The Duck of Minerva

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The Case Against the Case Against Blast Weapons II: Stigma and banning on intent vs effect (and a response to Charli Carpenter)

October 19, 2010

The debate that my original post has sparked has been really interesting. Charli Carpenter has written a thoughtful and excellent response to my first post, and even Discourse on Explosive Weapons (DEW) – part of the United Nations Institute for Disarmament Research (UNIDIR) has been paying attention.  Happily, they seem to welcome this debate and it is in this spirit that I shall continue to engage on the issue.
I would like to stress that by no means am I particularly happy about civilians dying in armed conflicts. (I’m not sure why I feel the need to insist on this point, but it *is* the internet.)  However, I am concerned with the way that humanitarian actors engage with the policy community to bring about change and how they relate to the armed forces of various nations. (I add that I am more of a historian in this respect than a ‘political scientist’.) More importantly, my concern is that when these actors talk past each other that there are real consequences. The legal regime on landmines involves several layers of protection (no signature to any treaty, signatory to 1980 CCW, signatory to Amended Protocol II of the 1980 CCW, signatory to the 1997 Ottawa Treaty.) Quite frankly, it’s a bit of a mess and I think it’s better to have more straightforward regimes that are as inclusive as possible, even if slightly weaker in substance.

At the same time, I realize that if humanitarian groups did not push states, that there would be less progress on many issues. And I do agree that explosive weapons are a humanitarian problem. Actually, I think it’s a classic humanitarian problem – so no argument there.

One of the major points Carpenter raises on my argument is that Landmine Action is not actually calling for a complete ban on the weapons but want “strengthen further an underlying presumption that the use of explosive weapons in populated areas is unacceptable” (p. 14 of their report).

I take this as an important differentiation – it’s true that it’s not a ban. But I do have to raise the point that with so much armed conflict now being carried out in urban areas, wouldn’t this be an almost de facto ban? What is a “populated area”? Surely it’s a contestable concept in law and fact? Technically, I accept the point that the Report is not seeking a ban, but I believe that AOAV is actively seeking a de facto one. 

And of course the key question for so many recent humanitarian debates, (including this one) “What is a civilian?” and a “civilian area”? I raise this point not to be glib, but it has caused what might as well be termed “humanitarian chaos” for those trying to re-think what constitutes Direct Participation in Hostilities (DPH). The protections afforded civilians vs combatants are very different (with the latter typically getting more protection than the former upon capture, but the former cannot be deliberately targeted). In addition, the laws of war note that civilian objects may lose their protection when they are actively being used as part of an armed attack. Then decision NOT to target these objects then comes down to policy and not law. Perhaps this is what the report is getting at – that we need to be thinking of these issues outside of the treaties.

Clearly, all of this causes problems with one of the proposals in the report that Carpenter raises – that there is a civilian counting mechanism so some determination can be empirically made about whether these weapons can or cannot be used in a controlled manner. Firstly, there are the problems associated with counting (who is to collect the evidence? States?  Humanitarians? Do we want to send counters into a war zone?) and determining who is a civilian and who isn’t.  Not to mention how can we establish reliability of this evidence. Secondly, that this judges the weapon based on effect rather than intent. As the first point is a complex debate in its own right, I’ll concentrate on the second point and relate it to the issue of stigmatization.

It’s interesting that the report calls for a “stigmatization” of explosive weapons. Since the anti-personnel landmine campaigns of the 1990s, “stigmatization” has been a key tactic of humanitarian groups.  This usually entails publicity campaigns (think Princess Diana and landmines) which frequently have videos or pictures of victims of weapons, (like babies crawling in a pile of rubble – or see page 8 of the report) usually without much context other than horrific injury. States which then use such weapons are “stigmatized” – called out in international fora as humanitarians attempt to engage them via a form of persuasive humiliation. This is an explicit strategy of Landmine Action/AOAV – see their report here which states:

Prohibition agreements have had relevance far beyond their formal terms and official signatories. The stigmatization of certain categories of weapons and methods of attack has been a very important outcome of past deliberations and international treaties.

And using Cluster Munitions as an example, they argue:

While major users of cluster munitions – such as the United States – show little interest in joining a prohibition in the near term, they may well find themselves influenced by the outcome of the Dublin Conference whether they are formally signed up to the resulting convention or not. History provides many reasons for thinking those states not party to the prohibition on cluster munitions – in particular those with open and accountable systems of government – will be affected by it in any case. Some have suggested this may be part of the reason why the US and others remaining outside the Oslo Process have engaged more actively in the CCW on cluster munitions in order to seek a protocol or other product that would legitimise their use. In practice though, this effort may actually only further stigmatise the weapon.

And intelligently, humanitarian actors seem to realize that this can be done with images that seem to let the effects of the weapons speak for themselves.
Of course this generally coincides with the humanitarian argument that weapons should be banned (or regulated) based on effect rather than intent. (In particular, that the weapon should be stigmatized on the basis of the effects that it produces.) This has been a strategy which effectively dates back to the 1960s when states, particularly, Sweden, sought to have weapons banned explicitly based on the wounds that they could potentially cause rather than the intent of the state using them. (See the SIrUS project – ICRC here and critical response here – for a later manifestation of this.)
The argument of (mostly western) states against this at that time was that humanitarian advocates had not conducted scientifically rigorous research into the effects that weapons produce.  Additionally, during these conferences, medical personnel within state delegations argued that there was a problem with determining just exactly what was meant by ‘unnecessary suffering’ in medical terms. “Suffering” is not objective and wounds or psychological damage will be experienced differently by everyone. There quite simply is no objective basis upon which a determination could be made, and the medical personnel at these discussions in the 1970s ultimately could not provide any to the conference.  The number of deaths is another story – we can count bodies – but as I have already suggested this is a lot easier said than done.
Employed together over a number of years, these two points were how, effectively, western states were able to shut down several attempts at banning certain categories of weapons (particularly incendiary weapons and small arms) during the Diplomatic Conference in Geneva, Lucerne and Lugano in the 1970s.
But how well to these arguments fare today? As I am not an expert in wounds or weaponry, I would like to concentrate on the issue of whether weapons be banned on the effects that they have or the intent of the armed forces using them (within the limits of proportionality)?
Traditional just war theory states that actions must be based on the intention of the person who carries them out (in good faith). I would argue that this position is backed up by international law; that you cannot blame someone for unintended consequences for which they had no reasonable way of knowing or anticipating and who took reasonable precautions. The same has largely held true for weapons until very recently. Weapons have been banned based on their intent, and not on their effects.
However, this is of course why humanitarians should read the small print. The ban on laser weapons is not comprehensive – merely for weapons designed specifically for the purpose of blinding. Accidents happen – and may be an unintended side effect of a weapon.
But this was also a major problem with the landmine debate in the 1990s – should a weapon be banned because it had the same effect as a mine or because it was intended or designed to be a mine? The so-called ‘militarily significant states’ (particularly the US ) took the later position – saying that weapons should be banned by intent. On the other hand, humanitarians, (and their state allies, Sweden) insisted that anything that had the effect of being a mine had to be banned – otherwise states would find loopholes.
This is true, of course, but this is one of the major reasons that some major states have not signed up to the international landmine treaty. The US position is that it has some weapons, which could act as a mine – but they are not used in such a way. (Essentially, they are arguing that the Claymore Mine is not a mine… although it clearly is a kind of mine, albeit one that is supposed to be controlled via personnel and used strictly defensively… perhaps a blog post for another day.)
But recently, the balance between banning a weapon because of its effect rather than how that weapon is used has been gaining the upper hand. Certainly this has been the logic behind the move to ban landmines, cluster munitions and in the movements to ban depleted uranium and now, apparently, explosive weapons.
Effectively, (pun unintended…kinda), does it make sense to ban a weapon that cannot produce a regular injury pattern or pattern of destruction when used in such a way that it was not designed? Does it make sense to evaluate blast weapons on what they regularly do against what they regularly target or on the occasional mistake where a weapon may have gone awry?
With regards to blast weapons, it is clear that the authors of Landmine Action’s report want a de facto ban because of the effects that the weapons cause – albeit both intended and non-intended effects. But by focusing on the effects of the civilians, it is clear that an effects-based rather than intention-based rational is at play here – and I think serious questions can be raised regarding this strategy.
Next post I’ll answer Carpenter’s point on whether banning weapons for states can create norms for non-state actors and suggest some (admittedly vague) ideas for going forward. As always, comments very much appreciated. Also, I love babies and puppies
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Stephanie Carvin is an Associate Professor of International Relations at the Norman Paterson School of International Affairs. Her research interests are in the area of international law, security, terrorism and technology. Currently, she is teaching in the areas of critical infrastructure protection, technology and warfare and foreign policy.

Stephanie holds a PhD from the London School of Economics and published her thesis as Prisoners of America’s Wars: From the Early Republic to Guantanamo (Columbia/Hurst, 2010). Her most recent book is Science, Law, Liberalism and the American Way of Warfare: The Quest for Humanity in Conflict” (Cambridge, 2015) co-authored with Michael J. Williams. In 2009 Carvin was a Visiting Scholar at George Washington University Law School and worked as a consultant to the US Department of Defense Law of War Working Group. From 2012-2015, she was an analyst with the Government of Canada focusing on national security issues.
Stacie Goddard