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The roles of civil society in the development of standards around new weapons and other technologies of warfare

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Abstract

This article considers the role of civil society in the development of new standards around weapons. The broad but informal roles that civil society has undertaken are contrasted with the relatively narrow review mechanisms adopted by states in fulfilment of their legal obligations. Such review mechanisms are also considered in the context of wider thinking about processes by which society considers new technologies that may be adopted into the public sphere. The article concludes that formalized review mechanisms, such as those undertaken in terms of Article 36 of Additional Protocol I (1977) of the Geneva Conventions of 1949, should be a focus of civil society attention in their own right as part of efforts to strengthen standard-setting in relation to emerging military technologies.

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1 See Henckaerts Jean-Marie and Doswald-Beck Louise, Customary International Humanitarian Law, Cambridge University Press, Cambridge, 2005.

2 See Meron Theodor, ‘The Martens Clause, principles of humanity, and dictates of public conscience’, in The American Journal of International Law, Vol. 94, No. 1, 2000, pp. 7889.

3 See, for example, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 35(2) (superfluous injury or unnecessary suffering), Article 51(4) (indiscriminate attacks) and Article 51(5)(b) (proportionality); see also, International Committee of the Red Cross (ICRC), Existing Principles and Rules of International Humanitarian Law Applicable to Munitions that May Become Explosive Remnants of War, Paper Submitted 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/GGE/XI/WG.1/WP.7, 28 July 2005.

4 For a discussion of this point, see Falk Richard, ‘The challenges of biological weaponry’, in Wright Susan (ed.), Biological Warfare and Disarmament, Rowman & Littlefield, London, 2001; Yves Sandoz, ‘Preface’, in Eric Prokosch, The Technology of Killing: A Military and Political History of Antipersonnel Weapons, Zed, London, 1995; Smith Thomas W., ‘The new law of war: legitimizing hi-tech and infrastructural violence’, in International Studies Quarterly, Vol. 46, 2002, pp. 355374.

5 For example, nuclear weapons are not subject to an explicit legal prohibition against their use despite widespread recognition that such weapons should be abolished. In December 1994, the UN General Assembly requested the International Court of Justice to offer an advisory opinion on the question: ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?’ To the central issue of permissibility of nuclear weapons, by a vote of seven to seven decided through the second vote of the President of the Court, the judges ruled that: ‘The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake. So while the threat or use of nuclear weapons was generally held to be against international law, the judges could not determine that it always would be. Just as what would constitute “the very survival of a State” was not defined. In many respects, the decision could be characterized as a decision not to decide, at least not to determine once-and-for-all the matter of legality’. See International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, p. 266.

6 Woodhouse Edward J., ‘Is large-scale military R&D defensible theoretically?’, in Science, Technology, and Human Values, Vol. 15, No. 4, 1990, pp. 442460.

7 Morone Joseph and Woodhouse Edward, Averting Catastrophe, University of California, Berkeley, 1986.

8 Precaution in this usage being aligned with forms of general risk reduction, rather than relating to precaution as specified under the provisions of IHL.

9 This article does not analyse the concept of ‘civil society’ in detail, but we use the term primarily to refer to non-governmental organizations, working together or in coalitions, to promote reductions in harm through reforms in practice, policy, or law.

10 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997.

11 Convention on Cluster Munitions, 30 May 2008.

12 During the process to develop the treaty banning cluster munitions, the Cluster Munition Coalition, for example, was made up of around 400 member organizations in some 100 countries. For a discussion on the role of civil society in this process, see Bolton Matthew and Nash Thomas, ‘The role of middle power-NGO coalitions in global policy: the case of the cluster munitions ban’, in Global Policy, Vol. 1, Issue 2, May 2010.

13 Rappert Brian, ‘States of ignorance: the unmaking and remaking of death tolls’, in Economy and Society, Vol. 41, No. 1, 2012, pp. 4263.

14 Hsiao-Rei Hicks Madelyn, et al. , ‘Violent deaths of Iraqi civilians, 2003–2008: analysis by perpetrator, weapon, time, and location’, in PLoS Medicine, Vol. 8, No. 2, 2011, pp. 115.

15 C. J. Chivers and Eric Schmitt, ‘In strikes on Libya by NATO, an unspoken civilian toll’, in New York Times, 17 December 2011, p. A1.

16 Action On Armed Violence, Explosive Violence Update: Libya, AOAV, London, 23 June 2011. Hsiao-Rei Hicks Madelyn, Dardagan Hamit, et al. , ‘The weapons that kill civilians – deaths of children and non-combatants in Iraq, 2003–2008’, in The New England Journal of Medicine, 2009, No. 360, pp. 15851588.

17 Brian Rappert, Out of Balance: The UK Government's Efforts to Understand Cluster Munitions and International Humanitarian Law, Landmine Action, November 2005, available at: http://www.landmineaction.org/resources/Out%20of%20Balance.pdf (last visited 24 April 2012).

18 See, for example: www.oxfordresearchgroup.org.uk/rcac (last visited 21 May 2012).

19 For example, a 2008 report on the Global Burden of Armed Violence noted that indirect conflict deaths, such as from elevated levels of malnutrition, dysentery, or other easily preventable diseases, was substantially greater than conflict deaths directly attributable to violence. See Geneva Declaration Secretariat, Global Burden of Armed Violence, 2008, Geneva, executive summary, available at: http://www.genevadeclaration.org/fileadmin/docs/GBAV/GBAV2008-Ex-Summary-English.pdf (last visited 1 May 2012).

20 Rappert Brian, How to Look Good in a War, Pluto Press, London, 2012, Chapter 5.

21 Ruge Christian H., ‘Mitigating the effects of armed violence through disarmament: counting the human cost’, in Borrie J. and Randin V. (eds), Disarmament as Humanitarian Action, UNIDIR, Geneva, 2006, pp. 2350.

22 B. Rappert, above note 17.

23 Richard Moyes, ‘A sensor fuzed solution?’, in Landmine Action, Campaign Newsletter, issue 13, Autumn 2007. Austcare and Handicap International, ‘Sensor-fuzing and SMArt submunitions: An unproven technology?’, February 2008, available at: http://www.handicap-international.fr/uploads/tx_basm08experts/Sensor_fuzed_and_SMArt_submunitions_an_unproven_technology_1_.doc (last visited 20 May 2012).

24 See, Landmine Monitor and Cluster Munition Monitor, available at: http://www.the-monitor.org/ (last visited 9 May 2012). For a discussion on the role of the Landmine Monitor in reinforcing the international standard against landmines, see Wareham Mary, ‘Evidence-based advocacy: civil society monitoring of the Mine Ban Treaty’, in Williams Jody, Goose Stephen D. and Wareham Mary (eds), Banning Landmines: Disarmament, Citizen Diplomacy, and Human Security, Rowman & Littlefield, Lanham M.D., 2008.

25 See ICRC, The SIrUS Project: Towards a Determination of Which Weapons Cause ‘Superfluous Injury or Unnecessary Suffering’, Geneva, 1997; for an example of the criticism directed at the SIrUS project, see Verchio Major Donna Marie, ‘Just say no! The SIrUS project: well-intentioned, but unnecessary and superfluous’, in The Air Force Law Review, Vol. 51, 2001, pp. 183228.

26 As advocated in Coupland Robin, ‘The effects of weapons and the Solferino cycle’, in British Medical Journal, Vol. 319, No. 7214, 1999, pp. 864865.

27 See Lindblom Charles, ‘Still muddling, not yet through’, in Public Administration Review, Vol. 39, 1979, pp. 517526; and Rip Arie, Misa Thomas and Schot Johan, Managing Technology in Society, Routledge, London, 1995.

28 See Henckaerts J.-M. and Doswald-Beck L., above note 1, Chapter 4; and B. Rappert, above note 17.

29 See the section on ‘framing’ below.

30 King Collin, Dullum Ove and Østern Grethe, M85: An Analysis of Reliability, Norwegian People's Aid, Oslo, 2007.

31 See Borrie John, Unacceptable Harm, United Nations, Geneva, 2009.

32 Gamson William A. and Modigliani André, ‘Media discourse and public opinion on nuclear power: a constructionist approach’, in American Journal of Sociology, Vol. 95, No. 1, 1989, pp. 137.

33 For a discussion on some of the ways in which the Cluster Munition Coalition worked together despite the differing approaches of some of its NGO members, see Nash Thomas, ‘Civil society and cluster munitions: building blocks of a global campaign’, in Kaldor M., Selchow S. and Moore H. L. (eds), Global Civil Society 2012: Ten Years of Critical Reflection, Palgrave Macmillan, London, 2012, pp. 124143.

34 See Prokosch Eric, The Technology of Killing: A Military and Political History of Anti-Personnel Weapons, Zed Books, London, 1995, pp. 149150.

35 See J. Borrie, above note 31.

36 See Alston Philip, ‘The CIA and targeted killings beyond borders’, in Harvard National Security Journal, Vol. 2, 2011, pp. 283446.

37 Borrie J. and Randin V. (eds), Disarmament as Humanitarian Action, UNIDIR, Geneva, 2006, pp. 2350.

38 Such an approach is currently gaining greater prominence in discussions on nuclear weapons. In May 2012, sixteen states led by Switzerland delivered a statement on the humanitarian dimension of nuclear disarmament during a meeting of the Nuclear Non-Proliferation Treaty. See Rebecca Johnson, ‘Non-Proliferation Treaty: the ground is shifting’, Open Democracy, 4 May 2012, available at: http://www.opendemocracy.net/5050/rebecca-johnson/non-proliferation-treaty-ground-is-shifting (last visited 10 May 2012).

39 Rappert Brian and Moyes Richard, ‘The prohibition of cluster munitions: setting international precedents for defining inhumanity’, in Non-proliferation Review, Vol. 16, No. 2, 2009, pp. 237256.

40 J. Borrie, above note 31.

41 Ibid., and Rappert Brian, Moyes Richard and Other A. N., ‘Statecrafting ignorance: strategies for managing burdens, secrecy, and conflict’, in Maret S. (ed.), Government Secrecy (Research in Social Problems and Public Policy, Volume 19), Emerald, London, 2011, pp. 301324.

42 World Health Organization, Preventing Violence: A Guide to Implementing the Recommendations of the World Report on Violence and Health, WHO, Geneva, 2004.

43 Valenti Maria, Ormhaug Christin M., Mtonga Robert E. and Loretz John E., ‘Armed violence: a health problem, a public health approach’, in Journal of Public Health Policy, Vol. 28, No. 4, 2007, pp. 389400.

44 Small Arms Survey, SmallArms Survey 2008, Oxford University Press, Oxford, 2008, Chapter 7.

45 British Medical Association, The Use of Drugs as Weapons, BMA, London, 2007.

46 Himsworth Committee, Report of the enquiry into the medical and toxicological aspects of CS. Part 2, Cmnd 4775, HMSO, London, 1971.

47 For a discussion on global civil society coalitions, see Moyes Richard and Nash Thomas, Global Coalitions: An Introduction to Working in International Civil Society Partnerships, Action on Armed Violence, London, 2011, available at: www.globalcoalitions.org (last visited 20 May 2012).

48 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

49 ICRC, A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977, Geneva, 2006, p. 4.

50 Sandoz Yves, Swinarski Christophe and Zimmermann Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Martinus Nijhoff Publishers, Geneva, 1987, p. 423.

51 ICRC, Guide, above note 49, p. 4; Daoust Isabelle, Coupland Robin and Ishoey RikkeNew wars, new weapons? The obligation of states to assess the legality of means and methods of warfare’, in International Review of the Red Cross, Vol. 84, No. 846, June 2002, p. 348; Stewart Darren, ‘New technology and the law of armed conflict’, in Pedrozo Raul A. ‘Pete’ and Wollschlaeger Daria P. (eds), International Law and the Changing Character of War, Naval War College, Newport, Rhode Island, 2011, p. 283.

52 UN Convention on Certain Conventional Weapons, UN Doc. CCW/CONF.IV/4/Add.1, p. 4.

53 See 28th International Conference of the International Red Cross and Red Crescent Movement, Geneva, Switzerland, 2–6 December 2003, final goal 2.5. Resolution 1: Adoption of the Declaration and Agenda for Humanitarian Action. Review of new weapons was also urged in the Final Document of the Fourth Review Conference of the Convention on Certain Conventional Weapons, November 2011, CCW/CONF.IV/4/Add.1, para. 16.

54 ICRC, Guide, above note 49.

55 Collingridge David, The Social Control of Technology, St. Martin's, New York, 1980.

56 Cassese Antonio, ‘Means of warfare: the traditional and the new law’, in Cassese A. (ed.), The New Humanitarian Law of Armed Conflict (Vol. 1), Editoriale scientifica, Naples, 1979, p. 179.

57 Seven states appear to have formal review processes, the details of which are publicly available: Australia, Belgium, the Netherlands, Norway, Sweden, the United Kingdom, and the United States of America. A further three states, Denmark, France, and Germany, are thought to have formal review processes, but information about these processes does not appear to be publicly available. There are another thirteen states that have indicated that they may have informal or formal review processes, but have not made sufficient information available to determine whether this is the case (formal: Canada, Czech Republic, New Zealand, Russian Federation, Switzerland; informal: Austria, Brazil, Croatia, Finland, Mexico, Poland, Portugal, and South Africa). See, ICRC, Reaffirming and Implementing International Humanitarian Law (Follow-up to Resolution 3 of the 30th International Conference), October 2011 : ‘Despite pledges made by some States at the 2007 International Conference, the ICRC is not aware of the establishment of any procedures to review the legality of new weapons in a State that did not already have such a mechanism.’

58 ICRC, Follow-up to the 28th International Conference: Report prepared for the 30th International Conference of the Red Cross and Red Crescent, ICRC, Geneva, 2007, p. 25.

59 The Commentary to Article 36 endorses a conservative approach regarding which uses of weapon should be considered, confining the analysis to ‘normal or expected use’. Fry takes the view that the Commentary (and, by extension, the Guide, which endorses this aspect of the Commentary) takes an unnecessarily narrow view on this point. Fry James D., ‘Contextualized legal reviews for the methods and means of warfare: cave combat and international humanitarian law’, in Columbia Journal of Transnational Law, Vol. 44, 2006, p. 453: ‘The phrase “in some or all circumstances” [in Article 36] does not unreasonably oblige states to foresee absolutely all uses of a weapon or method of warfare. However, it does indicate that the commentators are far too passive in interpreting Article 36. Indeed, “in some or all circumstances” suggests that these legal reviews must consider anticipated uses of weapons beyond those that are considered “normal.” … Moreover, … significant changes in anticipated use or use itself calls for repeated review of legality to ensure continued compliance with international law, even after initial deployment of a weapon or method’.

60 ICRC, Follow-up to the 28th International Conference, above note 58, p. 25.

61 UK Government, The Geneva Conventional Act (First Protocol) Order 1998, Schedule (a), available at: http://www.legislation.gov.uk/uksi/1998/1754/schedule (last visited 20 May 2012).

62 The US Air Force, however, explicitly includes cyber capabilities within the scope of review: Legal Reviews of Weapons and Cyber Capabilities, Air Force Instruction 51-402, 27 July 2011.

63 Nasu Hitoshi and Faunce Thomas A., ‘Nanotechnology and the international law of weaponry: towards international regulation of nano-weapons’, in Journal of Law, Information and Technology, Vol. 20, 2010, p. 53.

64 Ibid., p. 47.

65 Ibid., p. 48.

66 See Jacobsson Marie, ‘Modern weaponry and warfare: the application of Article 36 of Additional Protocol I by governments’, in Helm Anthony M. (ed.), The Law of War in the 21st Century, Weaponry and the Use of Force, Naval War College, Newport R.I., 2006, p. 184.

* Brian Rappert, How to Look Good in a War. Justifying and Challenging State Violence, Pluto Press, London, 2012.

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