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ICRC Q&A on the issue of explosive weapons in populated areas1

Published online by Cambridge University Press:  30 September 2016

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Extract

Hostilities in contemporary armed conflicts are increasingly being conducted in population centres, thereby exposing civilians to heightened risks of harm. This trend is only likely to continue with growing urbanization and is compounded by the fact that belligerents often avoid facing their enemy in the open, intermingling instead with the civilian population. Despite this, armed conflicts often continue to be waged with weapon systems originally designed for use in open battlefields. There is generally no cause for concern when explosive weapons with a wide impact area are used in open battlefields, but when they are used against military objectives located in populated areas they are prone to indiscriminate effects, often with devastating consequences for the civilian population.

Type
The law
Information
International Review of the Red Cross , Volume 98 , Issue 901: War in cities , April 2016 , pp. 97 - 105
Copyright
Copyright © icrc 2016 

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Footnotes

1

Based on International Committee of the Red Cross (ICRC), International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Report, October 2015, available at: www.icrc.org/en/document/international-humanitarian-law-and-challenges-contemporary-armed-conflicts (all internet references were accessed in August 2016). See also ICRC, “Explosive Weapons in Populated Areas”, fact sheet, June 2016, available at: www.icrc.org/en/document/explosive-weapons-populated-areas-factsheet.

References

2 See ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Report, October 2011, p. 42, available at: www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf.

3 See 2013 Council of Delegates, “Weapons and International Humanitarian Law”, Res. 7 (CD/13/R7), para. 4, wherein the International Red Cross and Red Crescent Movement called upon States to “strengthen the protection of civilians from the indiscriminate use and effects of explosive weapons, including through the rigorous application of existing rules of international humanitarian law, and to avoid using explosive weapons with a wide impact area in densely populated areas”. Available at: www.icrc.org/eng/assets/files/red-cross-crescent-movement/council-delegates-2013/cod13-r7-weapons-and-ihl-adopted-eng.pdf.

4 ICRC, “Expert Meeting – Explosive Weapons in Populated Areas: Humanitarian, Legal, Technical and Military Aspects”, Geneva, June 2015, available at: www.icrc.org/en/document/explosive-weapons-populated-areas-humanitarian-legal-technical-and-military-aspects.

5 See notably UN Security Council, Reports of the Secretary-General on the Protection of Civilians in Armed Conflict since 2009, available at: www.securitycouncilreport.org/un-documents/protection-of-civilians/; and a compilation of NGO reports available at: http://www.inew.org/learn-more-about-inew.

6 See notably a compilation of States’ statements available at: www.inew.org/acknowledgements.

7 An “explosive weapon” is defined as a weapon activated by the detonation of a high-explosive substance, creating a blast and fragmentation effect. See also Kenneth Cross, Ove Dullum, Marc Garlasco and N. R. Jenzen-Jones, Explosive Weapons in Populated Areas: Technical Considerations Relevant to Their Use and Effects, Special Report, Armament Research Services, Perth, 2015, available at: www.icrc.org/en/document/explosive-weapons-populated-areas-use-effects.

8 See Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 2056 UNTS 211, 18 September 1997 (entered into force 1 March 1999); Convention on Cluster Munitions, 2688 UNTS 39, 30 May 2008 (entered into force 1 August 2010); Convention on Certain Conventional Weapons (CCW), Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 2048 UNTS 93 (entered into force 3 December 1998) as amended on 3 May 1996; Protocol V on Explosive Remnants of War, 2399 UNTS 100, 28 November 2003 (entered into force 12 November 2006).

9 See Article 51(5)(a) of Additional Protocol I (AP I) and Articles 3(9) and 7(3) of CCW Protocol II, above note 8. The term “concentration of civilians” is defined, in Article 1(2) of CCW Protocol III on Prohibitions or Restrictions of the Use of Incendiary Weapons, as “any concentration of civilians, be it permanent or temporary, such as in inhabited parts of cities, or inhabited towns or villages, or as in camps or columns of refugees or evacuees, or groups of nomads”.

10 For more on the ICRC's approach to urban services during protracted armed conflict, see the interview with Jean-Philippe Dross in this issue of the Review.

11 See ICRC, Urban Services During Protracted Armed Conflict, Geneva, October 2015, available at: www.icrc.org/en/download/file/13438/icrc-002-42491.pdf.

12 AP I, Art. 51(4). This is a rule of customary IHL in both international and non-international armed conflicts.

13 AP I, Art. 51(5)(b).

14 AP I, Art. 51(5)(a). This is a rule of customary IHL in both international and non-international armed conflicts.

15 See AP I, Art. 51(1).

16 AP I, Art. 57(2)(a)(ii). This is a rule of customary IHL in both international and non-international armed conflicts. Feasible precautions are described in Article 3(10) of CCW Protocol II, above note 8, as those that are “practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations”.

17 For the range of factors regarding weapons selection and use, see ICRC, above note 4, pp. 5–6, 24–30. See also Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC and Martinus Nijhoff, Geneva, 1987 (Commentary on the Additional Protocols), para. 2212.

18 For further discussion of the military perspective on civilian protection in urban warfare, see the article by Nathalie Durhin in this issue of the Review.

19 See Commentary on the Additional Protocols, above note 17, para. 1962.

20 See AP I, Art. 51(4)(b). Article 3(8) of CCW Protocol II, above note 8, includes, in its definition of “indiscriminate use” of mines, booby-traps and other devices, any placement of such weapons “which employs a method or means of delivery which cannot be directed at a specific military objective” (emphasis added).

21 See Commentary on the Additional Protocols, above note 17, para. 1975: “When the distance separating two military objectives is sufficient for them to be attacked separately, taking into account the means available, the rule should be fully applied. However, even if the distance is insufficient, excessive losses that might result from the attack should be taken into account.”

22 International Criminal Tribunal for the former Yugoslavia, The Prosecutor v. Galić, Case No. IT-98-29, Judgment, 5 December 2003, para. 58.

23 For further discussion of the reverberating effects of explosive weapons when used in populated areas, see the article by Isabel Robinson in this issue of the Review.