Protecting Civilians in the War Zone: An Interview With Michael Gaffey

November 2022

From the start of its war on Ukraine, Russia and its military forces have pummeled civilian neighborhoods, inflicting grievous pain on ordinary people. By mid-October, the onslaught reached new ferocity as Russia bombarded civilian targets and infrastructure in Kyiv and elsewhere, threatening millions of Ukrainians with shortages of water, heating, and electricity as winter sets in.

(Photo courtesy of the Permanent Mission of Ireland to the United Nations in Geneva)The war gave fresh urgency to the new international political declaration on the use of explosive weapons in populated areas that was agreed in June and will open for endorsement at a conference in Dublin on Nov. 18. The declaration recognizes the devastating harm to civilians from bombing and shelling in towns and cities and commits signatory states to impose limits on the use of these weapons and take action to address harm to civilians. States that sign the document commit to develop or improve practices to protect civilians during conflict, collect and share data, and provide victim assistance.

Regarding weapons use, the states also commit to “ensure that our armed forces adopt and implement a range of policies and practices to help avoid civilian harm, including by restricting or refraining as appropriate from the use of explosive weapons in populated areas, when their use may be expected to cause harm to civilians or civilian objects.”

Michael Gaffey, the new head of Ireland’s development agency who as Irish ambassador to the United Nations in Geneva chaired negotiations on the declaration, spoke to Carol Giacomo, editor of Arms Control Today. The interview has been edited for space and clarity.

Arms Control Today: You worked a long time on this political declaration. Now that it’s about to take effect, what do you really hope to achieve?
Michael Gaffey: We’ve been holding negotiations since 2019, but Ireland and other countries have been involved on the issues arising from the use of explosive weapons in populated areas for quite a number of years. The UN secretary-general called on the international community to negotiate a political declaration on the use of explosive weapons in populated areas, and Ireland took on the role of leading the consultations in 2019. I think reaching agreement on a political declaration represents a sign of hope in times of great difficulty in international relations, when the use of explosive weapons in urban areas is causing huge concern and harm.

We are very grateful to states, international organizations, and civil society for reaching this agreement in Geneva in June. The Irish government will hold an international conference in Dublin on November 18 to adopt the declaration and to have as many countries as possible sign up to it. The political declaration doesn’t involve a prohibition on the use of any type of weapon. What it does is recognize very clearly that the use of explosive weapons in populated areas is a problem and that the humanitarian impact, the impact on civilians, is large and wide-ranging. The impact is direct, and it’s indirect. What I think we will achieve from this is that there will be follow-up action by governments and militaries of states that sign the declaration. This will improve the level of protection for civilians from the use of explosive weapons in urban areas. That’s why we regard it as a significant move forward. We always said our aim was to have a declaration that would lead to real change in the protection of civilians.

ACT: There are already international laws, including laws against genocide and harming civilians in war. Yet, they are violated every day, including in Ukraine. Not to be pessimistic, but to some extent, is this declaration wishful thinking?
Gaffey: I don’t think so. The use [of these weapons] is covered by international humanitarian law, but what we’ve got in the declaration is agreement that there actually is a problem regarding the protection of civilians, and that we need to better implement international and humanitarian law. We expect to have a range of countries coming to the Dublin conference from all regions, including large, militarily active states, recognizing this and agreeing to work at a political level and with their militaries to take action on that basis.

Russian strikes on populated neighborhoods in Kyiv and other Ukrainian cities gave fresh urgency to adoption of the new international political declaration on the use of explosive weapons in populated areas. (Photo by Oleksii Samsonov/Global Images Ukraine via Getty Images)It is not just that we’ve agreed that countries need to “ensure that our armed forces adopt and implement a range of policies and practices to help avoid civilian harm, including by restricting or refraining as appropriate the use of explosive weapons in populated areas, when their use may be expected to cause harm to civilians or civilian objects.” We’ve also got agreement on just what that harm is and how wide-ranging the harm is, not just in terms of deaths and injuries but also in terms of civilian infrastructure, food systems, health systems, and long-term development.

The implementation of the declaration will hopefully lead to change in military practices, which would reduce the harm to civilians. Yes, there is some idealism in that, but it’s only idealistic if we then sit back and say that words alone bring change. We’re not going to do that. There has to be follow-up, and that will involve political cooperation and military-to-military contact on the sharing of best practices on the protection of civilians. It will involve member states, international organizations, and civil society, because civil society is very much to the fore in highlighting the need for this declaration, and we agreed that it needs to be fully involved in the implementation. What we said on June 17 when we reached the agreement was, this isn’t the end of a process, this is the start of a process, and its success will only be measured, not by its adoption but how it is implemented. That will be the next step.

ACT: The war in Ukraine has brought renewed attention to this problem of explosive weapons targeting civilians in populated areas. If this declaration is implemented, how might the war in Ukraine be different?
Gaffey: The impetus for this declaration was there even before the war in Ukraine because we had seen the increased urbanization and harm to civilians of conflict in Yemen, in Iraq, in Syria, and in other places. It is true that, in the final phase of our negotiations, we were seeing on our screens really clear evidence of the use of explosive weapons in populated areas of Ukraine. That did help the push toward agreement, but it’s very important to emphasize that this is not a Ukraine-alone declaration. It is a humanitarian disarmament declaration about an issue that is happening in Ukraine but also elsewhere.

This declaration doesn’t have legal force, and it doesn’t prohibit the use of any specific type of weapon. Our aim is to get as many states onboard for the declaration so that those states, in their military operations, will be acting differently and will be putting the protection of civilians to the fore. Now, while it is open to all, some states may not sign up to it, but we need to build up a sense of pressure and moral force behind this declaration. After all, the UN secretary-general several times called for us to negotiate this. It was never seen as a legal instrument but a political instrument, and one that we have to keep promoting and implementing, so that militaries will make lasting changes in their approach, prioritizing the protection of civilians.

As you say, a lot of the law is there. A lot of the suggested practices are there. But weapons are developing all the time, practices are not being observed, and the more countries that we can get to return to this issue on the basis of this declaration, the more we are going to be able to see change in the impact on civilians. Today in Ukraine, we’re seeing the opposite. We’re seeing civilians directly under fire. So, that is why the declaration is the start of a process for change. It will take time, but it’s a real positive that we have agreement and will have agreement from a large number of states and from across different regions.
It is not a European or a Western initiative. Presumably, to be honest, some of what might be seen as the most egregious offenders may not sign up to it, but we want to create a sense of what needs to be done and pressure to do so. The declaration also focuses on the behavior and actions of non-state actors that put civilians in danger. I do think that declarations like this can have a real impact.

ACT: You do have the United States on board, correct?
Gaffey: We expect the United States will be on board, yes.

ACT: What about Russia, China, and other major military powers?
Gaffey: We won’t know for sure who will sign up until we launch the declaration. Some countries have indicated already that they will sign. Others will indicate closer to the day. I would say Russia was fully aware of the consultations in Geneva and China participated in the consultations, so that’s a hopeful point. This is a process, and we’ll see how it goes, but we were really encouraged by the level of countries that participated and sustained engagement right through COVID. I’m not sure we would have had that level of engagement 10 years ago.

ACT: You said an important piece of this declaration has to do with militaries changing how they operate. Have you seen any signs so far that any militaries are beginning to make these changes?
Gaffey: Militaries and defense ministries were involved in delegations and participated in the negotiations. In Section 3 of the declaration, we have agreement in broad terms on what needs to be done, for instance, on comprehensive training of armed forces on the application of international humanitarian law. There is a commitment to ensure that our armed forces, including in their policies and practices, take into account the direct and indirect effect on civilians and civilian objects, which can reasonably be foreseen in the planning of military operations and the execution of attacks.

The declaration has commitments on the clearing and removing of explosive remnants of war. We also have agreement that there will be political engagement between states, and there will be military-to-military engagement on what this means in practice. The International Committee of the Red Cross (ICRC) is very engaged also in looking at what this will mean in practice. I think we’re satisfied that there will now be a process underway that will involve consideration by militaries, in a shared setting, of how to implement the commitments in the political declaration. Everything’s not going to change in a day or even a year, but there is going to be a new process underway, which we believe does put the protection of civilians front and center in a way that hasn’t happened in recent years. Now, that might seem idealistic; but I think it’s also something that’s realistic, frankly.

ACT: Given the panoply of conflicts today, would the coalition that is working on this declaration prefer to focus first on one crisis such as Yemen and try to get some better result there, or will the focus be more wide-ranging?
Gaffey: We wouldn’t want to limit implementation. We have a declaration that should be applicable globally, but we also want countries to engage with it, to sign up to it on a cross-regional basis, from different regions. In the run-up to the negotiations, there were a number of regional conferences, in Maputo and in Santiago. That shows the way that I think we should work. We’ve got a commitment to progress across regions. Countries will, of course, examine how the declaration is being implemented regionally, in their own regions, but I don’t think we would all focus exclusively on just one country. I think the regional element is vital because it is not a centralized process and international humanitarian law needs to apply universally.

ACT: Given the thousands of people being killed in conflicts today, is a voluntary commitment like this enough?Gaffey: There’s been a big debate on this issue of prohibition or legal obligations. It was recognized in recent years that to start to make progress on the use of heavy explosive weapons in populated areas, rather than starting to negotiate a new instrument, if we could focus on a political declaration, we could start to get movement, even though it’s voluntary. It was a long and difficult process. To be honest, countries didn’t agree to any of this easily; there were a lot of compromises.

The debate on the use of the word “avoid,” committing to “avoiding” using explosive weapons in populated areas, was probably the most difficult part of the negotiations. I think what we will do with this is see if we can achieve a better understanding and clarity on what practical steps are required to reduce civilian harm in conflict, including with respect to the full implementation of international humanitarian law. It’s another step after that to look at the issues that you have raised. But if we can get greater clarity and commitment on the implementation of international humanitarian law, this would be a big step forward.

We set out on this process with the intention of it making a difference, and we think that our conference in November and the follow-up to that will start to make a difference. That is an obligation we are placing on ourselves in signing up to the declaration. Of course, everyone won’t sign up to it, but if we get enough, we can create a new sense of pressure here.

ACT: The international network on explosive weapons and many civil society proponents of the declaration had called for stronger prohibition language. Do you think this process could eventually lead to a stronger legal commitment?
Gaffey: Those groups called for prohibition, but they also have welcomed the declaration because they see its potential to move forward in terms of political-level understanding and military-level change in operations. Between states working on implementation and civil society pushing on the declaration’s potential and then working with the UN and the ICRC, I think we have a real opportunity to achieve progress on the protection of civilians in conflict. We have been ambitious, and we have together built a broad community of interest. All are committed to change. The challenge for us is to demonstrate over the coming years that that change will happen.

ACT: Without a verification mechanism, how will you assess implementation of the declaration?
Gaffey: That was something we didn’t set out in detail, to be honest, and for a reason because we wanted to get the commitments clear first. We were not prescriptive about follow-ups in the declaration. We do envisage regular meetings to review implementation of the declaration, including exchanging policies, practices, and views on implementation. Critically, these meetings will involve not just states, but also the UN, the ICRC, other international organizations, and civil society. In this way, we will put together a sort of broad verification mechanism that is collaborative.

After the Dublin conference, there will be work by all parties on implementation. When will the next meeting take place? I imagine it will be about 18 months after the November conference. Where will depend on who steps forward with an offer to host. I know this is an issue under active consideration. At that point, states and the UN and the ICRC will work with civil society to demonstrate progress made, that there are policies and practices starting to come into effect that will make a difference.

Michael Gaffey (L), Irish ambassador to the United Nations in Geneva who headed negotiations on the political declaration on the use of explosive weapons in populated areas, and Jamie Walsh, Irish deputy permanent representative in Geneva in charge of disarmament issues, bring down the gavel after the declaration was agreed in June.  (Photo courtesy of the Permanent Mission of Ireland to the United Nations in Geneva)ACT: Since the declaration was agreed in June, you have moved on to a new position as director of Ireland’s development agency, Irish Aid. Is there a connection between those two roles?
Gaffey: There’s a tendency sometimes for arms control negotiations and consultations to take place in a totally different room from the humanitarian consultations. Development is often in yet another different room. So, I do think it is a major challenge for us in our multilateral engagement to look at the problem from the eyes of the civilians who are experiencing the impact of explosive weapons. Getting the humanitarian and development and arms control communities to work together is vital. It is very much how the UN Sustainable Development Goals are framed. Humanitarian disarmament is a traditional foreign policy priority for Ireland, notably through our work on the anti-personnel landmine convention and the Convention on Cluster Munitions, and our focus on the declaration carries this forward.

ACT: Any final thoughts?
Gaffey: I would emphasize that this declaration is cross-regional, it’s global, it’s not exclusive, and it’s not solely about Ukraine. It results from collaboration between states, civil society, and international organizations. That continued collaboration can ensure that a political declaration is effective. The goal is to reduce the unacceptable level of harm to civilians in conflict.