Protection of Civilians Symposium: Protecting Civilians from Explosive Ordnances-An Example of Operational and Legal Challenges

[Kjetil Mujezinović Larsen is Professor of Law, Director of Research, and Deputy Director, at the Norwegian Centre for Human Rights at the University of Oslo. He is the author of «The Human Rights Treaty Obligations of Peacekeepers» (Cambridge, 2012). This post is a part of the Protection of Civilians Symposium.]

By way of introduction, let me state that I agree with Marten’s analysis of the legal obligations of peacekeepers. Therefore, rather than rehearsing the arguments raised by the other contributors to this Symposium, I want to address a concrete issue that illustrates many of the challenges, while also being of great practical importance: The removal of anti-personnel landmines, unexploded cluster munitions, and other explosive ordnances in the area of deployment of a peacekeeping operation. Such explosive ordnances represent a considerable and continuous threat to the civilian population in the affected area, and to protect civilians from this threat clearly falls within the «protection of civilians» paradigm. But does there exist any legal obligation to remove any such ordnances?

There exist a range of international treaty provisions concerning removal and destruction of explosive ordnances. For anti-personnel landmines, Article 5 of the 1997 Mine Ban Treaty requires each State Party to «destroy or ensure the destruction of all anti-personnel mines in mined areas under its jurisdiction or control, as soon as possible»; for cluster munition remnants, Article 4 of the 2008 Cluster Munitions Convention similarly requires States Parties to «clear and destroy, or ensure the clearance and destruction of, cluster munition remnants located in cluster munition contaminated areas under its jurisdiction or control»; and for (other) explosive remnants of war, Article 3 of the 2003 CCW Explosive Remnants of War Protocol (Protocol no. 5) provides a similar rule. All of these provisions also set out requirements to identify and mark contaminated areas, and to take all feasible measures to protect the civilian population against the threat that these ordnances represent.

In 2006, Norwegian media reported allegations that Norwegian military personnel who were involved with removing and destroying anti-personnel mines in the American-led operation “Enduring Freedom” in Afghanistan had omitted removing mines in order to protect American soldiers against attacks. It was further alleged that Afghan civilians were killed by these mines. This was not a United Nations peacekeeping operation, and the allegations were most vehemently denied by Norwegian authorities. But even without considering the veracity of the allegations or the validity of drawing an analogy to peacekeeping operations, one may ask: If a Troop Contributing Nation in this manner omits removing explosive ordnances in an area under its control, and civilians are killed or injured because of the omission, has there then been committed an internationally wrongful act? Has any de jure obligation been violated, and, if so, by whom? Can anybody be held accountable under international law?

The informed reader will here think about the European Court of Human Rights’ inadmissibility decision in the Behrami case. The case concerned an incident where some children while playing found a number of undetonated cluster bomb units, which had been dropped during the NATO bombardment in 1999. When a cluster bomb unit exploded, one boy was killed and another was seriously injured. It was alleged that UNMIK personnel were aware of the location of the units. The application was brought against concrete Troop Contributing Nations, but the Court declared the application inadmissible because the relevant omission was attributable to the United Nations, which fell outside the Court’s jurisdiction ratione personae. Accordingly, the Court didn’t consider whether the European Convention on Human Rights was applicable, and in any case it wouldn’t have had jurisdiction to consider the other conventions mentioned above.

The International Society for Military Law and the Law of War is presently developing a Manual of the International Law in Peace Operations, where this issue has arisen. After consultations with representatives from the UN Department of Peacekeeping Operations, it has become clear that the United Nations does not accept any legal obligation to remove explosive ordnances in areas within the control of an operation. The UN insists that the primary responsibility for demining and removal of explosive remnants lies with the host State, and it is necessary for the mandate to stipulate it if a peace operation should have any responsibilities for demining and removal of explosive remnants. It is worth noting in that regard that peacekeeping operations are rarely given a mandate to actively remove explosive remnants, but that mandates instead focus on providing assistance to other actors that perform the actual demining. By way of example, UN Security Council resolution 1244 (1999) gave KFOR the responsibility of «supervising demining until the international civil presence can, as appropriate, take over responsibility for this task», while resolution 1990 (2011) mandated UNISFA to «provide … de-mining assistance and technical advice». But if the mandate of an operation doesn’t specify a duty, what then applies? The conventions refer to the responsibility of States Parties, but if the United Nations is the responsible entity, then the conventions don’t apply. The United Nations position is that there doesn’t exist enough evidence to establish as a rule under customary international law that any actor that exercises jurisdiction or control over a contaminated area has an obligation to clear that area.

Even with regard to the duty to make feasible efforts to clear, remove or destroy anti-personnel mines, cluster munition remnants and other explosive remnants in affected areas under their control, the UN position is that any legal obligation to do so must stem either from the mandate or from the treaty obligations of a Troop Contributing Nation. The applicability of these treaty obligations for Troop Contributing Nations is a contentious issue that has not been authoritatively solved, and it may be argued that current operational practice does not support a claim that legal obligations to this effect exist during peace operations. If not, a responsibility to clear, remove or destroy anti-personnel mines, cluster munition remnants and other explosive remnants only applies to the extent that the mandate of the operation states this as a responsibility, and even then it may not qualify as a legal obligation.

Protection of civilians in peace opertions is a multifaceted issue. It is not only about the legal right or obligation to use force to protect civilians, it is much more. In the case of removal of explosive ordnances, the question is whether anyone has the positive obligation to protect the civilian population from threats. It can quite plausibly be argued that the United Nations has no such obligation since it’s not a party to any convention and since the relevant rules don’t qualify as customary international law, and that Troop Contibuting States can’t be held accountable when it participates in a UN peacekeeping operation, even if they would otherwise be bound by their treaty obligations. The legal challenges with regard to protection of civilians in peacekeeping operations remain considerable.