3. This section draws heavily on the Report of the International Committee of the Red Cross to the First Meeting of the 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, 11 December 2000.

4. The phrase ‘explosive remnants of war’ has not been defined but it is generally understood to be synonymous with ‘unexploded ordnance’. Under the International Mine Action Standards (IMAS) published by the United Nations Mine Action Service, unexploded ordnance is ‘explosive ordnance that has been primed, fused, armed or otherwise prepared for use or used. It may have been fired, dropped, launched or projected yet remains unexploded either through malfunction or design or any other reason’. IMAS, 04.10, 1st edn. 2001, at p. 26.

5. Landmine Action, ‘Explosive Remnants of War: The Global Problem’, Paper presented to the Group of Governmental Experts to the Convention on Certain Conventional Weapons, December 2002.

6. ‘Greek experts defuse bomb from Second World War at future Olympic site’. <http://ca.news.yahoo.com/021129/6/qjiry.html>; ‘British wartime bomb is defused as city holds its breath’, <http://archives.tcm.ithrishexaminer/1999/09/23/fhead_268.htm>; ‘Teen killed by World War I Bomb’, <http:www/news.com.au/common/story_page/0,4057,5395877%255E401,00.html>.

7. Engineering Forces of the Polish Armed Forces, ‘Polish Experiences with Explosive Remnants of War’, Document distributed to the Group of Governmental Experts to the Convention on Certain Conventional Weapons, December 2002.

8. Molaski, B.A. and Pajak, J., ‘Explosive Remnants of World War II in Poland’, in Westing, A.H., ed., Explosive Remnants of War: Mitigating the Environmental Effects (London, Taylor & Francis 1985) p. 26Google Scholar. Statistics based on information of the Polish Ministry of National Defence, Warsaw, Army Combat Engineer annual reports (unpublished archives).

9. Lao National Unexploded Ordnance Programme, Annual Report 2000 (Vientiane, UXO Lao 2001) p. 4Google Scholar.

10. Presentation of Bean, P., Programme Director Lao National UXO Programme, published in Expert Meeting on Explosive Remnants of War: Summary Report (Geneva, International Committee of the Red Cross 2000) p. 8Google Scholar.

11. UXO Lao <http://www.uxolao.org/clearance.htm>. See McGrath, R., Cluster Bombs: The military effectiveness and impact on civilians of cluster munitions (London, UK Working Group on Land-mines 2002) p. 30Google Scholar.

12. International Committee of the Red Cross, Explosive Remnants of War: Cluster bombs and Landmines in Kosovo (Geneva, International Committee of the Red Cross 2000) p. 10Google Scholar.

13. International Campaign to Ban Landmines (ICBL), Landmine Monitor Report 2002: Toward a Mine Free World (Washington, Human Rights Watch 2002) p. 829Google Scholar.

14. Landmine Action, Explosive Remnants of War: Unexploded ordnance and post-conflict communities (London, Landmine Action 2002) pp. 23–25Google Scholar.

15. Ibid., pp. 33–35.

16. Information collated from Geneva International Centre for Humanitarian Demining (GICHD), Explosive Remnants of War: A Threat Analysis (Geneva, Geneva International Centre for Humanitarian Demining 2002) p. 7Google Scholar; King, C., Explosive Remnants of War: A study on submunitions and other unexploded ordnance (Geneva, International Committee of the Red Cross 2000) pp. 38–39Google Scholar; McGrath, op. cit. n. 11, at pp. 25–27.

17. Examples of incorrect launch profiles would be the dropping of air-delivered weapons at too low an altitude, thus preventing them from arming properly.

18. King, op. cit. n. 16, at p. 9 indicates that US Army acceptance tests for munitions identify a failure rate of 2.5 percent - 5 percent as ‘acceptable’ for new ammunition. See also McGrath, op. cit. n. 11, at p. 27.

19. McGrath, op. cit. n. 11, at pp. 27–28.

20. Submunitions are often mislabelled as ‘cluster bombs’ in media reports. A submunition is any munition that, to perform its task, separates from a parent munition. This includes, for example, mines or munitions that form part of a cluster bomb, artillery shell or missile payload. A ‘cluster bomb’ is a bomb containing or dispensing submunitions. Cluster bombs are the dispensers, generally dropped from aircraft, which scatter submunitions over the area where an intended target is located. It is the submunitions that are the main focus of concern. GICHD, op. cit. n. 16, at p. 23.

21. McGrath, op. cit. n. 11, at p. 31.

22. Lao National Unexploded Ordnance Programme, UXO Lao: Work Plan 2002 (Vientiane, UXO Lao 2002) p. 7Google Scholar; ICRC, op. cit. n. 10, at p. 8.

23. ICBL, op. cit. n. 13, at p. 824.

24. Submunitions have been cited as one of the principle causes of civilian casualties in conflicts in which they have been used. In Laos they are believed to have been responsible for a large part of the nearly 12,000 UXO related casualties. In Kosovo, submunitions were, along with anti-personnel mines, the leading cause of unexploded ordnance-related death and injury. Together, these weapons accounted for 73 percent (approximately 36 percent each) of the 280 incidents individually recorded by the ICRC between 1 June 1999 and 31 May 2000. A variety of other ordnance accounted for the remaining 27 percent of the casualties. ICRC, op. cit. n. 12, at p. 9.

25. Human Rights Watch, Fatally Flawed: Cluster Bombs and Their Use by the United States in Afghanistan (Human Rights Watch, New York 2002) at p. 10Google Scholar.

26. These include Human Rights Watch, ICRC, Landmine Action and the Mennonite Central Committee. On 13 February 2003, the European Parliament adopted a resolution on the harmful effects of unexploded ordnance and depleted uranium ammunition which called on EU Member States to implement a moratorium on the further use of these weapons pending the conclusions of a comprehensive study of the requirements of international humanitarian law.

27. See infra Section 6.

28. Art. 51(1) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (hereinafter 1977 Additional Protocol I).

29. Art. 51(2) and 51(4) 1977 Additional Protocol I.

30. The full name 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 (hereinafter CCWC). The Convention was adopted on 10 October 1980 and entered into force on 2 December 1983. As of 1 February 2003, there were 90 States Parties to the Convention.

31. Art. 7 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices.

32. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices as amended on 3 May 1996 (hereinafter amended Protocol II). The Protocol entered into force on 3 December 1997 and as of I February 2003 there were 68 States Parties.

33. Art. 10 Amended Protocol II. Under Art. 2(5), ‘other devices’ are defined as ‘manually emplaced munitions and devices including improvised explosive devices designed to kill, injure or damage and which are actuated manually by remote control or automatically after a lapse of time’.

34. Art. 3(2) Amended Protocol II.

35. The full name is the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-personnel Mines and on their Destruction. It was adopted on 18 September 1997 and entered into force on 1 March 1999. As of 1 February 2003 there were 131 States Parties.

36. Ibid., Art. 5.

37. Under Art. 51(4)(c) of Additional Protocol I, indiscriminate attack are ‘those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol’. Human Rights Watch, op. cit. n. 25, at p. 14; Wiebe, V., ‘Footprints of Death: Cluster bombs as indiscriminate weapons under international humanitarian law’, 22 Michigan JIL (2000) pp. 113–119Google Scholar.

38. Ibid.

39. Art. 51(5)(b) of 1977 Additional Protocol I considers an attack as indiscriminate if it ‘may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.

40. C. Greenwood, ‘Legal Issues Regarding Explosive Remnants of War.’ Working Paper submitted to 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/I/WP. 10, 22 May 2002.

41. The rules regulating the weapons it covers are found in the five Protocols currently annexed to the Convention. Protocol I prohibits the use of weapons using fragments not detectable by X-ray. Protocol II, in both its original and amended versions, restricts the use of mines, booby traps and other devices. Protocol III restricts the use of incendiary weapons. Protocol IV prohibits the use and transfer of blinding laser weapons. Protocol V, as discussed infra Section 7, addresses ERW.

42. This effort was unsuccessful and led states supporting a prohibition on these weapons to pursue a ban in a separate process, the so-called Ottawa Process, which led to the adoption of the Convention on the Prohibition of Anti-personnel Mines in 1997.

43. International Committee of the Red Cross, Expert Meeting on Explosive Remnants of War, September 2000.

44. Ibid., pp. 14–15.

45. Ibid.

46. International Committee of the Red Cross, Report to the First Meeting of the 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, 11 December 2000.

47. The ICRC and many States Parties believed that anti-personnel mines were comprehensively dealt with by the Convention on the Prohibition of Anti-personnel Mines.

48. ICRC, op. cit. n. 46, at pp. 11–12.

49. In the CCWC context, anti-vehicle mines are formally referred to as ‘Mines Other than Antipersonnel Mines’. This proposal would later become a joint proposal of the United States and Denmark for a new protocol to the CCWC.

50. In addition to the proposals 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 ballistics regulations for small calibre weapons and ammunition (Switzerland), and a compliance mechanism for the Convention (United States, South Africa and the European Union).

51. Denmark, Finland, Germany, Guatemala, Hungary, Japan, the Republic of Korea, Poland, Romania, Slovakia, the United Kingdom and the United States.

52. China, India, Pakistan and Russia did not support work on anti-vehicle mines. For a good overview of the development of this issue see Kaye, D. and Solomon, S., ‘The Second Review Conference of the 1980 Convention on Certain Conventional Weapons’, 96 AJIL (2002) pp. 931–933CrossRefGoogle Scholar.

53. The Group's meetings were held from 21–24 May, 15–26 July and 2–10 December 2002 in Geneva, Switzerland.

54. Ambassador Chris Sanders of the Netherlands was appointed coordinator for the work on explosive remnants of war. Mr Peter Kolarov of Bulgaria was appointed coordinator for the work on Mines Other than Anti-personnel Mines.

55. Summary of the text adopted. For the full mandate see, Final Document, Second Review Conference 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/CONF.II/2, Geneva 2001, pp. 12–13.

56. Ibid., at p. 13. Under the mandate adopted by the Review Conference, the Group of Experts was to ‘further explore the issue of mines other than anti-personnel mines’.

57. Experts from Switzerland, France, Germany and Ireland.

58. Experts from Brazil, China, Cuba, Pakistan and Russia, among others.

59. Experts from Norway, China, Mexico, Human Rights Watch and Landmine Action voiced support for the ICRC proposal.

60. International Humanitarian Law and Targeting: An Australian Approach, UN Doc. CCW/GGE/III/WP.6, 3 December 2002. See also Presentation of the United States, US Submunition Reliability Policy, December 2002.

61. Summarized from the Procedural Report of the Group of Governmental Experts, UN Doc. CCW/GGE/III/CRP.1/REV. 1.

62. It is reprinted in this volume of the Yearbook at p. 603.