New rules to minimise the suffering caused by 'explosive remnants of war'

Unexploded ordnance poses a significant threat to civilians following the end of an armed conflict. These ‘explosive remnants of war’ (ERW) include artillery shells, mortars, bombs, hand grenades, landmines, cluster-bomb and other sub-munitions and similar explosives.

Such weapons have caused significant numbers of civilian deaths and injuries and hindered reconstruction, the return of refugees and displaced people and the delivery of humanitarian aid. They are a regular consequence of modern warfare, and prolong the hardship of war-affected countries.

The international community took an important step to address the problems caused by anti-personnel landmines by concluding a Convention prohibiting their use in 1997. However, other types of explosive remnants of war had not been addressed until late last year, when in November governments adopted a new international treaty in this area. The Protocol on Explosive Remnants of War establishes a framework that, if adhered to and implemented, can help minimise the post-conflict suffering caused by unexploded and abandoned ordnance.

The problem of ERW

The problem of explosive remnants of war has plagued many countries, sometimes for decades. UK NGO Landmine Action estimates that 84 countries and territories are affected. Three examples, Poland, Laos and Kosovo, provide a glimpse into the scale of the problem.

Poland has been clearing ERW from the Second World War for over 50 years. Since 1944, more than 96 million pieces of explosive ordnance have been removed, at an estimated cost of $866m. Between 1944 and 1989, ERW killed 4,094 people, and injured another 8,774. Hundreds of thousands of these weapons are still being cleared annually.

The wars in Indochina in the 1950s, 1960s and 1970s left Laos heavily contaminated by a range of explosives. The scale of the problem is difficult to estimate, but the country’s main clearance agency, UXO Laos, says that between 9m and 27m unexploded sub-munitions remain throughout the country. Some 11,000 people have been killed or injured, many of them children. Almost three decades after the fighting ended in 1975, Laos is still struggling with a large ERW problem.

Wars do not have to be global or last for decades to produce a serious ERW problem. Short-lived regional or internal conflicts can also produce significant amounts of unexploded ordnance and large numbers of civilian casualties. The conflict in Kosovo lasted only 11 weeks and did not involve large military operations on the ground.

Nonetheless, in the year following the end of the war in June 1999, nearly 500 people were killed or injured by ERW, including anti-personnel and anti-vehicle mines and cluster-bomb sub-munitions. More than 54,000 pieces of ordnance were removed or destroyed by clearance agencies.

Ordnance can fail to explode for a variety of reasons: fuses can be poorly designed; the device might be poorly built; improper storage, handling and transport might affect it; or the weapon might be incorrectly delivered (dropped from too low an altitude, for example). Environmental factors also affect detonation, as ordnance will often land on soft ground or be deflected by trees, vegetation or other obstacles. These weapons may seem harmless duds, but in fact they remain dangerous, with full explosive force.

The war in Iraq in 2003 has highlighted another source of ERW. Like other conflicts, the fighting produced a large amount of unexploded ordnance. But there are also large stockpiles of explosive weapons abandoned by Iraqi forces. This ordnance was often located in or near populated areas, and has caused significant casualties when civilians have tried to collect or tamper with it. In some instances, stocks have spontaneously exploded in the summer heat.

The new Protocol

In September 2000, the ICRC proposed that a new protocol be added to the Convention on Certain Conventional Weapons (CCW) that would outline specific requirements on the clearance of ERW, the provision of warnings to civilian populations affected by such weapons, and the sharing of information between the parties to a conflict and organisations involved in ERW clearance and risk education.

The CCW, adopted in 1980, is intended to regulate the use of weapons that may cause unnecessary suffering or have indiscriminate effects, such as incendiary weapons, booby traps and similar weapons. As of January 2004, 93 states were party to the CCW.

At the Review Conference of States Parties to the CCW, which took place in December 2001, a Group of Governmental Experts was established to consider the nature of the ERW problem and ways to address it. NGOs, UN agencies and the ICRC contributed to the Group’s work. A draft protocol was submitted for consideration, and the Protocol on Explosive Remnants of War was adopted at a meeting of CCW states in Geneva on 28 November 2003.

The Protocol establishes new rules in an area where international humanitarian law has been weak. Under its terms, ‘explosive remnants of war’ means explosive ordnance that has been abandoned by a party to an armed conflict, or that has been used during a conflict and was supposed to explode but failed to do so. It covers all situations of armed conflict irrespective of whether they are international or internal in nature. The Protocol does not apply to mines, booby traps and devices that are already addressed by the CCW.

The Protocol requires each party to an armed conflict to:

• clear explosive remnants of war in territory it controls after the end of active hostilities;
• provide technical, material and financial assistance to facilitate the removal of unexploded or abandoned ordnance in areas it does not control resulting from its operations. This assistance can be provided directly to the party in control of the territory or through a third party, such as the UN or an NGO;
• record information on the explosive ordnance employed by its armed forces and share that information with organisations engaged in ERW clearance or conducting programmes to warn civilians of the dangers of these devices; and
• provide warnings to civilians of the ERW dangers in specific areas.

Although these obligations are only called for ‘where feasible’, they nevertheless provide an outline of the measures required to address an ERW problem and a framework to support the activities of organisations conducting ERW clearance and risk education programmes.

Weaknesses

One of the Protocol’s weaknesses is that its rules will have their greatest impact in future conflicts – its obligations do not address ERW already on the ground. Recognising the need to improve the situation in countries already affected, the Protocol gives a state the right to seek assistance from other states to help it remove ERW that may already be in its territory. In parallel, countries that are in a position to do so are obliged to provide assistance to help ERW-affected states to reduce the threats posed by these weapons.

The Protocol primarily focuses on remedial measures and does not include specific requirements on cluster-bomb and other sub-munitions. These weapons are a particular concern due to the large numbers which have failed to explode as intended and the large area over which explosive force is delivered. Several organisations and governments have proposed specific requirements such as self-destruct mechanisms to prevent these weapons from becoming explosive remnants of war in the first place, and to prohibit their use in populated areas. Such weapon-specific measures were not included in the Protocol.

Nevertheless, they continue to be discussed by the Group of Governmental Experts, and with increased public and political support could become the subject for negotiations in the future.

Final thoughts

Like other protocols to the CCW, the Protocol on Explosive Remnants of War will enter into force once 20 states have ratified it. In order for the Protocol to fulfil its goals, it will need to be widely ratified and implemented. The Protocol has the potential to enhance the activities of organisations involved in clearing mines and ERW, or which conduct risk education programmes and help bring rapid results on the ground. These organisations are often the first responders to an ERW problem following the end of active hostilities.

Despite its limitations, the Protocol is a significant development in international humanitarian law, and the first multilateral agreement to be adopted by all the major military powers in this area. In the current international environment this is an encouraging result. Together with the Convention on the Prohibition of Anti-Personnel Mines, the international community has adopted a framework to reduce the scourge of civilian death, injury and suffering caused by unexploded and abandoned ordnance, and to eliminate one of the serious threats facing civilians in the aftermath of conflict.

Louis Maresca is a legal adviser with the Mines-Arms Unit of the ICRC Legal Division. The views expressed in this article are those of the author and do not necessarily reflect the views or position of the ICRC. His e-mail address is lmaresca.gva@icrc.org.

References and further reading

Handicap International, Custer Munition Systems, Lyon, 2003.

International Committee of the Red Cross, Explosive Remnants of War: The Lethal Legacy of Modern Armed Conflict, Geneva, 2002.

ICRC, Explosive Remnants of War: Cluster Bombs and Landmines in Kosovo, Geneva, 2000.

Landmine Action, Explosive Remnants of War: Unexploded Ordnance and Post-Conflict Communities, London, 2002.

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