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"In my home there are few publications that we actually get hard copies of, but [Arms Control Today] is one and it's the only one my husband and I fight over who gets to read it first."

– Suzanne DiMaggio
Senior Fellow, Carnegie Endowment for International Peace
April 15, 2019
Contending With Explosive Remnants of War
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Ambassador Chris C. Sanders

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).

U.S. in No Rush to Ratify ERW Protocol

The United States has not taken any steps toward ratifying a November 2003 agreement that aims to make governments clean up battlefields after armed conflicts end. The inaction does not reflect opposition to the new explosive remnants of war (ERW) protocol, according to a Department of State official, but merely a belief that there is no urgent U.S. need for the protocol.

Concluded as part of the Convention on Certain Conventional Weapons (CCW), the protocol holds that a government controlling territory where bombs, shells, and other munitions lie abandoned or unexploded is responsible for cordoning off or disposing of such weapons to protect civilians from being accidentally wounded or killed. Other governments are urged to lend financial and technical help if asked, although they are not required to do so.

One reason the United States has not hurried to approve the agreement is that U.S. practices already conform with the protocol’s terms, the State Department official said in a July 29 Arms Control Today interview. The official added, “Our view is that countries should [act in accordance with the protocol] regardless of whether it is legally binding.”

During last year’s negotiations on the protocol, the United States argued for an agreement that would only be politically binding. In the end, however, Washington consented to the desires of all its negotiating partners to make the pact legally binding. (See ACT, January/February 2004.)

The official also said that administration officials assessed that, even if they took steps toward ratification, the Senate would not find time to review the protocol during an election year when the legislative calendar is compressed. Instead, administration officials intend to prepare the ratification documents this year for potential presidential approval.

Of the CCW’s 94 states-parties, only Sweden has completed ratification of the ERW protocol, which will enter into force once it is ratified by 20 countries.
—WADE BOESE

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.

Negotiating the Protocol

The path towards an Explosive Remnants of War (ERW) agreement began in September 2000. The International Committee of the Red Cross (ICRC) organised a seminar on ERW in Nyon, Switzerland and proposed that a fifth Protocol be negotiated within the framework of the Convention on Certain Conventional Weapons (CCW). The ICRC initiative drew its inspiration from the post-war situation in Kosovo where a massive NATO air campaign left many strayed duds, exerting a humanitarian toll as significant as the casualties caused by mines.

Three months later, the Netherlands, supported by many CCW states-parties, formally proposed to put the subject of ERW on the agenda of the CCW and this proposal was adopted by consensus. Dutch interest in the issue stemmed from both the Netherlands’ traditionally active role in the humanitarian field and its direct involvement in the NATO Kosovo campaign.

One veteran diplomat predicted that the drafting process would take at least six years to reach agreement. But a consensus soon developed that dealing with explosive remnants of war was an urgent humanitarian issue, creating the right sort of pressure for achieving tangible results. Negotiators were able to wrap up an agreement within three years.

Still, diplomats had to overcome a number of obstacles. One initial legal stumbling block was determining whether a protocol under the CCW could legally apply to a broad range of weapons instead of a single weapons category or weapons system. Normally the CCW aims primarily at prohibiting or limiting the use of specific types of weapons or munitions. But diplomats ultimately concluded that since Amended Protocol II of the CCW contained many post-conflict measures on landmine clearance and assistance, there was ample legal precedent as well as an appropriate model for a possible ERW protocol.

So in December 2001, negotiators agreed to discuss five basic
issues:

1) Which factors and types of ammunition are most likely to cause humanitarian problems after a conflict?
2) Which technical improvements for “relevant” types of ammunition could reduce the risk of such munitions becoming explosive remnants of war?
3) Is existing International Humanitarian Law adequate for minimizing the post-conflict risks of ERW?
4) Which post-conflict measures are appropriate?
Should they include requirements for warning, clearance, and provision of information? Who bears responsibility for meeting these requirements?
5) What type of assistance and cooperation is appropriate? Should such assistance be mandated and, if so, how?

A year later, these discussions led to a negotiating mandate which focused largely on post-conflict remedial measures (points 4 and 5 above), and also left open the possibility on agreeing on some preventive measures to improve the reliability of a broad range of ammunition. Negotiators also agreed on the scope of the treaty (point 1), settling on a simple and broad “effects based” definition for ERW: all explosive ordnance with the exception of mines.

In addition to the issues outlined in the mandate, there was also a less explicit, but contentious debate over the ultimate form the accord would take: would it be a legally binding instrument or a political statement that did not carry the same weight under international law? U.S. negotiators pushed for a political agreement rather than a legally binding accord. Most of the other CCW states-parties, however, preferred the stronger commitment embodied in a legally binding protocol, particularly as this followed previous practice.

Two other issues in the original discussion mandate—design improvements in specific types of munitions (point 2), and questions on international humanitarian law (point 3)—were not deemed to be ripe for negotiations. These issues were put aside for the time being, with states-parties asking a group of governmental experts to consider them and report back in November 2003.

The expert group was tasked with resolving four main areas of persisting contention:

—What responsibility did a country that had used explosive ordnance bear for ERW?
—How should countries deal with ERW that existed prior to the entry into force of this instrument?
—Could preventive measures of a generic nature be included in the agreement?
—Should the instrument be legally binding?

Fortunately, in November 2003, there was a real spirit of compromise in the air, with many delegations fearing that a failure to reach agreement on this mature product would doom the CCW process as a whole and potentially harm other disarmament efforts. So the experts’ group was receptive when it was presented with a “take it or leave it” text, and warned that any effort at further amending this text would probably mean its collapse. The next week, the experts’ group accepted the draft as a legally binding protocol. The U.S. delegation maintained its preference for a politically instrument, but declared that it would not block consensus on a legally binding protocol. Subsequently, in the course of that week, the Protocol was formally adopted by the states-parties, and numbered Protocol V to the CCW. —AMBASSADOR CHRIS C. SANDERS

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.