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Explosive Arguments

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Sparks are flying at Duck of Minerva over Landmine Action‘s claim that “explosive violence” is a humanitarian problem. In a recent essay Stephanie Carvin makes “the case against the case against blast weapons,” by which she means “explosive weapons” as described by Landmine Action’s recent report:

“The short version is that it is calling for a ban on so-called ‘blast-weapons’ as a method of warfare… I think that 1) the report is problematic; 2) that there may actually be a case for not banning such weapons – possibly even humanitarian ones. Instead, states AND humanitarians should look to regulation as a more effective alternative.

But as I understand it, Landmine Action is not calling for a complete ban on the weapons. The report only calls on states and global civil society to “strengthen further an underlying presumption that the use of explosive weapons in populated areas is unacceptable” (p. 14). I recently spoke with Director of Policy and Research Richard Moyes and he confirmed that Landmine Action is not proposing an outright ban such as a codified rule in an Additional Protocol to the Convention on Conventional Weapons. Rather, he said simply, “I’d like to see us establish a terrain in which there is a general concern rather than acceptance about the use of explosives in populated areas.”

In other words, Moyes and Carvin seem to be on the same page with respect to regulating conventional explosives. Carvin doesn’t elaborate what regulations she has in mind or why they would be more humanitarian than Moyes’, but some of the organization’s specific proposals include establishing a mechanism to accurately count civilian casualties from explosive violence so some determination can be empirically made about whether these weapons can or cannot be used in a controlled manner; and in particular to reduce their use in specific areas where civilian casualties are likely to be highest.

Carvin does have two deeper critiques about the report that bear further mention. I think both may have some validity but in my view, the first doesn’t actually undermine Moyes’ moral point, and the second merely ducks that point (no pun intended).

One critique centers on whether the report perhaps over-reaches in its assumptions about the relationship of international norms and legitimacy in international society. Carvin particularly takes issue with the following passage:

The use of explosive violence by non-state actors is increasing. This report notes that trend and argues that the state-asserted monopoly on explosive weapons is not being maintained in practice. Furthermore the unacceptability of non-state use of explosive weapons is diminished by the failure of states to enact appropriate categorical controls on the use of these weapons in populated areas, or to attend to the relationships of diminished local accountability that such use articulates.

Carvin argues:

The argument here is that non-state use is effectively legitimized by state use of weapons. From an international legal standpoint this argument is flatly and categorically wrong. International law has always made a distinction between state and non-state actors – the former (at least in theory) subject to accountability proceedings, military codes of conduct and, if it all goes wrong, potentially severe penalties. The latter has no means for following/implementing the laws of war, nor any mechanisms for training or enforcement within their ranks.

Now, I think Carvin might have a point about the empirical validity of this causal claim – although the way to find out if she does would be to look to the empirical literature on norm compliance and strength, not to the law. But even if it turns out to be true that this is an over-reaching claim, this wouldn’t undermine “the case against the case against blast weapons” even remotely, because the case doesn’t rest on this particular causal claim.

It’s very important to distinguish the normative merit of the claim being made from the particular frames that are being used to make it. All I see happening here is an effort by Landmine Action to make a strategic interest-based argument because this type of argument has historically resonated with governments. And all Carvin’s post demonstrates is that this particular way of framing the argument may be less resonant than imagined (at least to military and war law types – it clearly seems to be resonating with the protection of civilians community, as John Holmes has endorsed the report and the UN Institute for Disarmament Research has also begun exploring the idea).

But to evaluate the normative proposal itself, one needs to consider it on its merits. The case against explosive weapons doesn’t rest on whether governments can obtain some additional soft power by (further) stigmatizing the violent behavior of insurgents. The case against explosive weapons is that when used in urban areas they have a low likelihood of being able to discriminate between civilians and combatants no matter how honorable the intent. Of the dataset of explosive violence incidents over the six-month period on which Landmine Action reports, 69% of the dead and 83% of the wounded were civilian. Indeed, according to p. 26 of Explosive Violence, such weapons are likelier than other forms of violence to disproportionately affect particular categories of civilians (such as children.)

Second, when taking into account the harm to civilians caused indirectly by destruction of infrastructure, such acts may not meet the proportionality requirement either:

The category of technology described as ‘explosive weapons’ produces distinctive patterns of mortality and morbidity (in both short and long term), of wider social and economic damage and of post-deployment humanitarian threat. Individually or in combination these effects are capable of severely retarding or actively reversing developmental gains, in particular in low-income settings.

Carvin would need to take on these claims to make “the case against the case.” To be fair, she does explore proportionality in her post, but only to argue that the rules are so ambiguous as to make the use of explosives legal.

There is, quite simply, no objective criterion for making a determination on either front. We might be able to recognize a violation of the principle when it occurs (a daisy cutter in response to a dump truck with an AK-47 would be a slightly absurd example) but even then it would probably have to be argued about in the court of international (and quite possibly domestic) opinion. The report seems to be suggesting that long-term damage is disproportionate, but without any context upon which we can measure proportionality, I would argue that from a legal standpoint this is impossible to know and judge without context.

She is probably right in purely legal terms – but then, Moyes isn’t arguing there is currently a legal rule against explosive violence. He’s arguing that under the existing rules, an unacceptable amount of damage is being done to civilians; he’s documenting that damage and calling on states to do the same; and he’s urging governments to consider rethinking the notion that explosive weapons are acceptable as a default option in urban areas, and move instead toward a threshold for justifying their use only in extreme situations. He’s arguing that perhaps governments should consider the long-term costs of their actions, and not just the direct costs, though they currently aren’t legally bound to do so. It’s a humanitarian argument, not a strictly legal one.

Ultimately Moyes is – like a variety of other norm entrepreneurs in recent years – pointing out that the existing laws of war actually don’t protect civilians very well, and exploring options for strengthening them. Many similar campaigns have succeeded in recent years despite the existing structure of human rights and humanitarian law, either through developing new treaty law (e.g. the Landmines Treaty), updating old law (e.g. the Additional Protocol on Explosive Remnants of War) or developing soft law (e.g. the Guiding Principles on Internal Displacement). Moyes’ work fits somewhere on this continuum and it will be interesting to see how it develops and evolves as he interfaces with governments and humanitarian law gatekeepers.

Stephanie Carvin has done Landmine Action a service by providing early feedback on portions of their initial frame. But one needs to distinguish that frame as it develops from their actual proposal – which is just to get states to rethink the acceptability of explosive violence in urban areas – and from their ultimate goals – which are to reduce the tragic and preventable loss of civilian life and property in conflict zones.

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