By Bonnie Docherty, Harvard Law School’s International Human Rights Clinic and Human Rights Watch
From the Humanitarian Disarmament website
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.
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.
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.