2003 Protocol on Explosive Remnants of War

Protocol V on Explosive Remnants of War is the most recent protocol to be annexed to the 1980 Convention on Certain Conventional Weapons (CCW). In 2000 in Nyon, Switzerland, state parties to the CCW were called on to negotiate a new protocol on explosive remnants of war (ERW). During the Second Review Conference, a Group of Governmental Experts (GGE) was established and over the course of 2002 met three times to consider a range of measures to clear ERW, provisions to warn civilians and information share with organizations and parties to the conflict. In December 2002, the group was mandated to negotiate a new protocol because there was growing consensus on the need for post conflict measures to reduce the impacts of ERW. The Group finalized a draft on the Protocol and presented it to state parties after holding negotiating sessions in March, June and November 2003.

If Protocol V is fully implemented and adhered to, it has the possibility of significantly decreasing civilian causalities after hostilities have occurred. Simultaneously, it would reduce the socio-economic effects that ERW imposes on war-affected countries. The international community has worked to decrease the suffering caused by anti-personnel landmines and the implementation of Protocol V bolsters that work. L. Maresca, 'A New Protocol on Explosive Remnants of War: The History and Negotiation of Protocol V to the 1980 Convention on Certain Conventional Weapons', 86 International Review of the Red Cross 856 (2004) 815–35.

Before Protocol V was adopted there were considerable efforts made to lessen the suffering, injury and death caused by anti-personnel landmines. The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction or the Anti-Personnel Mine-Ban Convention (APMBC) was adopted in 1997 in response to the long-term and haphazard effects of anti-personnel landmines. L. Maresca, 'A New Protocol on Explosive Remnants of War: The History and Negotiation of Protocol V to the 1980 Convention on Certain Conventional Weapons', 86 International Review of the Red Cross 856 (2004) 815–35. It imposes a ban on the development, production, transfer, use and stockpiling of anti-personnel mines. It also obligates states to destroy any stockpiled anti-personnel mines as well as all anti-personnel mines in mined areas under their jurisdiction. There are also measures for victim care and rehabilitation, mine clearance and related activities, and protection of civilians included in the treaty. Inter-Agency Coordination Group on Mine Action, 'Mine Action and Effective Coordination: The United Nations Inter-Agency Policy', 2005, 1-49. 

The adoption of the Mine Ban Treaty created a 'soft' norm that has become a part of public conscience and slowly has become a part of international law in multiple forms including the Mine Ban Convention. It also sparked the processes for the 2003 Protocol on Explosive Remnants of War and the 2008 Convention on Cluster Munitions. The norm establishes weapons, which cannot stop killing and have indiscriminate effects, as unacceptable and objectionable. This growing norm has become a part of customary international law and as such states are now expected to protect civilians against weapons that keep killing and take responsibility for ERW. International Committee of the Red Cross, 'Tenth Anniversary of the Mine Ban Convention - From Mines to Cluster Munitions' 19 October 2007.

Despite the implementation of the APMBC, munitions that remain after the end of armed conflict continue to injure and kill thousands of civilians. As such, the United Nations Environment Programme (UNEP), the International Committee of the Red Cross (ICRC) and Landmine Action along with several other NGOs took steps to examine negative effects of cluster sub munitions. Inter-Agency Coordination Group on Mine Action, 'Mine Action and Effective Coordination: The United Nations Inter-Agency Policy', 2005, 1-49.  Additionally, members of the Inter-Agency Coordination Group on Mine Action (IACG-MA), like UNICEF, UNDP, UNOPS, DDA, FAO, DPKO, UNHCR, and WHO, have coordinated advocacy efforts in support of international legal instruments related to landmines and ERW. These UN agencies have advocated for the universalization of the instruments due to the detrimental effects they have on human rights, sustainable development, and the protection and promotion of women and children’s rights affected by armed conflict. Inter-Agency Coordination Group on Mine Action, 'Mine Action and Effective Coordination: The United Nations Inter-Agency Policy', 2005, 1-49.

In September 2000, the ICRC and Landmine Action organization conducted studies to raise awareness and facilitate dialogue about the problem as well, after which the ICRC proposed that the examination of the impacts of ERW be put on the agenda of the Second CCW Review Conference. While many experts felt the need for a comprehensive approach to ERW, others felt the issue was too long and complex and should be discussed at a later review conference. The ICRC, based on the mixed reactions, presented documents to the First Meeting of the Preparatory Committee for the Review Conference, which called for a new addition to the CCW that reduced the humanitarian impact of ERW. P. Ellis, 'Explosive Remnants of War – the Impact of Current Negotiations', 7 Journal of Mine Action 1 (2003) 1-10. As the CCW Second Review Conference approached, there was agreement among the international community that ERW needed to be addressed. A large part of the Review Conference was spent discussing ERW. As such the conference established 'a Group of Governmental Experts (GGE) to examine further the legal, technical, operational and humanitarian aspects of the various proposals in 2002 on ERW and anti-vehicle mines.' L. Maresca, 'A New Protocol on Explosive Remnants of War: The History and Negotiation of Protocol V to the 1980 Convention on Certain Conventional Weapons', 86 International Review of the Red Cross 856 (2004) 815–35.

The GGE met for a total of five weeks and as their work progressed there was growing support for provisions of warnings to civilian populations, new rules for clearance of ERW and the sharing of information to facilitate clearance and risk education. Inter-Agency Coordination Group on Mine Action, 'Mine Action and Effective Coordination: The United Nations Inter-Agency Policy', 2005, 1-49. There was also growing support from China, Japan, many European countries, the ICRC and international and non-governmental organizations to consider preventive measures to stop exploded ordnance from becoming ERW. P. Ellis, 'Explosive Remnants of War – the Impact of Current Negotiations', 7 Journal of Mine Action 1 (2003) 1-10.

Conventions on Cluster Munitions

Though Protocol V was adopted, cluster munitions were not incorporated in the CCW and the Cluster Munition Coalition (CMC) continued to press for its incorporation in the CCW. A proposal was made to address the humanitarian concerns of cluster munitions at the CCW’s Third Review Conference in November 2006. Norway declared that it would begin a process independent of the CCW to negotiate a cluster munition treaty on the final day of the conference, after this proposal was rejected. This initiated the Oslo process. 'How Is the Convention on Cluster Munitions Related to the Negotiations for a Protocol on Cluster Munitions within the Convention of Conventional Weapons?' Landmine and Cluster Munition Monitor, June 2015.

Preamble

The only protocol to the 1980 Convention on Certain Conventional Weapons (CCW) to have a preamble is Protocol V on Explosive Remnants of War (ERW). 2003 Protocol on Explosive Remnants of War. The preamble highlights the reasons for the instrument’s adoption and summarizes the Group of Governmental Experts' (GGC) two main negotiating mandates. These mandates include negotiating a new generic instrument on post-conflict measures and deciding whether the negotiations could consider improving the reliability of munitions by including generic preventive measures. 'Victim Assistance', United Nations Office at Geneva.

Article One

Contracting Parties under Article 1 of the Protocol agree to fulfil the obligations individually and in collaboration with other Contracting Parties to reduce the dangers and effects of ERW. In agreeing to these obligations, the Protocol would apply to situations resulting from conflicts, as laid out in Article 1 of the CCW, as amended on 21 December 2001. This provision in Article 1 of the CCW was an amendment adopted by the Second Review Conference of the CCW, which broadens the scope of application of Protocols I-IV to non-international armed conflicts. 'Victim Assistance', United Nations Office at Geneva.

Victim Assistance

Under Article 8 (2) Protocol V on ERW, for the first time, states party to the CCW recognized the importance of victims’ assistance. Thus, states who are able to do so committed to provide assistance for social and economic reintegration and care and rehabilitation for victims of ERW. 'Victim Assistance', United Nations Office at Geneva.

Under Protocol V, state parties made an agreement on a Plan of Action on Victim Assistance in order to help universalize and implement victim assistance. The Plan contains four actions, which state that state parties should 'provide or facilitate the provision of age- and gender-sensitive medical care, rehabilitation, psychological support and adequate assistance for social and economic inclusion in a non-discriminatory manner';  'Plan of Action on Victim Assistance Under Protocol V', United Nations Office for Disarmament Affairs, 2008. collect data on victims; provide assistance and cooperation that is consistent with the recipient state’s national laws; and be in accordance with certain terms when implementing the Plan of Action.

Definitions and obligations

Since the adoption of Protocol V, ERW has been legally defined. However, functionally, what ERW includes remains up for debate and can provide gaps in meeting legal clearance obligations and in effective yet safe clearance operations. P. Ellis, 'Explosive Remnants of War – the Impact of Current Negotiations', 7 Journal of Mine Action 1 (2003) 1-10. There is no description of what physical ordnance is to be considered ERW. While their brief consideration for defining ERW during negotiations for the Protocol, there was little for the GGE to develop a list of definitions. L. Maresca, 'A New Protocol on Explosive Remnants of War: The History and Negotiation of Protocol V to the 1980 Convention on Certain Conventional Weapons', 86 International Review of the Red Cross 856 (2004) 815–35. This tension between functional and legal definitions becomes even more problematic when considered what ERW is and is not defined as. Due to the separate obligation provided under the Amended Protocol II of the Convention, 'ERW excludes mines, booby traps, and manually emplaced munitions/other devices, including improvised explosive devices (IEDS).' D. Ressler, 'A Primer on Explosive Remnants of War', 10 Journal of Mine Action 1 (2006). The lack of clarity in the practical definition of ERW and need for better understanding ERW policies and incidences brings up questions about best practices and responsibility.

This tension surrounding the debate between legal and functional definitions intensifies when IEDs and booby traps remain after conflict and are set to detonate explosive ordnance. The concern then goes beyond semantics because mines, UXO, AXO, booby traps and IEDs/other devices then all pose the same physical explosive threat and impose clearance obligations that what is defined as ERW do. These clearance obligations can become uncoordinated because jurisdiction under humanitarian law technically does not require specific duties to carry over. L. Maresca, 'A New Protocol on Explosive Remnants of War: The History and Negotiation of Protocol V to the 1980 Convention on Certain Conventional Weapons', 86 International Review of the Red Cross 856 (2004) 815–35.