STATEMENT OF EDWARD CUMMINGS
HEAD OF THE U.S. DELEGATION
TO THE SECOND PREPARATORY CONFERENCE OF THE
2001 CCW REVIEW CONFERENCE

April 5, 2001

Explosive Remnants of War

Mr. Chairman, thank you. The issue presented by this discussion is both very old and rather new. It is old because explosive remnants of war - unexploded ordnance - have been with us since the earliest use of explosive devices in armed conflict. It has always been true that unexploded devices have remained on battlefields following conflict - this has been among the costs of war. It is a cost that Egypt, China, Russia, Latvia and many Europeans - among others, of course - bear from the First and/or Second World War. I daresay that it is a cost that many nations represented in this room today must bear. The cost falls not just on our treasuries but on our citizens, civilians who unknowingly may disturb an explosive remnant of war.

The issue is new because the ICRC has presented us with proposals to address what they have termed "explosive remnants of war." But even here there are old issues - landmines, for instance, within the ambit of the ICRC proposals, are dealt with by the CCW and the Ottawa Convention. Also, the principal munition identified by the ICRC - the cluster munition - has been the subject of debate in the CCW before, specifically in the 1970s. Yet never before has such a comprehensive proposal to regulate unexploded ordnance - what we often call "UXO" - been offered for the consideration of States. For raising the UXO issue in this forum, we owe the ICRC a debt of gratitude.

It is now, however, up to States Parties to the CCW to consider the proposal of the ICRC and determine the scope of the issue, the nature of the problems, and the most appropriate measures in light of those problems. Each delegation participating in this Preparatory Conference is at the early stages of fully understanding the issues; for many of us, this may be the first sustained engagement in the issue. For that reason, we must take our responsibility to consider the ICRC proposal seriously, fully recognizing both the military advantages of the munitions that may leave UXO behind and the humanitarian concerns UXO can generate.

The proposal to deal with UXO illustrates a noteworthy dynamic: strengthening the reliability of munitions serves both military and humanitarian objectives. On the military side, it appears to us uncontroverted that the key weapon category identified by the ICRC - the cluster munition - serves extremely valuable and important military objectives. The military utility of cluster munitions has been recognized by those seeking restrictions on their use, as was made clear, for example, in Switzerland's intervention yesterday. As compared to traditional unitary bombs, improved cluster bombs cause less destruction, reducing the harm to civilian populations during armed conflict. The particular tactical uses of cluster munitions by aircraft enable fewer sorties and thus reduces the risk to pilots. To the extent cluster munitions enable the targeting of more military objectives per sortie than the unitary bomb, they can shorten conflicts and reduce the need to deploy ground forces. All of these military advantages are strengthened when the munition has a high degree of reliability - that is, when the munition functions as designed, exploding on an intended military objective.

By the same token, a higher degree of reliability benefits both friendly military forces and civilian populations, since there is no military advantage to be gained by UXO. The unexploded ordnance - whether a submunition, artillery or mortar shell, or other munition -- can only serve to compound the advance of ones' military forces, since UXO can just as easily and unpredictably harm soldiers as civilians. It goes without saying that there is no legitimate military advantage in causing civilians to fear that they might set off UXO when playing in a field, walking along a river, or otherwise going about their business in an area formerly the site of hostilities.

With these common military and humanitarian advantages in mind, the United States has already begun to consider ways to enhance the reliability of cluster munitions. In January of this year, the United States Secretary of Defense directed that, in the future acquisition of cluster munitions, the U.S. goal is to attain a reliable functioning rate of at least 99 percent. Such a goal would include not only working to ensure, as much as feasible, that such munitions function as intended. It would also mean that, where such munitions fail to function as intended, they are reliably incapable of causing an explosive problem once their intended use has concluded.

Switzerland has submitted an important and thoughtful proposal dealing with reliability. We look forward to working closely with Switzerland on its proposals and to discussions with other delegations. A major issue to be addressed is reliability both in peacetime testing and in actual battlefield conditions. Our discussions should not be limited to particular technical means that may now be available to increase functioning rates of munitions, such as fusing. The self-destruct and self-deactivate technology for certain cluster munitions may differ from anti-vehicle mines. Technology innovations in the future may offer improved ways to reach higher rates of reliability. Thus, our discussions in this regard should not be limited to an examination of the specific technology that enables our anti-vehicle mines to attain a very high self-destruct/self-deactivate dependability rate.

At the same time, several delegations have noted that there are cost implications of the Swiss and ICRC proposals. In comparison to the known costs for detectability and self-destruct/self-deactivation features for mines - which we pointed out yesterday are minor, amounting to a few dollars per mine -- the costs of the remnants proposals are currently unknown and deserve considered study.

The proposal to deal with UXO, however, raises more questions than it answers. It is simply the fact that the issue of "explosive remnants of war" is extremely complex. It does not lend itself to simple, easy solutions. Even understanding the nature of the issue requires detailed understanding of the military utility of weapons that may cause UXO and the problems UXO causes. We do believe that some of the ICRC proposals have merit and deserve our consideration. In particular, we are prepared to consider what kind of steps would be appropriate to warn and educate civilians on the presence and effects of UXO. In this context, it would also be appropriate for all States to consider increasing their support for and interaction with the current mine action and clearance programs underway. We are also prepared to consider what kind of technical information can be made available to assist the UN and clearance organizations.

We would also note that the ICRC has suggested that anti-vehicle mines can be addressed outside the context of explosive remnants of war. We agree strongly with this approach. As other delegations have noted, anti-vehicle mines are very different from other kinds of weapons that leave UXO. We believe that they should be addressed as a method and means of war. Moreover, we have an opportunity to deal with anti-vehicle mines in the context of the joint U.S.-Danish proposal discussed yesterday. Parties that truly want to address the problems identified by the ICRC - a sentiment widely expressed during this meeting - have an opportunity to do so by supporting the U.S.-Danish proposal.

Yet we do believe that there are problems with some specific proposals of the ICRC. First, the ICRC's specific proposal to shift responsibility to clear UXO on the party that delivered the munition would not only be very difficult to implement but also goes counter to the long-established customary international law principle of the rights and responsibilities of the sovereign state over its territory. We are not convinced that the analogy made to the Amended Mines Protocol's provision on responsibility is entirely appropriate. The provision in Protocol II, which the U.S. proposed, is militarily feasible, as the dimensions of the responsibility are clearly established in the relevant articles of the Protocol.

Second, the ICRC has proposed dealing not just with UXO but with the use of cluster munitions near concentrations of civilians. We share the view expressed by others that existing international humanitarian law adequately regulates questions related to targeting, and that such a specific rule in the context of cluster munitions is unnecessary.

We also note that caution is necessary in applying provisions from other CCW protocols to explosive remnants of war. Each provision was written with an appreciation for the uniqueness of the weapons addressed in the relevant protocol. An analogy to UXO may not necessarily follow. For example, the specific rule developed for incendiary weapons in the CCW was based largely on how such weapons are used tactically, such as in close air combat. It also acknowledged the post-attack risk of fire spreading out of control, which is not a risk with cluster munitions. This rule in Protocol III, in our view, cannot be applied in a militarily feasible manner with respect to cluster munitions. Application of the incendiaries principle to cluster munitions could pose greater risks to civilians and greater damage to civilian objects in the vicinity of a military objective because the principal alternative to the use of cluster munitions, a traditional unitary bomb, can cause much more significant damage.

Finally, we strongly agree with the United Kingdom and France that the proposal to consider depleted uranium munitions within the context of remnants is inappropriate, particularly because DU on its own does not cause an explosive remnant.

We strongly agree with other delegations that the object of our work leading to the Review Conference should be the establishment of an open mandate for an experts process to consider the problem of UXO and measures that may effectively address that problem. These may include best practices, as the Canadian delegation has suggested, and may not lead to a protocol. As the Canadian delegation correctly noted this morning, negotiation of a protocol would, in all likelihood, take several years. Thus, CCW Parties should strongly consider taking feasible steps on a voluntary basis, unilaterally or in consultation with others, to address UXO problems in the short term. The Review Conference, in other words, should not prejudice the experts process by requiring a specific outcome, such as a draft legal instrument. The experts work should be open-ended.

Mr. Chairman, I would like to conclude by reiterating my government's keen interest in reducing the humanitarian and military problems caused by UXO. We look forward to working with you and with other delegations in crafting a workable mandate for experts work for adoption this December. Thank you.