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Landmines and Law

The 1980 Convention on Certain Conventional Weapons (CCW)

Recognizing that mine use was increasingly taking place in situations of non-international conflict, as well as the need for the Convention to more accurately reflect the other conditions of post-Cold War conflict, Protocol II was amended by the States Parties on May 3, 1996. The revised Protocol applies in internal as well as international armed conflicts, prohibits the use of remotely-delivered anti-personnel mines without effective self-destructing and self-deactivating mechanisms, and requires that manually emplaced anti-personnel mines must either be placed in a marked, fenced and monitored area or must self-destruct and self-deactivate. Furthermore, the Protocol requires that all anti-personnel mines must be detectable and prohibits transfers of non-detectable mines and transfers of any mines to non-State entities. A clear obligation is placed on those using mines to clear them after hostilities have ended. Finally, a new provision offers protection from landmines to Red Cross, Red Crescent, and other humanitarian workers.

While allowing continued use of certain anti-personnel mines, amended Protocol II restricts the use of anti-vehicle/anti-tank mines and directional fragmentation munitions (when command-detonated by remote control). In addition, at the end of an armed conflict, States party to Protocol II as amended are obliged to remove or assist in the removal of all mines laid by them.

The Ottawa treaty elaborates upon many of the provisions contained in amended Protocol II and is thus the most comprehensive legal norm regulating anti-personnel land mines. However, as any treaty binds only those parties who have signed it, its impressive reach still does not extend to some of the major military powers of the world who still use land mines. Until the Ottawa treaty achieves universal adherence, then, the CCW is seen as the basic instrument in international law that has the ability to restrict the use of land mines by even the most powerful nations.

The negotiation of the Ottawa Treaty (The "Ottawa Process")

Following widespread disappointment at the failure to agree to substantial restrictions on anti-personnel mines, within the framework of the Review Conference of the 1980 Convention on Conventional Weapons, the Canadian government hosted an international strategy conference: "Towards a Global Ban on Anti-Personnel Mines" was convened in Ottawa in October 1996 with the active support of 50 governments, the ICRC, the ICBL and the United Nations. At the conclusion of this Conference, the Canadian government again seized the initiative by inviting all governments to come to Ottawa in December 1997 to sign a treaty prohibiting the use, stockpiling, production and transfer of anti-personnel mines. The "Ottawa process" had been officially launched.

International support for a ban on landmines continued to build. In December 1996,

the UN General Assembly passed Resolution 51/45S, which called upon all countries to conclude a new international agreement totally prohibiting anti-personnel mines "as soon as possible". A total of 157 countries voted in favour of this resolution, none opposed it, and only 10 abstained from the voting.

International discussion on the draft text began in Vienna in February 1997 at a meeting hosted by the Austrian government. In April 1997, the German government hosted a special meeting to discuss possible verification measures to be included in a total ban treaty. The formal follow-up to the 1996 Ottawa conference took place in Brussels from 24 to 27 June 1997. The Brussels International Conference for a Global Ban on Anti-Personnel Mines was attended by representatives of 154 countries, the largest gathering of governments to date for a conference devoted specifically to the issue of landmines. On the closing day, 97 governments adopted the Brussels Declaration, calling for formal negotiations on a comprehensive landmine ban treaty, greater international cooperation, assistance for mine clearance and the destruction of all stockpiled and cleared anti-personnel mines. The Declaration called for the convening of a diplomatic conference in Oslo to negotiate such a treaty on the basis of the draft prepared by the Austrian government.

In accordance with the Brussels Declaration, which was soon signed by a total of 107 countries, formal treaty negotiations took place from 1 to 18 September 1997 at the Oslo Diplomatic Conference on an International Total Ban on Anti-Personnel Land Mines, hosted by the Norwegian government. Ninety-one countries took part in the negotiations as full participants and 38 countries were present as observers, as were the ICRC, the ICBL, and the UN. The Oslo Diplomatic Conference proved to be a tremendous success. On 18 September, under the impetus of its South African Chairman, Ambassador Jakob Selebi, the Conference formally adopted the Convention on the Production and Transfer of Anti-Personnel Mines and on their Destruction-the Ottawa treaty.

Adherence to the Treaty

In accordance with Article 15, the treaty was open for signature from 3 to 4 December 1997 at a specially convened conference in Ottawa, Canada and thereafter at the UN headquarters in New York. By the end of 1997, an impressive total of 123 States had signed the treaty and of these three - Canada, Ireland and Mauritius - had also deposited their instrument of ratification with the depositary, the UN Secretary-General. By the end of February 1998, a further two signatory States - the Holy See and Turkmenistan - had ratified the treaty and Belize had signed it. A State becomes Party to the treaty six months after the deposit of its instrument of ratification. The treaty as a whole entered into force six months after the deposit of the fortieth instrument of ratification, that is, on 1 March, 1999. The ICRC has produced special ratification kits (available from the ICRC’s Legal Division in Geneva), which contain a summary of the treaty, details on how to ratify, and model instruments of ratification or accession, to assist those countries that have not yet joined the international ban.

Treaty Provisions

States party to the Ottawa treaty undertake never under any circumstances to use, develop, produce, stockpile or transfer anti-personnel mines, or to help anyone else to do so.0 Anti-personnel mines are mines designed to be placed under, on or near the ground and detonated by the presence, proximity or contact of a person.0 On the basis of the negotiations, this definition is understood to include "improvised" anti-personnel mines, namely other munitions, for example grenades, which are adapted to serve as anti-personnel mines. Specifically excluded, however, are anti-vehicle or anti-tank mines, including those equipped with "anti-handling devices" that detonate the mine when an attempt is made to tamper with it or otherwise intentionally disturb it.

Each State Party must destroy all its stockpiled anti-personnel mines within four years of the date the treaty enters into force for a particular State3, except for a few hundred or a few thousand mines that can be retained for the development of and training in mine-detection, mine-clearance or mine-destruction techniques. Emplaced anti-personnel mines must be destroyed within ten years of the treaty’s entry into force for a particular State and measures taken to protect civilians until mine-clearance work is completed. Severely mine-affected States, however, may ask the other States Parties to grant extension periods of up to ten years at a time if they are unable to complete the clearance and destruction process in the time allowed. Such a request also enables mine-clearance work to be appropriately supported by other States.

There is a general obligation on States in a position to do so to provide international support for mine clearance, mine awareness programmes and assistance to mine victims, including for their care and rehabilitation, and social and economic reintegration4. Assistance for mine victims may be provided through the ICRC, National Red Cross and Red Crescent Societies and their International Federation, as well as bilaterally or through other organizations.

*1. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, art. 1. 2. Ibid, art. 2(1).

Ottawa Treaty

Find out about the Ottawa Treaty here.

Landmine Monitor

http://www.icbl.org/