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How Does It Stack Up? The Anti-Personnel Mine Ban Convention at 10
The Anti-Personnel Mine Ban Convention, most often referred to as the Ottawa Convention,[1] is built on a few simple ideas: civilians should not be killed or maimed by weapons that strike blindly and senselessly, either during or after conflicts; wars should end when the fighting stops; and postconflict communities should be free to rebuild without risking lives and livelihoods to do so.
Article 1 of the convention translated these ideas into a clear undertaking by states “never under any circumstances to use anti-personnel mines.”[2] This was the first time in history that some states agreed to ban completely a weapon in widespread use by most of the world’s armed forces.
Ten years after its signature in Ottawa by 124 states, the Mine Ban Convention has been one of the most successful multilateral arms treaties of recent times. With 156 states-parties, it has become the principal international norm on anti-personnel mines. It has helped ensure and sustain a decade of investment at high levels in mine clearance and victim assistance. In specific mine-affected countries where it has been fully implemented, the numbers of new mine victims have dropped by two-thirds or more. The convention has also contributed to the emergence of a broader norm reflected in a new protocol on explosive remnants of war[3] and in current efforts to address the humanitarian impact of cluster munitions, that states are expected to do all within their power to avoid the use of weapons that keep on killing and to take responsibility for their explosive remnants of war.
An Epidemic of Death and Suffering
In the early 1990s, doctors and nurses of the International Committee of the Red Cross (ICRC) began to reflect on data about deaths and injuries caused by anti-personnel mines and found that, in medical terms, these small weapons were creating an epidemic of exceptionally severe injury, death, and suffering among civilians in most armed conflicts. By definition, epidemics cannot be stopped by simply treating the victims but must be ended at their source. The Anti-Personnel Mine Ban Convention aims to do just that, “to end for all people and for all time the suffering caused by anti-personnel mines.”[4]
The convention sets ambitious targets: states-parties may not use, develop, produce, stockpile, transfer, or acquire anti-personnel mines.[5] They have four years to destroy all stockpiled anti-personnel mines and 10 years to ensure the destruction of all anti-personnel mines in mined areas under their jurisdiction or control. In a unique development for an international treaty on weapons, the convention contains not only prohibitions or regulations of certain weapons. It also contains positive commitments to international cooperation in mine clearance and in providing for the care, rehabilitation, and social and economic reintegration of mine victims.
In agreeing in 1997 to completely prohibit anti-personnel mines, signatories concluded that the regulation of these weapons in Amended Protocol II of the Convention on Certain Conventional Weapons (CCW), adopted just 19 months earlier, was an inadequate response to the growing scourge of anti-personnel mines. The protocol sought to prevent casualties by requiring some, but not all, anti-personnel mines to contain self-destruct or self-deactivation features[6] so that their effects would not persist after the military need for them ended. Yet, its rules on use were considered too complex and too dependent on the acquisition of new technologies to have a reasonable chance of being implemented in most conflicts in the developing world where landmine casualties were most widespread. The choice between a mine costing eight dollars that would function for 30 days and a much less expensive one that would last for decades was considered a predictable one for most poor armies and insurgent groups.
What Have States-Parties to the Mine Ban Convention Achieved?
The convention was opened for signature on December 3, 1997, and following the ratification of 40 states entered into force barely 15 months later, on March 1, 1999, a record time for a multilateral instrument governing weapons. As of November 30, 2007, the convention counts 156 states-parties, including all Western Hemisphere states, except the United States and Cuba; nearly all African states, except Egypt, Libya, Morocco, and Somalia; and the vast majority of west and central European states, except Poland and Finland.[7] This is a truly outstanding achievement in such a short period of time and compares favorably to the 88 states that are party to Amended Protocol II of the CCW.
Thirty-nine states have chosen not to join the Mine Ban Convention, including some major possessors and producers, such as China, India, Myanmar, Pakistan, Russia, and the United States. These states have supported the convention’s objectives and the goal of the “eventual elimination of anti-personnel mines.”[8] Yet, as long as states remain outside of the convention and continue to produce new anti-personnel mines, to retain large stockpiles, and to reserve the right to use them, these mines will remain a persistent humanitarian problem. When states anywhere in the world remain outside of the anti-personnel mine ban norm, their absence can be used by others, whether they be states or insurgent groups, to justify the continued use of anti-personnel mines.
In spite of a lack of universal adherence, the convention has succeeded in dramatically decreasing worldwide use, production, and transfer of anti-personnel mines, even among states not party to it. This is evidence that, beyond the legal norm contained in the convention, the use of anti-personnel mines has been stigmatized. According to the International Campaign to Ban Landmines, which publishes the authoritative Landmines Monitor Report, only Myanmar and Russia are confirmed to have planted new anti-personnel mines in 2006-2007.[9] Notably, the United States has reportedly not used anti-personnel mines in the past three major conflicts in which it has been involved: Kosovo (1999), Afghanistan (2002), and Iraq (2003).
There has also been a significant decrease in the global production of anti-personnel mines, with only 13 states not party to the Mine Ban Convention known to be still producing mines, albeit on a limited scale.[10] At least 38 countries have ceased production of anti-personnel mines, including four states not party to the Mine Ban Convention.[11] The international trade in these weapons has virtually ceased, with a significant number of non-states-parties having export moratoria in place, including China, India, Pakistan, Russia, Singapore, South Korea, and the United States.[12] In effect, a de facto global ban on the export of anti-personnel mines is in force.
Undoubtedly, the most important achievement of the convention is that it has produced a significant reduction in the number of new landmine victims in countries where it is being fully implemented, contributing to a global reduction in new victims. Indeed, in countries where adequate data has been available and the convention is implemented, including Bosnia-Herzegovina, Cambodia, and Croatia, the ICRC has noted a two-thirds decrease in the number of new victims as compared to levels in the early and mid-1990s. Although it is difficult to attribute this result to any one factor, the cessation of active hostilities in these countries and the implementation of the Mine Ban Convention’s comprehensive program of mine risk education, clearance, and stockpile destruction have all played a role. While the Landmines Monitor Report estimates that there are still between 15,000 and 20,000 new victims every year, that is down from an average of 26,000 per year in the 1990s.[13]
Overall, even if the anti-personnel mine ban norm does not today constitute a rule of customary international law,[14] binding on all states, the widespread ratification of the convention in such a short time frame contributes to the crystallization of such a norm and has firmly established the belief among states that they must do all within their power to avoid the use of weapons that continue to kill indiscriminately during and after the end of hostilities.
Destruction of Stockpiled Anti-Personnel Mines
The convention gives each state-party four years to destroy its stockpile of anti-personnel mines under their jurisdiction or control. In the last 10 years, states-parties have destroyed more than 41.8 million anti-personnel mines. 10 states still need to fulfill their obligation to destroy stockpiles totalling 15 million mines before the end of their respective deadlines.[15] Virtually all states have done so within their four-year deadline.
The convention faces specific challenges in ensuring that Belarus and Ukraine, which together possess almost 10 million anti-personnel mines, meet their respective destruction deadlines in 2008 and 2010. Their PFM-1 mines contain highly toxic chemical agents and must be destroyed in a manner that does not contaminate air or water sources. In 2004, states undertook during the convention’s first review conference “to support the investigation and further development of technical solutions to overcome the particular challenges associated with destroying PFM mines.”[16] States-parties and the main donors have not yet risen to this challenge, as Belarus has indicated that it is unlikely to meet its deadline by March 2008. The possible failure of one country or the other to destroy these stocks within the convention’s deadlines could become an important compliance issue to be addressed by all states-parties.[17]
Clearance of Mined Areas
Each state-party has 10 years after the convention enters into force to clear all known mined areas under its jurisdiction or control. Vast tracts of mined areas have been cleared and given back to local communities since the convention entered into force.[18] With a total of 740 square kilometers de-mined, 2005 recorded the highest annual de-mining productivity since modern de-mining started in the late 1980s. In 2006, more than 450 square kilometers of contaminated land was cleared.[19]
One of the main challenges currently facing states-parties is to manage clearance deadlines, which begin to fall in 2009 and will continue in the following years. The treaty permits a state-party that cannot complete clearance within its 10-year deadline to request an extension from the Meeting of States-Parties. This provision was intended not as an escape clause but as recognition that some states, despite their best efforts, are so highly contaminated that they would require more time. As compared to a rigid deadline or an open-ended obligation it was also meant to serve as a means to ensure that progress of each affected state is examined at a specific point.
Approximately 50 states-parties have reported mined areas and more than one-half of the 26 states that have deadlines falling in 2009 and 2010 have indicated that they will ask for an extension or will probably need to do so. They range from Bosnia-Herzegovina and Mozambique, which are among the most mine-contaminated countries in the world, to Senegal and Venezuela, which have mines only in limited areas. Some have not yet completed comprehensive surveys or established national mine action plans, while others have a problem of a limited scale but did not give adequate priority to mine clearance during the past seven or eight years.
In 2006, states-parties led by Australia responded to this emerging situation by adopting a clear process for requesting an extension and for deciding on future extension requests. This includes the submission of a wide range of information on past actions and future plans that should facilitate consideration of the request by other states and an eventual decision, with comment if needed, at a Meeting of States-Parties.[20]
Extensions are not automatic and should be for the minimum period to implement a well-prepared and adequately funded clearance operation. It is important that extension requests be managed in a way that maintains the credibility of the treaty and creates maximum pressure for completion before the deadline or within a realistic and well-planned extension period.
Victim Assistance
The Mine Ban Convention is not only a set of prohibitions but a comprehensive program of action to end the scourge of anti-personnel mines through preventive mine action and clearance and assistance to victims. It also requires states-parties “in a position to do so” to cooperate and assist each other in the implementation of treaty commitments, with affected states having the express right to seek and receive assistance from other states-parties.
Twenty-four states with a significant number of landmine victims have been urged to establish their own specific national objectives and plans of action that will lead to tangible improvements in the services available to mine victims and survivors and other persons with disabilities. Other states-parties have provided considerable assistance directly, through international agencies and nongovernmental organizations (NGOs). With the Implementation Support Unit,[21] they have assisted these affected states in the development and implementation of victim assistance objectives that are specific, measurable, achievable, relevant, and time-bound. Assessing the achievements of states-parties in terms of victim assistance is far more difficult than measuring the implementation of stockpile destruction or clearance commitments and has at best been possible only in specific countries or local settings. In the view of the ICRC, which is present in most mine-affected countries, some improvement in access to and quality of care has been achieved, but far more priority needs to be given to these commitments by affected states and donor states-parties.
Resources
Success in meeting most of these challenges is intrinsically linked to the mobilization of sufficient financial resources. Although “mainstreaming” of mine action into existing humanitarian and development budgets and programs has been increasingly promoted and is a worthy approach, it must result in real increases in funding commensurate with mine clearance and victim assistance needs. Annual funding by Mine Ban Convention states and others for mine action worldwide, estimated at some $376 million in 2005,[22] is a modest sum when compared to the scale of the problem and to the socioeconomic damage caused by landmines. In 2006, funding for mine action increased to a record level of $475 million. But this increase was probably in response to the humanitarian crises in Lebanon and Iraq. The biggest contributors last year were the United States ($94.5 million) and the European Commission ($87.3 million).[23] Without a significant and sustained increase in human, technical, and financial resources from all states-parties, many mine-affected states-parties are unlikely to meet their deadlines, and in many contexts, the suffering of mine victims and survivors will not be alleviated. The delay in clearance is likely to be measured in lost limbs, lives, and livelihoods.
Implementation Mechanisms
In the 10 years since the convention’s adoption, a spirit of cooperation and assistance has developed among states-parties and among states, international agencies, and specialized NGOs to ensure that the convention has the desired humanitarian effects on the ground. Mechanisms for this cooperation have also evolved since the first Meeting of States-Parties in 1999 in Maputo, Mozambique.
The mechanisms established to date include annual meetings of states-parties to review progress and agree on how to address upcoming challenges; “intersessional” meetings each year of standing committees on clearance and mine risk education, victim assistance, and stockpile destruction and the general status and operation of the convention; and an Implementation Support Unit charged with synthesizing all information available on the status of implementation, supporting the states chairing these committees and annual meetings, and ensuring continuity. These mechanisms, as well as the annual Landmine Monitor Reports, have provided the basis for a constant appraisal of country situations. They have nourished contacts among affected states, donors, and clearance and victim assistance organizations. They have helped ensure that states remain engaged politically with their convention obligations and are regularly reminded of upcoming deadlines and implementation challenges.
Conclusion
The Mine Ban Convention’s continuing challenges in no way diminish the fact that it is, without a doubt, one of the great success stories in the humanitarian field in recent years. The convention has demonstrated the pertinence of central rules of international humanitarian law protecting civilians from the effects of armed conflict and their widespread public support. The development of the convention and the 10 years of its implementation have also provided a model for cooperative engagement among states, international agencies, civil society organizations, and specialist NGOs in achieving results that none could have achieved alone. This experience can undoubtedly provide insights for addressing other global humanitarian problems.
Since the Mine Ban Convention was opened for signature 10 years ago, there has been remarkable international progress in developing new international norms based on the same premise that civilians should not suffer from weapons that continue killing and maiming after hostilities have ended. A Protocol on Explosive Remnants of War was added to the CCW in 2003. After a conflict ends, it requires parties to armed conflicts to provide information rapidly on all munitions their forces have used in order to facilitate clearance. It also requires them either to clear the areas they control or to provide assistance to those that do.
Current international efforts to develop a new international instrument that will prevent the recurring postconflict casualties caused by unexploded cluster munitions have the same moral and humanitarian basis. The common thread in these developments is the expectation that civilians should not face the same fate from other munitions as they have from anti-personnel mines. Indeed, it could be argued that the unique movement that created the mine ban treaty norm is on the way to establishing an even more fundamental norm of public conscience that is not weapon-specific. Simply stated, this norm is that civilians must not be victimized, after the fighting stops and long after wars have ended, by weapons that have ceased to serve any military purpose.
The International Campaign to Ban Landmines has labeled the Mine Ban Convention “a success in progress.” What has been achieved is largely due to the fact that it is far more than a legal instrument. It is a living process that has brought out the best in those who have joined in its mission. The convention has grown from an impossible dream to a shared commitment of 156 states and to a humanitarian program of action mobilizing thousands of people around the world. This achievement reflects the extraordinary personal commitment that the convention has evoked among people in government, the International Campaign to Ban Landmines, UN agencies, mine action organizations, victim assistance projects, and the International Red Cross and Red Crescent Movement. Ensuring that the promise of this unique convention is fully realized will depend on maintaining this spirit of commitment and cooperation well into the future.
Peter Herby is head of the Arms Unit at the International Committee of the Red Cross (ICRC) in Geneva. Eve La Haye is a legal adviser in the Arms Unit of the Legal Division at the ICRC. The views expressed in this article are those of the authors and do not necessarily reflect the position of the ICRC.
ENDNOTES
1. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, September 18, 1997.
2. Article 1 of the convention also obliges states-parties never to develop, produce, otherwise acquire, stockpile, retain, or transfer to anyone anti-personnel mines directly or indirectly, as well as never to assist, encourage, or induce in any way anyone to engage in any activity prohibited to a state-party to the convention.
3. Protocol V on Explosive Remnants of War, November 28, 2003, to the 1980 Convention on Certain Conventional Weapons.
4. Introduction of the Nairobi Action Plan, adopted by states-parties during the first review conference in 2004.
5. An anti-personnel mine is defined in the convention as a mine designed to be exploded by the presence, proximity, or contact of a person and that will incapacitate, injure, or kill one or more persons. “Directional fragmentation devices” such as Claymore “mines” are prohibited by the convention if they are victim activated (e.g., by a tripwire). If they are “command detonated” by the action of a soldier, they are not covered by the convention.
6. Mines with such features have also been referred to as “smart” or “non-persistent” landmines.
7. Participation of Asian and Middle Eastern states is relatively low but nonetheless includes Australia, Afghanistan, Cambodia, Indonesia, and Thailand, as well as Algeria, Kuwait, Iraq, Qatar, Tunisia, and Yemen for example.
8. This objective has been endorsed in repeated UN General Assembly resolutions, such as UN General Assembly Resolution 61/84 of December 6, 2006, and was adopted by consensus by all states-parties to the Geneva Conventions at the 28th International Conference of the Red Cross and Red Crescent in 2003. See Final Goal 2.1 and Action 2.1.2 of the Agenda for Humanitarian Action.
9. International Campaign to Ban Landmines (ICBL), Landmines Monitor Report 2007, Towards a Mine-Free World, p. 1. Other uses for anti-personnel mines were reported by armed nonstate actors in Myanmar and Colombia, for example.
10. The producers of anti-personnel mines are: China, Cuba, India, Iran, Myanmar, Nepal, North Korea, Pakistan, Russia, Singapore, South Korea, the United States, and Vietnam, Landmine Monitor Report 2007, p. 11
11. These four countries are Egypt, Finland, Israel and Poland; see ICBL, Landmine Monitor Report 2006, p.10.
12. ICBL, Landmine Monitor Report 2007, pp. 11-13.
13. ICBL, Landmines Monitor Report 2002; ICBL, Landmines Monitor Report 2006, p. 44.
14. A recent ICRC study on customary international law concluded that precautions to protect civilians, including marking, fencing, and clearance, amount to a rule of customary international law binding on all states. See J. M. Henckaerts and L. Doswald-Beck, eds., Customary International Humanitarian Law, Vol. I (Cambridge: Cambridge University Press, 2005), pp. 280-286 (rules 81 to 83).
15. Kuwait, Iraq, and Palau are the last three states to ratify the convention, in July, August, and November 2007, respectively. The extent of their stockpiles is for the moment unknown.
16. Action point number 14 of Nairobi Action Plan.
17. Another challenge in the field of stockpile destruction is when states discover the existence of new stockpiles after their deadlines, as can occur for countries such as Angola and Afghanistan, coping with difficult conflicts or postconflict situations. States have agreed that any newly discovered stockpiles must be reported and destroyed as soon as possible. See Action point number 15 of the Nairobi Action Plan.
18. The clearance obligation covers areas in which mines are known or suspected to be present. There is no general requirement for a state to search every square meter of its territory to find mines or to certify that it is “mine free” in the absolute sense. As with stockpiles, if a state discovers after declaring completion of mine clearance that there are additional mined areas, it is obliged to report, establish perimeter markings for, and clear those areas.
19. ICBL, Landmine Monitor Report 2007, pp. 1, 21-39.
20. “Final Report of the Seventh Meeting of States Parties of 2006,” UNDoc. APLC/MSP.7/2006/5.
21. The unit itself is part of the Geneva International Centre for Humanitarian Demining and is supported by voluntary financial contributions of states-parties.
22. ICBL, Landmine Monitor Report 2006, p. 61.
23. ICBL, Landmine Monitor Report 2007, pp. 1-2, 62. One might notice that the largest contribution came from the European Commission, combined with national funding by EU member states for a total of $240.3 million.