“While there has been significant progress in reducing the scourge of APLs, the menace posed by unexploded artillery shells, mortar rounds, hand grenades, cluster bomb submunitions and other similar objects must also be addressed.”—ICRC President Jakob Kellenberger, 2002.1
The 1980 UN Convention on Certain Conventional Weapons (CCW) has become the focus for new measures of international law on the issue of explosive remnants of war (ERW), a category that includes UXO and abandoned ammunition. The measures that have been and are going to be discussed could have major implications for the humanitarian impact of UXO and post-conflict clearance operations. This article will explain the background to the CCW, what has been discussed, the forthcoming negotiations and the possible implications for the mine action community.3
What is the CCW?
The full title of the CCW is the “Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects.” The Convention seeks to regulate the use of certain conventional weapons in armed conflict to prevent unnecessary suffering to combatants and indiscriminate harm to civilians. Negotiated in 1980, it was a by-product of the international conference of the 1977 Additional Protocols to the Geneva Conventions.4
The CCW is a framework instrument containing rules on specific kinds of weapons. These rules are found in four protocols that ban or restrict the use of the following: weapons using non-detectable fragments; mines, booby traps and other similar devices; incendiary weapons; and blinding laser weapons.5 Although 90 states are party to the CCW, not all States Parties have ratified the four individual protocols. This problem is further confused because while some states have ratified the amendment to Protocol II (APII), others have yet to do so and continue to follow the earlier Protocol II.
|Timeline of the CCW Process
The CCW is an important instrument of international humanitarian law. It was in the 1990s that the treaty became a focus for activity, when it was seen as a possible vehicle to reduce the impact of APLs. The States Parties to the CCW did negotiate an amendment to Protocol II, APII, which placed further restrictions on landmines. However, the widespread disappointment with these modest measures led to the diplomatic drive that produced the Anti-Personnel Mine Ban Convention (AP MBC).6
The Emergence of ERW as an Issue
In recent years, the international community has concentrated on alleviating the humanitarian impact of APLs. However, for those operating in the clearance community, it is a fact that the work involves unexploded or discarded ordnance as much as—if not more than—it involves landmines. The situation in Laos is one of the best known examples.7 Nor is the issue of ERW new. The authorities of the affected countries still regularly deal with munitions from the First and Second World Wars. In Poland—which was severely affected by ERW after the Second World War—as late as 1989−2000, military engineers cleared 3,428,290 explosive devices, of which only 12,620 were mines.8
It was the air war in Kosovo, however, that led to calls for international action on ERW. Based on its experiences in war-affected areas and its concerns about the problems caused by cluster bombs and other UXO, the International Committee of the Red Cross (ICRC) commissioned a study, Explosive Remnants of War—Cluster Bombs and Landmines in Kosovo. It is worth quoting from the introduction to the study: “Although the ICRC is aware that civilian casualties in armed conflicts are regrettably not always avoidable, it believes that a large proportion of the deaths and injuries from explosive remnants of war in the post-conflict context is both predictable and preventable. This report is aimed at launching a dialogue among governments, humanitarian agencies, the military, the mine clearance community and other interested organizations on how a dramatic reduction in the level of death and injury from the explosive remnants of war can be achieved.”9
Concurrent with their Kosovo report, the ICRC also published a study called Explosive Remnants of War—Submunitions and Other Unexploded Ordnance, which aimed to provide an overview of submunitions and their use, design and impact in the post-conflict period.10 At the same time the UK Working Group on Landmines11 published a report titled Cluster Bombs—The Military Effectiveness and Impact on Civilians of Cluster Munitions. Both organisations called for a moratorium on the use of cluster bomblets while their use, impact and legality were reviewed.12 The publication of these reports coincided with the start of the Preparatory Process for the Second Review CCW Conference in 2000.
Based on the findings of its report, the ICRC recommended the following:
In September 2000, the ICRC presented its finding and concerns to a number of states at an experts’ meeting in Nyon, Switzerland.14 The goal of the ICRC was to ensure that a discussion about ERW was included in the Second CCW Review Conference.15 Independent pressure to ensure such a discussion also came from other non-governmental organisations (NGOs).16
|A variety of munitions awaiting disposal in Afghanistan.||A destroyed BM-21 in Afghanistan.||Remnants of a cluster bomb strike: unexploded BLU-97 bomblets in Afghanistan.|
The Second Review Conference of the CCW
The Second Review Conference of the CCW took place in December 2001. The focus of States Parties to the CCW was divided among several topics. The main focus was to ensure an extension of the scope of application of the CCW to cover internal as well as international conflicts. In addition to ERW, there were other issues under consideration, including mines other than APLs, measures for compliance and small arms.
Overall, despite the various proposals, the largest part of the time was spent discussing the issue of ERW. This was very much an educative process, as while some states were very aware of the issue, others were being introduced to the issue for the first time. It was never going to be possible to conclude a new agreement on ERW at the Review Conference. However, there was wide recognition of ERW as an important topic that needed to be examined further. To undertake the work, a Group of Government Experts (GGE) was established to discuss ways and means to address the issue of ERW.17 The group was to “consider all factors, appropriate measures and proposals, in particular:
Factors and types of munitions that could cause humanitarian problems after a conflict;
Technical improvements and other measures for relevant types of munitions, including submunitions, which could reduce the risk of such munitions becoming ERW;
The adequacy of existing international humanitarian law in minimising post-conflict risks of ERW, both to civilians and to the military;
Warning to the civilian population in or close to ERW-affected areas, clearance of ERW, the rapid provision of information to facilitate early and safe clearance of ERW, and associated issues and responsibilities;
Assistance and cooperation.”18
ERW in the CCW During 2002
The GGE met three times during 2002 for a total of less than five weeks. In reality, many of the diplomatic delegations remained unchanged from the Second Review Conference and few delegations included technical experts in clearance. States naturally relied on their own expertise, which usually consisted of a military officer, and sometimes a military engineer with some experience of battlefield area clearance, but not of clearance for humanitarian reasons.
The Geneva International Centre for Humanitarian Demining (GICHD) participated by providing technical advice on the issues that were discussed. As part of this contribution, the GICHD published two papers. The first paper, ERW—A Threat Analysis, attempted to provide a quantitative analysis of which munitions were a particular problem.19 It concluded that while qualitatively, the clearance community could identify the major problem munitions, there was insufficient data to provide an empirical analysis.20 The second paper, ERW—Undesired Explosive Events in Ammunition Storage Areas, provided an understanding of the potential threat from abandoned ammunition stockpiles and poor ammunition management practices, which were areas of discussion in the GGE.21
The United Nations Mine Action Service (UNMAS) sent the former Programme Manager of the UN Mine Action Programme in Kosovo to the GGE. His paper, presented to the GGE in July 2002, was one of the few written contributions based on actual field experience in clearance; it concentrated on the issue of identifying the problem and information requirements to overcome the ERW problem.22 Other contributions were also provided by the ICRC, Landmine Action, and Human Rights Watch (HRW).23 However, the majority of working papers that were presented and discussed in the GGE came from States Parties. There has been no shortage of material to be discussed, with over 30 official working papers presented plus a large number of additional presentations on the subjects. Several topics were the focus of particular interest, including information requirements, existing international humanitarian law, technical improvements to submunitions and warnings to civilians.24 The sessions, however, were not designed to examine the minutiae of the issues or to negotiate a protocol, but to examine whether measures to address the problem were feasible and whether a new agreement should be negotiated. Overall, there was widespread recognition of the problems caused by ERW, and although the process sounds drawn out, many states spoke in favour of moving quickly to address the issues and what measures might be negotiated.
The Next Step
At the December 2002 meeting of States Parties to the CCW at which the work of the GGE was discussed, it was agreed that actual negotiations on an instrument on ERW would start in March 2003.25 The mandate agreed on by the States Parties is broad. Interestingly, it states that the issues of international law and technical improvements are to be “separate from the negotiations.” Both of these areas have proved contentious; the legal debate involves the problem of how existing international humanitarian law and proposals on restricting the use of submunitions should be interpreted—issues on which several influential parties differ.26 Technical improvements, which have been promoted by Switzerland and the United States, have been strongly resisted by the developing countries who are concerned about the cost and availability of such technology.27 If a draft protocol is to be negotiated, the probable focus will be on section (a)(i), which looks at responsibility for clearance, existing ERW, the provision of information, warning to civilians, assistance and cooperation.28
The Meeting of States Parties decided that the Working Group on Explosive Remnants of War would continue its work in the year 2003 with the following mandate:
(a) (i) To negotiate an instrument on post-conflict remedial measures of a generic nature that would reduce the risks of ERW. These measures would be based on a broad definition covering most types of explosive munitions, with the exception of mines. Abandoned munitions would have to be included. In these negotiations, questions need to be considered regarding, inter alia, responsibility for clearance, existing ERW, the provision of information to facilitate clearance and risk education, warnings to civilian populations, assistance and cooperation, and a framework for regular consultations of High Contracting Parties. These negotiations would have to establish the scope of this instrument consistent with Article I of the Convention as amended at its Second Review Conference.
(ii) To explore and determine whether these negotiations could successfully address preventive generic measures for improving the reliability of munitions that fall within the agreed broad definition, through voluntary best practices concerning the management of manufacturing, quality control, handling and storage of munitions. Exchange of information, assistance and cooperation would be important elements of such best practices.
(b) Separate from the negotiations under (a) to continue to consider the implementation of existing principles of international humanitarian law and to further study, on an open-ended basis, possible preventive measures aimed at improving design of certain specific types of munitions, including submunitions, with a view to minimise the humanitarian risk of these munitions becoming ERW. Exchange of information, assistance and cooperation would be part of this work.
(c) In the context of the activities described above, meetings of military experts can be conducted to provide advice in support of these activities.29
There was some criticism of what was left out. In particular, a disagreement on the text led to the deletion of the explicit reference to victim assistance, much to the annoyance of several NGOs.30 The South African delegation stated that they would agree to the deletion only on the assumption that victim assistance would be discussed under assistance and cooperation.31
The Implications for the Mine Action Community
Many in the mine clearance sector are not involved in the current diplomatic work, perhaps in part because of a perception of too many promises that have gone unfilled. However, discussions on ERW will go ahead in 2003 and may potentially have a profound impact on future post-conflict clearance operations.
For existing programmes, the impact is likely to be small. It seems unlikely from the discussions of the last year that States Parties will agree to retrospective action, although this issue will be raised. The greatest potential is for how future programmes post-conflict are affected. To provide a theoretical example, what could be the impact on a clearance programme that followed a military attack by a coalition force such as occurred in Kosovo? To date, nothing substantive has been agreed upon, but discussions suggest the following may occur: a guaranteed level of funding for clearance to achieve a pre-defined technical standard; accurate geographic information for strike points of munitions; a list of types and quantities of munitions dropped; target lists; funding for warnings to civilians both in advance and after the conflict; demolition procedures; specialist assistance for particular munitions; and technical characteristics of munitions. All this information delivered in a timely fashion in a practical format that has been prescribed. Clearance organisations would no longer have to ask for this information—they would know what will be available, when, where, and in what format. All of which arguably would have a positive effect on clearance programmes. Further, a future Protocol may be legally binding, so it would not be a question of whether militaries wanted to provide information, they would be obliged to under international humanitarian law.
These measures affect fundamental aspects of clearance programmes, whatever and wherever the threat. Such issues will be discussed in detail in 2003, and may be incorporated into international law shortly after the discussions finish.
The GGE will see considerable debate this year. The negotiations are not without their challenges, the least of which is agreeing on a formal definition of what constitutes ERW. Since other treaties cover landmines, and because of other political reasons, they are currently excluded from the definition. States Parties have other concerns too, particularly the potential impact on military operational effectiveness. The financial implications and deciding on responsibility for clearance are also areas likely to see careful discussions. States Parties are wary of measures that would leave them with open-ended commitments. To field operators, the GGE process may seem a cumbersome, slow and bureaucratic process, which it is, but it is currently the only mechanism available to conduct these negotiations and achieve an international agreement.32
It is up to individuals and organisations what action they take to influence the debate. The GICHD is committed to producing papers that assist the discussions.33 Through our work, we hope to help States Parties to decide on practical, achievable measures. The States Parties are not seeking a panacea for ERW. Ultimately, the technical aspects of clearance programmes will remain unchanged. Existing programmes would seem unlikely to benefit, but eventually the negotiations in 2003 could lead to many of the questions the clearance community asks when a conflict has occurred being answered automatically: Is there funding available and how much? What and where are the problems? The clearance community sometimes complains about the difficulty of their work. Perhaps the CCW offers hope that it may be a little—even a lot—easier in the future.
*All photos courtesy of Vera Bohle.
Mr. Paul Ellis