Follow-up initiatives and challenges

The Treaty on the Prohibition of Nuclear Weapons

The humanitarian initiative on nuclear weapons, which led to the adoption of the 2017 Treaty on the Prohibition of Nuclear Weapons (TPNW) built on the experience of the Oslo Process and some of the partnerships established between CM campaigners and government officials. It focused on the catastrophic health and environmental effects of a nuclear explosion (either incidental or intentional) and sought to reframe the debate in humanitarian terms. As in previous cases, the goal was to establish a social and legal norm accepted by the majority of states – norm-building by the ‘force of numbers’¹ that would then stigmatise the weapons and influence states not party to the treaty.

The first steps to change the debate came in 2010, when the ICRC issued a call to the Geneva diplomatic corps to ‘bring the era of nuclear weapons to an end’ and Switzerland and Norway included in the Final Document of the NPT Review Conference a paragraph expressing ‘deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons, and reaffirm[ing] the need for all States to comply with international humanitarian law at all times’. In 2013–2014, NGOs and governments focused on the humanitarian consequences of nuclear weapons at meetings organised by Norway, Mexico and Austria. In December 2014, the Austrian government called upon states to ‘fill the legal gap for the prohibition and elimination of nuclear weapons’.² In 2016, a UN General Assembly resolution recommended negotiations for a nuclear ban treaty, which was eventually adopted in July 2017 with the votes of 122 states.

The International Campaign to Abolish Nuclear Weapons (ICAN) served as the NGO partner pushing the issue forward, bringing in testimonies by survivors of Hiroshima and Nagasaki and nuclear testing. In recognition of its efforts, it received the 2017 Nobel Peace Prize.

As of September 2024, a total of 70 states have ratified the TPNW and another 26 have signed it. The treaty commits states not to “[d]evelop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons […] transfer, receive the transfer of or control over nuclear weapons, […] use or threaten to use nuclear weapons, […] assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty’ (Art. 1). It also requires states to maintain their safeguards obligations with the International Atomic Energy Agency in force at the time of the treaty’s entry into force, or if they do not already have one, to conclude a comprehensive safeguards agreement (Art. 3). This verification mechanism is complemented by the civil society Nuclear Weapons Ban Monitor.

Explosive weapons in populated areas

Every year, tens of thousands of civilians are killed or injured by explosive weapons, over 90 percent of them in populated areas.³ This veritable carnage has led NGOs, the UN Secretary-General and the ICRC to raise concerns about the need to minimise civilian suffering caused by explosive weapons, especially those with wide-area effects.⁴ In 2011, NGOs working on the issue formed the International Network on Explosive Weapons (INEW). After a series of expert meetings (2013–2015) and state consultations, organised by Ireland (2019–2022), a Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences Arising from the Use of Explosive Weapons in Populated Areas was adopted in 2022. It commits states to establish national policies and practices restricting the use of explosive weapons in areas where civilians would be impacted. The aim is to ensure that both direct and indirect effects on civilians and civilian objects (e.g. long-term effects resulting from the destruction of hospitals, power plants and sanitation systems) are taken into account in planning military operations, to record relevant data on civilian harm and provide humanitarian access and assistance to victims. Currently endorsed by 87 states,⁵ the Declaration is a step toward building awareness and fostering efforts to reduce civilian harm, with follow-up conferences planned in 2024 in Norway and 2025 in Costa Rica. In 2022, INEW launched the Explosive Weapons Monitor, a monthly bulletin that gathers data on the use of explosive weapons and tracks the Declaration’s implementation.⁶

Lethal autonomous weapons

Since 2012, an NGO coalition, “Stop Killer Robots”, has been advocating for a ban on lethal autonomous weapons that would make life and death decisions without meaningful human control. It managed to place the issue on the CCW agenda in 2014 and since 2017, a CCW Group of Governmental Experts has been discussing the problem, albeit without having reached an agreement on a negotiation mandate.

In October 2023, the UN Secretary-General and the ICRC President issued a joint call to states to conclude, by 2026, negotiations on a legally binding instrument setting out ‘clear prohibitions and restrictions on autonomous weapon systems’.⁷ In December 2023, the UN General Assembly adopted resolution 78/241 that ‘stressed the urgent need for the international community to address the challenges and concerns raised by autonomous weapons systems’ and requested the UN Secretary-General to consult with states and NGOs and publish a report on their views. The rapidly accelerating use of weapons with various degrees of autonomy and the widespread support for the UN resolution⁷ make this a critical moment when political will for negotiations on autonomous weapons is needed.

Incendiary weapons

Since 2009, Human Rights Watch has advocated strengthening CCW Protocol III on incendiary weapons to ensure better civilian protection. Although a complete ban on incendiary weapons ‘would have the greatest humanitarian benefits’ and stigmatise the weapons, at a minimum, HRW has been calling for two loopholes to be closed. First, the Protocol’s definition only covers weapons ‘primarily designed to set fire to objects or to cause burn injury to persons’, and thus excludes white phosphorus munitions which are designed primarily for smoke screening or marking and tracing, but also cause severe burn injuries. A broader definition should cover multi-purpose munitions with incendiary effects. Second, the Protocol only bans use of air-delivered incendiary weapons in civilian areas. According to HRW, the same use of ground-launched incendiary weapons should be banned. Although concerns about use of incendiary weapons in civilian areas have been repeatedly expressed at the CCW, so far no steps have been taken to revise Protocol III and a widely supported proposal for informal consultations on its status was blocked by Cuba and Russia in 2021, 2022 and 2023. It remains to be seen whether the issue will ultimately be addressed at the CCW or elsewhere.

Challenges

Humanitarian disarmament and norm-making without the great powers emerged after the Cold War at a time of relative security and US unipolarity. Stigmatising landmines and cluster munitions had important restraining effects on the US given its power preponderance and military operations, although other military powers have not been affected to the same extent. As the international environment has become more hostile, humanitarian arms control has faced a number of challenges – lack of universal norm acceptance, limited NGO reach and influence in non-democratic states, increasing use of improvised mines by non-state armed groups, and new use of mines and cluster munitions by states.

Civilians continue to bear the burden of landmine use – in 2022, a total of 85 percent of all casualties, whose status was known, were civilians – almost half of them children.⁸ After a steady decline, since 2015, the number of recorded casualties from landmines and explosive remnants of war (ERW) has risen again as a result of conflicts in Syria, Yemen and Ukraine. The widespread use of mines by Russia (not a state party to the treaty) in Ukraine (a state party) has caused huge contamination. Documented use by the Ukrainian forces around the city of Izium in 2022 also poses challenges to treaty compliance.⁹

**Number of mine/ERW casualties per year, 2001-2022 **

The situation in Ukraine is particularly problematic as it involves a state party to the MBT being a victim of aggression and largescale landmine use by Russia. Moreover, Russian minefields have become an obstacle for Ukrainian military operations and have been portrayed in some media and military analysis as particularly effective. In November 2024, the difficult military situation prompted the US to transfer to Ukraine antipersonnel landmines in a breach of US policy existing at the time. The US justified the decision by the need of Ukrainian forces to counter dismounted Russian attacks and the fact that the transferred APLs had self-destruct and self-neutralisation mechanisms that would limit their impact on civilians after the conflict.¹⁰ Campaigners have characterised the transfer and Ukraine’s violation of its treaty obligations as a ‘crisis’¹¹ that poses serious challenges to the mine ban and humanitarian arms control as a whole.

Non-state armed groups (NSAGs) are continuing to use APLs in Colombia, India, Myanmar, Thailand and Tunisia, as well as in the Sahel region. Increased use of improvised mines (primarily by NSAGs) has been a worrying trend since 2015,¹² and caused the largest number of casualties in 2022.¹³ Although around 70 NSAGs have committed not to use APLs, either through the Geneva Call’s Deed of Commitment or through other means,¹⁴ more needs to be done to spread the norm among NSAGs.

Recently, CM use has also risen. A total of 1,172 new cluster munition casualties were recorded across eight countries in 2022, the highest number since 2010. Of those, 987 were caused by CM attacks, with most (890) in Ukraine. In contrast, in 2021, there were no new casualties from CM attacks, just from the remnants of CMs.¹⁵

In another challenge to the CCM, in July 2024, Lithuania withdrew from the treaty due to security concerns following Russia’s invasion of Ukraine. The US decision to transfer CMs to Ukraine in 2023 could also be seen as undermining the stigmatisation on the weapon. However, the US took more than a year to approve the transfer, in a situation that the administration argued was exceptional (both Ukraine and the US facing a shortage of other, unitary munitions). Thus, the fact that the transfer was publicly discussed and required explicit justification of an exceptional practice can also be seen as an indication of the persistent normative power of the CM ban even though neither the US nor Ukraine are legally bound to it.

Non-governmental organisations that have recently become more focused on providing expert contributions and facilitating international level negotiations would have to realign some of their strategies in order to shore up and universalise the norms that have been adopted. They have to return the focus of the debate on the humanitarian consequences of the weapons, contest military arguments and distinguish victim-activated anti-personnel mines from remote-controlled APLs and anti-vehicle mines, which remain legal (even if with humanitarian problems of their own). NGOs would also need to find more domestic partners in non-democratic states, redouble their efforts to promote the norms among military officials and NSAGs, and renew their work with states from the Global South, which have been among the strongest supporters of humanitarian arms control, in order to put normative pressure on the states that have remained largely impervious to Western state and NGO ‘naming and shaming’.

Conclusion

To recap, humanitarian arms control is guided by the goal of minimising the humanitarian harm of weapons and draws on the international humanitarian law principles of civilian immunity (distinction), proportionality and avoiding unnecessary suffering to develop comprehensive solutions. The Mine Ban Treaty (MBT) and the Convention on Cluster Munitions (CCM) seek to fulfil these goals by prohibiting the production, stockpiling and use of anti-personnel landmines and cluster munitions and instituting measures for victim assistance and post-conflict clearance. These treaties were negotiated in fast-track, stand-alone processes, led by small and medium-sized states in partnership with NGOs, the ICRC and UN agencies. Lastly, negotiations were based on majority voting, rather than consensus, in order to ensure that the norms that were adopted were not weakened by a small number of opposing states. Although the major military powers, such as China, Russia and the US, have not joined the treaties, the latter have been able to stigmatise the weapons and make their use by any actor politically costly. Their success has inspired a number of humanitarian initiatives, such as the Treaty on the Prohibition of Nuclear Weapons (TPNW), the Political Declaration on Explosive Weapons in Populated Areas and current efforts to regulate autonomous weapons systems.

At this very moment, as it faces unprecedented challenges, humanitarian arms control is needed more than ever.