Responding to Violations of the Mine Ban Treaty

In just under four weeks governments, civil society and landmine survivors will gather in Maputo, Mozambique for the Third Review Conference of the Mine Ban Treaty.  During the Conference, the attendees will review progress in landmine action since the last review conference in 2009 in Cartagena, Colombia and lay out the plan for the next five years.  In the last of four weekly posts, I discuss some of the issues I would like to see addressed in Maputo and beyond.

 

In Ukraine in recent weeks, Russian forces (or local militias allied with Russia) have laid landmines along the Crimean and eastern borders of the country.  Russia has rightly been called out for placing landmines in the territory of a country – Ukraine – which has signed and ratified the Mine Ban Treaty.  What has not been mentioned is the fact that Ukraine has been in violation of the Mine Ban Treaty since 2010 because Ukraine has failed to destroy its stockpile of anti-personnel landmines as required by the Treaty.  Ukraine still has millions of mines that require destruction and while NATO and the European Union have provided assistance to Ukraine to destroy these mines, but the obligation is Ukraine’s (The Monitor). Each year, the States Parties to the Mine Ban Treaty have requested updates from Ukraine on the status of stockpile destruction and continue to note Ukraine’s ongoing violation of the Treaty, but no further actions have been taken beyond the public shaming.  Within the Treaty itself there is no provision for sanctions against a state party in violation of the Treaty.  The International Campaign to Ban Landmines (ICBL) will issue press releases about violations when they occur and in conjunction with Meetings of States Parties which reminds all of the violations, but the ICBL has no sanctioning power.  There are, however, provisions for addressing violations of the Treaty by individuals.

All States Parties to the Mine Ban Treaty are required to have national legislation which provides for the “imposition of penal sanctions, to prevent and suppress any activity prohibited” (Article 9, AP Mine Ban Treaty).  In Afghanistan, New Zealand soldiers were allegedly instructed to set “booby traps” and “trip wires” which would have violated the Mine Ban Treaty.  The soldiers who were so instructed refused the orders, and while charges were filed against the commanding officer, those charges were dropped due to lack of evidence.  If the charges were true, this would have represented a significant violation of the Mine Ban Treaty by one of the Treaty’s strongest proponents (New Zealand Herald).  In response, the States Parties could activate investigation under Article 8 of the Treaty, but no matter the outcome of the investigation, the States Parties could do little to punish New Zealand.  However, New Zealand has passed the Treaty-mandated national legislation, the 1998 Anti-Personnel Mines Prohibition Act, which may have provisions for punishing individuals who would violate the Mine Ban Treaty.  Thus, the individuals who violate the Treaty may be punished, but States are not subject to any penalty.

The Article 9 “National Implementation Measures” are only effective if they are in fact implemented and punish Treaty violations.  In Turkey, whose existing laws were deemed sufficient to comply with the requirement of national implementation measures, a general who ordered the use of anti-personnel landmines was convicted after seven soldiers were killed by one of the emplaced mines, but “No mention was made of a violation of the ban on antipersonnel mines in the court’s proceedings, findings, or judgment” (The Monitor).  Thus the crime was not landmine use, but negligence on the part of the general; Turkey’s national implementation measures failed to punish the illegal use of mines.

For states and individuals that violate the Mine Ban Treaty, there should be a standard sanction.  The Treaty’s supporters (of which I am certainly one) will point to the stigma against landmine use that has emerged over the last two decades, but a stigma against use has not been enough to end all landmine use.  As long as soldiers (whether part of a nation’s formal armed forces or member of a rebel group) continue to see a military utility in landmines, we can expect to see new use of mines.  Something stronger than the stigma is needed to prevent and deter use.  An official sanction might be to only allow a state in violation to participate in official Treaty meetings as an Observer and not as a full State Party.  This would prevent a state in violation from having any decision-making authority over other States Parties.  It would also highlight the existence of the violation at Meetings.  For individuals that violate the Treaty, the State Party whose citizens had violated the Treaty would be forced to make a formal statement of the violation at a Meeting of States Parties and declare what punishment was meted out.  These sanctions would complement the stigma against landmine use while also increasing transparency about violations.

Michael P. Moore

May 27, 2014

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