Legal Research Paper on "War Crimes, Landmines Ban, and Rebel Groups" (Non-State Actors)

SOLIMAN M SANTOS, JR^*
 

A revolution is not a dinner party, or writing an essay, or painting a picture, or doing embroidery; it cannot be so refined, so leisurely and gentle, so temperate, kind, courteous, restrained and magnanimous. A revolution is an insurrection, an act of violence by which one class overthrows another.

II. The International Criminal Court, Internal Armed Conflict and Rebels

III. The Ottawa Treaty and the Rome Statute

IV. Non-State Actors and Complementary Approaches for the Global Movement Against Landmines

V. Conclusion

Footnotes

You may be more interested in particular parts but I suggest you read the paper as a whole. Better to print it out first for easier reading.

Thank you.
Fraternally,
Sol Santos*

I INTRODUCTION

This research paper focuses on the legal aspects of such rebels groups (referred to by some as `non-state actors') vis-a-vis war crimes (mainly as developed in the new Rome Statute of the International Criminal Court)<sup>4</sup> as well as the similarly recent landmines ban (with the Ottawa Treaty<sup>5</sup> as its centrepiece). This paper not only studies the rebel dimension in addressing war crimes and landmines (including the linkage of these two) but also advocates that more attention be paid to a complementary and alternative track that addresses these `non-state actors.' This will ultimately serve humanitarian ends and may yet further develop state-based international law.

This paper's legal field is that of international criminal law (ICL) and international humanitarian law (IHL). It arises out of and benefits much from the pioneering postgraduate class in `International Criminal Law' (to be renamed `the Trial of War Crimes, Crimes Against Humanity and Genocide') under Professor Tim McCormack at the Faculty of Law of the University of Melbourne.⁶ But it also benefits from as well as contributes to the practical work of the International and Philippine Campaigns to Ban Landmines (ICBL and PCBL), particularly the Working Group on `Non-State Actors' (WG -NSA), of which the author is privileged to be part.⁷ This involvement has brought with it as well as deepened a peace-building and conflict-resolution orientation which can also inform and develop the role of law and lawyers in all these.

The main part of this paper will deal with rebel dimensions in the Rome Statute of the ICC. This is made more challenging by the newness of the statute in that it has yet to enter into force (though this is only a matter of time), thus obviously without any jurisprudence to speak of. There is also still no readily available diplomatic record of the Rome Conference of 15 June-17 July 1998, only some initial commentaries and accounts, especially by those who were there. Fortunately,

Then, as far as the substantive war crimes are concerned, there is also the legacy of the 1949 Geneva Conventions which commemorates its 50th anniversary this year. That legacy includes common Article 3 and 1977 Additional Protocol II which together constitute the core of IHL on internal armed conflict, precisely what we are most concerned with here. And this is also why landmines are given some special attention in this paper. Unlike the usual weapons of mass destruction (eg, nuclear, chemical, and biological), landmines are generally used or possessed not only by states or government forces but also by `non-state actors' or rebel groups.

The landmines ban, or more broadly mine action, is therefore an ideal `test case' to problematise or strategise better approaches to act or pro-act against war crimes, or more broadly violations of the laws or customs of war. This is after all what the ICC is all about. It too should benefit from or be complemented by fresh approaches. A conscious and comprehensive effort to address internal armed conflicts and rebel groups not only corresponds to the reality of most present-day armed conflicts but also responds to the very real needs of its countless victims.

II THE INTERNATIONAL CRIMINAL COURT,
INTERNAL ARMED CONFLICT AND REBELS

The Rome Statute of the International Criminal Court (ICC) establishes the first permanent (as distinguished from ad hoc) international criminal tribunal with universal jurisdiction over individual natural persons for the `most serious crimes of international concern' (genocide, crimes against humanity, war crimes, and aggression) committed after its entry into force without temporal or territorial limitations (unlike the first four international tribunals), subject to complementarity with national criminal jurisdictions.⁸ It therefore represents an advance in ICL in terms of both institution-building and the categorisation of the most serious international crimes.

This main part of the paper is an analysis of the Rome Statute in so far as it concerns rebels and rebels groups in internal armed conflicts. Ideally, a discussion of the latter categories should preface this analysis. But let us go into the heart of the matter that is the ICC and war crimes first before threshing out the finer points about rebel groups and even the landmines ban.

While all these terms and concepts have their finer points, `rebel groups' or `non-state actors' may turn out to be more controversial or difficult to define than war crimes and the landmines ban. Of course, along the way of this analysis of the Rome Statute, we can tackle some of these finer points. In the meantime, we can adopt Professor Peter Rowe's generic use of the term `rebels' to mean `any group carrying out acts of violence for political purposes in opposition to the de jure

It is axiomatic in such a concept that there is a group, and not just individual rebels. There is an element of organisation and command structure necessary or inherent in armed forces, especially of a political or revolutionary color. And this is not limited to the level of `dissident armed forces or other organised armed groups... under a responsible command' contemplated in the threshold of the material field of application in the 1977 Additional Protocol II.¹⁰

The Rome Statute itself does not speak in terms of `rebels' or `rebel groups' but alludes to them, as we shall show. The Statute, however, clearly makes a distinction between international and non-international armed conflicts under Article 8 on war crimes. This is a good starting point, even though these two conflict categories have their respective finer sub-categories.

In the absence of the Rome Conference diplomatic record to refer to and of ICC jurisprudence still to be generated in the new millennium, we just have to make the most of what we have in terms of the two legacies we mentioned in the introduction. We can also take a cue from Professor Antonio Cassesse who, in discussing the abovesaid Protocol II, once said that `more important' than the `intention of the parties as it appears from their statements or declarations' in the diplomatic record is the `intention that emerges from the text of the Protocol itself.'¹¹

The Rome Statute itself in its Article 21 on applicable law, among others, contains guidance for its own application and interpretation, including resort to `general principles of law... from national laws of legal systems of the world.' We shall in fact refer from time to time to Philippine law as well as experience in the spirit of making a contribution.

B War Crimes and Internal Armed Conflict

Although the Statute of the International Tribunal for Rwanda provided for the prosecution of `Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II,' its competence was limited to those `committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring states' in 1994.¹³ Though the Statute did not mention internal armed conflict, this was the obvious context. And the Judgment of the International Criminal Tribunal for Rwanda (ICTR) in the Akayesu case indeed explicitated `that there was an armed conflict not of an international character between the Government of Rwanda and the RPF in 1994.'¹⁴ Although the ICTR was limited in its territorial and temporal jurisdiction, it paved the way for the ICC to cover cases of internal armed conflict but not mainly with the Protocol II framework.

Previously, various commentators invariably pointed out that `IHL applicable to non-international armed conflicts does not provide for international penal responsibility of persons guilty of

There is no reference to grave breaches in either common Article 3 or in Protocol II itself, nor is there any reference to

sibility.... There is no precedent for the trial of individuals under international law for committing crimes against humanity or for breaches of the laws and customs of war during a conflict that remained of a non-international type... Neither the state itself nor the authority representing the rebels can be held liable under international liability for war crimes and neither are under the international obligation to make reparations for damage caused during non-international armed conflict.¹⁷ (underscoring mine)

Going back to the Rome Statute, its Article 8 on war crimes speaks of `international armed conflict' in paragraph 2 (b) and of `armed conflict(s) not of an international character' in paragraphs 2(c), (d), (e) and (f). These are the two major categories. Paragraph 2(a) mentions only `Grave breaches of the Geneva Conventions of 12 August 1949' but this is already customarily understood to apply to international armed conflict. Looking closely at paragraphs 2(c), (d), (e) and (f), one sees three levels of internal armed conflict:

1) non-international armed conflicts in general;

2) internal disturbances and tensions, which are excluded from the material field of application to war crimes under the Statute; and

3) armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organised armed groups or between such groups. (underscoring mine)

This last level is considered by the International Centre for Human Rights and Democratic Development (ICHRDD) in Montreal as a `further threshold' such that `this excludes conflicts between non-organised armed groups or acts committed when the conflict is not protracted.'¹⁸ This certainly adds another layer, including another threshold, though not as high as the one in Protocol II which requires dissident control over territory, concerted military operations and responsible command, among others. But what is significant also about paragraph 2(f) is that it is one of several allusions to rebel groups, as groups or organisations, in the Rome Statute. Also, it covers armed conflicts `between such groups' which Protocol II does not.

In the case of international armed conflict, there is already the established sub-category of wars of national liberation under Article 1(4) of 1977 Additional Protocol I,¹⁹ even as national liberation movements²⁰ are often also (or like) rebel groups in internal armed conflicts. In addition to this, one might look at the Judgement of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadic case which speaks of `an armed conflict of an internal or mixed character' and finds that

at all relevant times, an armed conflict was taking place between the parties to the conflict in the Republic of Bosnia and Herzegovina of sufficient scope and intensity for the purposes of the application of the laws or customs of war embodied in Article 3 common to the four Geneva Conventions of 12 August 1949, applicable as it is to armed conflicts in general, including armed conflicts not of an international character. ²¹

It is conceivable that the ICC could make rulings similar to this of a `mixed character' with

C Grave and Serious War Crimes

1) paragraph (a) - grave breaches of the Geneva Conventions, committed against protected persons or property - 7 specific acts;

2) paragraph (b) - other serious violations of the laws and customs in international armed conflict - 26 specific acts;

3) paragraph (c) - in armed conflict not of an international character, serious violations of common Article 3 of the Geneva Conventions, committed against persons taking no active part in the hostilities - 4 specific acts; and

4) paragraph (e) - other serious violations of the laws and customs applicable in armed conflicts not of an international character ( but qualified as protracted ) - 12 specific acts.

The first, second and fourth categories are similar to those in the ICTY Statute²² while the third category is similar to one in the ICTR Statute.²³ The first two categories pertain to international armed conflict totalling 33 specific acts while the next two categories pertain to internal armed conflict totalling 16 specific acts - or a disparity ratio of 2:1, reflecting the established order of more protections under the former than under the latter.

Of the 16 specific acts in internal armed conflict, these are virtually or almost all covered by identical or similar specific acts in international armed conflict. The one specific act in internal armed conflict that is a bit different is that in paragraph (c) (iv) on sentences and executions without judgment by a regularly constituted court. The closest to this in international armed conflict is paragraph (a) (vi) on depriving a prisoner of war (POW) or protected person of fair and regular trial.

That leaves, in our reckoning, about 14 specific acts in international armed conflict that are not specific acts in internal armed conflict for purposes of war crimes definition under the Rome Statute. This is significant because under the Statute's Article 22(2), `The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.' It may be instructive to point out those 14 specific acts applicable to international but not internal armed conflict under the Statute's Article 8(2):

1) paragraph (a) (v) - compelling a POW or protected person to serve in the hostile forces

2) paragraph (a) (viii) - unlawful deportation, transfer or confinement

3) paragraph (b) (ii) - intentionally directing attacks against civilian objects which are not military objectives

4) paragraph (b) (v) - attacking or bombarding undefended towns, villages, dwellings or buildings which are not military objectives

5) paragraph (b) (vi) - killing or wounding a combatant who has surrendered

6) paragraph (b) (vii) - improper use of a flag of truce, or of the flag, military insignia and uniform of the enemy, resulting in death or serious personal injury

7) paragraph (b) (xiv) - abolishing or suspending in a court of law the rights of the nationals of the hostile party

8) paragraph (b) (xv) - compelling such nationals to take part in war operations against their own country

9) paragraph (b) (xvii) - poison or poisoned weapons

10) paragraph (b) (xviii) - asphyxiating gases

11) paragraph (b) (xix) - expanding bullets

12) paragraph (b) (xx) - inhumane or indiscriminate weapons and methods of warfare provided these are the subject of a comprehensive prohibition and are included in an annex

13) paragraph (b) (xxiii) - using civilians or protected persons to shield certain points from military operations.

14) paragraph (b) (xxv) - starvation of civilians as a method of warfare.

Most of these specific acts criminalised for international armed conflict under the Rome Statute are also committed in internal armed conflicts but are not similarly criminalised. Why? One can be naughty and imagine the military minds in the diplomatic delegations of the States Parties, especially those with internal armed conflicts, seeking as much as possible to avoid restrictions in dealing with their rebels. But this is self-defeating in the sense that it works both ways. So, with less restrictions on both sides, unlike international armed conflict, internal armed conflict has been more inhumane even if it is not more criminal. It seems both IHL and ICL must catch up.

The ICHRDD comments that `The shorter list of crimes for internal wars and the additional threshold [ie, protractedness] are not consistent with the principle that certain crimes, regardless of where they are committed, are so heinous that they should be punished by the international community.'²⁴ We will reserve for later some particular comments on the shortest list of criminalised weapons, especially in relation to the landmines ban. Suffice it to point out again for now that the said list is limited to international armed conflict.

Note that the first and third categories of war crimes under the Rome Statute's Article 8(2), ie, paragraphs (a) and (c), respectively, refer to a specific treaty, namely the Geneva Conventions, including common Article 3, while the second and fourth categories in paragraphs (b) and (e), respectively, refer to generic `laws and customs' of armed conflicts (ie, war). As to what are these rules of customary (as distinguished from conventional) IHL, the United Nations (UN) Secretary-General, in a report to the Security Council preparatory to the establishment of the ICTR,²⁵ authoritatively indicated these to be

the law of armed conflict embodied in the Geneva Conventions for the Protection of War Victims of August 12, 1949; the Hague Convention (No 1V) Respecting the Laws and Customs of War on Land and annexed Regulations of October 18, 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948; and the Charter of the International Military Tribunal of August 8, 1945. The Geneva Conventions constitute `the core of the customary law applicable in international armed conflicts.²⁶'(underscoring mine)

A review of recent developments in the maiden (1998) volume of the Yearbook of International Humanitarian Law, however, notes `grave breaches might also be committed in internal armed conflicts,' citing some positions in the Tadic case at the ICTY, and commenting that `the distinction between grave breaches and other war crimes is becoming increasingly blurred and irrelevant from a practical point of view - although it still exists juridically.'²⁷

Before leaving war crimes under Article 8 of the Rome Statute, just two more items of note relevant to some points above. First, Article 8(1) particularises the ICC's war crimes jurisdiction to those `committed as a part of a plan or policy or as part of a large-scale commission of such crimes.' (underscoring mine) The requirement of a `plan or policy' indicates, for me, that we are dealing not just with individual rebels but with individual rebels who are part of rebel groups which presumably have organisational plans and policies.

Second, Article 8(3) says that nothing in the war crimes provision for internal armed conflict in general, under Article 8(2), paragraphs (c) and (d), `shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.' Thus, the paramount principle of state sovereignty, especially in domestic affairs, asserts itself as the last word on war crimes.

D Genocide and Crimes Against Humanity

Among the many significant rulings in Akayesu is the expansion of the very definition of genocide so as not to limit it to the destruction of a `national, ethnical, racial or religious group' but to include `any stable and permanent group' in order to `respect the intent of the drafters of the Genocide Convention... according to the travaux preparatoires.'<sup>31</sup> This may now include, for example, political or social groups. This expansion can work both ways for rebel groups depending on whether they are victims or perpetrators of genocide. An often cited example of the inapplicability of the standard definition is to the Khmer Rouge (topical again these days) for their `killing fields' in 1975-78. That would be genocide under the recent expanded definition.

The crimes against humanity provision (Article 7) of the Rome Statute also represents a significant breakthrough in that it broke the nexus with armed conflict and `if you break the nexus, it becomes a human rights (matter).'³² An earlier commentary on crimes against humanity was that

Actually, the definition of crimes against humanity in Article 3 of the Statute of the ICTR had no nexus with armed conflict and was the apparent model for the definition in the Rome Statute. The earlier Statute of the ICTY in its Article 5 definition of crimes against humanity expressly qualified these as `when committed in armed conflict, whether international or internal in character.' The Rome Statute's Article 7 defines crimes against humanity as specified acts `when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.'

The ICHRDD, incidentally a human rights centre, takes note of the Rome Statute's Article 7(2)(a) definition of `attack directed against any civilian population' as `involving the multiple commission of acts... pursuant to or in furtherance of a State or organisational policy to commit such attack.' (underscoring mine) Their comment is that `this threshold is more restrictive than the international law standard which held that crimes against humanity were crimes which happened in times of war or peace and which were either widespread or systematic... to require some organisational aspect.'³⁵

The mention of `organisational policy' is similar to the requirement of `plan or policy' for war crimes in Article 8(1) and so we make the same inference that in the case of the rebel side in internal armed conflict, we are dealing not just with individual rebels but also with rebel organisations. In fact, Article 7(2) (i) mentions `political organisation' in connection with `enforced disappearance of persons.'

Crimes against humanity as an international crime for prosecution goes as far back as the 1945 Nuremberg Charter³⁶ and 1946 Tokyo Charter.³⁷ The concept has come a long way from that world war context or nexus. But even at that time, both Charters, in their respective provisions on crimes against humanity, also spoke of `Leaders, organisers, instigators and accomplices' and of a `common plan or conspiracy' that gave the crime an organisational context or character.³⁸

E Undefined Aggression

War of aggression as an international crime for prosecution also goes as far back as the Nuremberg and Tokyo Charters where it falls under crimes against peace, especially for the Far Eastern war criminals who were required to be `charged with offenses which include Crimes against

In the ILC's 1954 Draft Code of Offences against the Peace and Security of Mankind,⁴⁰ among these offenses under Article 2 thereof were:

5. The undertaking or encouragement by the authorities of a State of activities calculated to foment civil strife in another state, or the toleration by the authorities of organised activities calculated to foment civil strife in another state.

xxx

9. The intervention by the authorities of a State in the internal or external affairs of another State, by means of coercive measures of an economic or political character in order to force its will and thereby obtain advantages of any kind.

(underscoring mine)

These draft provisions show possible connections between aggression and internal armed conflict, whether in support of rebel groups or in manipulation thereof for proxy wars. These proposed provisions were not, however, repeated in the ILC's 1991 Draft Code of Crimes against the peace and Security of Mankind, ⁴¹ at least not under its most elaborated definition of aggression among the several ILC Draft Codes. Its Article 15(2) defines aggression as `the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State or in a manner inconsistent with the Charter of the United Nations.' The one specification which may have relevance to rebel groups and internal armed conflict is its Article 15(4) (g): `the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.' (underscoring mine)

Aside from aggression, there are a number of other crimes against the peace and security of mankind in the ILC's 1991 Draft Code which could conceivably have a linkage with internal armed conflict and/or rebel groups, such as:

Article 17 - Intervention (including supplying arms)

Article 18 - Colonial domination and other forms of alien domination (vis-a-vis

self-determination struggles)

Article 21 - Systematic or mass violations of human rights

Article 23 - Recruitment, use, financing and training of mercenaries

Article 24 - International terrorism (linked with internal terrorism)

Some of these are already covered by special conventions which are part of the legacy of Nuremberg and Tokyo.⁴² That some of these international crimes did not make it into the Rome Statute and thereby achieve characterisation as the `most serious crimes of international concern' should be taken in stride, as it were. For the Statute itself in its Article 10 provides that it should not `be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.' The Statute is a very important part but not the whole body of ICL. Likewise, the ICC is a very important but not the only forum for the prosecution of international crimes of four kinds (war crimes, genocide, crimes against humanity, and aggression).

F Applicable Law and Human Rights

1) The Statute, Elements of Crimes, and its Rules of Procedure and Evidence

2) applicable treaties and the principles and rules of international law (ie, conventional and customary)

3) general principles of law derived from national laws of legal systems of the world

4) principles and rules of law as interpreted in its previous decisions (ICC jurisprudence)

5) consistency with internationally recognised human rights (HR) and without any adverse distinction (non-discrimination)

We have already touched on or noted some of these such as the resort to general principles of national laws. These would be presumably more attuned to the context of internal armed conflict although also presumably biased for governments as against rebels.

We focus here on the required consistency with HR in the ICC's application and interpretation of law. This guideline is apparently mainly intended to secure the rights of the accused. But it may or should also be interpreted to effectuate the rights of victims of international crimes that are `barbarous acts which have outraged the conscience of mankind,' to borrow the wording of the Universal Declaration of Human Rights.⁴³ Thus, in ICL, through the Rome Statute and the operation of the ICC, we shall have another mechanism for the interrelationship of HR and IHL. We already alluded to HR in our discussion on crimes against humanity above.

Professor Dietrich Schindler has said that `An important area where the two branches of international law overlap is in domestic armed conflict' and that `Whenever both... are applicable simultaneously, the dispositive question for the individuals concerned will be which of the two sets of conventions will guarantee more rights and which will have a better mechanism to enforce those rights.'⁴⁴ Ambassador Cesar Sepulveda, President of the Inter-American Commission on Human Rights, similarly says that `there is an important area of contact between humanitarian law and human rights law. The two systems can be applied simultaneously: they are not mutually exclusive. Situations exist in which a group of individuals need the protection afforded by both systems simultaneously.'⁴⁵

Sepulveda says that HR's `continued application has been called for in undefined situations of non-peace, non-war, that occur within a state, such as in cases of subversion and internal disturbances.'<sup>46</sup> This is precisely the border line of internal armed conflict. Thus, for Schindler, `The application of the law of war no longer automatically excludes the application of the law of peace.'⁴⁷ Indeed, as relevant to armed conflict as HR is peace which is, after all, a `right of peoples.'⁴⁸ But more on peace later.

In what appears to be the latest disquisition on the interface of HR and IHL, Professor Raul Emilio Vinuesa concludes that, notwithstanding the significant differences and independence between the two, `From a strictly doctrinal point of view, a possible integration of human rights and IHL's common principles and values could stimulate a positive nexus that would facilitate an increased influence of rule accomplishments from one system to the other. That would not necessar

Well, the ICC now has that authority, and its best opportunity to exercise it would be in a case of internal armed conflict.

G Individual, State and Organisational Responsibility

In the event of a revolution or insurrection which brings about a change in the government of a State or the establishment of a new State, an act or omission of an organ, agency, official or employee of a revolutionary or insurrecting group is, for the purposes of Convention, attributable to the State in which the group established itself as the government. ⁵¹

We are also concerned with possible international responsibility not only of a revolutionary government but also of a revolutionary group that is still fighting the existing government. The same principle would apply to other groups, corporations and other non-state entities. Individual criminal responsibility under the Rome Statute's Article 25 covers individual rebels (and for that matter, individual soldiers and other individual state agents) but does not cover rebel groups. Be that as it may, there is this specification in Article 25(3) for individual criminal responsibility which indicates group criminal responsibility:

(d) In any other way contribute to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime. (underscoring mine)

Taken together with other provisions on organisational aspects (plans, policies, and membership) pointed out earlier, and with later articles on command responsibility and superior orders, there is basis to develop a concept of group criminal responsibility. In appropriate cases, trial will involve looking into evidence regarding the relevant organisation.

According to one fact sheet on the Draft Statute before the Rome Conference prepared by the non-governmental Coalition for an International Criminal Court (CICC), `Debate exists, however,

According to Article 9 of the Nuremberg Charter, `At the trial of any individual member of any group or organisation, the Tribunal may declare (in connection with any act of which the individual may be) that the group or organisation of which the individual was a member was a criminal organisation.' Then, according to Article 10, `In cases where a group or organisation is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military, or occupation courts. In any such case the criminal nature of the group or organisation is considered proved and shall not be questioned.'

Thus followed the subsidiary trials of other Nazi war criminals by individual Allied Powers. This time `membership in a criminal organisation was designated an independent indicia of crime.' Incidentally, among those tried and convicted were magnates of the industrial and financial corporations behind the Third Reich. `The directors of the monopolies had to bear responsibility for active participation in Hitlerite aggressive policy...'⁵⁴

At this point, allow us to take a few pages from Philippine law, which is a mixed civil-common law system. In the Labor Code of the Philippines, when an offense is committed by other than a natural person, particularly by a corporation, the penalty shall be imposed upon the guilty officer(s) of such corporation.⁵⁵ In the Revised Penal Code, the subsidiary civil liability, in default of the persons criminally liable, shall also apply to corporations engaged in any kind of industry for felonies committed by their employees in the discharge of their duties.⁵⁶ Under Philippine jurisprudence on private corporations, the general rule is the doctrine of separate legal entity, meaning a corporation has a distinct personality from its members or stockholders. Disregarding this legal fiction is the exception and becomes necessary when it used, among others, to defend crime.⁵⁷ Similar rules might be devised for rebel groups for purposes of ICL.

H Command Responsibility and Superior Orders

The Tribunal has found that the Accused had reason to know and in fact knew that acts of sexual violence were occurring on or near the premises of the bureau communal and that he

What is significant is that this ruling on command responsibility was made in a case of internal armed conflict although the Accused here was on the former government side which included the `armed local militia' (not a rebel group). It is evident that the doctrine of command responsibility implies a chain-of-command and requires such evidence as higher directives or orders. In short, it requires a level of organisation, whether this be paramilitary forces or rebel groups.

One recent interesting example of a rebel perspective on command responsibility comes from the Philippines. This is the case of Philippine Army Brig Gen Raymundo Jarque who defected to the rebel National Democratic Front (NDF). This is how one NDF member organisation portrayed it:

Before accepting him as a friendly personage, the NDF looked into his background and character. It concluded that he had command responsibility for Operation Thunderbolt but had no direct and personal responsibility for any of the specific human rights violations... He has condemned the antipeople orders from above, publicly expressed regrets over his command responsibility and actively apologised to the people and revolutionary forces.⁶¹

One question here is whether `the antipeople orders from above' were manifestly unlawful, in which case he need not have implemented them. Under the Rome Statute's Article 33(2), one manifestly unlawful order is an order to commit crimes against humanity, which are committed as part of a widespread or systematic attack against a civilian population.

I Political Offenses and 
Absorption of Common Crimes

In ICL, extradition, asylum and the political offense exception (or political offender doctrine) are a `sophisticated cluster of issues that must be treated together.'⁶² How does the political offense doctrine square with war crimes? Professor Waldemar A Solf answers with citations:

(T)here are limitations on the conduct of internal armed conflict or that revolutionary violence that transgresses these limitations is not tolerable under the political offenses excep

In the Philippine jurisdiction, there is also a political offenses concept. These are offenses in pursuit of political beliefs (eg, to overthrow the government), not for personal ends like rape or robbery. They are from time to time covered by amnesty except where attended by serious HR violations like torture, extra-legal execution, arson and massacre. There is also the related doctrine of absorption in rebellion. This provides that serious common crimes like murder, arson, robbery, and kidnapping should be absorbed in the charge of simple rebellion where they are committed in the course of, on the occasion of, or even as an unintended effect of rebellion, as long as not done for private purposes or profit, without any political motivation. But government prosecutors have a practice of, as much as possible, filing charges of common crimes against political offenders - thus criminalising what is essentially political.⁶⁴

It would be interesting to see how both national and international jurisprudence in criminal law develops as they are informed by the latest developments at both ends, including philosophical debates about criminalisation.

III THE OTTAWA TREATY AND THE ROME STATUTE

A Prohibition/Ban and Criminalisation

The undertakings are more in the nature of obligations than in the nature of crimes. And strictly speaking, they are obligations of `Each State Party.' There is clear state responsibility but not individual, much less group or corporate, responsibility. Each State Party undertakes never to `assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party' but this `anyone' is not itself prohibited from engaging in such activity. Be that as it may, the Ottawa Treaty is a major achievement both in substance and process, a definite step forward in the global movement to ban landmines.⁶⁶

The Ottawa Treaty's apparently weak penal force at the international level could have been compensated for had APMs been criminalised in the later Rome Statute but it was not to be.⁶⁷ As already noted in our discussion on war crimes, neither APMs nor the usual weapons of mass destruction (eg, nuclear, chemical, and biological) made it to the shortest list of criminalised weapons under the Statute's Article 8(2)(b), which in any case is limited to international armed conflict. Paragraph (xx) thereof provides as a war crime the use of weapons `which are of a nature to cause superfluous injury or unnecessary suffering on which are inherently indiscriminate' provided they are the `subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment.' APMs fit this bill except for the last item on an annex which will have to wait at least seven years.

The non-inclusion of APMs as a criminalised weapon in the Rome Statute, like other proposals and provisions, can be attributed to what may have been necessary compromises in the give-and-take of diplomatic negotiations in view of the positions of the major military powers (especially the US) at the Rome Conference. What is surprising is that Canada, the vanguard of the Ottawa Treaty which was then already nearing its requisite 40 ratifications for entry into force, made an early deliberate decision to abandon efforts to have APMs specifically criminalised so as not to undermine its overall efforts. The ICBL, then already with the prestige of the latest Nobel Peace Prize, was not present in its usual high-level NGO lobby to push the landmines issue, partly because it was more occupied with a project to monitor implementation of the Ottawa Treaty.⁶⁸

The ICHRDD argues that, notwithstanding the non-criminalisation of APMs and weapons of mass destruction in the Rome Statute, their use (as distinguished from the weapons per se) `could still be brought within the jurisdiction of the Court' under some other provision depending on the circumstances of their use.⁶⁹ This will depend on ICC jurisprudence. In time, there may develop other venues for the international criminalisation of APMs. There is still, of course, the mechanism of an Amendment Conference under Article 13 of the Ottawa Treaty. This non-UN venue still has better prospects than such UN venues as the Conference on Disarmament (CD) and the review

One possibility to look into is the current International Committee of the Red Cross (ICRC) study on customary IHL⁷¹ and see how APMs may be internationally criminalised under this. To be sure, the ICBL has already taken the position that APMs are `already illegal under existing customary international humanitarian law, because they are inherently indiscriminate and they fail the proportionality test... The Mine Ban Treaty codifies the illegal status of anti-personnel mines and is establishing the new international norm.'⁷²

On the other side, the devil's advocate could make a number of counter-arguments. Aside from the `weak' wording of the Ottawa Treaty itself and the `negative inference' from its non-criminalisation in the Rome Statute, there is the still existing CCW Amended Protocol II, ⁷³which merely restricts the use of landmines (both anti-personnel and anti-tank), in effect, legalises them. Incidentally, one of the major amendments in that Protocol was its extension from international to internal armed conflict.

B State Parties and Non-State Actors

The closest language regarding application to rebel groups is the Preamble's generic restatement of the `principle of international humanitarian law that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited...' This is preambular or prefatory, not operative or binding, text. Anyway, the Austrian delegation says `the Preamble was formulated to reiterate the basic principles that all parties to the conflict are bound by the principles of IHL underlying the ban.'⁷⁶

Although the Preamble mentions only IHL, the Austrian delegation says `The Convention is firmly rooted in international humanitarian law (IHL), and at the same time also contains important elements of disarmament law... The Convention totally bans a specific type of weapon and provides for a compliance mechanism, in keeping with the disarmament tradition.'⁷⁷ One is tempted to look for an angle of peaceful settlement of disputes to complete the three themes of the 1899 Hagne Peace Conference.⁷⁸ And there is indeed Article 10 on Settlement of Disputes. A major omission though is any reference to HR. This would have been particularly relevant to national implementation measures as well as widening and strengthening the legal basis for a landmines ban.

According to the Austrian delegation, Article 9 on National Implementation Measures, was

Each State Party shall take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control. (underscoring mine)

What the State Parties would not (yet) illegalise or criminalise at the international level, they would prevent and suppress at the national level by all appropriate measures, including penal sanctions, and presumably police and military measures. That may be well and good for a landmines ban but a suppressive approach must be complemented by other approaches.

A strong case could be made for a landmines ban not only as an IHL and disarmament measure but also as an HR measure. The greatest Filipino HR lawyer Jose W Diokno once summed up all the `rights of man' into three basic rights: to life, to human dignity, and to develop.⁸² On all three counts, APMs as a weapon are guilty of serious, if not systematic and mass, violations of HR. The United Nations Children's Fund (UNICEF), for one, has anchored its support for the ban on the basis of the 1989 Convention on the Rights of the Child⁸³ (CRC), particularly the rights of children in situations of armed conflict.⁸⁴

Another interesting example is a provision against the use of landmines in the 1998 agreement on HR and IHL between the Philippine government and the rebel NDF.⁸⁵ Under its Part III on Respect for HR, Article 2(15) includes `the right not to be subjected to... the use of landmines.' The main significant thing here is the HR context. The other significant thing is that, strictly speaking, the landmines ban here covers not only anti-personnel but also anti-tank mines. In these two senses, this government-rebel agreement goes beyond the Ottawa Treaty. It is to approaches such as this that we now turn our attention.

IV NON-STATE ACTORS AND COMPLEMENTARY APPROACHES 
FOR THE GLOBAL MOVEMENT AGAINST LANDMINES

A Non-State Actors: What, Who, Where

Still, the use of the term NSA to mean the other party (or parties) in internal armed conflict has gained currency, even with some state actors. Canada, for one, has used the term in a `proposed global convention prohibiting the international transfer of military small arms and light weapons to non-state actors.'<sup>87</sup> The classification scheme in the Documentation section of the newly launched Yearbook of International Humanitarian Law uses the category `Conflicts, Armed Forces and Non-State Actors.'⁸⁸ Still, the term would be vague to most people, including the NSAs themselves. Also, `actors' are not necessarily organisational but groups are.

Thus, the other term `rebel groups' as already discussed early in this paper, particularly in Part II, Section A, based on Rowe's generic formulation.<sup>89</sup> At least, the term is not misunderstood to mean MNCs or NGOs. The context of anti-government irregular armed forces in internal armed conflict is clear. The term `rebels' is also used by Professor Alfred P Rubin and Cassesse in their respective articles on the status of rebels under the 1949 Geneva Conventions and 1977 Additional Protocol II.⁹⁰

But the term is not also without it's problems, including to some rebel groups themselves. We refer to the `highly theoretical' but largely impractical distinction among `three categories of civil conflict with different legal consequences flowing from each: rebellion, insurgency, and belligerency.⁹¹ We will not get bogged down in these categories. We have learned a negative lesson about belligerency as the biggest single stumbling block in the off-and-on peace negotiations between the Philippine government and the NDF which believes it has progressed beyond the first two categories.⁹² In this connection, Olivier Durr as an ICRC Head of Delegation in the Philippines once wrote to the author (providing materials):

You will see that the recognition of belligerency is an obsolete legal institution which was not even a generalised and accepted practice, but rather an instrument of the policy of the USA in the Southern American affairs at the turn of the century ….I have always been amazed at the importance given to this subject by both parties in the Philippines. Sad enough, the application and respect of IHL, even in its fundamental principles, have been made more difficult because of this unnecessary political prerequisite.⁹³

Terms other than `rebel groups' have been used in this discourse. The WG-NSA initially used `guerrilla groups.'⁹⁴ But technically, guerilla forces and warfare obtain in both internal and international armed conflicts.⁹⁵ World War II had its resistance movements of mainly guerilla forces. Some internal armed conflicts have been characterized by mainly conventional or positional warfare like the American Civil War.

There are some terms used in, derived from or associated with the Geneva Conventions and its Additional Protocols. `National liberation movements' (alternatively, `liberation forces') pertains to wars of national liberation which have international status under Protocol I, Article 1(4). `Dissident armed forces' is a term used in Protocol II, Article 1(1) on internal armed conflicts albeit of a certain threshold or level, and therefore of specific, not generic, meaning. Liberation (forces) also has a connotation of liberation from foreign occupation. Similarly, resistance (movements) has the connotation of resistance to foreign occupation.⁹⁶

Canadian human rights lawyer David Matas uses the term `armed opposition groups' because it is `ordinary Everyday English' and used by the UN Commission on Human Rights.⁹⁷ This is similar to some terms like `extra-parliamentary opposition' and `anti-government forces' which the WG-NSA brainstormed during the early conceptualisation of the NSA initiative.⁹⁸ Care was taken to avoid `value-laden' or judgmental terms like `terrorist,' `bandit' or `criminal'. The last two remove the political essence of the rebel. As for the terrorist, he or she is often political but, as has been often said, one person's terrorist is another person's freedom fighter. The topic of terrorism is so full of `landmines', we will avoid it in this paper.

In the WG-NSA's 1998 database, we have a rough list of about 165 NSAs spread in Africa (about 50 groups in 13 countries, including 20 in Somalia), the Americas (about 12 groups in 5 countries), Asia (more than 50 groups in 14 countries, including 20 in Burma), Europe (about 30 groups in 9 countries), and the Middle East (about 25 groups in 7 countries). To name just three from each geographical area, so we know what groups or actors we are talking about: UNITA (Angola), POLISARIO (Morocco/Western Sahara), al-Gama'at al-Islamiyya (Egypt), FARC (Columbia), Zapatistas (Mexico), Tupac Amaru (Peru), Khmer Rouge (Cambodia), Tamil Tigers (Sri Lanka), FRETELIN (Indonesia/East Timor), KLA (Yugoslavia/Kosovo), IRA (UK/Northern Ireland), ETA (Spain), Hizbollah (Lebanon), HAMAS and Islamic Jihad (Israel/Palestine).⁹⁹ Mind you, just 15 of about 165.

B The NSA Initiative: Why

1) Most of the landmines being planted and used are a result of war between governments and rebel groups. In fact, most wars in the past several decades have been internal armed conflicts. According to the latest peace research data, `The Stockholm International Peace Research Institute

2) The Ottawa Treaty is one exclusively involving governments, particularly the undertakings and obligations therein. Rebel groups are bound not to feel bound, not having participated in its making. Additionally, there is `no mechanism' for them `to sign up to the treaty.'¹⁰¹

3) Engaging rebel groups becomes necessary so that the landmines ban (which need not be limited to the Ottawa Treaty) becomes truly universal. Such engagement is complementary to the mainstream Ottawa Process with governments. This way both sides of most conflicts are purposively addressed, each in their own way.

4) Rebel adherence to a landmines ban will also push more governments to reciprocate and accede to the Ottawa Treaty, and vice-versa. One prominent example of the problem is the Sri Lanka government's not signing the treaty because the Tamil Tigers (LTTE) use landmines. If the latter would adhere to a ban, the former would have no excuse not to accede.

5) Some rebel groups eventually become governments. As of October 1997, the WG-NSA listed the following governments with some ex-rebel (and also war veteran) components: South Africa, Namibia, Mozambique, Zimbabwe, Ethiopia, Eritrea, Guinea-Bissau, Angola, Algeria, Nicaragua, El Salvador, Guatemala, Cuba, Surinam, Vietnam, Cambodia, Yemen, and Palestine.¹⁰² This is why the initial proposal for a parallel consultation involved not only guerilla groups but also war veterans.¹⁰³

6) Engaging rebel groups is necessary in order to fully solve the problem on the ground, some of which they control. This is especially feasible in the post-conflict context and for other aspects of the ban like mine clearance of rebel minefields.

7) Finally, the rebel dimension cuts across many landmines aspects and issues. Aside from demining, there is, for example, the matter of production and the very definition of APMs. The Ottawa Treaty's Article 2(1) definition of APM does not mention `improvised' and `command-detonated' qualifications which happen to be concerns of some rebel groups. According to the ICRC, based on the `understanding of the negotiators,' improvised APMs are banned while command-detonated munitions are not.¹⁰⁴

In the Philippine internal armed conflicts, most rebel landmines (especially anti-tank) are improvised and command-detonated. The latter accounts for their relatively discriminate and selective use. In general, landmines use by both sides or all sides has not been widespread because of concern that civilian casualties would result in loss of popular support. The Philippine experience

done.¹⁰⁵

C Government and Rebel Concerns

These are valid concerns but are not counter-arguments against the reasons for the NSA initiative. They only further underscore the sensitive nature of the initiative which must therefore be handled with care, competence, impartiality and commitment. One might say, like ICRC. But it cannot also be exactly like ICRC. In the first place, it arises from within ICBL which is an NGO coalition and campaign. At the same time, it cannot also take on the mode of the Ottawa Process, particularly the partnership with some governments, if it is to remain above suspicion by rebel groups it hopes to win over to the landmines ban.

At this juncture, we shall just briefly address the two main government and rebel concerns of belligerency and counter-insurgency, respectively. On the matter of giving legitimacy and recognition to rebel groups, it is clear both from IHL instruments and authoritative commentators that humanitarian measures shall not affect status. The standard for this is the last sentence of common Article 3 of the Geneva Conventions, considered part of customary IHL: `The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.'

On the matter of counter-insurgency, it is not that but humanitarianism, or more precisely the victims, that was the motivation behind the launching of the ICBL in 1992. So with the ICRC's unprecedented decision in 1994 to campaign for the ban. That these two main non-governmental campaigns culminated in the Ottawa Treaty is attributable as much to them as it is to the initial core group of governments which included Canada, Norway, Austria, South Africa, Belgium, Mexico, the Philippines, Switzerland and Germany.¹⁰⁶ The treaty of governments means that it is they who have obligated themselves to disarm themselves of APMs.

The ICBL treats the treaty as a humanitarian rather than disarmament treaty. The element of disarmament is for a humanitarian purpose, unlike the usual disarmament treaties with mainly military balance considerations. The Ottawa Treaty deals with a particularly inhumane weapon that is indiscriminate and causes superfluous injury and unnecessary suffering. It is of a different level from the Canadian proposal for a global ban on the international transfer of military small arms and light weapons to NSAs. ¹⁰⁷

Whatever element of disarmament is limited to APMs and does not cover anti-tank mines which rebel groups (and government forces) can still use against tanks, armored personnel carriers and other military vehicles. The point, to quote the Ottawa Treaty Preamble, is the `principle of

D Why Rebels Should Adhere to a Ban

1) Adherence to a landmines ban would be a measure of willingness of a rebel group to observe the rules and customs of war, especially now that the Ottawa Treaty is part of IHL. Mind you, this is not for belligerency status. But this will show that the group is a responsible one, especially if it aspires to take over government or is in fact already a de facto government in portions of the national territory under its control. More important than territorial ground (to be defended by landmines) is the matter of high moral ground and winning the hearts and minds of the people.

On the disincentive side, non-adherence could lead to stigmatization as a rogue (as in Khmer Rogue, misspelling intended) rebel group, also in the same club as the `enemy' recalcitrant major military powers, for clinging on to a heinous weapon that deserves the dustbin of history.

2) While APMs or landmines in general have described as a `poor man's weapon' of choice, they are also anti-poor in the sense that most of their victims are poor people, especially peasants, women and children. And while it may be true that rich countries would be in a better position to develop and profit from `high tech' alternatives to APMs, it is also the rich APM-producer/exporter countries and MNCs which would be hardest hit in the pocket by a total ban on APMs.

3) Improvised landmines have too often exploded _ literally and figuratively _ in the faces of rebels, resulting in what Mao called `unnecessary sacrifices.'¹⁰⁸ Improvised landmines are more dangerous than industrially manufactured ones for the following reasons: (a) they have no tabulated or established standards which make it very unpredictable and unsafe even to the handler; (b) they contain shrapnel like rusted nails or dirty metals which increase the risk of infection and death; and (c) they are difficult to detect and identify because they look like ordinary sardine cans, jewelry boxes, paint cans or biscuit containers.¹⁰⁹

4) The ICRC has done several recent studies and seminars with the participation of military experts and the basic conclusion is that `The limited military utility of APMs is far outweighed by the appalling humanitarian consequences of their use in actual conflicts'. They also concluded that `some barrier systems and other tactical methods offer alternatives to APMs.'¹¹⁰

In fact, there are news and other reports of NPA units using barricades instead of landmines against Philippine Army reinforcement teams.¹¹¹

5) In addition to the humanitarian consequences are the socio-economic and environmental impact of APMs on poor countries like Cambodia, Afghanistan, Mozambique, Angola and Bosnia. Even where rebel groups take power or where there is a peace settlement, the urgent task of reconstruction is made so much more difficult by APMs on the ground even long after the conflict. Visionary revolutionaries should have this in their longer visions.

E Are Rebels Bound by a Ban?

So with common Article 3 of the Geneva Conventions and Additional Protocol II _ the core of IHL on non-international armed conflict. Use of APMs is not a violation as such but a possible violation of certain rules therein. For example, common Article 3(1)(a) on violence to life and person against persons taking no active part in the hostilities. Or under Protocol II, it could be Article 4(2)(d) on acts of terrorism; Article 13(2) on attacks on the civilian population with the primary purpose is to spread terror; or Article 17 on forced movement of civilians, in cases where APMs were used.

Unlike the Ottawa Treaty or even the Rome Statute, there are provisions in common Article

Common Article 3 is generally accepted not just as customary IHL but as customary international law. But not yet for Protocol II or even Protocol I as a whole.¹¹³ The difference, of course, is that conventional international law binds only the parties to the treaty while customary international law also binds non-parties.

From the perspective of customary international law, there is a very strong case for the illegality of APMs per se, especially if we use both IHL and HR norms. On the basis of the two basic IHL principles alone _ discrimination and proportionality _ the inherently indiscriminate and disproportionate APM is already illegal. More so with a deeper understanding of the proportionality dimensions of a) superfluous injury or unnecessary suffering,¹¹⁴ and b) humanitarian, socio-economic and environmental damage versus limited military utility.¹¹⁵ Still a third key rule is the De Martens clause, some kind of catch-all for principles resulting from `usages established among civilised people, from the laws of humanity and the dictates of the public conscience.'<sup>116</sup> The international community of public opinion has already characterised the APM as illegal, if not criminal, and demanded its ban.<sup>117</sup> Now, if one adds to these key IHL rules of customary IHL<sup>118</sup> the full weight of fundamental HR, then we are as good as it gets to `a peremptory norm of general international law, or jus cogens,' which `voids a conflicting treaty.'¹¹⁹ Professor Frits Kalshoven, commenting on the Colombia Constitutional Court's 1995 judgment on the constitutionality of Protocol II, said:

International humanitarian law belongs to the universally accepted customary law of civilised peoples. This, together with the self-evident humanitarian character of jus cogens, and its rules are eo ipso binding on all belligerent parties. For the Court, this determines why no irregular armed group can consider itself relieved of the obligation to respect the minimum standards of humanity on the mere ground that it is not party to the treaties of humanitarian law.¹²⁰

It is only a matter of time.

F How May Rebels Be Bound?

(Y)ou have violated standards which apply to you because of an obligation your state has undertaken on your behalf. Or, you have violated standards which apply to you and to which you have held your governmental opponents accountable. Or, you have committed an international crime. Or, you have committed an act for which you will be held accountable at international law if you should form a government, which you purport to want to do. Or, you have violated the humanitarian law of armed conflict, which applies to you…¹²²

In the case of a landmines ban, there are the proverbial two ways towards obligating rebel groups to adhere to it: the `hard' and `soft' approaches. The `hard' approach is basically international and national criminal prosecution for war crimes, other international crimes, and violations of national legislation with penal sanctions such as may be enacted pursuant to the Ottawa Treaty's Article 9.

Such prosecution may be conducted at the ICC, other possible international tribunals of an ad hoc nature as may be created (for Pinochet? For the Khmer Rouge? ), and national criminal jurisdictions. This is a matter of lawsuits, with not only criminal but also civil aspects, against individuals and governments (and corporations?).¹²³

But, as Plattner has pointed out, `The ultimate purpose of repression [ie, penal repression of IHL violations] must be borne in mind. Its main interest as regards respect for

IHL lies in its dissuasive and hence preventive capacity.'¹²⁴ The same ultimate purpose can be achieved through a more persuasive, less coercive approach. After all, `consent also applies to non-state parties in internal armed conflicts.'<sup>125</sup> It is to this `soft' approach that the NSA initiative is devoted.

IHL lawyering or the practice of IHL, like law practice in general, is after all not only litigation (both prosecution and defense) but also counseling, drafting and negotiation. Developmental legal aid has also developed `full use of its educative function.'¹²⁶ These other aspects of lawyering also have a role to play in the NSA initiative.

G What Is To Be Done?¹²⁷

1 Dialogue for understanding

2 Education on the Landmines Issue

3 Unilateral Declarations

Other than this, NSAs may issue their own unilateral declarations as has already happened so far with several NSAs in various capacities and for various aspects: The Guatemalan National Revolutionary Unit (URNG), the Taliban (de facto government) in Afghanistan, and the Casamance Movement of Democratic Forces (MFDC) in Senegal, among others. ¹³⁰ For the WG-NSA, the first formal letter of land mine renunciation from an NSA was received from the Somali Patriotic Movement (SPM).¹³¹

4 Bilateral Agreements

The WG-NSA has with it so far at least three peace and/or cease fire agreements with specific landmines provisions: the Sudan Peace Agreement,¹³³ ceasefire guidelines between the Philippine government and the Moro Islamic Liberation Front (MILF),¹³⁴ and the HR-IHL agreement between the Philippine government and the NDF.¹³⁵

5 Multilateral Undertakings

There is no precedent for a rebel Protocol or Treaty. The closest to that was the participation of national liberation movements in the diplomatic conference which drafted Protocol II. A similar mechanism for future diplomatic conferences can be explored although the prospects are not encouraging based on the experience at the 1974-77 Geneva Diplomatic Conference.¹³⁹ Thus, our `crazy idea.'

6 Peace Zones and Mine-Free Zones

7 Long-Term Peace-Building and Conflict-Resolution

The `philosophical' question of peace versus justice (as in `No Peace Without Justice') is sometimes posed, in the context of some problems with war crimes trials vis-à-vis the peace process. ICTY Judge Sir Ninian Stephen says the idea in the proceedings was one of `combining both'. `But if I have to choose (between the two), it would be peace, having seen the suffering (in war).'¹⁴⁴ That may not sound `politically correct' but neither does much wise counsel.

V CONCLUSION

This paper has given samples of bits and pieces of the rebel mind, particularly of the Maoist guerrilla kind. It regrets, for reasons of space and time, not being able to give samples of the Islamic kind, especially considering the prominent Islamic orientation of many NSAs. Islamic law (Shari'ah), with its international (Siyar), war (Jihad), and justice (`Adl) aspects, holds sway for the world's 800 million Muslims or one-third of humanity. It is an international law in its own right, including its interface with IHL.¹⁴⁵ And it has started to clarify or develop its position on landmines, fortunately in favor of the ban, as shown by the Taliban in Afghanistan.¹⁴⁶

In Suter's book on what went wrong in the 1974-77 Geneva Diplomatic Conference, he gives as one reason the `conservatism of the lawyers, irrespective of political outlook… a radical approach is required in order to draft rules to regulate guerrilla warfare. If the experts were temperamentally unwilling to think in radical terms, it was inevitable that they would fail to arrive at satisfactory rules for guerilla warfare.'¹⁴⁷ One of his more scathing critiques of the Geneva Protocols is as follows:

The protocols are too long, too complicated, too full of qualifications and esoteric legal language to be practical ways of regulating conflicts… The law of armed conflicts has been devised over the past century in the sophisticated and elegant conference centres of Europe by intelligent detached people. It is to be implemented (if at all) by the young not necessarily well-educated men who in combat zones are aware that the present moment could be their last.¹⁴⁸

In this regard, we can take a page from Mao.

It seems though that, for better or for worse, there is `the role of law in all forms of warfare',<sup>149</sup> no matter how oxymoronic that seems after Cicero's `Laws are silent in time of war.'¹⁵⁰ The role remains, as Diokno once wrote, `For the use of law enhances man in a way that the use of arms does not.'<sup>151</sup> Be that as it may, Suter asserts that the `law armed of conflict is too serious to be left to international lawyers.'¹⁵² They should perhaps mix more with poets and peasants.

One such poet, a rebel too of his time, said not so long ago, `For the times they are a-changin.'<sup>153</sup> The nature of conflict is changing, as McCormack notes, not for better but for worse. In responding to the challenges of IHL, he says it is time `to become more inclusive of other international actors in the making of international law, in order to impose binding obligations upon those other actors and so increase the effective implementation of legal principles.'¹⁵⁴ Yes, our same poet, in what should be the theme song of international criminal lawyers,¹⁵⁵ said `How many deaths will it take till they know that too many people have died? The answer, my friend, is blowin' in the wind.'¹⁵⁶

¹Mao Zedong, Quotations from Chairman Mao Zedong (2^nd ed, 1976) 11-12, citing `Report on an Investigation of the Peasant Movement in Hunan' (March 1927), Selected Works, Vol I, p 28.

²Mao Zedong, `On the Reissue of the Three Main Rules of Discipline and the Eight Points for Attention - Instruction of the General Headquarters of the Chinese People's Liberation Army' (10 October 1947) in Selected Military Writings of Mao Zedong (1968) 343-4.

³See especially the `Basic Rules of the New People's Army' (29 March 1969), Principle IV, Point 3, which adopts Mao's rules en toto. The document can be accessed from the National Democratic Front (NDF) website (www.geocities.com/~cpp-ndf).

⁴Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998 (`Rome Statute'). Its Final Act had 127 initial signatory States.

⁵Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, opened for signature in Ottawa on 3 December 1997 (`Ottawa Treaty'). It had 121 initial signatory States, up to 133 with 59 ratifications (Australia latest) as of 14 January 1999. It enters into force on 1 March 1999.

⁶The University of Melbourne Faculty of Law, International Criminal Law-1998 (730-639) Teaching Material for Semester 2, 1998 (1998).

⁷In the ICBL, PCBL and WG-NSA, the author has been privileged to work closely with and benefit from his interaction with Eduardo Marino of Colombia, Noel Stott of South Africa, and Miriam Coronel-Ferrer of the Philippines who are all also coordinators of their respective country campaigns.

⁸Rome Statute, Preamble, Articles 1,4,5, 11 and 25.

⁹Peter Rowe, `Liability for "War Crimes" During a Non-International Armed Conflict' (1995) XXXIV (1-4) Revue De Droit Militaire et de Droit de la Guerre 149, 152. Thanks for this and similar materials courtesy of friends at ICRC Geneva and Manila.

¹⁰Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 10 June 1977, Article 1.

¹¹Antonio Cassesse, `The Status of Rebels Under the 1977 Geneva Protocol on Non-International Armed Conflict' (1981) 30 International and Comparative Law Quarterly 416, 424. Thanks to the Institute of Human Rights, University of the Philippines Law Center, for this and other materials.

¹²These are the four Geneva Conventions of 12 August 1949: (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; (III) relative to the Treatment of Prisoners of War; and (IV) relative to the Protection of Civilian Persons in Time of War.

¹³Statute of the International Tribunal for Rwanda, New York, 8 November 1994, Articles 1, 4 and 7.

¹⁴ The Prosecutor v Jean-Paul Akayesu, Case No ICTR-96-4-T, 2 September 1998, Judgment, paragraph 639.

¹⁵Denise Plattner, `The Penal Repression of Violations of International Humanitarian Law Applicable in Non-International Armed Conflicts' (1990) No 278 September-October 1990 International Review of the Red Cross 409, 414.

¹⁶Laura Lopez, `Uncivil Wars: The Challenge of Applying International Humanitarian Law to Internal Armed Conflicts' (1994) 69 (4-5) New York University Law Review 916, 939-9.

¹⁷Rowe, above n 9, 155-6, with citations.

¹⁸International Centre for Human Rights and Democratic Development (ICHRDD), `The Rome Statute for an International Criminal Court: The Beginning of the End of Impunity - A Summary of the Main Provisions' in the ICHRDD website (www.ichrdd.ca). Thanks to Barbara Bedont for this and other sharings.

¹⁹Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 10 June 1977.

²⁰One excellent relevant book is Heather A Wilson, International Law and the Use of Force by National Liberation Movements (1988).

²¹Prosecutor v Dusko Tadic, Case No IT-94-1-T, 7 May 1997, Judgment, paragraphs 562 and 568.

²²Statute of the International Tribunal for the Former Yugoslavia, New York, 25 May 1993, Articles 2 and 3.

²³Statute of the International Tribunal for Rwanda, above n 13, Article 4.

²⁴ICHRDD, above n 18

²⁵United Nations (UN) Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), New York, 3 May 1993, particularly paragraphs 37-44.

²⁶Theodor Meron, `War Crimes in Yugoslavia and the Development of International Law' (1994) 88 American Journal of International Law 78, 79.

²⁷Avril McDonald, `The Year in Review' (1948) 1 Yearbook of International Humanitarian Law 113, 121-2.

²⁸Rowe, above n 9, 155.

²⁹Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948.

³⁰Catherine Cisse, `The End of a Culture of Impunity in Rwanda? Prosecution of Genocide Before Rwandan Courts and the International Criminal Tribunal for Rwanda' (1998) 1 Yearbook of International Humanitarian Law 161, 169.

³¹The Prosecutor v Akayesu, above n 14, paragraph 701.

³²Helen Durham, Discussion on the International Criminal Court of the International Criminal Law postgraduate class, Faculty of Law, University of Melbourne, 10 November 1998. She is Australian Red Cross (ARC) National IHL Coordinator and was Member of the ICRC Delegation at the Rome Conference. Thanks to her for this and other sharings as well as access to her special collection at the ARC National Resource Center (and thanks also to Sharon Pimm and Philomena Windebank for their assistance there).

³³Lopez, above n 16, 940.

³⁴TheProsecutor v Akayesu, above n 14, Verdict.

³⁵ICHRDD, above n 18.

³⁶Charter of the International Military Tribunal adopted by the Big Four Powers, London, 8 August 1945 (`Nuremberg Chapter').

³⁷Charter of the International Military Tribunal for the Far East, Tokyo, 19 January 1946 (`Tokyo Charter')

³⁸Nuremberg Charter, Article 6(c); and Tokyo Charter, Article 5(c).

³⁹Tokyo Charter, Article 5(a); and Nuremberg Charter, Article 6(a).

⁴⁰International Law Commission (ILC), Draft Code of Offences Against the Peace and Security of Mankind, Paris, 28 July 1954.

⁴¹ILC, Draft Code of Crimes Against the Peace and Security of Mankind, 1991.

⁴²See, eg, Roger S Clark, `Codification of the Principles' of the Nuremberg-Trial and the Subsequent Development of International Law' in G Ginsburgs and V N Kudriavtsev (eds), The Nuremberg Trial and International Law (1990) 249, 253-5.

⁴³Universal Declaration of Human Rights, New York, 10 December 1948.

⁴⁴Dietrich Schindler, `Human Rights and Humanitarian Law: Interrelationship of the Laws' (1982) 31 American University Law Review 935, 939.

⁴⁵Cesar Sepulveda, `Interrelationships in the Implementation and Enforcement of International Human Law and Human Rights Law' (1983) 33 (1) American University Law Review 117, 118.

⁴⁶Ibid.

⁴⁷Schindler, above n 44, 942.

⁴⁸Declaration on the Right of Peoples to Peace, UN General Assembly Resolution 39/11, New York, 12 November 1984.

⁴⁹Raul Emilio Vinuesa, `Interface, Correspondence and Convergence of Human Rights and International Humanitarian Law' (1998) 1 Yearbook of International Humanitarian Law, 69, 109-10.

⁵⁰Ibid 105.

⁵¹Cited and quoted in David Matas, `Armed Opposition Groups,' (1997) 24 (3) Manitoba Law Journal 621,629. Thanks to Beverly Tollefson Delong, President of Lawyers for Social Responsibility (Canada), for this and other sharings.

⁵²Coalition for an International Criminal Court (CICC), `The Draft Statute,' Rome Conference, June 1998.

⁵³Christopher Greenwood, `The International Tribunal for former Yugoslavia' (1993) 69 International Affairs 641, 652.

⁵⁴I A Lediakh, `The Application of the Nuremberg Principles by other Military Tribunals and National Courts' in Ginsburg and Kudriavtsev, above n 42, 263, 265-9.

⁵⁵Labor Code of the Philippines, Presidential Decree No 442 (1974), as amended, Article 289.

⁵⁶Revised Penal Code, Act No 3815 (1932), as amended, Articles 102 and 103.

⁵⁷Aguedo F Agbayani, Commentaries and Jurisprudence on the Commercial Laws of the Philippines (1980 ed) vol III, 12-19.

⁵⁸327 US 1, 90 L ed 499 (1946).

⁵⁹Richard L Lael, The Yamashita Precedent: War Crimes and Command Responsibility (1982).

⁶⁰The Prosecutor v Akayesu, above n 14, paragraph 691.

⁶¹'Open Letter of Kabataang Makabayan-Europe,' 19 March 1997, from the NDF website, above n 3.

⁶²Clark, above n 42, 257-60.

⁶³Waldemar A Solf, `The Status of Combatants in Non-International Armed Conflicts under Domestic Law and Transnational Practice' (1983) 33(1) American University Law Review 53, 60-65.

⁶⁴The information in this paragraph is based on the author's personal knowledge as a human rights lawyer, including for accused rebels, in the Philippines during the Marcos and Aquino years. Philippine jurisprudence on political offenses can be found, among others, in People v Hernandez (99 Phil 515), People v Geronimo (100 Phil 90), Enrile v Salazar (186 SCRA 217), Enrile v Amin (189 SCRA 573), People v Manglallan (106 SCRA 116), People v Agarin (109 Phil 430), Misolas v Panga (181 SCRA 648), Baylosis v Chavez (202 SCRA 405), and People v Asuncion (GR No 83837-42, 22 April 1992). The author was counsel for the accused rebel in the Misolas case.

⁶⁵Ottawa Treaty, above n 5.

⁶⁶See, especially, Maxwell A Cameron, Robert J Lawson, and Brian W Tomlin (eds), To Walk Without Fear: The Global Movement to Ban Landmines (1998). Thanks to Mary Foster of Mines Action Canada (MAC) for the book.

⁶⁷Durham, above n 32.

⁶⁸The information in this paragraph is based on personal sharings with Durham, above n 32, who also belongs to the Victoria (Australia) Network of ICBL as well as on email sharings with other colleagues in the campaign.

⁶⁹ICHRDD, above n 18.

⁷⁰Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed

⁷¹McDonald, above n 27, 120.

⁷²Stephen D Goose, `The Ottawa Process and the 1997 Mine Ban Treaty' (1998) 1 Yearbook of International Humanitarian Law 269, 291.

⁷³Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Amended Protocol II), Geneva, 3 May 1996, Annexed to the CCW.

⁷⁴Goose, above n 72, 289.

⁷⁵Thomas Hajnoczi, Thomas Desch, and Deborah Chatsis, `The Ban Treaty' in Cameron, et al, above n 66, 292, 306.

⁷⁶Ibid.

⁷⁷Ibid 296.

⁷⁸Commemoration of the Centenary of the 1899 Hagne Peace Conference, Asia-Pacific Regional Conference, Faculty of Law, The University of Melbourne, Australia, 18-20 February 1999.

⁷⁹Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 13 January 1993 (`Chemical Weapons Convention').

⁸⁰Comprehensive Nuclear Test-Ban Treaty, 24 September 1996.

⁸¹Thomas Hajnoczi, et al, above n 75, 306.

⁸²Jose W Diokno, `Human Rights Make Man Human' in Justice Under Siege: Five Talks (1981) 20, 22-6.

⁸³Convention on the Rights of the Child, New York, 20 November 1989 (`CRC').

⁸⁴United Nations, Basic Facts About The United Nations (1998) 250-1.

⁸⁵Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998.

⁸⁶Timothy McCormack, `From Solferino to Sarajevo: A Continuing Role for International Humanitarian Law?' (1997) 21(2) Melbourne University Law Review 621, 640. This was his Inaugural Professional Public Lecture as Foundation Red Cross Professor of International Humanitarian Law, Law School, The University of Melbourne, on 28 April 1997.

⁸⁷Canada, `Discussion Paper: A Proposed Global Convention Prohibiting the International Transfer of Military Small Arms and Light Weapons to Non-State Actors,' 7 October 1998.

⁸⁸McDonald, above n 27, 113.

⁸⁹Rowe, above n 9, 152.

⁹⁰Alfred P Rubin, `The Status of Rebels Under the Geneva Conventions of 1949' (1972) 21(3) International and Comparative Law Quarterly 472; and Cassesse, above n 11.

⁹¹Wilson, above n 20, 23-9.

⁹²Luis Jalandoni, `NDFP Asserts its Status of Belligerency and Announces its Declaration of Undertaking to Apply the Geneva Conventions and Protocol I,' 5 August 1996, from the NDF website, above n 3.

⁹³Olivier Durr, Letter to Soliman M Santos, Jr, Manila, 7 January 1991, quoted in Soliman M Santos, Jr, `Peace Talks and Belligerency Status' (1992) 2(1) Peace by Piece 1, 5-6.

⁹⁴Eduardo Marino, `Proposed Parallel Consultations of Guerrilla Groups and War Veterans,' Bogota, March 1997.

⁹⁵Keith Suter, An International Law of Guerrilla Warfare: The Global Politics of Law-Making (1984) 10-17. This book provides a critical look into `what went wrong' in the making of Protocol II. For more on the legal aspects of guerillas, see George H Aldrich, `Guerrilla Combatants and Prisoner of War Status' (1982) 31 American University Law Review 871; Frits Kalshoven, `Guerrilla and Terrorism in Internal Armed Conflict' (1983) 33(1) American University Law Review 67; and Lester Nurick and Roger W Barrett, `Legality of Guerrilla Forces Under the Laws of

⁹⁶For more on the legal aspects of national liberation movements, see Wilson, above n 20; Dietrich Schindler, `Wars of National Liberation' in The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols (1979) 133; and Raul C Pangalangan and Elizabeth H Aguiling, `The Privileged Status of National Liberation Movements under International Law' (1983) 58 Philippine Law Journal 44. And of resistance movements, see W J Ford, Resistance Movements and International Law (1968).

⁹⁷Matas, above n 51, and email communication with author.

⁹⁸Noel Stott, `Proposal for a Complementary Process Aimed at Non-State Parties,' Johannesburg, October 1997.

⁹⁹NSAs Group of ICBL, `Initial Region & Country Survey for Purposes of Information & Action,' London, December 1998.

¹⁰⁰McDonald, above n 27, 121.

¹⁰¹John Ryle, `Enforcement of Ottawa,' Guardian, 21 September 1998. Thanks to Heather Elliott, Coordinator of the Victoria (Australia) Network of ICBL, for this and other email sharings.

¹⁰²Stott, above n 98.

¹⁰³Marino, above n 94.

¹⁰⁴ICRC, ` 1997 Convention on the Prohibition on Anti Personell Mines and on Their Destruction, `in Ratification Packet, Geneva, November 1997.

¹⁰⁵Capt Rene N Jarque , ` Landmines in the Philippines' (Prepared for the ICRC Meeting of Experts on the Military Utility of Anti-Personnel Mines, 12-13 February 1996, Geneva) , Quezon City, 7 February 1996; and Gen Arnulfo Acadera, Jr, `Non-Use of Anti-Personnel Mines in luternal Armed Conflict,' Paper read at the ICRC Regional Seminar for Asian Military and Strategic Studies Experts, Manila, 23 July 1997.

¹⁰⁶Goose, above n 72, 272-7. See the whole book of Cameron, et al, above n 66.

¹⁰⁷Canada, above n 87.

¹⁰⁸Mao, above n 1, 174, citing `Serve the People' (8 September 1944), Selected Works, Vol III, p 228.

¹⁰⁹Jarque, above n 105, 3-4.

¹¹⁰ICRC, Anti-personnel Landmines: Friend or Foe? (1996); and `Final Declaration of Participants,' ICRC Regional Seminar for Asian Military and Strategic Studies Experts, Manila, 23 July 1997.

¹¹¹Rene Alviar, `NPAs raid Army camp, Kill2,' Philippine Daily Inquirer, 13 April 1997, p 15.

¹¹² Cassesse, above n 11, 424-8.

¹¹³ Meron, above n 26, 79-80.

¹¹⁴ ICRC, The SirUS Project: Towards a Determination of which Weapons Cause "Superfluous Injury or Unnecessary Suffering" (1997); and Robin M Coupland, `The Effect of Weapons: Defining Superfluous Injury and Unnecessary Suffering' (1996) Medicine and Global Survival 3.

¹¹⁵ ICRC, above n 110.

¹¹⁶ As quoted in Beverly Tollefson Delong, `Enforcement of Landmines Legislation by Global Citizens,' 1 December 1997, p 5. She has also written `A Challenge to the ICBL: Responding to the Ottawa Treaty' and "The Ottawa Process and Nuclear Weapons' (December 1997). See also above n 51.

¹¹⁷ Peter Herby of the ICRC Legal Division presented Gallup poll surveys of international public opinion demanding

¹¹⁸ The ICBL'S legal analysis of the illegality of APMs under customary IHL can be found in Human Rights Watch and Physicians for Human Rights, Landmines: A Deadly Legacy (1993) 261-318; and in Shawn Roberts and Jody Williams, After the Guns Fall Silent: The Enduring Legacy of Landmines (1996) 489-95.

¹¹⁹ Wilson, above n 20, 9, citing the 1969 Vienna Convention on the Law of Treaties and commentators Brownlie and Schwarzenberger, including the latter's `International Jus cogens?' (1965) 43 Texas Law Review 476.

¹²⁰ Frits Kalshoven, `A Colombian View on Protocol II' (1998) 1 Yearbook of International Humanitarian Law 262, 264.

¹²¹ Matas, above n 51.

¹²² Ibid 633-4.

¹²³ Delong, above n 116.

¹²⁴ Plattner, above n 15, 419.

¹²⁵ Gerry J Simpson, Lecture on Problems with War Crime Trials, at the International Criminal Law postgraduate class, Faculty of Law, University of Melbourne, 4 November 1998. See also Gerry J Simpson, `War Crimes: A Critical Introduction' in Timothy LH McCormack and Gerry J Simpson (eds) The Law of War Crimes: National and International Approaches (1997) 1.

¹²⁶ Jose W Diokno, `Legal Aid and Development' in Justice Under Siege: Five Talks, above n 82, 38, 41.

¹²⁷ V I Lenin, What Is To Be Done? (1902).

¹²⁸ Undated three-page paper simply titled `Land Mines' on file with author and PCBL.

¹²⁹ Proposed Geneva Call papers on file with author and the WG-NSA, particularly Eduardo Marino based at International Alert, London, and Elizabeth Reusse-Decrey at the proposed Geneva Call office in where else but Geneva.

¹³⁰ Based on helpful information and materials from Catherine Mikton of the ICRC Mines-Arms Unit.

¹³¹ Eduardo Mariño, `NSA Group & Program Update,'London, 23 November 1998.

¹³² Kalshoven, n 120, 263.

¹³³ The Sudan Peace Agreement, Khartoum, 21 April 1997.

¹³⁴ Implementing Operational Guidelines of the GRP-MILF Agreement on the General Cessation of Hostilities, Marawi City, 14 November 1997.

¹³⁵ Above n 85.

¹³⁶ Mariño, above n 94.

¹³⁷ Mao Zedong, above n 2.

¹³⁸ Eduardo Mariño, `Towards a Code of Combat Conduct: Minimum Combatant Duties _ Minimum People's Rights,' International Conference on Conflict Resolution in the Philippines, Manila, 16 December 1988 (`Manila Declaration').

¹³⁹ See, especially, Suter, above n 95, and Lopez, above n 16.

¹⁴⁰ See, eg, Gaston Z Ortigas Peace Institute, Peace Zones Primer (nd), to start with, among many other materials.

¹⁴¹ Richard Sherman, `Concept of a Mine Free Zone _ A Brief Summary of the Session on Mine Free Zones', NGO Forum on Landmines, Oslo, September 1997.

¹⁴² Soliman M Santos, Jr `Mine Action, Peace-Building and Conflict Resolution,' Quezon City, 17 February 1998.

¹⁴³ Kalshoven, above n 120, 264-5.

¹⁴⁴ Sir Ninian Stephen, Open Forum after a lecture on the Tadic and Blaskic cases at the ICTY, at the International Criminal Law postgraduate class, Faculty of Law, University of Melbourne, 6 November 1998. Sir Ninian was former Governor-General of Australia and Justice of the High Court of Australia. He had just taken on a new assignment with the UN Commission to Cambodia to study the feasibility of a tribunal for the prosecution of Khmer Rouge crimes.

¹⁴⁵ Yadh Ben Ashoor, Islam and International Humani