including structured intergovernmental and military-to-military exchanges, which may help to inform meetings on this Declaration.

This is where we will see if this political declaration will actually result in enhanced protections for civilians and civilian objects. States that join this Declaration are committing to meet on a regular basis and exchange and compile information and views on the protection of civilians. It also includes the participation and support from the U.N., the ICRC and NGOs. The outstanding question is whether and how often States will meet on a “regular” basis.

How to Measure Implementation

During the Third Review Conference of the States Parties to the Convention on Certain Conventional Weapons, States sought to conclude a legally binding protocol on anti-vehicle mines (referred to in CCW as MOTAPM, mines other than anti-personnel mines). Unfortunately, States were unable to reach consensus, so the protocol was not adopted. At the Review Conference, 25 States then adopted the Declaration on Anti-Vehicle Mines, a political agreement to address use of anti-vehicle mines.

I doubt there are many who realize this declaration exists. In fact, when MOTAPM was discussed again in 2011 at the Fourth Review Conference, I observed many of the delegates present were unaware that the Declaration on Anti-Vehicle Mines existed (or whether their State had joined it), even though by 2011 there were approximately 30 States that had endorsed it.

So, how does this Declaration not become like the Declaration on Anti-Vehicle mines, which does not seem to have had much impact on the use of AVM? An article provides a suggested metric to measure whether a political commitment, such as this Declaration, is making true progress. The factors to consider are whether there is: (1) an expressed political commitment; (2) an institutional commitment; and (3) a budgetary commitment.

Expressed Political Commitment

There were approximately 65 States involved in the consultations, including the United States, United Kingdom, most NATO members, Australia, New Zealand, Israel, Mexico, Chile, and China. However, States such as Russia and Syria did not participate in the consultations. However, the true measure of political commitment will come later this year when the Declaration is formally opened for endorsement at the conference to be held later this year. Although those 65 States are significant, they still represent only about one-third of States in the world.

The United States, which has been an integral part of the discussions, stated it was “pleased to announce that we are prepared to endorse the [draft political Declaration]…. We hope and expect that this Declaration will help States improve the protection of civilians and reduce human suffering in armed conflict.” This is welcome news and, hopefully, this position does not change between now and conference later this year.

Although it is important for all 65 States to endorse the Declaration, it is unknown whether States that did not participate in the consultations, such as Russia, Syria, and Saudi Arabia among others, will consider endorsing the Declaration. These States, often rightfully so, have faced heavy criticism for failing to protect civilians from the harm of armed conflict. Without States such as these, is it possible to implement true change for the protection of civilians?

It is similar to the criticism of the Convention on Cluster Munitions (CCM). The CCM has 110 States parties, but it does not include the major users or producers of cluster munitions, such as the United States, Russia, Israel, India, or China. I have heard the CCM described as a group of non-smokers who got together and agreed to give up smoking. I am not suggesting the CCM has had no impact on the use of cluster munitions as it has led to the destruction of more than 1.5 million cluster munitions, but the United States alone has more than 4.7 million cluster munitions in its inventory. In order to effect true change for the protection of civilians, this Declaration will need to be endorsed by the widest possible number of States, especially those that cause the greatest concern about harm to civilians and civilian objects. This may be a Sisyphean task, but it is one worth pursuing.

Institutional Commitment

Once it secures political commitment, this Declaration will require institutional commitment. This means that those States that endorse the Declaration must ensure that their military departments policies and practices strengthen the protection of civilians in a meaningful way. The United States is already beginning to address civilian harm both through efforts within the DoD as well as new legislative proposals.

On January 27, Secretary of Defense Lloyd Austin directed DoD to take measures to improve its civilian harm mitigation and response. These measures include providing him a Civilian Harm Mitigation and Response Plan (CHMRAP) within 90 days (this deadline has been extended but the Plan may be released later this month). The plan will outline the steps the Department will take to implement recent studies on civilian harm. The CHMRAP would establish a civilian protection center of excellence to institutionalize practices and tools for preventing, mitigating, and responding to civilian harm. DoD is also finalizing its DoD Instruction on Civilian Harm, which is expected to be released soon after the CHMRAP is complete.

In addition to internal policy initiatives within DoD, in April two bills were introduced to address civilian harm. They are the Protection of Civilians in Military Operations Act (POCIMO) and the Department of Defense Civilian Harm Transparency Act (CHTA). An excellent analysis of POCIMO and CHTA can be found here and here. As noted by the authors, progress in the protection of civilians from the harm of armed conflict can only come through sustained engagement by DoD, the White House, and Congress.

Although the United States appears to have the institutional commitment necessary, time will tell whether other States will do the same. If those States that endorse the Declaration take similar steps and come to the regular meetings contemplated in section 4.7 then there can be the institutional commitment necessary to ensure true progress on civilian harm.

Budgetary Commitment

The final component to measure political commitment is budgetary commitment. States must dedicate the necessary resources to enhance the protection of civilians in armed conflict. Sections 3 and 4 of the Declaration have several provisions that may require the commitment of financial resources, such as ensuring comprehensive training of their military forces, providing or facilitating assistance to victims and communities impacted by armed conflict, and even committing resources for the regular meetings. Failure to do so will limit the impact this Declaration will have on enhancing the protection of civilians.

The United States, through the various initiatives discussed above, appears willing to make the necessary budgetary commitment. For example, resources will be necessary to establish a civilian protection center of excellence. Staff will need to be hired to fill positions, standardized operational reporting and data management must be developed, and analysis and integration of the lessons learned from civilian casualty events and various investigations must be undertaken. Under CHTA, in addition to improving reporting and investigation procedures, DoD must designate a Civilian Harm Investigation Coordinator who is responsible for managing civilian harm assessments and investigations. In addition, the Act would also establish a position of general counsel to assist the Civilian Harm Investigation Coordinator.

At the international level, the budgetary commitment will come with respect to the “regular” meetings. What will that mean? Will it be more than once a year, an annual meeting, or something longer. At least initially, if the meetings only occur once a year it will be hard to envision an effective outcome. For example, in the CCW process there are multiple meetings during the year prior to the annual meeting where decisions are often made. I would argue that a similar arrangement of meetings is required to address civilian harm.

Conclusion

Ambassador Michael Gaffey has done a tremendous job leading the discussions on the Declaration that many States are now willing to endorse. It remains to be seen how many States will actually endorse the Declaration and whether States that did not engage in the consultations will agree to it. Once it is open for endorsement, we will be able to measure whether this Declaration will enhance the protection of civilians in armed conflict based on whether those States are willing to make the political, institutional, and budgetary commitments necessary to implement it. If they do, then we may see true progress for mitigating civilian harm. If they do not, then this Declaration will be like other political commitments that are soon forgotten to history. While I remain skeptical, I also remain hopeful this time it will be different.

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Michael W. Meier currently serves as the Special Assistant to the Army Judge Advocate General for Law of War Matters. As the senior civilian adviser, he advises on legal and policy issues involving the law of war, reviews proposed new weapons and weapons systems, serves as a member of the DoD Law of War Working Group, and provides assistance on detainee and Enemy Prisoner of War affairs.

 

Photo credit: Yan Boechat