Do the ILC’s draft principles on remnants and data sharing reflect state practice?

Do the ILC’s draft principles on remnants and data sharing reflect state practice?

A new report from PAX and ICBUW on the legacy of depleted uranium use in the 2003 Iraq War could help inform the debate initiated by the International Law Commission this summer on the emerging legal principles for the post-conflict management of toxic and hazardous remnants of war.

The report – Targets of Opportunity – makes use of recently released targeting data from US A-10 Thunderbolt II aircraft to map and analyse the use of 30mm depleted uranium (DU) ammunition in the first month of the 2003 conflict. In doing so, it increases the number of sites known to be contaminated in Iraq from around 300 to more than 1,000. It also documents the widespread use of the armour-piercing incendiary ammunition against non-armoured targets – something that runs counter to US Air Force legal restrictions for the weapons, as well as the US’s energetic public relations efforts.

The FOIA release containing the targeting data, which emerged in 2013 and was held by the George Washington University National Security Archive, also contained a wealth of internal policy documents, both on DU and US’s environmental standards for the conflict. These guidelines primarily cover data collection and sharing and, together with other sources, help to create an interesting case study on post-conflict norms for one particular toxic remnant of war.

Marked DU contaminated tank surveyed by the UK Defence Science Technology Laboratory in 2003, Basrah airport. Credit DSTL.

Marked DU contaminated tank surveyed by the UK Defence Science Technology Laboratory in 2003, Basrah airport. Credit DSTL.

The ILC’s new post-conflict PERAC principles

As we reported in August, as part of its long-running study on PERAC – the protection of the environment in relation to armed conflicts – the International Law Commission (ILC) recently published a set of legal principles concerning environmental protection during the post-conflict period. These had been informed by the existing practice of States and international organisations, as well as established international norms from environmental and human rights law.

We remain concerned that the ILC’s drafting committee has, in a number of cases, gone too far in narrowing the focus of the principles only to the protection of the “environment”; this instead of clearly stating the need to also protect human health and livelihoods – with principle 16 below a case in point. Nevertheless, the principles are a work in progress, and States will have their opportunity to have their say on them later this month.

Two of the principles are of particular relevance to the issues raised by the Targets of Opportunity report. These are principle 16 on remnants of war, and principle 18 on sharing and granting access to information. In both cases the report demonstrates precisely why new norms are needed, with its second half devoted to considering the conduct of the UK and US towards DU clearance following the conflict. Such remnants clearly pose a lasting threat to civilians and obligations should be brought into line with those on explosive remnants of war (ERW) such as landmines and cluster munitions.

Tackling the remnants of war

Part 1 of principle 16 proposes that: “After an armed conflict, parties to the conflict shall seek to remove or render harmless toxic and hazardous remnants of war under their jurisdiction or control that are causing or risk causing damage to the environment. Such measures shall be taken subject to the applicable rules of international law.”

For DU in post-war Iraq, it is apparent that, although some steps were taken by the newly occupying forces, there has been a reluctance to publicise precisely what was done. What clearance there was appears to have been restricted to the opportunistic collection of surface lying DU rounds during normal ERW clearance operations. Similarly, limited efforts were evidently made to mark and isolate contaminated materiel. But in comparison to remediation programmes at contaminated facilities in neighbouring allied countries hosting Coalition forces, such as Kuwait and Saudi Arabia, work appears to have been minimal. In the absence of clearly defined obligations on either DU users or the Iraqi government to remove or render harmless DU, it seems that, while DU clearance was deemed important when DU posed a threat to Coalition personnel or international relations, it received minimal attention nationally from the Coalition.

The appalling security situation in Iraq doubtless complicated matters, not least for the involvement of UN agencies such as UNEP, who in 2005 argued that: “…there is an urgent need to identify and assess DU contaminated areas. Risks to human health need to be clearly identified and alleviated. Urgent steps also need to be taken to raise awareness of the potential risks of DU and to introduce protection measures, including posting of warning signs and restricting access at contaminated locations and storage sites.” Following the Canal Hotel bombing, UN staff were withdrawn from Iraq, restricting the provision of assistance to technical workshops for Iraqi environment ministry staff in Geneva and Amman. The US and UK were markedly less enthusiastic than the Iraqis or UNEP about work on DU, with Wikileaks revealing that the US was far keener that UNEP involve itself in work at the damaged Tuwaitha nuclear facility than on a nationwide DU programme.

The provision of assistance features in part 2 of principle 16, which proposes that: “The parties shall also endeavour to reach agreement, among themselves and, where appropriate, with other States and with international organizations, on technical and material assistance, including, in appropriate circumstances, the undertaking of joint operations to remove or render harmless such toxic and hazardous remnants of war.”

Speaking to the BBC in 2003, and seemingly surprised to have found itself in occupation, the UK MoD said that: “Legally, we have no obligation to clean up the remains of the DU we used. It’s the responsibility of the new regime in Baghdad. But morally we do recognise an obligation, as we have in the past. We helped in the removal of DU from Kosovo. We’ll be helping in any way we can, specifically by providing money for the clean-up, and by making available records of where the ammunition was fired.”

Precisely how much the UK spent specifically on DU was never made public, nor was the quantity of DU recovered, or its eventual fate. Similarly the only information available on US assistance relates to the recovery of its own DU damaged equipment. In 2014, Iraq called for international assistance for dealing with DU during the UN General Assembly’s First Committee, as a resolution calling for the provision of assistance to DU-affected States passed by 150 votes to four – two of the four were the UK and US.

For DU, it has repeatedly been the case that UNEP have been funded to conduct an assessment that provides recommendations to the affected State. But for States with limited technical capacity or financial resources, or for those with a number of competing post-conflict health and environmental priorities, the process often ends there. For DU, and doubtless other toxic or hazardous remnants, there is a clear need for something to bridge this gap between assessment and remediation.

Sharing data and transparency

Efforts to address DU contamination in Iraq have been hamstrung by a lack of transparency from the US over where the weapons were used. While the UK did make firing data available, this accounted for just a small fraction of the 118,000kg that the two countries have acknowledged firing in the conflict. The US did not share data with UNEP after 2003, nor did it share it with the IAEA for an earlier assessment of Gulf War DU contamination in Kuwait.

Part 1 of the ILC’s draft principle 18 states that: “To facilitate remedial measures after an armed conflict, States and relevant international organizations shall share and grant access to relevant information in accordance with their obligations under international law.” It has taken a decade for the targeting data analysed in Targets of Opportunity to be made available, although as it relates only to DU fired by A-10 aircraft it leaves more than 50% of the US DU fired in 2003 unaccounted for, and no information has been made available on the 286,000kg fired in the 1991 Gulf War. The need for greater transparency has been part of UN General Assembly resolutions on DU since 2010, and for good reason: it is critical for harm reduction measures, all the more so because contaminated sites are difficult to identify visually in the field.

Interestingly, US guidelines from 2003, which refer to the report to which the 2003 A-10 targeting data was annexed, also advocated for transparency. The report was due out in late 2003: “…in suitable format including executive summary, discussion, maps, and supporting documentation. Provide digital and bound printed copy. Report to be unclassified. Data that cannot be declassified may be included in a small classified annex to the public report. However the intent is to maximise information available for public disclosure.

In spite of this spirit of openness, the report and the targeting data were not made public – and eventually through FOIA seemingly by chance rather than by design. As far as we are aware, it has not been made available to the government of Iraq. The FOIA also reveals that the US claimed that tracking the DU fired from land platforms was impossible, yet data from US tanks and armoured vehicles were made available to the Dutch MoD, after concerns that their personnel might be exposed. The data released by the UK also related to DU fired from land platforms.

Part 2 of principle 18 proposes that: “Nothing in the present draft principle obliges a State or international organization to share or grant access to information vital to its national defence or security. Nevertheless, that State or international organization shall cooperate in good faith with a view to providing as much information as possible under the circumstances.

Is withholding targeting data on DU use vital for defence interests? Clearly the US didn’t think so in 2003. It might be argued that the ongoing stigmatisation of the weapons means that disclosure would harm national interests due to the political opprobrium associated with their use – a dynamic that is bordering on the Kafkaesque and which clearly places civilians at unnecessary risk of exposure.

In their joint explanation of vote following the successful passage of the 2010 General Assembly resolution on DU, the UK, US and France argued that: “OP6 of this resolution requests Member states who have used depleted uranium in armed conflict to provide information about this use. We have serious doubts on the relevance of such a request, according to international humanitarian law. We consider that it is up to each Member state to provide this data at such a time and in such a manner as it deems appropriate.

That was seven years after the UK had shared information, seven years after the US had concluded that it ought to share information but also seven years after it had failed to share it with UN agencies, the Iraqi government or other relevant organisations to facilitate clearance work. Evidently good faith and cooperation has its limits.

Of scrutiny and initiatives

As PERAC proceeds, it will be increasingly important to scrutinise cases – like that of DU – for State practice and with it any disconnect between the legal debate and the reality on the ground. Equally, the ILC’s draft principles should be viewed as just the beginning of the debate and not its conclusion. Nevertheless, the fact that debate is taking place on the long neglected topic of toxic remnants of war and the environmental impact of conflict more generally is welcome, as is its emergence in other international fora such as the UN Human Rights Council and the UN Environment Assembly.

A sixth resolution on DU will be tabled in the First Committee of the UN General Assembly this month. The resolutions are helping to establish soft norms on a range of issues of relevance to the wider PERAC debate, be they on transparency, international assistance or the role of the precautionary principle. In doing so, they are demonstrating the value of raising conflict and the environment simultaneously across multiple fora, as well as the need to ensure that the environmental and humanitarian consequences of conflicts are made more visible than at present.

Doug Weir Manages the Toxic Remnants of War Project and co-authored Targets of Opportunity with PAX’s Wim Zwijnenburg.

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