TORONTO, 3 avril 2017
Krista Hessey

Journalist based in Toronto, Canada.

Just today, dozens of Syrians were killed in a suspected chemical weapons attack in Idlib.

Be it also by barrel bomb, cluster munition, or landmine, civilians die all too frequently at the hands of weapons the international community has set out to ban. After years of declining use and progress in destroying stockpiles, deaths from such munitions are on the increase. But which weapons are allowed, which aren’t, and why? And can’t more be done to prevent indiscriminate killing?

Starting with the Geneva Conventions of 1949, international humanitarian law has long tried, with varying degrees of success, to lessen the impact of war on civilians and protect non-combatants.

International humanitarian law expressly forbids the use of weapons that are indiscriminate in nature. But what counts as “indiscriminate” is arguable, so additional treaties have sprouted up to outlaw specific types of weapons. These agreements are often limited by scope and membership, not to mention a lack of teeth.

The increasing role of non-state actors such as militias or criminal networks poses an additional challenge to the rules and regulations established by states. As Mark Hiznay, associate arms director at Human Rights Watch, put it: “Imagine going to ISIS and talking about the Geneva Conventions… Now imagine how far you're going to get.”

But it’s not only extremist groups turning a blind eye to international law. And while Syria may be the most high-profile example of a state that continues to do wrong, munitions made in Britain and the United States are also accused of indiscriminate killing.

This guide lays out who is doing what and where, and explores efforts to expand regulations to protect civilians:

Chemical weapons

In force since 1997, the Chemical Weapons Convention prohibits the production, stockpiling, transfer, and use of chemical weapons, and forces member states to destroy existing stockpiles. As one of the most universally ratified multilateral treaties, there are only a few outliers: Israel has signed but not ratified the convention, and North Korea, Egypt, the Palestinian leadership, and South Sudan have not signed at all.

The CWC outlaws any weapon that uses a “toxic chemical”, usually contained in a delivery system such as a bomb or shell. Chemical weapons are distinguished both by how they are disseminated and the effect they have on the body. The most common categories are choking agents (chlorine and phosgene), nerve agents (sarin, soman, and VX), blister agents (mustard and lewisite), and blood agents (hydrogen cyanide).

Despite the Convention, the stigma from decades of international condemnation, and former US president Barack Obama’s “red line” (that never was), chemical weapons have been employed recently in both Syria and Iraq.

A joint investigation by the UN and the Organization for the Prohibition of Chemical Weapons concluded last October that both the forces of President Bashar al-Assad and so-called Islamic State have used chemical weapons in Syria. A UN panel – the Joint Investigative Mechanism – set up by the Security Council to look into this issue, has also confirmed at least three cases in which the Syrian army used chemical weapons between April 2014 and August 2015. The panel also found evidence that IS used shells filled with sulfur mustard (commonly known as mustard gas).

In addition to the JIM’s findings and today’s Idlib attack, a recent HRW investigation alleges that Syrian government forces systematically dropped shells containing the choking agent chlorine in residential areas of opposition-controlled Aleppo at least eight times during the final month of the battle for the northern Syrian city.

Reports out of Mosul, where the Iraqi army and its allies – backed by a US-led coalition – continue to wage an offensive against IS, indicate that chemical weapons were likely used in early March in the then-besieged east of the city. The International Committee of the Red Cross has offered some support for this claim, saying seven patients were treated near Mosul for symptoms consistent with exposure to a blister chemical agent. Iraqi forces claim IS was behind the attack.

Repeated alleged use of chlorine by IS over the past few years reveals a dangerous loophole in the CWC: While weaponising chlorine in rockets or bombs is banned under the treaty, chlorine has many commercial uses and nothing stops states or companies from acquiring or selling it, explained Yasmin Naqvi, an OPCW legal officer.

“Chlorine is not a scheduled chemical and is not declarable, and the production, transfer and use of chlorine is not verified by the OPCW,” Naqvi told IRIN. “This makes it very difficult to contain.”

She added that once chlorine is dispersed it leaves almost no trace, making investigation into its use as a weapon extremely difficult.

Reports of the Mosul attack came only days after a proposed UN Security Council resolution that would have imposed sanctions against parties in Syria using chemical weapons was struck down, blocked by both China and Russia.

HRW’s Hiznay is concerned that the Security Council vote sets a worrying precedent for the future.

“Now [the CWC] is slipping,” he told IRIN. “You're starting to see the spillover [in Mosul] now that stigma [around chemical weapons] has eroded, which really should be a no-brainer at this point.”

But Naqvi had a more optimistic take.

“The global taboo against chemical weapons remains strong, with nearly universal membership of the CWC and international action taken in Syria, Libya, and Iraq to eliminate chemical weapon stockpiles,” she said, pointing to the recent year-long extension of the JIM’s mandate as evidence that the international community remains committed to condemning and preventing the use of chemical weapons globally.

Chemical weapons are not only a concern in the Middle East, even if their use there might get the most press. A recent Amnesty International investigation presented evidence that the Sudanese government may have used chemical weapons against civilians in Darfur on multiple occasions in 2016. The jury’s still out on this one: Then-UN peacekeeping chief Hervé Ladsous told the Security Council the UN had found no evidence of chemical weapons use in the region, although the hybrid UN and African Union peacekeeping mission in Sudan, UNAMID, has consistently been denied access to conflict areas in Darfur. For its part, the OPCW said that without access to more information and evidence it couldn’t draw conclusions about Amnesty’s allegations.

Further south, in Sudan’s Nuba Mountains, aid workers and local officials have reported possible chemical weapons use by the government. Sudan has been a member of the CWC since 1999 and was recently elected to the deputy chairmanship of the executive council of the OPCW, a move that prompted the rights group to once again call for a formal investigation into the alleged attacks.

Landmines and IEDs

As defined by the 1997 Mine Ban Treaty (or, to give it its full name: The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction), a landmine is “a munition designed to be placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or a vehicle”.

The convention, also informally known as the Ottawa Treaty after the location of its drafting and signing, bans the use of anti-personnel landmines, building on the 1980 Convention on Certain Conventional Weapons (CCW) Protocol II, which regulates the use of landmines and booby traps by states but does not comprehensively ban any specific type of mine.

Victim-activated improvised explosive devices (IEDs) are also outlawed, including IEDs activated by tripwires, pressure plates, or self-detonation, such as suicide or car bombs.

While the treaty has been widely successful at curbing the production and use of commercially made landmines by states (notable holdouts are Myanmar, North Korea, and Syria), non-state actors are increasingly using victim-activated improvised landmines.

The Landmine and Cluster Munition Monitor found evidence that non-state armed groups had used anti-personnel mines, including victim-activated improvised mines, in at least 10 countries in 2015: Afghanistan, Colombia, Iraq, Libya, Myanmar, Pakistan, Syria, Ukraine, and Yemen, as well as Nigeria – the most recent addition to the list.

The publication counted 6,461 deaths and injuries due to mines in the same year – a 75 percent increase from 2014 statistics and a 10-year high. Enduring armed conflicts in Afghanistan, Iraq, Libya, Syria, Ukraine, and Yemen are the main culprits for the spike in civilian casualties, but an increased availability of data likely plays a role too. Seventy-eight percent of landmine deaths were civilians, and 38 percent of civilian deaths were children.

In Yemen, HRW has documented numerous civilian deaths due to victim-activated landmines since the start of the conflict in 2015 – Houthi rebels have been using landmines as part of their fight against the Saudi Arabia-led coalition and its allies.

“Non-state actors [like IS and the Houthis] tend to be destructively creative and often don't feel any compunction to be bound by international law,” Jeff Abramson, programme manager of The Monitor and senior fellow at the Arms Control Association, explained.

In Syria and Iraq though, IS is using improvised mines on a scale that mimics “classical” state use (as deployed to deadly effect in the first two world wars), Hiznay told IRIN.

“We’re seeing large minefields intended to slow down or turn an enemy, and big minefields being put around a town to keep people in,” he said.

While the landmine portion of the Land Mine treaty is clear, legally it gets murkier when it comes to IEDs, especially when they are used by non-state actors.

Reports indicate that IS is leaving a complex array of booby traps littered across liberated urban areas. From Fallujah to Ramadi and now Mosul, Iraqi and coalition forces have uncovered thousands of buried explosives and tripwires. The same goes for former IS areas in Syria and Libya. In northern Syria, IEDs have been planted in streets, houses and even teddy bears, left to cause further harm to families as they return to liberated areas, according to a Médecins Sans Frontières report released this week.

"International law has difficulty with improvised things because they can take so many forms,” Maya Brehm, a researcher in weapons law at the Geneva Academy of International Humanitarian Law and Human Rights, told IRIN. “So it is a bit more difficult to create legislation that applies to [improvised weapons].”

It’s not that the international community hasn’t tried. In 2016, the UN General Assembly adopted a resolution on “countering the threat posed by improvised explosive devices”. The text encourages states to develop their own national policies to counter the use of IEDs and better protect stockpiles.

Brehm sees this as a step in the right direction: “A portion of the materials that non-state actors use for improvised devices are either stolen or diverted from national stocks, so if states were capable and willing to appropriately control their stock limits and control their stocks, and not to transfer weapons illegally to non-state actors, that is at least a partial solution to the problem.”

Brehm believes that if states publicly committed to a higher standard this would create greater general expectations that could then be used in talks with non-state armed groups like militias. She noted the work of organisations like Geneva Call, which attempts to get non-state actors on board with international humanitarian law.

It’s a daunting task, for reasons Brehm explained. “How can you ask non-state armed groups, who do not have access to officially manufactured weapons, to give up the use of IEDs, and at the same time you bomb them from the air? It is really not possible, politically.”

Barrel bombs

Speaking of explosions from above, barrel bombs are next on the problematic and not-quite-banned list. The air-dropped bombs are considered improvised devices because they aren’t generally manufactured en masse. Unguided and packed with explosive submunitions or shrapnel, they’re arguably indiscriminate by nature and especially hazardous to civilians when dropped in populated areas.

They’ve also become something of a hallmark of the Syrian war, with the Syrian Network for Human Rights reporting that al-Assad's government forces dropped 12,958 barrel bombs in 2016 alone, killing more than 650 civilians.

“[Barrel bombs] are not particularly effective militarily but they do have a psychological effect. They scare people to death,” explained HRW’s Hiznay. “Any time you hear a helicopter, you're wondering whether this thing is going to throw out a barrel bomb out the back and land in your neighbourhood.”

The weapons present a legal quandary, and despite their long history of use (and abuse), there is no specific treaty or law banning them.

Depending on what the container is filled with, a particular barrel bomb could be deemed illegal under various existing legal doctrines. For example, if a container or oil drum (commonly used to make these bombs) is filled with an incendiary material it could violate the CCW’s Protocol III, which bans the use of weapons “designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or combination thereof”. But Syria is not a party to this protocol.

Effectively, if there’s no treaty banning a weapon, the question of whether it is legal comes down to what’s called customary international law – the body of law created by customs, treaties, UN decisions, and jurists. There’s agreement in that realm that indiscriminate weapons and attacks that strike targets and civilians without distinction are illegal – but what counts as indiscriminate is, again, up for debate.

The ICRC outlines indiscriminate weapons as “those that cannot be directed at a military objective or whose effects cannot be limited as required by international humanitarian law”. Another challenge is that it must be proven that the weapon could never be used in a discriminate manner.

The Syrian regime continues to deny any wrongdoing. In 2015, al-Assad told a French television channel that his army possesses no "armament that can be used indiscriminately” despite being presented with evidence of helicopters dropping barrel bombs filled with chlorine on Sarmin, a northwestern Syrian town.

“For humanitarian actors and advocates, it is very difficult [to identify when a state is using indiscriminate weapons or conducting indiscriminate attacks] because all the information you need to make a legal determination is with the attacker,” said Brehm. “If they say it was in fact a military objective [rather than civilian], well that's possible, we don't know what intelligence they had. If they say we carefully weighed the military advantage against the expectation of civilian harm, well that's possible, but simply we don't know.”

Cluster munitions

These bombs, rockets, or shells, once detonated, release a bunch of smaller explosives, or submunitions, sometimes over an area roughly the size of a football field.

Used heavily in both Syria and Yemen at the moment, cluster munitions have a devastating effect on civilians.

Ninety-seven percent of all deaths from cluster munitions in 2015 were civilians, according to the latest Monitor report. With these weapons it’s not just the initial attack that poses a threat – the smaller explosives released do not always explode, creating large de facto minefields that can take years to clear, killing or maiming civilians in the meantime.

The Convention on Cluster Munitions (CCM) entered into force in 2010, having gained steam after Israel dropped an estimated four million submunitions on south Lebanon in the final days of the 2006 Lebanon war: An estimated one million failed to immediately detonate, leaving behind a deadly legacy.

Modelled after the Mine Ban Treaty, the CCM bans the production, transfer, and use of cluster munitions and forces member states to destroy existing stockpiles. But there’s a catch: Not all types of explosives containing submunitions are banned by the treaty.

The CCM defines “cluster” as a “munition that is designed to disperse or release explosive submunitions each weighing less than 20 kilograms, and includes those explosive submunitions”. Excluded from the convention are munitions that contain less than 10 submunitions that weigh less than four kilograms and are designed to detect and engage a single target and are equipped with both an electronic self-destruction mechanism and self-deactivation feature.

This allows even those states who have signed on to still manufacture and use similar variations of the weapon.

Cluster munitions banned by the CCM are still out there too: At the outset of the war in Syria, they were employed rarely, but Russia is a major producer and exporter of the munitions (and not part of the CCM). Its entrance onto the battlefield in September 2015 saw a ramping up of their use, although the Kremlin adamantly denies allegations it did so in urban areas.

In Yemen, cluster munitions have been a major part of the Saudi-led coalition's war on Houthi rebels and their allies. None of the 10-member coalition is a party to the CCM and Riyadh admitted to its use of UK- and US-made cluster munitions in Yemen after rights groups presented evidence of attacks. But Saudi Arabia argues that, as a non-party to the CCM, it is not violating international law and only uses cluster munitions against “legitimate military targets”.

HRW and Amnesty International have documented evidence of at least 19 cluster munition attacks in Yemen, many of which have resulted in civilian deaths, and seven different types of both air-dropped and ground-launched munitions manufactured in the US, the UK, and Brazil.

Recent reports of civilian casualties out of both Syria and Yemen have caused public outcry in countries supplying cluster munitions to warring states. In December 2016, Michael Fallon, the defence secretary of CCM-member Britain, told parliament that a government assessment had revealed that UK-made cluster munitions were being used by Saudi Arabia in Yemen.

In the United States (like Saudi Arabia not a member of the convention), the last manufacturer of cluster munitions stopped production last year, since it was bad for business. In May 2016, the Obama administration blocked the US from selling some cluster munitions to Saudi Arabia after reports of civilian deaths in Yemen, but this might change as the Trump administration looks to boost its support for the coalition.

The Sudanese government has also reportedly used cluster munitions in recent years in the Nuba Mountains, where its six-year war against a rebel movement has displaced tens of thousands of people.

The Monitor also cited “credible evidence” that cluster munitions rockets were used in Nagorno-Karabakh in 2016. Renewed fighting over the disputed border region between Armenia and Azerbaijan last year broke a 1994 ceasefire and left more than 100 dead. Both Armenia and Azerbaijan deny the use of cluster munitions and point the finger at the other.

Last January, local Somali media reported that the Kenyan military allegedly used cluster munitions in Somalia’s Gedo region. Kenya, a member of the CCM, denies the allegations. The Monitor was unable to independently verify the claims.

Old explosives, new dangers

None of these weapons are new, at least not in their basic design. But something key has changed: Modern warfare rarely involves pitched battles. It’s more likely to take place in urban areas, in neighbourhoods where kids go to school and parents to work.

Air-dropped bombs, artillery shells, missiles and rockets, mortar bombs, and IEDs all have what are known as “wide-area effects” – a wide blast and fragmentation zone. This make their use in populated areas particularly problematic.

In 2015, 91 percent of those reported harmed by explosive weapons in populated areas were civilians, according to the Action on Armed Violence’s Explosive Violence Monitoring Project (EVMP). These attacks also frequently damage or destroy vital civilian infrastructure, houses, schools, and medical facilities, resulting in the loss of livelihoods, displacement, the spread of disease, and limited access to medical care and education.

Since EVMP began counting in 2011, the number of civilian deaths and injuries due to explosive weapons has increased each year.

Under customary international law, states must not launch indiscriminate or disproportionate attacks that would cause excessive harm to civilians in relation to the military gain, or target civilians or civilian infrastructure.

“The same weapons are being used [in urban settings] but there haven't been any significant enough changes in updating the policies and practices that specifically regulate the use of these weapons,” explained Laura Boillot, programme manager at Article 36, a UK-based NGO that hosts and provides coordination for a network of NGOs called the International Network on Explosive Weapons (INEW).

INEW is hoping to help forge a new “international commitment” that “will set a strong standard against this practice” and will assist “states' militaries in shaping how they can develop clear rules of engagement and clear operation practice to better protect civilians,” Boillot told IRIN.

This political declaration would not be legally binding but rather a mechanism built upon existing principles of international law that would help to establish a norm against the use of explosive weapons in populated areas.

But getting anything done, be it a declaration of principles or something with more force, is a gargantuan task in the current international arena. “It’s always a question of political will,” said HRW’s Hiznay.

And Brehm urges caution. Focusing on one type of weapon – relatively uncontrolled killer drones or much-in-the-news barrel bombs – may make other indiscriminate weapons (and even the ones that international law allows) seem ok.

“There is a tendency when we look at conflicts to focus on the relatively exotic weapons and focus on what is not perceived as normal,” she said. “In a way, this focus on those very repugnant technologies or practices of use implicitly normalises the use of weapons that every state has and that are used every day in conflicts everywhere.”​
 

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(TOP PHOTO: Injury sustained by a landmine at a rehabilitation centre in Bissau. CREDIT: José Cendon/ICRC)