During the U.S.-led military invasion to remove then-Iraqi President Saddam Hussein from power, Iraqi forces abandoned enormous quantities of unguarded arms and ammunition. As one expert observer noted, “Piles of ammunition, mines, small arms and weapons [are] littering the country. They can…be found in playgrounds, schools, construction sites and garbage heaps along the road. They constitute a permanent threat to the population, especially children, who are unaware of the danger: they continuously come into contact with them, play with them and risk getting maimed or killed.”[1]
Nor do all the dangers come from Iraqi materiel. Iraqi civilians face dangerous debris from coalition forces as well: the use of cluster munitions during the Iraq campaign yielded at least 90,000 stray duds.[2]
Sadly, Iraq is but the latest example in a global humanitarian problem: long after battles have ended, wars continue to inflict tens of thousands of casualties per year because of abandoned ammunition and unexploded ordnance—known as explosive remnants of war (ERW).
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In Bosnia and Herzegovina, for example, an estimated 30 percent of post-conflict casualties are ERW-related. In Afghanistan and Cambodia, more than half of post-conflict casualties stem from ERW. And in Laos, nearly all post-war casualties are now caused by ERW.[3]
Indeed, the toll of crippling injuries and deaths is akin to that produced by anti-personnel landmines (APLs). Moreover, like landmines, the cost of such unexploded ordnance and abandoned ammunition includes more than physical suffering. The presence of ERW prevents the free movement of people and farm animals through affected areas, creating enormous if unquantifiable socio-economic problems.
In some ways, however, the problems caused by ERW are worse than those stemming from landmines, a problem that has received considerably more publicity, public attention, and government action:
• ERW might contain explosive charges or elements of fragmentation that can cause havoc at a far greater distance from the explosion.
• ERW are generally more powerful and more lethal than APLs and cause more casualties.
• Safely clearing unexploded ordnance (UXO) is complicated by the fact that we do not know why these weapons have not exploded. By contrast, inactivated mines are not a mystery, making them easier to remove.[4]
Until recently the international community had taken far more decisive action to regulate APLs than ERW: Since 1999, the Ottawa Convention, which bans APLs, has provided a successful multilateral framework for limiting and clearing landmines as well as reducing the dangers they pose.
But the international community lacked a corresponding legal instrument for explosive remnants of war. That shortcoming was remedied over a three-year period of negotiations that began in 2001 and was concluded last fall (see sidebar on page 18). A pact governing ERW was concluded as a fifth protocol to the Convention on Certain Conventional Weapons (CCW), a multilateral accord that regulates and prohibits the use of weapons that kill indiscriminately or lead to inhumane wounds.[5]
The protocol commits states to clear future ERW and to work together to clear existing unexploded ordnance or abandoned ammunition, which can already be found in more than 80 countries. While it remains to be seen how many countries will ratify and thus agree to be legally bound by the agreement, all major powers, including the United States, Russia, China, India, and Pakistan, have endorsed the pact.
The Result
Clearance
Protocol V assigns responsibility for clearing ERW and related measures to the government that is in control of the affected territory, following the precedent set by the Amended Protocol II to the CCW.
That outcome came despite a push by the International Committee of the Red Cross (ICRC), other non-governmental organizations, and many affected countries to assign responsibility to the country which initially employed the ordnance or ammunition.
In calling for “user responsibility,” these groups drew an analogy with environmental measures where the polluter pays. But the “users” won the day with the argument that they cannot be expected to bear responsibility for clearing territory that they do not control. The user is obliged under the protocol only to render assistance to the affected party “where feasible,” a provision that was considered by many as too weak.
Existing ERW
In dealing with ERW already in place prior to its entry into force, Protocol V adopts a similar approach as the Ottawa Convention. That is, countries with unexploded ordnance and abandoned ammunition are given “the right to seek and receive assistance” for their problems. Countries in a position to provide such help are encouraged to do so, but are not required to provide assistance.
This position represented a compromise between countries worried about possible “historical” claims and those countries like China and Egypt looking for assistance in cleaning up unexploded ordnance that dates as far back as World War II.
Preventive Measures
Voluntary preventive measures of a generic nature to improve the quality of munitions are included in the protocol. These provisions could not be of a legally binding nature given the enormous implications this would have on national prerogatives for producing, procuring, handling, storing, and using munitions. Nevertheless, the annex to Protocol V contains many useful “best practices” on these aspects, which would reduce the amount of unexploded ordnance by ensuring that the weapons work in the first place.
Some parties raised concerns about such “Generic Preventive Measures,” arguing that the accord should either be fully legally binding or merely a political statement, but not a mixture of both types of instruments.
This argument did not take into account that, for example, the Amended Mine Protocol II and the Ottawa Convention represented clear precedents of “mixed instruments.”
Perhaps as important as these policy statements, the protocol and its technical annexes include a number of detailed practical provisions on how to organize clearance, warning, provision of information, marking, fencing, risk education, assistance and cooperation, and many other best practices.
Many states-parties would have wished to see a stronger Protocol V. In their view there are too many caveats and qualifiers in the text, undermining the strength of the obligations undertaken. Protocol V clearly reflects many compromises, necessary to achieve consensus. Although it is, ipso facto, a legally binding text, its many qualifiers leave ample room for ducking obligations.
Nevertheless, recognizing the need to achieve consensus, these countries preferred to have this protocol rather than none at all.
Non-governmental organizations, who were allowed to participate fully in all negotiating sessions, also voiced similar criticisms. Nevertheless, in the end they said they were “cautiously positive” depending on how the agreement was implemented.
Certainly, the central obligation of signatories to “mark and clear, remove or destroy explosive remnants of war in affected territories under its control,” is a real and firm commitment. Moreover, the practice of the Ottawa Convention shows that, although qualifiers in the text make it formally possible for member states to shirk responsibilities, they are willing and able to live up to expectations—in particular in the humanitarian field. The Ottawa Convention helped lead to the clearing of tens of millions of landmines and the provision of hundreds of millions of dollars in donor assistance.
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Still, as non-governmental organizations point out, the success of Protocol V will be determined by the success or failure of its implementation. But in view of their intensive involvement and that of the relevant international agencies in the negotiating process, there is good reason for at least “cautious optimism” about the future effects of Protocol V.
Protocol V will enter into force six months after 20 states have ratified it. It is realistic to expect that the required ratifications could be accomplished soon, which would mean that Protocol V would enter into force early in 2005. CCW states-parties are not obliged to ratify Protocol V and those that do not do so will not be bound by its provisions.
The Dutch government, in order to encourage states to ratify Protocol V, circulated a working paper in March asking CCW states-parties to provide, on a voluntary basis, information related to the status of their ratification process, the extent of the ERW problem for affected countries, and relevant assistance rendered by donor countries.
Remaining Issues
Even as the treaty moves toward entry into force, the CCW Group of Experts is still discussing two elements of the discussion mandate that did not make it into Protocol V: the adequacy of existing international humanitarian law (IHL) and potential design improvements to particular specific types of munitions. These two discussions have focused on the topic of submunitions, particularly cluster munitions.
Modern cluster munitions are bombs, delivered by air or ground forces, that disperse tens, hundreds, or even thousands of submunitions (often called “grenades” in surface-delivered weapons and “bomblets” in air-delivered weapons) over a large area, thereby increasing the number of targets that might be hit in an attack. They are widely used by militaries, but many older types of cluster munitions have high failure rates, sometimes more than 20 percent, creating a large amount of ERW.
This fact has added to pressure from non-governmental organizations calling for a ban or moratorium on the use of such munitions. These groups are concerned not only about unexploded ordnance, but also about the direct impact on civilian populations of the cluster bombs that do explode as they can lead to significant civilian casualties.
Still, there is little support among CCW states-parties for negotiating a protocol on this issue. Many CCW states-parties maintain that existing international humanitarian law is adequate for coping with the ERW problem, including unexploded cluster munitions. Most developing countries feel that this does not affect them, as they do not produce or procure these munitions anyway. Other states-parties are concerned about possible cost implications. Therefore, the prospects for possible further agreement in this area are uncertain.
Even without a formal agreement, however, the discussions on design improvement of certain types of munitions will almost certainly put pressure on countries that produce or procure cluster munitions. Design improvement would imply that munitions would be fitted with self-destructing, self-neutralizing or self-deactivating devices, ensuring that they will not pose any danger to human beings after a conflict. Switzerland has presented a model protocol containing provisions for equipping submunitions with such devices.
In addition, a few countries, including the United States, the Netherlands and Germany, have unilaterally adopted a policy not to produce or procure cluster munitions with reliability lower than 99 percent. This approach, including the possible “peer pressure” of such policies on other industrialized countries, seems to be a more effective way in the short term to remedy the post conflict effects of cluster munitions.
Even without an agreement on cluster munitions, Protocol V represents a major advance for international humanitarian law and for the safety of civilians in post-conflict situations. It is time for the countries of the world to ratify it and bring it into force. Wars are terrible enough. Let us hope the countries of the world have the wisdom to make their aftermath a little less dangerous.
ENDNOTES
1. Johan Sahlberg, regional Explosive Remnants of War adviser for the International Committee of the Red Cross (ICRC).
2. “Off Target: The Conduct of the War and Civilian Casualties in Iraq,” Human Rights Watch, December 2003, pp.6-7.
3. “Explosive Remnants of War: Warnings and Risk Education,” Geneva International Centre for Humanitarian Demining, June 2003, p.9.
4. The other protocols regulate or prohibit weapons that primarily create non-detectable fragments (Protocol I, 1983); landmines, boobytraps, and related devices (Protocol II, 1983); incendiary weapons (Protocol III, 1998), and blinding laser weapons (Protocol IV, 1998)
5. “Exchange of Information on a Voluntary Basis on Protocol V,” submitted by the government of the Netherlands to the seventh session of the Group of Governmental Experts of the CCW, March 8-12, 2004.
Ambassador Chris C. Sanders has served for the past five years as the Netherlands permanent representative to the UN Conference on Disarmament. Beginning in 2001, he also served as coordinator on explosives remnants of war (ERW) at the Convention on Certain Conventional Weapons (CCW) and chaired the negotiations leading to the 2003 adoption of the new CCW protocol on ERW.
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