Some of the bombs, artillery shells, and other munitions that U.S.-led coalition forces and Iraqi forces are firing at each other will not explode as intended and will pose a threat to soldiers and civilians after the fighting stops. How to deal with such “explosive remnants of war” (ERW) is an issue diplomats gathered in Geneva March 10-14 to negotiate.
States-parties to the Convention on Certain Conventional Weapons (CCW), which comprises four separate protocols restricting or banning the use of weapons deemed indiscriminate or “excessively injurious,” agreed in December 2002 to negotiate an ERW “instrument,” although that term was not precisely defined. The United States insisted on an “instrument,” rather than a traditional protocol, signaling that the final product did not have to be legally binding. But other countries are insisting otherwise.
Edward Cummings, head of the U.S. delegation, underscored March 10 that the U.S. position has not changed. In reviewing a draft framework paper on the potential instrument circulated by the Netherlands, Cummings said, “We have a comprehensive objection to all language that implies a legal character to the instrument. Phrases like ‘high contracting parties’ and the verb ‘shall’ are objectionable to us as they connote a legally binding instrument.”
The U.S. preference is to have a nonbinding political document spelling out voluntary best practices that signatories intend to follow. The United States, however, might be amenable to an agreement that is a mixture of both legal and political commitments. The United Kingdom proposed such a hybrid at the March meeting.
A few countries, such as Norway and Austria, favor negotiation of a legally binding cluster munitions ban, which the United States strongly opposes. The U.S. military used cluster munitions, which are weapons that disperse smaller lethal munitions over a broad area, in Afghanistan, and they are part of the U.S. arsenal available for use in Iraq.
The United States contends that negotiating a legally binding document would be much more difficult, could not be completed quickly, and might lead some countries to refuse to sign the final agreement.
Aside from legal questions, the CCW states-parties are focusing on measures to deal with unexploded weapons after a conflict rather than efforts to reduce ERW by making weapons more certain to explode in the first place, which many countries have rejected as too costly.
Assigning responsibility for cleaning up and disposing of ERW is one of the key issues negotiators are trying to work out. A few countries advocate making the country that creates the ERW solely responsible, but many others, including the United States, say that the primary responsibility should be with the government that controls the territory where unexploded ordinance lies.
Washington points to the May 1996 amended mines protocol of the CCW as a precedent. That protocol establishes that the country controlling the territory with mines and booby traps bears ultimate responsibility for clearing the weapons or safeguarding civilians from them. If another government previously controlled the territory in question and laid mines or booby traps, the afflicted country can seek material and technical assistance from the government that put the weapons in place.
Cummings said that countries should not be obligated to provide assistance to other governments with ERW. “We can encourage certain shared roles. For example, we can say that states ‘may’ seek and receive assistance, rather than stating a ‘right’ to receive assistance,” Cummings stated. The Ottawa Convention banning anti-personnel landmines gave each of its states-parties the “right to seek and receive assistance, where feasible” from one another.
The CCW states-parties, now numbering 90 countries, will continue negotiations on ERW, as well as less formal discussions on anti-vehicle mines, June 16-27. Before that meeting, the Netherlands, which holds the chair of the ERW working group, is expected to prepare a draft text for the ERW instrument.