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78. Address by Deputy Legal Adviser Ronald Bettauer to San Remo International Institute on Humanitarian Law Roundtable (Sept. 27, 2007)

Presentation by Ronald Bettauer
Deputy Legal Adviser, U.S. Department of State

San Remo IIHL Roundtable on the Conduct of Hostilities
September 7, 2007
Session V, Working Group III

I am please to be here today. My intention to start a discussion among those in the room, not merely to make a few comments and take questions.

I would like to address briefly: (1) Protocol V to the Convention on Certain Convention Weapons (“CCW”), on explosive remnants of war (“ERW”); (2) anti-vehicle mines (“AVM” or “MOTAPM”); and (3) cluster munitions.

As you likely know, the U.S. Government’s position on issues addressed by Knut Dörmann is different than the positions he set out. I will try to point out where this is so to the extent time permits.

Before starting, let me make clear that we do not share the views expressed by Knut on anti-personnel mines. For the United States, the relevant instrument is the Amended Mine Protocol (“APII”) of the CCW (requirements concerning (1) the detectability of such mines and equipping such mines with effective self-destruction or self-neutralization mechanisms and back-up self-deactivation features; (2) recording information on minefields; and (3) the removal of such mines, among other provisions). Protocol V deals with ERW other than that already covered by APII.

Protocol V

First, let me address how Protocol V addresses the ERW problem.

The period immediately following the conflict is when civilians are most likely to interact with ERW. Rapid and effective implementation of Protocol V’s provisions will provide substantial protection to the civilian population.

how does the new Protocol address this problem
Protocol V requires each Party to mark and clear, remove, or destroy ERW in affected territories under its control. The Party that used the munitions which have become ERW on territory it does not control is obligated to assist “to the extent feasible.” Users of munitions are obligated to record and retain information on use / abandonment of munitions “to the extent feasible and as far as practicable.” They are also to transmit such information to the party in control of the territory. The Parties to an armed conflict are obligated to take steps, to the extent feasible, in the territory under their control, to protect civilians and civilian objects, as well as humanitarian missions and organizations, from ERW. In addition, Protocol V contains provisions on cooperation and assistance as well as non-binding guidelines on a variety of topics, including recording and release of information on ERWs, risk education in affected areas, and measures to increase the reliability / functioning rate of munitions.

The First Conference of Parties on Protocol V will consider guidelines and informal mechanisms aimed at facilitating rapid and effective implementation of these provisions, including: (1) the establishment of a database on ERW incorporating information from national reports and subsequent updates on locations of ERW, status of clearance efforts and measures taken to provide warning; (2) measures for recording, retaining, and transmitting information called for under the Protocol; and (3) an informal mechanism for consultations to connect countries needing assistance with ERW with countries able to provide that assistance.

Although not yet a State Party to Protocol V, I note that the United States is committed to reducing the humanitarian impact of ERW and looks forward to these discussions. The United States has provided more than $1 billion in assistance to 52 countries since 1993 for clearance of ERW, more than any other country of international organization.

Anti-Vehicle Mines

I now turn briefly to AVM, also an important area.

There was intensive work from 2002 to 2006 to develop a protocol on anti-vehicle landmines. Non-detectable, long-lived anti-vehicle mines can pose threats to civilians and civilian vehicles long after a conflict is over. The irresponsible use of such anti-vehicle mines poses a serious humanitarian problem that is not adequately addressed by existing instruments. Although the number of civilian casualties associated with anti-vehicle mines is less than those associated with antipersonnel mines, there are major humanitarian effects in terms of denial of assistance and post-conflict reconstruction.

In 2005 and 2006 there was near unanimous agreement on a text, but a few states blocked consensus last November at the Third CCW Review Conference. In the face of that, we and 24 other countries stated our intention to follow the policies set out in a Declaration on Anti-Vehicle Mines. The declaration is in Document WP.16 and can be found on the Geneva UN CCW website.[1] It states the intention of countries, as a matter of policy:
  •  Not to use any anti-vehicle mine outside of a perimeter-marked area if that mine is not detectable.
  • Not to use any anti-vehicle mine outside of a perimeter-marked area that does not incorporate a self-destruction or self-neutralization mechanism.
  • To prevent the transfer of any anti-vehicle mine unless the mine meets the detectability and active life standards and unless the transfer is to a state that has also adopted this policy.
  • The November 2007 meeting of CCW states parties reserved up to 2 days to discuss AVM. Speaking for the United States, if positions were to change and consensus appeared to be possible, we would be prepared to return to this matter.

Cluster Munitions

Finally, let me turn to cluster munitions. The U.S. views on cluster munitions were set forth in detail at the June CCW Group of Government Experts meeting; there is only time now to make some brief comments.

First, the United States considers cluster munitions to be legitimate weapons when employed properly and in accordance with existing international humanitarian law. It is wrong to say such munitions are inherently unreliable; militaries want weapons that function as intended and will not be a hazard for civilians or themselves.

In certain situations, cluster munitions provide military capabilities that cannot be provided by other weapons systems. Cluster munitions provide advantages against a range of target-types. They allow commanders to attack multiple stationary or moving targets within specific areas, either engaging the enemy over broad areas that they are occupying or narrowly engaging specific targets. There are different types of cluster munitions for different uses, and they are scalable to different target areas.

In many instances, cluster munitions result in much less collateral damage than unitary weapons would if used for the same mission. If the use of cluster munitions was restricted, certain missions would require our forces to fire many times more non-cluster projectiles to achieve the objectives.

Cluster munitions are well suited to attack area targets when time is of the essence. Because they can attack various types of targets quickly and simultaneously, they can also reduce the exposure of our forces to enemy fire. Their absence from the arsenal would also have serious logistics and cost implications. Cost and economy of force are certainly legitimate military considerations.

We believe that the law of war already covers cluster munitions both during and after their use, and a study published under CCW auspices reached the same conclusion, noting that strict compliance with existing rules is key.[2] Unlike Knut, we believe these weapons can be used in accordance with the law.

The key applicable law of war rules are those of proportionality and distinction. The rule of proportionality requires that a military commander wishing to use cluster munitions assess whether a particular attack may be expected to cause loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof that would be excessive in relation to the concrete and direct military advantage anticipated. Of course a commander needs to take into account what he knows about the reliability of the munitions he uses. He also is entitled to anticipate that his adversary will comply with its obligations concerning ERW, for example, those contained in Protocol V.

The rule of distinction requires that cluster munitions, like other weapons, only be used against military objectives. A commander may use cluster munitions only if he judges, in the particular circumstances, that the munition in question can be directed at a military objective and will not strike military objectives, civilians, and civilian objects without distinction. The presentations by our military experts at the June CCW meeting demonstrated that cluster munitions can be used consistent with this requirement.

Protocol V to the CCW, which I have already discussed, addresses the issue of unexploded cluster munitions primarily in the post-conflict stage. There is really no need to duplicate the measures in Protocol V in a separate instrument on cluster munitions.

I think Knut has painted a misleading picture of the humanitarian impact of cluster munitions. The impacts are limited in scope, scale and duration as compared to other ERW. There is no country – except one (Laos) – where cluster munitions constitutes the principal ERW threat. And we are unaware of any unmet request for assistance in clearing cluster munitions. By 2008, only Laos will have a need for assistance dedicated specifically to cluster munitions. I don’t have time to go into the details that support these points, but you will find them carefully set out in Richard Kidd’s remarks at the June CCW meeting.[3]

Despite this, due to the importance of the issue, concerns raised by other countries, and our own concerns about the humanitarian implications of these weapons, the United States has concluded that it makes sense to initiate negotiations on a new instrument on cluster munitions within the framework of the CCW. We have taken no position as to the outcome of the negotiations, but we do believe this issue is best addressed in the CCW framework, which is most likely to achieve a result that balances humanitarian concerns with military utility and is, therefore, likely to have a more substantial impact than a result that fails to garner the support of many military powers. In June Government experts recommended that the November meeting of states parties to the CCW decide how best to address cluster munitions in the framework of the CCW.

[2] Timothy L.H. McCormack, Paramdeep B. Mtharu, and Sarah Finnin, Report on States Parties’ Responses to the Questionnaire, International Humanitarian Law & Explosive Remnants of War, at 49 (March 2006).

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