Interventions on Articles 1, 2, 3, 7, and Compliance

(Friday 16 May 2003 Geneva, Switzerland) To the Standing Committee on General Status and Operation of the Convention

Article 1

The ICBL has increasingly raised concerns over the past year and a half about the issue of joint military operations with non-State Parties 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. These increased concerns were, of course, due to the war in Afghanistan and the then-looming war with Iraq.

We are very pleased that these concerns remained largely theoretical because the United States apparently did not use antipersonnel mines in either conflict. There might be some questions related to foreign stockpiles and transit of antipersonnel mines, but we are not prepared to comment on those matters at this time.

We appreciate the efforts that States Parties made to convince the United States not to use antipersonnel mines in Iraq, and assume this was not an insignificant factor in the U.S. decision not to deploy them. The lack of use shows that the international norm we have created 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 manoeuvre warfare. On the other hand, we were very disturbed by new use of mines by Iraqi forces and condemned it as a violation of international humanitarian law. Iraqi forces did use antipersonnel mines, though not extensively; but they were not effective.

Although coalition forces apparently did not use antipersonnel mines in Afghanistan or Iraq, there is still a need for a common understanding of the term “assist.” It can only strengthen the treaty if there is clarity about what acts are permitted and what acts are not permitted. States Parties should reach such a common understanding either before or at the Review Conference in 2004.

More than thirty States Parties have made statements about Article 1, joint operations and assist – some quite detailed, some very brief. In reviewing those statements, we believe that there is an emerging common view about what States Parties should NOT do when engaged in a joint military operation with a non-State Party. The following list 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,” there is also a need for a common understanding about the legality of transit of antipersonnel mines across the territory of a State Party. Nearly all State Parties who have spoken on this issue have said that transit is prohibited (either under Article 1’s assist clause or under Article 2’s definition of “transfer”), but at least two States Parties have taken a different view.

We strongly encourage States Parties to continue discussions on these matters, and to comment specifically on what we have outlined today, with a view to reaching a common understanding by the Review Conference. Thank you.

Article 2 (Legal Interpretation)

Mr. Co-Chair, as many delegates are aware, the ICRC convened a meeting last night to discuss its proposal for a process to move forward on the issue of anti-vehicle mines with sensitive fuzes in the context of the Mine Ban Treaty. Most regrettably, a number of States rejected the proposal. In light of this very disturbing outcome, and in light of the fact that there are so many new delegates in the room, we believe it is necessary to revisit and review the legal aspects of this issue in some detail. We have not done so in a long time.

Before we do that, we would like to thank Croatia for the clarifications it just gave regarding their Claymores and anti-vehicle mines (AVMs) with anti-handling devices, as well as their willingness in the future to discuss AVMs with tilt rods under Article 2.

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. But we pointed to the Article 2 provision on anti-vehicle mines with anti-handling devices as the most problematic result of the treaty; we said this was a potential loophole that could have serious humanitarian consequences.

However, our criticism was somewhat muted then, and subsequently, because 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 the Austrian chair in the working group on definitions, stated explicitly by the South African president in the Committee of the Whole, and was agreed to with no objections.

To reinforce what the negotiators agreed to without a single dissenting view in Oslo, the ICBL has pushed for public statements on this matter during Standing Committee meetings. These statements over the years have been collected in the Landmine Monitor Report. To date, we have about two dozen such statements, with the vast majority supporting the Oslo interpretation. A few have diverged and a few have been vague or non-committal.

Among those supporting the negotiators’ view have been 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.

It is important that more States Parties make their views known. 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.

This is a strong treaty, and a strong process. States Parties should not be shy about taking on difficult issues. This is hailed as the most successful and innovative multilateral instrument and forum of the past decade or more. Surely it can withstand the process of clarifying definitions and what is truly prohibited. Surely it can withstand the process of reaching common understandings and most importantly common practices that will ensure the greatest protections for civilians.

As the Review Conference approaches, many will be watching to see if States Parties have remained true to the letter and the spirit of the gift to humanity bestowed by negotiators in 1997. Thank you.

Article 2 (Best Practices)

Thank you for allowing me to take the floor again after my lengthy intervention on legal interpretation of Article 2. While it is disturbing that States Parties are reluctant to clearly reach a common legal understanding, it is stunning that they are now apparently unwilling to even engage in a process of identifying best practices in the Mine Ban Treaty context. Having rejected a very modest and sensible ICRC approach, it is now incumbent upon States Parties to devise an alternative process to move this issue forward (i.e. anti-handling devices and sensitive fuzes - trip wires, break wires, tilt rods fuzes and low pressure fuzes.).

Up to this point, the best practices discussion has addressed two elements: anti-handling devices and sensitive fuzes. It is probably appropriate in some ways to separate the two. The anti-handling device issue clearly is controversial for some states. Sensitive fuzes should not be. Indeed, sensitive fuzes should not even be considered an Article 2 interpretation issue, as they are already captured under Article 2. Sensitive fuzes are NOT anti-handling devices; they are not “intended to protect a mine” as in the anti-handling device definition. There should be no question that mines with sensitive fuzes that explode from the presence, proximity or contact of a person, are prohibited. They are captured by the Mine Ban Treaty definition of an antipersonnel mine, regardless of what label may be put on them. This should not be considered a controversial statement.

Several States Parties have destroyed or dismantled mines with tripwire and tilt rods because they considered them banned by the treaty. Our perception is that there is near unanimity among States Parties that tripwires, break-wires, tilt rod fuzes and low- pressure fuzes should not be used.

States Parties should be prepared at the 2004 Review Conference to state explicitly that mines or other munitions fitted with these sensitive fuzes are prohibited.

Some of the reasons advanced for not following this course make little or no sense to us. Three main reasons have been put forth, related to universalization, the CCW, and expanding scope. Some say that pursuit of clarity about sensitive fuzes in the Mine Ban Treaty context will hurt efforts to universalize the treaty. But does anyone really think that any nation is staying outside of the Mine Ban Treaty because it wants to use anti-vehicle mines with tripwires or tilt rods? That point aside, do we really want to say that the right way to universalize the treaty is to permit munitions that function as antipersonnel mines? Do we really want a treaty that encourages use by new States Parties of munitions that function as antipersonnel mines?

A second argument is that the CCW is a more appropriate forum. We welcome work in any forum, especially technical work, aimed at identifying the most dangerous sensitive fuzes and most dangerous anti-handling devices, those that pose the gravest hazard to civilians. But it should be recognized that any work in the CCW context will have implications for the Mine Ban Treaty. The real question is why the CCW? That forum is notorious for its slow pace and disappointing results; there is not much to show for the one year of work already done on best practices in the CCW.

Third, some have claimed that the ICBL, ICRC and certain States Parties are using this issue to attempt to expand the scope of the Mine Ban Treaty to include other weapons. That is simply not the case. We are looking for other than more explicit recognition of what was agreed to in Oslo in 1997. We would contend that, far from the ICBL or others wanting to expand the scope or the definition, we are witnessing an effort by a small number of States Parties to reinterpret or even subvert the agreement in 1997.

At a bare minimum, States Parties should at the Review Conference formally agree that mines with sensitive fuzes such as tripwire, break-wires, tilt rods and low pressure fuzes are prohibited.

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. Technical work should be done that helps identify what those overly sensitive anti-handling devices are, and what best practices regarding AHDs might be.

If there is a failure to address the matters of mines with sensitive fuzes and anti-handling devices, it will be a dark blot on the fine record of the Mine Ban Treaty.

If, as seems to be happening, States Parties decide to simply ignore these issues, NGOs are likely to be highly critical at the Review Conference, citing this as a major failure.

Article 3

We thank States Parties for the excellent exchange of views regarding Article 3 and mines retained for training or research and development purposes. We would like to provide some relevant statistics. A total of 63 States Parties have indicated they are retaining antipersonnel mines for permitted purposes; 54 States Parties are not retaining any mines (that number includes Afghanistan, which has just informed the Standing Committee that it does not intend to keep a single mine); the remaining States Parties have not yet indicated if they are retaining mines or not.

Of the 54 not retaining mines, 12 used to have stockpiles of AP mines. That includes Norway; we apologize to Norway for mistakenly indicating in our Landmine Monitor Fact Sheet that Norway is retaining mines, when of course it has often stated that it is not.

Of the 63 retaining AP mines, there are 6 State Parties keeping more than 10,000. Another 5 are retaining more than 5,000. Thirty-one are keeping between 1,000 and 5,000, and another 21 are keeping less than 1,000. Thus, State practice has clearly been in keeping with the common understanding from the Oslo negotiations that the requirement for keeping only the “minimum number absolutely necessary” means hundreds or thousands, and not tens of thousands. 83% of States Parties opting to retain AP mines are keeping less than 5,000.

There has been some disturbing news since the Standing Committee last met in February. Most notable is the case of Turkmenistan, which has reported that it has completed stockpile destruction, but intends to retain 69,200 antipersonnel mines. While we are pleased that Turkmenistan has reported destroying more than 1 million antipersonnel mines, the number retained is clearly far outside the norm. Indeed, it is an unacceptable number; we would contend it is an illegal number. It is obviously NOT the minimum number absolutely necessary, as required by the treaty; it could constitute an operational stockpile.

Our view is that Turkmenistan is in violation of a core obligation of the treaty. Its stockpile destruction deadline has passed, and it still has more than 69,000 antipersonnel mines in stocks. It is possible that Turkmenistan is unaware of or does not understand its obligations regarding stockpile destruction and retained mines; that it is not willfully in violation of the treaty. We are aware that a number of States Parties have already contacted Turkmenistan about this matter. It is important to engage in a dialogue with Turkmenistan. Turkmenistan MUST drastically reduce the number of mines it has retained, and other States Parties must rise to this compliance challenge and respond effectively.

We were also not pleased to see that Algeria has decided to retain 15,030 antipersonnel mines. This is the fourth largest number of any State Party, and we do not as yet have an explanation from Algeria about why such a large number is required. We still await a clearer, more detailed description of requirements from Brazil (which at 16,543 is keeping the most mines after Turkmenistan) and Bangladesh (fifth largest at 15,000). We note that Bangladesh has said this number is under review; this is particularly important in that Bangladesh has just been named Co-Rapporteur of the Stockpile Destruction Standing Committee. Finally, it is regrettable that Sweden’s number of mines retained increased an additional 3,069 to 16,015 (third largest), with the apparent discovery of more mines at the Bofors Company. If the existence of these mines was unknown, surely it is not absolutely necessary to retain them.

We congratulate Chile for moving dramatically in the right direction, reducing the number retained from an initially contemplated 28,000 to 6,245. We have also been pleased to hear that Zambia has reversed its decision to retain its entire stock of 6,691 AP mines.

We again note the importance that the ICBL attaches to voluntary reporting under Article 7 on the intended purposes for mines retained, as well as the actual uses. We note that very few of the mines retained are actually being consumed, or used up. Only about a dozen countries have reported consumption of retained mines. For the vast majority of States Parties, the number retained has remained the same, year after year, instead of decreasing with use for permitted purposes. The ICBL believes that there is no need for retaining live mines for training purposes, a position also articulated by Austria, New Zealand and Norway.

In closing, the ICBL would like to stress 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. The situation with Turkmenistan gives renewed urgency to this. 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.

Article 7

The ICBL congratulates States Parties for the great effort that has been put into meeting Article 7 reporting deadlines, which has resulted in a much improved compliance rate of 90% for initial reports - 25 % better than last year. We especially commend the work of the Article 7 Contact Group chaired by Belgium.

We also very much welcome the voluntary Article 7 reports prepared by signatories Latvia and Poland, and Lithuania before them. We view these reports as a strong indicator of commitment on their part to the Mine Ban Treaty, and to the complete eradication of antipersonnel mines.

We support Ambassador Lint’s creative initiative to call on other states to prepare voluntary reports, particularly those who have supported the treaty in the annual UN General Assembly resolutions.

The fact that the number of late initial Article 7 reports has been reduced to only 14 is very good news. Perhaps we can set the goal of having most of these submitted by the Fifth Meeting of States Parties, and all of them submitted by the Review Conference. Some of the 14 are very late (due as long ago as 1999); some are States where the stockpile destruction deadline has passed, so we have no official information about meeting the deadline; and some are mine-affected States, that would benefit from sharing detailed Article 7 information with other States Parties.

The ICBL would like to take this opportunity to remind States Parties of the important types of voluntary reporting under Article 7 we have promoted: utilize voluntary Form J for reporting on victim assistance matters; report on intended purposes and actual uses of mines retained under Article 3 (about a dozen nations have done so to date); report on Claymore mines and steps taken to ensure they are used in command detonated mode only (South Africa and Sweden are good examples of this); and report on foreign stockpiles of antipersonnel mines (Tajikistan’s initial Article 7 report has set an excellent example).

Matters Pertaining to Compliance Concerns

We would like to begin by noting our extreme disappointment that, as just reported by Canada, no State Party has put forward a topic or initiative to move the compliance discussion forward. The ICBL’s views are well-known: States Parties should 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. This should be done by the time of the 2004 Review Conference.

Earlier the ICBL expressed its concern about Turkmenistan and its failure to fully meet its stockpile destruction obligation. We also want to inform delegates that Landmine Monitor is currently investigating two allegations of use of antipersonnel mines by States Parties. We receive such allegations every year, and while some have been quite serious, happily none have been definitively confirmed.

Delegates may not be aware that two States Parties in their recent Article 7 reports have revealed that they used antipersonnel mines while they were signatories to the Mine Ban Treaty. A third State Party has also openly acknowledged use of antipersonnel mines as a signatory. Landmine Monitor for each of the past four years has either confirmed or reported credible allegations of use by signatories. We are looking into credible reports on use by two signatories for the forthcoming 2003 edition. While these acts are not a violation of the Mine Ban Treaty – you cannot violate a treaty to which you are not a party--they are a violation of international humanitarian law. The Vienna Convention on the Law of Treaties states that treaty signatories must refrain from acts, which would defeat the object or purpose of the instrument they have signed. Obviously, use of AP mines is contrary to the object and purpose of the Mine Ban Treaty. States Parties to this treaty should be much more vigorous in responding to and criticizing instances of use by signatories.