Section 3, and especially 3.3, is the heart of the Political Declaration. The strength of Section 3 – of the operative commitments – will determine the eventual effectiveness and success of the Declaration. Clarity and boldness are needed here more than anywhere else.
Regrettably, the current draft text falls short on both counts—clarity and boldness.
The commitments in this section importantly and appropriately focus on the use of explosive weapons with wide area effects. While the use of EWIPA is a broad matter, it is the use of weapons with wide area effects in populated areas that is causing the most civilian harm, the most civilian deaths and injuries at the time of attack and the most deadly, long-lasting reverberating effects. This fact has been established by years of research.
When addressing the use of EWIPA, the place to start, with great urgency, is weapons with wide area effects. This would provide the best practical mechanism for reducing civilian harm.
The declaration needs a better, fuller, description of wide area effects. The proper place for that would be in Section 1, with a paragraph explaining that wide area effects are created by a wide blast and fragmentation radius, inaccuracy of delivery, the use of multiple munitions at once, or some combination of these factors.
Here are some specific concerns and recommendations on Section 3.
Section 3.3 should be moved to the beginning of Section 3. It constitutes the basic operative commitment, the most important commitment, and needs to be front and center.
The best formulation for 3.3 would be to STOP the use of explosive weapons with wide area effects in populated areas. This would have the biggest impact and would most strongly establish a stigma against use of explosive weapons with wide area effects in populated areas, helping to establish a new standard of behavior.
The next best formulation would be to AVOID the use of explosive weapons with wide area effects in populated areas. The ICRC and many states have made a strong case for embracing an “avoidance policy” that would establish a presumption against use of explosive weapons with wide area effects in populated areas.
The qualifier in 3.3 that “when the effects may be expected to extend beyond the military objective” should be deleted. It could be seen as suggesting that there are occasions when the use of EWIPA with wide area effects do not extend beyond the military objective.
To promote effective implementation of this commitment, language could be added regarding the need to ensure prior assessment and understanding of both the area effect of specific weapons and the specific context of use.
Section 3.4 would be greatly strengthened by replacing “take into account” with, “Assess and take steps to mitigate the direct, indirect, and reverberating effects on civilians and civilian objects which can reasonably be foreseen.”
Additional suggestions for Section 3 can be found in the written INEW submission to Ireland.