Alexander Gillespie: NZ obliged to address remnant explosives

Countries will try to avoid obligations by claiming an area was not under their responsibility, already cleaned up, or adequately fenced off. Photo / 123RF

COMMENT

Explosive munitions are very useful in times of war. They are the exact opposite in times of peace, when the war has gone and civilians re-occupy the areas that were fought over or trained on.

When the explosives become remnants (as either unexploded or abandoned) they have the capacity to continue to kill and maim, and make landscapes inoperative, for decades to come. Explosive remnants can do this because while they may be rusty on the outside, on the inside they may be as perfect as the day they left the factory.

The result, for a country such as Afghanistan, is that between 2001 and 2018, just under 14,700 civilians have been injured and 5450 killed, by explosive remnants. Of such victims, allegedly, 17 of them have been killed (including seven children) or injured in relation to explosive remnants found on one of the firing ranges where the NZ Defence Force (NZDF) operated in that country.

New Zealand Defence Force personnel at the Bamyan airfield. Photo / US Army

Each one of these figures is a human life which has either been destroyed or damaged by the actions of others. The question, therefore, is who is responsible for these impacts, and what must be done?

For all of the wars that were fought in the 20th century, the responsibilities for explosive remnants ended when the conflict stopped and the soldiers went home. The result was, and is, that there is no legal liability for whatever explosive remnants New Zealand forces left behind in World Wars I and II, or other large-scale conflicts such as Malaysia, Korea or Vietnam.

Today, international humanitarian law is governed by a multitude of different rules and obligations, of which, for the particular problem at hand, the 2003 Protocol on Explosive Remnants is on point.

New Zealand agreed to abide by the obligations this contained in 2007. Three of the
obligations in this protocol are particularly important in this current debate.

First, if any territory was under our control, our foremost obligation was/is to, "mark and clear, remove or destroy explosive remnants of war". In doing so, the NZDF was obliged to survey, assess and prioritise areas - especially in terms of humanitarian risk.

The higher the risk (say, an area where children or farmers are known to frequent), the greater level of clearance can be expected. Additional obligations involve the recording, storage, release and sharing of information for explosive remnants. To further the safety of civilians in the area, there are also obligations for warnings, warning signs, risk
education, marking, fencing and monitoring.

A farmer looks out over fields in the Bamyan province of Afghanistan. Photo / 123RF

Countries will try to avoid liabilities under this obligation by arguing the area was not under their responsibility, and/or it was already cleaned up, or it has been adequately fenced off.

With regards to the standard of clean-up and warnings required, the benchmark is what were accepted international standards of clearance and removal, as they existed at the time.

With regards to be being responsible for an area, only NATO will know the answer to whether New Zealand or America was in charge of a particular territory. The key here, as the military lawyers from both sides start to yell at each other, is to ensure that both sides do not attempt to walk away from the victims, trying to shirk responsibility by blaming each other.

The second area the 2003 Protocol gives guidance on is if there were existing (as in, not ours) explosive remnants in an area under our control. If this was the case, we were obliged to first seek assistance from the original owners and then, if in a position to do so, "provide assistance in dealing with the problems posed by existing explosive remnants
of war, as necessary and feasible". This obligation must be interpreted while keeping in mind the humanitarian objectives of the protocol.

In simple terms, this means if the NZDF were aware of the explosive remnants of others in an area under our control and did not remove and/or make them safe, when it was feasible to do so, our soldiers were not living up to the standards we hope them to meet.

The last obligation the protocol imposes on New Zealand is that if we are, "in a position to do so [we] shall provide assistance for the care and rehabilitation and social and economic reintegration of victims of explosive remnants of war".

Alexander Gillespie. Photo / supplied

Although this does not mention the word "compensation", it can be assumed that if civilians are paying the price for either the acts or omissions of our military in dealing with explosive remnants in Afghanistan that resulted in foreseeable harm, then we should pay the bill.

This obligation to provide fair compensation in this context, if we carry fault or responsibility, is not only consistent with human rights law, it is also the right thing to do.

• Alexander Gillespie is a professor of law at Waikato University