2012-11-15 15:58:47

Statement of Archbishop Tomasi on Conventional Weapons (full text)


Statement by H.E. Archbishop Silvano M. Tomasi
Permanent Representative of the Holy See to the United Nations and Other International Organizations in Geneva at the Meeting of the High Contracting Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW)

Geneva, 15 November 2012


Mr. President,

The history of humanity, written or oral, has often been one of wars and conflicts. The most obvious narrative is that of armed conflicts, in which priority is given to ethnic, religious or national interests regardless of huge human costs. Civilians, who are not directly involved in the conflict and all those who can be grouped under the concept of innocent by-standers, have remained forgotten during the conflicts and often in the history books. Yet another narrative exists despite its more modest character. It is not less effective and promising. This is the parallel story that focuses on the protection of civilians and of those who do not participate directly in a conflict. In a nutshell, it is the history of the human conscience that refuses the suffering inflicted on innocent people. The most ancient sources of the history of humanity reflect the fundamental idea that, in military conflicts, “the right of parties to choose means and methods of warfare is not unlimited”: not all is acceptable.

More recently, since the 19th century, we have seen the latter trend growing and taking the form of a body of law that any party to an armed conflict must respect. This trend culminated in the Geneva Conventions on international humanitarian law that subsequently several multilateral instruments have tried to develop and strengthen. International humanitarian law has come to represent a minimum of humanity in situations of extreme violence and of failure to prevent it.
It is clear, however, that despite legal, political and humanitarian provisions, by far, civilians in urban areas continue to be the first victims of armed conflicts. Such fact, while it does not imply that the principles of international humanitarian law are inadequate or unnecessary, raises the fundamental issue of the needless and unacceptable suffering imposed on the civilian population.
To illustrate this reality, it is enough to look closely at the statistics related to victims of conflicts that the world has known since the 1950s. Whether in international or local conflicts, the overwhelming majority of the dead, injured, disabled are civilians and damages primarily affect the civilian infrastructure and the basic resources of subsistence of entire populations. Although incomplete and limited, statistical data provide sufficient information to tell the story of inadmissible and useless suffering and demonstrate that the fundamental principles of international humanitarian law often are not respected. They are sufficiently strong and convincing to allow the rejection of the so-called collateral damage excuse. A declaration of international humanitarian law principles is not enough nor is recourse to formal arguments. The reality on the ground should be the compelling argument to document compliance or non-respect of binding international humanitarian law.
The concept of "Unacceptable Harm to Civilians," born when 46 States adopted a Declaration in 2007 which was the starting point of the Oslo process on cluster munitions, is of great relevance in strengthening and making international humanitarian law more operational. This concept neither weakens nor contradicts the principles of international humanitarian law. But it requires each party to an armed conflict, state actors or non state actors, to take into account the principles of international humanitarian law as well as those of human rights. For the first time, in the Convention on Cluster Munitions, assistance to victims is considered a human right. It is a remarkable development in the field of international law and in the relationship between international humanitarian law and human rights.

Formal legality is not the only condition of acceptability that goes beyond the principle of proportionality that would give priority to military advantage. An operation or a military attack could be formally consistent with the principle of proportionality, but unacceptable in the light of current standards in the perception of human dignity and human rights. The notion of acceptability also can be connected to the concept of "cumulative effect", as presented by the International Tribunal for the Former Yugoslavia in the Kupreskic case: Attacks that, per se, are in the grey zone of legitimacy could be considered illicit in light of their cumulative effect against the civilian population.
A few years ago, researchers, NGOs, international organizations, and some governments, embarked on an effort to rethink the protection of civilians who face the consequences of military activities in armed conflicts. Instead of dealing with each particular type of weapons, as was the case for the Convention on Certain Conventional Weapons (CCW), the concept of explosive weapons and their effects, rather than technology, was put at the centre of reflection.
Explosive weapons constitute a broad category of weapons (bombs, mortar ammunition, grenades, rockets, missiles, improvised explosive devices (IEDs), car bombs, etc..) not explicitly prohibited under international humanitarian law and that probably never will. Now, however, many voices are raised to question the use of these weapons in populated areas and call for the protection of civilians living there. This view is shared by the United Nations Secretary General, the Chairman of the International Committee of the Red Cross, the United Nations Institute for Disarmament Research and NGOs.
Experience shows that the use of explosive weapons in populated areas has most often caused a significant number of victims, major destruction of socio-economic infrastructures, severe psychological trauma and the hindrance of development for many years. Children and women are particularly affected. These results cause hatred and socio-political wounds that are difficult to heal. In the case of internal or international conflicts, they make reconciliation more difficult, if not impossible, and they become a contradiction when international operations to restore or maintain peace and to win over the hearts and minds of local people are undertaken.
The acceptability of military losses diminishes considerably, especially in some countries. The governments, whose armed forces are engaged in armed conflicts, take very seriously public opinion on the issue of casualties among their troops. But, unfortunately, this is not always the case with respect to disproportionate losses of civilians not belonging to the same national community. This poses a problem of principle and a practical problem: first, the dignity of the human person is not conditioned by language, religion, nationality or geopolitics; second, the suffering and useless and superfluous injury are unacceptable anywhere and under any circumstances.

The consideration of the issue of explosive weapons is recent, but it carries already the promise of fruitful results for the protection of civilians in populated areas. The road ahead, however, may be long. In fact, it is a life-long commitment that should be passed on from one generation to another with the goal of always better protecting and minimizing the number of victims to the utmost. Meanwhile, interim steps are indispensable to build a strong and convincing argument to prompt the international community to consider protection of civilians as necessary and urgent, especially in populated areas given the rapid urbanization of the world. All those who already have spoken on the issue highlight four elements:

    It is essential to better define the conceptual framework and the basic terminology so that these may be better understood and accepted by the different actors.


    Even though enough data are available to say, with sufficient confidence, that the use of explosive weapons raises a problem for the protection of civilian populations in urban areas, we also need more transparency in the collection and analysis of data on the part of all actors and of States themselves in the first place. The States actually have to give factual proof that they meet their obligations in the field of international humanitarian law. One can only regret that States do not undertake a systematic collection of data on civilian victims and that, when they do, such data are not usually published.


    States should publish the political declarations concerning the rules of utilization of explosive weapons in general and, in particular, in the urban areas. The fact of publishing documents of this type would strengthen the notion of responsibility of the State before their own people and the international community.


    The users of explosive weapons must also recognize their responsibility towards the victims, in one way or another. Already several legal instruments make assistance to victims a fundamental element of the obligations agreed on by States (the Ottawa Convention, CCM, Protocol V). Assistance to victims is a human right, a humanitarian and political commitment, and it stems from the centrality of the human person and from her inalienable dignity, which constitutes the ethical base of international humanitarian law.

In conclusion, one can affirm with sufficient confidence that it is impossible to use explosive weapons in populated areas and maintain a position of respect for the principles of international humanitarian law that would result in protection of civilians. Sadly, law alone cannot eradicate war, armed conflicts and armed violence from human history. These conflicts are evidence of the failure of humanity in its collective effort to build peaceful civilizations. It is essential to adopt an approach that goes beyond formal legality to reach the goal of a minimal, if not a zero, acceptability and tolerance of the suffering imposed on innocent people.
Mr. President,
For all these reasons, the CCW is required to embark on a continued discussion on the effects of explosive weapons in populated areas, and to make the appropriate decisions to promote the protection of civilian populations in an effective manner.







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