By Robin Collins

Peter Herby, a legal specialist with the International Committee of the Red Cross (ICRC), was arguing at a workshop in Ottawa that it might be more useful to prohibit a weapon's "effects" than a narrowly defined weapon itself. This was in 1996, a year before the signing of the historic ban on antipersonnel landmines (APM). Herby was concerned that a single-weapon campaign might mean that every time a "new" weapon was introduced a new campaign would need to be launched.

When the Ottawa APM Treaty was signed and delivered, there was some debate about whether an "effects-based" definition had been successfully achieved. There is still contention over this, but for the most part a class of weapon, defined both by its design and by how it is detonated, has been outlawed by a majority of countries.

But what about those other weapons that explode unintentionally – but just like landmines – in a farmer's field, near a schoolyard, or beside the path to the village water supply?

There was apparent consensus among both the governments that signed onto the Ottawa Treaty and the Nobel Prize-winning International Campaign to Ban Landmines (ICBL) that faulty cluster bombs were "not covered by Ottawa." However, an interesting process that harkens back to some of those concerns expressed by Peter Herby and others has begun to take shape over the last couple of years.

Cluster bombs

Cluster bombs (CB) have been heavily used in war since the 1960s, particularly by the US military. According to the Mennonite Central Committee (MCC) "the U.S. flew more than 580,000 bombing missions over Laos [during the conflict in Indochina]. This is equal to one bombing mission every 8 minutes around the clock for 9 full years." Three hundred million cluster "bombies" – the bomblets contained in a cluster bomb – were released from their bomb casings when dropped over Indochina – 90 million over Laos alone. The number of victims of CBs started to mount at that point and can equal or outnumber the count for landmine victims in parts of that region. Mine clearance agencies such as Mines Advisory Group and humanitarian organizations such as MCC have always made it known that unexploded ordnance disposal is not only about landmines, but also a range of other weapons left dangerously explosive long after war’s end.

The international campaign that was formed to ban AP mines focussed on one class of weapons, primarily because these were among the most onerous and, overall, claimed the most victims. The victims were usually civilians and often children who unintentionally triggered the explosion themselves.

Cluster bomblets tended to kill rather than maim their victims, but they were used in fewer conflicts. Typically dropped from the air, they were dependent on elite militaries which were equipped with an air force.

In 2000, a new approach to the problem of persistent weapons was proposed when the Red Cross suggested that any weapon left unexploded and threatening in post-conflict environments could be captured by the phrase "explosive remnants of war" (ERW). They would comprise a broad category of weapons, including artillery shells, mortars, hand grenades, landmines, submunitions, and other ordnance. Might it be possible to build into the Convention on Certain Conventional Weapons (CCW) a new protocol restricting or banning – and clearing – anything whose lingering "effects" put civilians and communities at risk?

Several nongovernmental organizations, including Mines Action Canada (MAC), found this approach attractive and are supporting those governments pressing for this additional protocol to the CCW. Many of the activist governments, including the Netherlands and Canada, were leaders in the campaign to ban antipersonnel mines.

Late in 2001, and at the request of a vocal group of member campaigns, again including MAC, the ICBL itself declared official support for a cluster bomb moratorium and a new protocol on explosive remnants of war. The Parliament of the European Union also supported these efforts. At the CCW conference in December last year, a nongovernmental statement (authored by Celina Tuttle of MAC) laid out some of the ground rules, while back here at home, MAC’s member organizations (including Project Ploughshares) pressed the Canadian government to declare a national moratorium on the use of any cluster bombs still held in Canadian inventories. The Canadian government did not respond, although there was fresh debate among parliamentarians.

More than 50 nongovernmental organizations (NGOs) (including 15 from Canada) have now signed a statement read to the CCW in Geneva this past July, calling for an urgent resolution of the outstanding issues, and for "unilateral moratoria on the use, production and transfer of cluster submunitions until the humanitarian concerns that arise from their use are addressed."¹ The success of this effort, while showing momentum, is far from certain. However it plays out, most interesting is why the landmine ban campaign unexpectedly "spilled over" and triggered a broader humanitarian debate and an obligation to address other explosive remnants of war.

Suddenly cluster bombs are a problem

Until very recently cluster bombs have been relatively uncontroversial, avoided even by the ICBL and many of its member groups. During the Indochina conflict (and in the decades since the victim count started to accumulate), they were simply one weapon among many with known but hushed-up post-conflict consequences. Thirty million cluster bomblets were dropped on Kuwait and Iraq during the Gulf War, resulting in thousands of untargeted casualties, but there was no significant public outcry. Suddenly they became humanitarian abominations in Kosovo and Afghanistan. Yet international humanitarian law has always prohibited the kind of effects on civilians meted out by mines and failed cluster bomblets. To that extent both the Ottawa Treaty and any new CCW treaty protocols only reiterate what international standards have always required of a country's armed forces.

Why, then, such a dramatic shift in attitude? The world has changed and, in this respect, for the better. It is now much harder to portray civilian casualties as collateral damage, without a public relations penalty. (The phrase "collateral damage" only entered the popular lexicon a dozen years ago.) Heightened humanitarian expectations have been added to the crucible of civil society and civil governments which emerged from the ban on antipersonnel landmines. The Ottawa Treaty is showing evidence of its influence beyond antipersonnel mines. Consequently, failed cluster bombs and a whole range of other battlefield detritus are newly unacceptable. In the shadow of a ban on one outdated weapon, said by some to have dubious military utility at best, scrutiny is being brought to bear more generally on how war is being prosecuted.

Technical fixes

Several approaches exist that address the problem of weapons with a high rate of ERW such as (and in particular) failing cluster submunitions (bomblets). One option has been to consider "technical fixes" to the problem – either by retrofitting a new component to an existing weapon, or through a complete redesign and remanufacture of the munition. Replenishing stocks with new munitions that self-destruct (SD) or self-deactivate (SDA) if their primary fuses fail significantly reduces the risk of any individual munition becoming an explosive remnant of war.² However, improved primary fusing and added SD/SDA capability are still controversial and both "fix" options have supporters and detractors.^{3   (}See Sidebar I)

Reliability estimates, for instance, are often disputed, and therefore all claims for and against SD and SDA need to be scrutinized and verified. For instance, the overall failure-to-detonate rate of submunitions used in Laos 30 years ago, 25 per cent, is similar to the cluster bomb failure rates in such recent conflicts as those in the Gulf and Kosovo, "in spite of the fact that in these more recent conflicts many of the submunitions used represented an entirely new generation [of weapons]" (King 2000, p. 30).⁴

While some governments support the SD/SDA approach, many NGOs have opposed the design and development of "more reliable" weapons, believing that such advocacy condones risking innocent lives, or compromises the principle of seeking a peaceful solution to conflict.

The ICBL position on SD/SDA for antipersonnel mines is that while so-called "smart" mines are designed to self-destruct or self-deactivate after a designated period of time, they are still not completely reliable. Some mines that fail to arm as intended will not self-destruct or self-neutralize as they normally would during the arming cycle (McGrath 1999). Even smart mines will require survey and clearance after they are placed, and cannot discriminate between a soldier and a civilian during the period in which they are active. Many of these caveats would continue to apply to redesigned "smart" cluster submunitions and other weapons that could become ERW.

Cease use

A parallel track to this campaign is to cease use and production of at least those weapons with a known high failure-to-detonate rate that cannot or will not be "fixed."   (See Sidebar II)

Colin King, editor of the Jane's publication Mines and Mines Clearance, prepared a key but not widely circulated report for the Red Cross in 2000 on ERW and submunitions. He found that problem weapons included several submunitions of US and UK manufacture, including the BLU-97, Rockeyes, BLU-61, and Blue-63 (the latter two vintage weapons designed in the 1960s, but still used in the Gulf War). He also found that while 40 per cent of unexploded US submunitions were shown to be hazardous overall – 13 per cent of which may function "on contact" – it is "neither fair nor accurate to equate all unexploded submunitions with mines." Just as some fusing designs are inherently unsafe, King argued, others, like the AO-1SCh fuse are "inherently safe."

NGOs uncomfortable with the development and replacement of current stocks with newer, "more reliable" weapons must not be silent during the debate that rages at the CCW over the question of how best to prevent explosive remnants of war. Some weapons are so dangerous and so faulty that they must be withdrawn and destroyed, whether or not governments replace them with something new.

A list of problem weapons must be quickly agreed to, publicized, and stigmatized. At a minimum, there is a strong case being made both for destruction of all submunitions without reliable secondary self-destruct fusing, and for a continuing moratorium on the use of all munitions with multi-directional fuses until studies resolve the question of their reliability. The humanitarian message cannot be lost in the political debate: these weapons cannot be allowed to be used (or used up) in the next conflict.

Canadians should press their government to comply with these minimum standards. The similarity of the current ERW problem to the humanitarian obligations that caused Canada to lead in the campaign to ban antipersonnel landmines is compelling.

Robin Collins is a Board Member and Chair of MAC, and a volunteer with the United Nations Association in Canada. The views expressed here are his own. This article is an expanded version of one published in Peace Magazine, July-Sept 2002.

More information on the cluster bomb moratorium and ERW campaign in Canada can be found by contacting Celina Tuttle at MAC, macelina@web.ca. The following URLs are also useful sources: 
MAC’s call to action, http://www.minesactioncanada.org/documents/261101_CB_bgrnd.htm; MCC’s cluster bomb website, www.mcc.org/clusterbomb/; 
ICBL statement on cluster munitions and ERW, http://www.icbl.org/news/2001/137.php; images of cluster bombs and damage, http://www.itvs.org/bombies/bombs.html http://www.mcc.org/clusterbomb/.

1 This statement can be found in the Summer 2002 issue of The Ploughshares Monitor, p. 12.

2 The failure rate goes from 10 per cent with existing munitions to 0.1 per cent with "fixed" munitions.

3 Support for the "fix" options can be found, for instance, in the EU working paper, 21 May 2002 at the CCW, CCW/GGE/I/WP.7; Swiss working paper, 8 May 2002 (CCW/GGE/I/WP.4 found at http://www.minesactioncanada.org/documents/2002_tech.htm); and the positions of the UK and France. If available, working papers can be found at http://www.mineaction.org/. For the position of the US see http://www.ccwtreaty.com/1212cummings.html. For discussions within NGO circles, see Vietnam Veterans of America Foundation’s Global Security Program: www.vvaf.org/security/backgrounder.html and presentation to the CCW (2001): http://www.icbl.org/index/text/Detailed/1497.html. See also Dale Copper: http://www.acronym.org.uk/dd/dd47/47regime.htm.

Opposition to the "fix" option can be found in the 2002 CCW positions of China (CCW/GGE/II/WP.17 on anti-vehicle mines), Pakistan, Russia (CCW/GGE/II/WP.15; CCW/GGE/I/WP.11), and Cuba relating to cost and prohibitive aspects of technical complexity. A joint China-Russian statement (CCW/GGE/II/WP.20) concludes: "[F]or a number of countries, it makes little sense to equip munitions with the SD and SDA devices, including munitions in stockpile." See the ICBL web site: http://www.icbl.org/resources/problem.html; Antipersonnel Mines: Friend or Foe? ICRC 1996 ; and the Human Rights Watch web site: http://www.hrw.org/reports/1997/gen1/General-04.htm.

4 King (p. 38) also notes, "The Gulf War clearly demonstrated a major discrepancy between performance during military ‘acceptance tests’ and operational use. … [N]early 2000 electronic mines remained unexploded in the US clearance sector alone, despite achieving near-perfect results during testing."

References

King, Colin 2000, Explosive Remnants of War: Submunitions and Other Unexploded Ordnance: A Study, ICRC, Geneva, August.

McGrath, Rae 1999, Landmines and Unexploded Ordnance: A Resource Book, Pluto Press.

Sidebar I

SD / SDA / SN

Self-destruct mechanisms (SD) are components that cause failed or live explosive weapons to be automatically triggered to explode, usually by way of some timing mechanism which can be mechanical or electronic. Mechanical mechanisms are generally less reliable. SD mechanism failure is an easily measured specification, as successful self-destruction is clearly visible! According to some experts, it is also possible to make a simple pyrotechnic self-destruct fusing mechanism very cheaply – in the US$8-9 range per explosive device.

Self-deactivation (SDA) and self-neutralisation (SN) capability refers to a designed-in means to make an explosive device incapable of firing by disabling its triggering mechanism (as in the case where a trigger cannot fire because its battery completely loses its charge). However, it has been suggested that batteries can possess a residual charge that may pose a risk. And in a reference to electronic fuses, which are described as belonging to "a family of booby traps," Jane’s Mines and Mine Clearance (1998-99) notes that in some cases, "because the detonator is fired by capacitor discharge, [electronic fuses] may be capable of functioning for some time after the battery has been removed." Even when SDA is reliable, deactivated high explosive devices can still pose a risk. This risk can possibly be minimized by the use of short-life explosives.

Because deactivated devices cannot be distinguished from active devices, awareness of the physical presence of ERW will continue to deny local residents access to land.

Sidebar II

Some known problem submunitions

•BL-755 (MK1), made in the UK, failure rate in the order of 20 per cent, used by 8 NATO countries

•M118 "Rockeye," made in US; used in Vietnam, Laos, Cambodia, Kosovo; up to 100 per cent failure rate in the Gulf War

•BLU-97; made in US; used in Gulf War, Kosovo, Afghanistan

•Spin-armed BLU-61 and BLU-63, made in US, high failure rates when used in Laos

•Multiple Launch Rocket Systems (e.g., US DPICMs and Serbian Orkan submunitions)