Ending Civilian Suffering – Humanitarian Disarmament Law

The 1997 Mine Ban Treaty was a breakthrough humanitarian disarmament agreement. The 1997 Mine Ban Treaty was a breakthrough humanitarian disarmament agreement. © Flickr – Jill Davis 2014

4 March 2019

A recent report has highlighted the move toward humanitarian disarmament law in the 21st century, with the elimination of human suffering as its core objective.

While early approaches to disarmament and its associated treaties focused on the security objectives of states parties, more recent disarmament agreements shifted their focus to humanitarian goals. This approach seeks to establish bans on the current and future use of particular types of weapons, while also including requirements for remedial measures that reduce the effects of their past use.

The history of disarmament law shows the gradual progress made towards this humanitarian framework. Security disarmament approaches, which focused on external threats to states from weapons, particularly from other states, were the cause for the  the first disarmament treaties. These treaties sought to ban the use and production of certain types of weapons, and aimed at the destruction of existing stockpiles. These agreements increase the external security of states and provide no one state with an advantage over another. Examples of these types of treaty include the 1972 Biological Weapons Convention and the 1993 Chemical Weapons Convention, tellingly created in the environment of the Cold War.

Treaties,  such as the 1980 Convention on Conventional Weapons (CCW), can be classified as hybrid disarmament agreements. These pacts place restrictions on weapons, with the underlying purpose of protecting the security of states, but also look to minimise the suffering of individuals. Hybrid treaties may prohibit the use of specific weapons while also including humanitarian provisions, such as a prohibition of attacks in populated areas.

The end of the Cold War led to a different climate in international relations. This was reflected in processes that led to  disarmament agreements, which became both more independent and more inclusive. The external security of states ceased to be the most important consideration. Multi-faceted legal instruments designed to reduce the suffering of individuals during times of war – humanitarian disarmament agreements – were the new key focus area, the first being the 1997 Mine Ban Treaty.

This treaty was agreed outside the narrow scope of UN negotiations, with civil society being the driving force behind securing a deal between groups of like-minded states. While the agreement contained preventative measures, such as bans on production and stockpiling, it also included measures for remediation. The treaty contained protocols for the removal of unexploded mines and for medical assistance for mine victims. It also included measures for international cooperation in its implementation. States parties would offer assistance to other parties to help them meet their treaty obligations and contained dispute settlement mechanisms  based on consultation.

The Mine Ban Treaty might have been a humanitarian breakthrough, but at the turn of the 21st century it was unclear if this was to be a one-off agreement, or herald in a new era in disarmament law. Protocol V of the CCW on Explosive Remnants of War, which was agreed by states parties to the convention in 2003, demonstrated growing humanitarian concerns about the use of weapons in disarmament agreements, although it could still be considered a hybrid instrument. The 2008 Convention on Cluster Munitions (CCM), a true humanitarian disarmament agreement, solidified that this type of treaty was an established and growing part of international law. The CCM currently has 108 signatories, including 68 states parties.

In future, diplomats and members of civil society are looking to apply the model set out in the CCM, rather than in the Convention on Conventional Weapons, to other weapon types. This may include any future agreements on explosive weapons in populated areas, incendiary munitions, and possibly even nuclear arms. As the report states: ‘These discussions show that humanitarian disarmament constitutes a living approach to ending civilian suffering that can be adapted to new weapons and involve over time.’

 

To read more visit:

http://hrp.law.harvard.edu/wp-content/uploads/2013/08/04_docherty_neu-FINAL.pdf

 

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