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A new protocol on explosive remnants of war: The history and negotiation of Protocol V to the 1980 Convention on Certain Conventional Weapons

Published online by Cambridge University Press:  27 April 2010

Louis Maresca
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Extract

On 28 November 2003, the States Parties to the Convention on Certain Conventional Weapons (CCW) adopted a new protocol on explosive remnants of war. This new instrument of international humanitarian law, the fifth protocol to the CCW, is an important addition to the efforts to reduce the death, injury and suffering caused by the explosive munitions that remain after the end of an armed conflict. Protocol V establishes new rules that require the parties to a conflict to clear explosive remnants of war, to take measures to protect civilians from the effects of these weapons and to assist the efforts of international and non-governmental organizations working in these areas. If widely adhered to and fully implemented, it has the potential to significantly reduce the civilian casualties that regularly occur after the end of hostilities and to minimize the long-term socio-economic consequences that explosive remnants of war inflict on war-affected countries. It complements the work of the international community to reduce the suffering caused by anti-personnel landmines.

Type
Affaires courantes et commentaires/Current issues and comments
Information
International Review of the Red Cross , Volume 86 , Issue 856 , December 2004 , pp. 815 - 835
Copyright
Copyright © International Committee of the Red Cross 2004

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References

1 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to Cause Unnecessary Suffering or to Have Indiscriminate Effects (CCW), 10 October 1980.

2 Protocol on Explosive Remnants of War annexed to the CCW, 28 November 2003.

3 The Protocol on Explosive Remnants of War will enter into force once 20 States have notified the depositary, the Secretary-General of the United Nations, of their consent to be bound by it. At 1 November 2004, 3 States had done so (Sweden, Lithuania, Sierra Leone).

4 Explosive Remnants of War: A Global Survey, Landmine Action, London, 2003Google Scholar.

5 Iraq: MAG clears more than one million mines and bombs since the war. <http://www.mag.org.uk/magtest/n_iraq/march04.htm>.

6 Off Target: The Conduct of the War and Civilian Casualties in Iraq, Human Rights Watch, New York, 2003, p. 104Google Scholar.

7 Ibid., p. 7.

8 For an overview of the impact problem in these and other contexts, see Westing, Arthur (ed.), Explosive Remnants of War: Mitigating the Environmental Effects, Taylor and Francis, London, 1985Google Scholar; Explosive Remnants of War: Cluster Bombs and Landmines in Kosovo, ICRC, Geneva, 2000Google Scholar; Explosive Remnants of War; Unexploded Ordnance and Post-conflict Communities, Landmine Action, London, 2002Google Scholar.; Landmine Action, op. cit. (note 4).

9 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction, 18 September 1997.

10 “Explosive remnants of conventional war”: UN Doc. A/38/383 (19 October 1983).

11 In 2000, Landmine Action was known as the UK Working Group on Landmines. It changed its name to Landmine Action later that year.

12 ICRC, op. cit. (note 8).

13 Explosive Remnants of War: A Study on Submunitions and Other Unexploded Ordnance, ICRC, Geneva, 2000Google Scholar.

14 McGrath, Rae, Cluster Bombs: The Military Effectiveness and Impact on Civilians, UK Working Group on Landmines, London, 2000Google Scholar.

15 Expert Meeting on Explosive Remnants of War, ICRC, Geneva, 2000, pp. 14–15Google Scholar.

16 Ibid.

17 “Report of the International Committee of the Red Cross to the First Preparatory Committee for the 2001 Review Conference of the United Nations Convention on Certain Conventional Weapons”, UN Doc. CCW/CONF.II/PC.1/WP.1 (2000).

18 The ICRC believed that landmines were comprehensively dealt with by the Convention on the Prohibition of Anti-personnel Mines and therefore did not need to be included in a new instrument.

19 ICRC Report, op. cit. (note 17), pp. 11–12.

20 See Rae McGrath, op. cit. (note 14); Cluster Munition Systems, Handicap International, Lyon, 2003Google Scholar; Fatally Flawed: Cluster Bombs and Their Use by the United States in Afghanistan, Human Rights Watch, New York, 2002Google Scholar; Goose, Steve, “Cluster munitions: Towards a global solution”, Human Rights Watch World Report 2004, Human Rights Watch, New York, 2004, PP. 244–276Google Scholar.

21 UN Doc. CCW/CONF.II/PC.1/WP.4, 14 December 2000.

22 UN Doc. CCW/CONF.II/PC.1/WP.7, 14 December 2000. In the CCW context, anti-vehicle mines are formally referred to as “Mines Other than Anti-personnel Mines” (MOTAPM). This proposal later became a joint submission by the United States and Denmark for a new protocol to the CCW.

23 UN Doc. CCW/CONF.II/PC.1/WP.6, 14 December 2000. The co-sponsors were Argentina, Austria, Belgium, Bulgaria, Canada, Cambodia, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Israel, Italy, Luxembourg, New Zealand, Norway, Peru, Portugal, Slovakia, Spain, Sweden, Switzerland, United Kingdom, United States.

24 In addition to those on explosive remnants of war, proposals were also submitted on extending the scope of application of the Convention and its protocols to non-international armed conflicts (United States and the ICRC); wound ballistic regulations for small calibre weapons and ammunition (Switzerland), and a compliance mechanism for the Convention (United States, South Africa and the European Union). For a summary of the results of the Review Conference, see Maresca, Louis, “Second Review Conference of the Convention on Certain Conventional Weapons”, International Review of the Red Cross, Vol. 84, March 2002, pp. 255–261CrossRefGoogle Scholar.

25 The Group of Governmental Experts is made up of government delegations and representatives of international and non-governmental organizations. It has been used to examine proposals for new CCW protocols and to develop recommendations for States Parties to consider. Ambassador Chris Sanders of the Netherlands was selected as the coordinator on explosive remnants of war. Mr Peter Kolarov of Bulgaria was selected as the coordinator on anti-vehicle mines.

26 For the full mandates, see UN Doc. CCW/CONF.II/2, (2001), pp. 12–13.

27 “Procedural Report of the Group of Governmental Experts of the States Parties to 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”, UN. Doc CCW/GGE/III/1, 11 December 2002.

28 Besides explosive remnants of war (ERW), the Group also continued to explore the most appropriate way to deal with the problems caused by anti-vehicle mines. As mentioned above, this issue was being discussed separately. The Group continued its work on anti-vehicle mines in 2003 and 2004 but not did agree to begin negotiations on a new protocol. Work on this issue will continue in 2005.

29 See below, “Assistance and cooperation”, p 16.

30 Protocol on Explosive Remnants of War, op. cit. (note 2) Art. 2 (4).

31 Ibid., Art. 2 (2) and 2 (3), respectively.

32 International Mine Action Standards (04.10) 3.217 (UXO) and 3.67.

33 See Protocol on Prohibitions or Restriction on the Use of Mines, Booby-Traps and Other Devices (Protocol II), 10 October 1980, and Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Amended Protocol II) of 3 May 1996. It is also arguable that general rules of international humanitarian law that establish a general protection for civilians against the effects of military operations, prohibit indiscriminate attacks and require parties to take feasible precautions to minimize civilian casualties also entail responsibilities for the clearance of explosive remnants of war.

34 Protocol on Explosive Remnants of War, op. cit. (note 2), Art 3 (2).

35 Ibid.

36 Ibid., Art. 3 (3).

37 For comments on the qualifying phrases used in the Protocol, see “Implications and challenges” below, p. 19.

38 Amended Protocol II, op. cit. (note 33), specifically, Arts. 3(2) and 10.

39 Protocol II, op. cit. (note 33), Art. 7; Amended Protocol II, op. cit. (note 33), Art. 9.

40 Amended Protocol II, op. cit. (note 33), Art. 3 (10).

41 Ibid., Art. 12.

42 “Existing remnants of war” is defined in Art. 2 of Protocol V as “unexploded ordnance and abandoned explosive ordnance that existed prior to the entry into force of this Protocol for the High Contracting Party on whose territory it exists”.

43 Amended Protocol II, op. cit. (note 33), Art. 11; Convention on the Prohibition of Anti-personnel Mines, op. cit. (note 9), Art. 6.

44 Ibid., Art. 6 (3).

45 Statement of Martin Barber, Director of the United Nations Mine Action Service, at the Informational Meeting on Explosive Remnants of War, New York, 19 October 2004.