Intersessional Daily Update 5

(Thursday 29 May 2003 )

The President’s Consultations

Ambassador Jean Lint of Belgium, President of the Fourth Meeting of States Parties, summarized the informal consultations held on Monday, 12 May, as well as additional inputs throughout the ISC week on the “preparatory process for the preparatory process” to be established for the Review Conference in November 2004. Government delegations to the Review Conference are expected “at the highest possible level” and participation will be welcomed from the ICBL and other NGOs, the ICRC, as well as international organisations. There seems to be wide agreement on the Review Conference being held in Nairobi, Kenya from 29 November to 3 December 2004. The last day of the Review Conference would fall on the 7th anniversary of the opening for signature of the Convention in Ottawa (3 December 1997). It was reiterated that the host country (venue) and the Presidency are de-linked. Consultations on the Presidency are ongoing. Other officers for the Review Conference would be similar to those in the Meetings of States Parties. The preparatory process will thus engage a broad range of actors and have a wide mandate to deal with all matters relevant to the Review Conference, under the leadership of the President Designate. Ambassador Lint will present a President’s Paper on the Preparatory Process for consideration and approval by States Parties at the 5MSP in Bangkok. See the Intersessional Daily Update 1 on Monday's discussions:www.icbl.org/news/2003/330.php

Standing Committee on the General Status and Operation of the Convention

This Standing Committee meeting was reconvened by the Co-Chairs and followed on from the session on Monday, 12 May.

Ambassador Lint reported on the work of the Coordination Committee, which met three times (in February, March and April 2003) and is comprised of the eight Co-Chairs and the eight Co-Rapporteurs. Also invited to CC meetings are the Chairs of the Contact Groups, the Coordinator of the Sponsorship Programme, the 5MSP Presidency, GICHD, the ISU, ICRC and ICBL. The Implementation Support Unit (ISU) then gave a brief overview of its work in recent months and there were several statements from the floor in support of the coordination and information dissemination work of the ISU. The UK then took the floor to speak about the Sponsorship Programme it coordinates which has resulted in such widespread participation from mine-affected and LDC States Parties in intersessional weeks and the Meetings of States Parties. For more, see: http://www.gichd.ch/pdf/mbc/SC_may03/speeches_gs/Sponsorship%20Programme.pdf.

Overview of Article 7 Reporting

Ambassador Lint, Coordinator, gave an update on the work of the Article 7 Contact Group. It was noted that 114 initial reports have been submitted and the latest of these are Algeria, Barbados, Comoros, Congo, Lithuania, Malawi, Seychelles and Togo. The compliance rate now stands at almost 90%. However 14 States Parties have still not submitted their initial report. More on this progress: http://www.gichd.ch/pdf/mbc/SC_may03/speeches_gs/Jean%20Lint%20Art7_slides.pdf.

The Article 7 website is now being run by the Department of Disarmament Affairs in Geneva: http://disarmament.un.org/MineBan.nsf. In addition to the obligatory submission by States Parties of initial Article 7 reports, States not Party were also encouraged to submit voluntary Article 7 reports as Latvia, Poland and Lithuania have done. Fifty-four States Parties (45% of those due) have submitted 2002 annual updates (due 30 April). However, this low number is due, in part, to technical problems experienced in the transfer of responsibility from New York to Geneva and should be resolved in the near future. States not Party which co-sponsored and / or voted for the annual UN Resolution on the Convention were issued “a friendly call” to submit voluntary Article 7 reports to demonstrate their commitment to a comprehensive ban on antipersonnel mines.

Article 7 interventions and updates were made by the following: UNDDA (requested electronic submissions of Article 7 reports, as much quicker to get them on the website), Timor Leste, South Africa, Algeria, Argentina, Afghanistan, ICBL, Australia, Comoros and New Zealand (which offered to assist Pacific Island countries with their Article 7 reports). Both Australia and New Zealand took the opportunity to congratulate Timor Leste on their recent accession to the Convention.

Steve Goose, ICBL’s Head of Delegation, congratulated States Parties for their great efforts to meet Article 7 reporting deadlines, which has resulted in a much improved compliance rate of 90% for initial reports - 25 % better than last year. ICBL especially commended the work of the Article 7 Contact Group chaired by Belgium. ICBL also welcomed the voluntary Article 7 reports submitted by Signatories and supported Ambassador Lint’s creative initiative to call on other States not Party to prepare voluntary reports, particularly those which have co-sponsored or voted in favor of the annual UN Resolutions on the Convention.

Regarding the very good news that the number of late initial Article 7 reports has been reduced to only 14, ICBL suggested setting the goal of having most of these submitted by the 5MSP, and all of them submitted by the Review Conference. The ICBL reminded States Parties of the important types of voluntary reporting under Article 7 such as utilizing voluntary Form J for reporting on victim assistance matters; reporting on intended purposes and actual uses of mines retained under Article 3; reporting on Claymore mines and steps taken to ensure they are used in command detonated mode only (as done by South Africa and Sweden); and reporting on foreign stockpiles of antipersonnel mines (as done by Tajikistan in their initial Article 7 report).

Update by Contact Group Coordinators

Canada reported on the Universalisation Contact Group, which it chairs. Recent ratifications by Lithuania and Sao Tome e Principe were welcomed as was Timor Leste's accession. Ottawa also announced a new initiative: they hosted a meeting on the margins of the intersessionals to discuss the importance of military to military dialogue and an informal General Support Group for the Convention has been established with the first two members being retired Generals from Canada and from Austria. Interested retired military personnel were invited to contact Canada.

Norway reported on the Resource Mobilisation Contact Group’s second meeting held on 13 May with more than 50 participants, including many mine affected States Parties. Mine action can be seen as both a humanitarian and a development activity, which provides opportunities for flexible financing. Mine Action should be prioritised and integrated into national development plans and it is important to avoid a gap between humanitarian relief and long-term development programmes. The OAS has a more development-orientated approach, while the World Bank has a clear development mandate. The UN family is involved in both humanitarian and development related mine action. There is a need to highlight the negative impact on post-conflict reconstruction and long-term development caused by not addressing the mine problem in relevant countries. It was suggested that donor countries could do more to focus on mine action in their bilateral cooperation programmes. The point was made that it is essential for sufficient resources to be raised to meet the needs of mine-affected countries so they are able to meet their obligations under the Convention. In conclusion, it was reiterated that resource mobilization is dependent on sustaining the partnership among all stake-holders (States Parties, IOs, ICBL and ICRC) and that the Review Conference should be used to reaffirm the strong political and financial commitment to the full implementation of the Convention.

Preparation for Fifth Meeting of States Parties (5MSP)

Thailand presented information on the logistical plans for the 5MSP to be held from 15 - 19 September 2003 in Bangkok. Afterwards, the UN Department for Disarmament Affairs (DDA) reported on administrative arrangements for the events: invitations have already been issued to States Parties and States not Party, as well as relevant organizations. There will be a registration form available shortly and the registration will be handled by the DDA. The draft agenda for the 5MSP is here: http://www.gichd.ch/pdf/mbc/SC_may03/Draft%20Revised%20Program%205MSP.pdf The Thai presentation is here: http://www.gichd.ch/pdf/mbc/SC_may03/speeches_gs/Thailand%20preparation%20of%205thMSP.pdf"

Several regional initiatives were announced: a regional meeting in Lima, Peru, supported by the Organization of American States; a regional meeting in Pretoria, South Africa organised by the Southern African Development Community; and a regional meeting in Ecuador in 2004 prior to the first Review Conference. Croatia offered to host the Meeting of States Parties that follows the 2004 Review Conference.

The following countries were proposed as Standing Committee Co-Rapporteurs for 2003-2004, to be presented to the 5MSP for approval:

• General Status and Operation of the Convention: South Africa and New Zealand;
• Victim Assistance and Socio-Economic Reintegration: Nicaragua and Norway;
• Mine Action, Mine Risk Education and MA Technologies: Algeria and Sweden;
• Stockpile Destruction: Bangladesh and Canada.

Experiences in implementing Article 1

Steve Goose, ICBL, reiterated ICBL’s concerns raised over the past 18 months about the issue of joint military operations with States not Party that may use antipersonnel mines, and the need for a common understanding of the Mine Ban Treaty’s prohibition on assistance with any banned act by the 2004 Review Conference.

ICBL expressed appreciation for the efforts made by States Parties to convince the United States not to use antipersonnel mines in Iraq and stated that the lack of use by the U.S. demonstrates that the international norm against the antipersonnel mine is indeed taking hold. It also reflects what many have contended for years: the antipersonnel mine simply does not have much military utility, especially in modern warfare. Goose reported that use of antipersonnel mines by Iraqi forces had been condemned by ICBL as a violation of international humanitarian law.

ICBL stated it would strengthen the Convention to have clarity about what acts are permitted and what acts are not permitted. More than thirty States Parties have made statements about Article 1, joint operations and assist. ICBL believes, based on these statements, that there is an emerging common view about what States Parties should NOT do when engaged in a joint military operation with a State not Party. The following list was put forward to delegates, stating that is not intended to be comprehensive:

• No participation in planning for possible use of antipersonnel mines;
• No participation in training activities involving use of antipersonnel mines;
• Reject any Rules of Engagement permitting use of antipersonnel mines;
• Do not agree to operational plans authorizing use of antipersonnel mines by a combined force;
• Reject any orders to use antipersonnel mines;
• Do not request use of antipersonnel mines by others if you are in command of a combined force;
• No participation in a battle where a State Party’s forces gain direct military benefit from the use of antipersonnel mines by others;
• No assistance in laying, transporting, or providing security for stocks of antipersonnel mines.

Apart from “assist,” ICBL said there is also a need for a common understanding about the legality of transit of antipersonnel mines across the territory of a State Party.

ICBL strongly encouraged States Parties to continue discussions on these matters, and to comment specifically on the above list, with a view to reaching a common understanding by the Review Conference.

The United Kingdom (U.K.) stated they had considerable sympathy for the views expressed by ICBL, and were in agreement with the points made, with two small provisos: 1) Regarding direct military benefit: they agreed (with ICBL) if this was known in advance. But in practical terms on the battlefield, there may be situations where this cannot be known in advance; and 2) Transit is “assistance” and banned under the Convention. However in the case of Diego Garcia, where there is a large U.S. military base, any warships anchored off Diego Garcia remain the sovereign territory of the country concerned. The U.K.’s position is clear that any antipersonnel mines, which may be on these ships, cannot be moved off the ship.

New Zealand stated that their position has been clearly stated in the past, but that the current international situation makes the discussion pertinent. They stated that New Zealand legislation is clear that New Zealand defence forces cannot actively assist with antipersonnel mines, including complicity, causation, training or planning. It is considered incidental if defence forces are provided cover by others antipersonnel mines, which is not included in the legislation. New Zealand stated that they are unable to prevent receiving indirect benefit of cover from antipersonnel mines used by others.

ICRC stated that it shares the concerns of ICBL and that conversations with States Parties give reason for concern. ICRC said there is a need for more concerted efforts during the coming 18 months to reach a common understanding on this important matter.

Experiences in implementing Article 2 and in addressing the humanitarian impact of mines that may pose similar risks to civilian populations as antipersonnel mines

Croatia opened this discussion with a statement that the Claymore mines they possess do not fall under Article 2, as they cannot be victim-activated. They also stated that they do not possess anti-vehicle mines (AVMs) with anti-handling devices (AHDs), which can be accidentally activated, as the thresholds are greater than 120 kilos (i.e. between 150 – 300 kilos). Croatia further stated its willingness to discuss, under Article 2, their AVM's equipped with tilt rods with low thresholds (1.3 – 1.7 kilos), because these mines could be activated by the unintentional act of a person.

Steve Goose noted ICBL’s concern with the lack of progress on Article 2 and, given the number of new delegates, ICBL felt the need to review the issue of the legal aspects of Article 2 in some detail. Before doing that, ICBL thanked Croatia for its clarifications regarding their Claymores and AVMs with AHDs, as well as their willingness in the future to discuss AVMs with tilt rods under Article 2.

Goose continued by stating that, “At the conclusion of the Oslo negotiations in 1997, the ICBL hailed the Mine Ban Treaty as a gift to humanity. It was, and is, a remarkable treaty, one that got stronger instead of weaker during the negotiations, and has only gotten stronger over time.” At the time, ICBL also pointed to the Article 2 provision on AVMs with AHDs as the most problematic result of the treaty, which was a potential loophole that could have serious humanitarian consequences.

Goose said that Oslo negotiators made clear that anti-vehicle mines with anti-handling devices that explode from the unintentional contact of a person are considered antipersonnel mines and therefore banned. This was stated explicitly by many in 1997, including the South African President in the Committee of the Whole, and was agreed to with no objections. Since 1997 there have been about two dozen public statements on this matter (collected in the Landmine Monitor Report), with the vast majority supporting the Oslo interpretation, including Austria, Australia, Brazil, Canada, Ireland, Italy, Mexico, Netherlands, New Zealand, Norway, Slovakia, South Africa and Switzerland. Among those dissenting have been Denmark, France, Germany, Japan, and the United Kingdom.

ICBL concluded by saying that States Parties should be striving to reach a common understanding on this issue at the Review Conference in 2004. There should not be confusion about what the Convention bans and what it does not.

The ICRC thanked the delegation of Croatia for its transparency and its willingness to discuss AVMs with tilt rods. They said that despite significant progress under the Convention, it was unfortunate that States have not been able to clarify Article 2 definitions. That any other interpretation (than intended by the Oslo negotiators) would be dangerous and would in essence mean that a small amount of explosive is banned, but a large amount of explosive is okay. ICRC stated that this interpretation would be absurd and do no good for the credibility of the Convention or the norm. ICRC stated that design does not mean intent or the label attached to a mine. ICRC urged States to clarify this in the lead-up to the Review Conference.

Mexico “entirely subscribed to the views expressed by ICBL and ICRC”. They stated that the main objective of the Convention was to stop the suffering and grief caused by landmines. They reiterated the position, as stated in Oslo in 1997, that any mine than can explode from the presence or proximity of a person is considered an antipersonnel mine and banned. Mexico appealed to States Parties to comply with the Oslo decisions and urged that this item always be kept on the agenda, until the matter is resolved.

ICRC then reported on the “best practices” process (regarding sensitive fuses and certain AHDs on certain AVMs) they had proposed in February, with a view to reaching a common understanding by the Review Conference, which had been welcomed by States Parties at the time. ICRC again clarified that any results in the “best practices” process were to be adopted without prejudice to the legal interpretation of Article 2, which was felt to be the most pragmatic approach to resolving the issue. Following ICRC’s meeting with interested parties the previous evening, ICRC felt there was not a willingness to solve the problem within “best practices” under the AP Mine Ban Convention and said they did not intend to proceed with the proposed Experts Meeting. ICRC stated they were willing to continue to participate in the CCW discussions on AVMs.

ICBL stated that, following the results of the ICRC meeting, the burden is now clearly with States Parties to move forward. Steve Goose suggested that separating the issues of anti-handling devices and sensitive fuses (trip wires, break-wires, tilt rod fuses, low pressure fuses) on AVMs may promote progress on the issue, as AHDs are clearly sensitive for some. He further stated that AVMs with sensitive fuses should not even come under Article 2 as a question, as they are already captured under Article 2. Goose noted that a number of States Parties have already destroyed these mines. "There is near unanimity that these tilt rods, break wire and other sensitive fuses are prohibited under the Convention." On the reluctance to address this issue within the context of the Convention, ICBL refuted the following arguments made by some States Parties: 1) that discussion of such matters would affect universalization; 2) that the CCW is a more appropriate forum; and 3) the perception by some that this may be expanding the scope of the Mine Ban Treaty to include other weapons. On the issue of scope, Goose said, "This is simply not the case. We would contend that we are witnessing an effort by a small number of States Parties to reinterpret or even subvert the agreement in 1997.” ICBL concluded by urging States Parties, at a bare minimum, to come to the Review Conference prepared to formally agree that mines with sensitive fuzes such as tripwire, break-wires, tilt rods and low pressure fuzes are prohibited. ICBL also stated that there should also be agreement that anti-vehicle mines with overly sensitive anti-handling devices that explode from the unintentional act of a person are prohibited. In order to reach this agreement, technical work should be done that helps identify what those overly sensitive anti-handling devices are, and what best practices regarding AHDs might be.

France stated that it believes this important question must be dealt with by the international community, but not under the Mine Ban Convention, detailing three reasons. The UK supported France stating, "There may well be a humanitarian issue regarding sensitive fuses, but the ICBL approach would be a step backwards. We need to find a humanitarian solution, but not get bogged down in fruitless discussions, which won’t get results. If this can happen outside the Convention, then do it.”

New Zealand supported the Co-Chair and Mexico's positions to keep the issue on the agenda. They further stated that ICRC and ICBL had made valid points and expressed hope that ICRC will continue with the “best practices” process. Japan supported France and the UK. Norway agreed with New Zealand and Mexico and stated that Norway’s position had been previously stated and is clear. Norway expressed appreciation for the ICRC and the ICBL and concluded by saying that useful deliberations like this should not distract us from working together to fully implement the Convention.

Updates on implementation of Article 3 (mines retained)

Several States Parties (New Zealand, Norway, Austria, Afghanistan and Belgium) expressed concern about the large numbers of mines being retained by some for training purposes. Austria said it would seek to discuss with one State Party concerned. Statements included the Oslo negotiators’ understanding that the “minimum number absolutely necessary number in the 100s or 1,000s, but not in the tens of 1000s”. It was urged that the “intended purpose and actual use of mines retained” be included in Article 7 reports. New Zealand, Norway and Austria restated that they have decided not to retain any mines. Austria stated that live mines are not needed for training purposes.

Steve Goose, ICBL, thanked States Parties for the excellent exchange of views. He reported that 63 States Parties have decided to retain mines and 54 have not. Of these, 83% are retaining fewer than 5,000 mines. ICBL expressed concern about Turkmenistan reporting that they intend to keep 69,200 mines for training. ICBL stated that while it was pleased that Turkmenistan had reported destroying more than one million mines, the number retained is clearly unacceptable and far outside the norm. Goose noted that Turkmenistan may be unaware of or does not understand its obligations, so may not be in wilful violation of the treaty. ICBL noted that several States Parties have been in contact with Turkmenistan and reiterated the importance of engaging them in a dialogue to educate and get them to drastically reduce the number of mines retained. ICBL reiterated its belief that live mines are not needed for training and again urged States Parties to include “intended purpose and actual use” of mines retained in their Article 7 reports. ICBL concluded by stressing the importance of reiteration and strengthening of the common understanding that the number of mines retained should be in the hundreds or thousands, not tens of thousands and that States Parties should be prepared to make this understanding even more explicit and formal at either the 2003 Fifth Meeting of States Parties or at the 2004 Review Conference.

Additional interventions were made by Sweden, the UK (reducing mines retained to 5,000), Ecuador (mines retained are 4,000; correction due to mistake) and Algeria.

Update on the dialogue related to the facilitation and clarification of compliance Canada had been asked to facilitate further consultations on operationalising Article 8 and reported that no States Parties had come forward with additional suggestions since the last meeting in February.

Matters pertaining to compliance concerns The ICBL expressed disappointment at the lack of input to Canada on moving the compliance issue forward. ICBL then reported that Landmine Monitor is investigating allegations of use by two States Parties and two additional reports, which relate to States Parties that have indicated use of mines while they were Signatories. The ICBL reminded States Parties that use by Signatories is a violation of International Humanitarian Law, according to the Vienna Convention, which states that treaty signatories must refrain from acts, which would defeat the object or purpose of the instrument they have signed. ICBL also urged States Parties to put a high priority on operationalizing Article 8 and on finding a new mechanism or a new way of ensuring a more coordinated, systematic and effective response to compliance concerns by the time of the 2004 Review Conference.

Updates on the implementation of Article 9

The ICRC reported that the number of States Parties with national implementing legislation totals 35. There are another 20 that are in the process of drafting and adopting legislation (3 more than in February: Albania, Bangladesh and Togo). There are 13 States Parties that believe that existing laws give effect to the Convention. The ICRC reiterated its willingness to provide assistance on this matter. South Africa reported that its bill is now awaiting approval of the national council of provinces before being signed by the President in order to be promulgated. The Afghan Campaign to Ban Landmines reported that, together with the UN Mine Action Centre, they met with the commission that drafted the country's new constitution, which will now include the mine issue. At the same time, implementing legislation is being drafted by the Justice Department. Tanzania said it considered its existing law to be sufficient. The ICRC's report on this issue: http://www.gichd.ch/pdf/mbc/SC_may03/speeches_gs/ICRC%20Kathleen%20Lawand%20Art9.pdf.

The meeting was then closed with brief interventions from the ICBL (available soon on the ICBL website), the GSOC Co-Chairs, the 4MSP President and the Director of the Geneva International Centre for Humanitarian Demining.