INTRODUCTION

Landmines, both anti-personnel (AP mines) and anti-tank, have been extensively used for generations. While hundreds of thousands of mines were used during and since the Second World War, the international humanitarian community first came into real contact with the post-conflict challenge presented by the widespread use of mines in Afghanistan during the eighties. The challenges encountered during the international peacekeeping operation in Cambodia, a few years later (1992-1993), and thereafter in Kuwait following Operation Desert Storm, underlined the disproportionate effect that mines had on innocent members of the civilian population for many years after the conflict had formally ended.

This article first examines the nature of the AP mine issue, noting that the debate on AP mines is not concerned about the limited military utility of mines, but points to the essential humanitarian nature of the threat posed by AP mines in particular. The next sections describe first the International Campaign to Ban Landmines (ICBL) and the limited outcome of the CCW Convention process (Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects) by 1996, and then discuss South African policy on AP mines as it has developed in recent years. Against this backdrop, the article proceeds to discuss the recent Canadian initiative towards hosting a convention to sign a world-wide ban on AP mines in Ottawa in December 1997. This initiative has reinvigorated the AP mine debate outside of the confines of the CCW Convention. The final sections discuss the possible content of this proposed treaty, as well as the implications that this has for past international negotiation practices.

BACKGROUND

The doctrine of professional armed forces on the use of landmines is clear. Landmines are intended to protect military bases and key installations, as well as hinder and deter the enemy. Landmines are also used to protect open flanks, deny access to routes and strategic positions, restrict the ability of opponents to manoeuvre, and force them to deploy in areas where they are most vulnerable or least likely to attack successfully. AP mines are generally used to protect anti-tank mines, but have an added deliberate intention to maim and wound enemy soldiers, thereby sapping morale and placing additional strains on support systems (such as medical services and transport) and combat capabilities (fellow soldiers having to help their wounded comrades and being hesitant to move freely due to the evident threat of injury to themselves). Conventional armed forces have dedicated specialists (engineers) who are trained, practised and instructed in the use of mines. They are laid according to set patterns, minefields are clearly demarcated and locations mapped in detail to enable the subsequent lifting of minefields or safe passage for friendly forces. All combat forces receive general mine-awareness training.1

Despite these clear guidelines and control measures, mine warfare has always been a dirty affair even during 'conventional operations' between the armed forces of countries 'formally' at war. The indiscriminate use of AP mines, however, is a fairly recent phenomenon, dating from the war in Indochina in the sixties and seventies when the US used so-called 'bombies', especially in attacks against Laos up to 1973. Following the 1979 invasion of Afghanistan, Red Army forces dropped vast quantities of 'butterfly' AP mines over areas controlled or thought to be frequented by the guerrillas. In these campaigns conventional armed forces had moved to the indiscriminate use of AP mines against both their enemy and the local civilian populations. These operational strategies are particularly problematic, as mines leave a legacy long after the conflict has ended – evident in countries such as Egypt which is still suffering from the effects of the campaigns of the Second World War, and has some 22 million landmines strewn across its territory.2

The practice of using AP mines in irregular wars, such as those fought in much of Africa, is even worse. Most recent wars have involved non-conventional combatants, variously called insurgents, partisans, terrorists, guerrillas, freedom fighters or mujahedin. Regular armies fighting against them carry out 'counter-insurgency' campaigns, stability or emergency operations. In such conflicts both sides may make extensive use of mines, often in a random and unrecorded manner, as has been the case in countries such as Angola, Zimbabwe and Mozambique. Part of the problem is that

not all 'users' are governments (e.g. the Lords Resistance Army, UNITA, RENAMO, etc.);



not all governments are responsible and legitimate (e.g. North Korea, Burundi, Sudan); and



certain countries (such as Israel, South Korea and India) have legitimate security concerns that lead to the argument that AP mines play an important defensive role and their deployment is therefore strictly controlled.3

Technological developments have also brought about extensive changes to the manner in which mines have traditionally been used. They can now be delivered mechanically in their thousands by vehicle (such as with the Volcano, Minotaur or Skorpion systems), aircraft and rocket artillery (such as Multiple Rocket Launch Systems (MRLS)), and delivery can be done through remote controls. 'Deep strike' or 'cut-off' deployment of mines is aimed at blocking an advancing force in front, from behind, or both. As a result, mines have become part of an offensive strategy if employed as part of a fluid battlefield – although some of these systems are only available to first world military forces. To compound matters, many modern mines are not detectable as a result of the use of non-metallic materials, while many anti-tank mines have anti-handling devices, making mine-clearance a particularly hazardous task and complicating the distinction between anti-personnel and anti-tank mines.

At the other end of the technological spectrum, rudimentary AP mines can literally be manufactured in the backyard of a house, or in the bush using commercial demolition and explosive material or munitions components. Many of these home-made devices are often crude, unstable and difficult to detect, since they are mostly made of non-metallic materials. As a result, AP mines are qualitatively different from most other types of weapons that the international community has sought to ban in recent decades. They are not strategic weapons and do not have global reach in the normal sense of the word as is the case with intercontinental ballistic missiles.

A MILITARY OR A HUMANITARIAN ISSUE?

Although available statistics on the effects of landmines are daunting, they are perhaps not always reliable. On average, an additional one to two million landmines are planted every year, while fewer than 100 000 are lifted during the same period. More than a million landmines are therefore added annually to the estimated 85 to 100 million mines already planted in some 69 countries. In Africa – the continent most severely affected by landmines – an OAU study has found that "[m]ore than 18 African countries face, in varying degrees, the scourge of anti-personnel mines. Angola (9 to 15 million), Mozambique (2 million), the Sudan (1 250 000), Somalia (1 million), Eritrea (1 million), Ethiopia (500 000) are particularly affected. Without the same magnitude, other countries are also faced with relatively alarming situations: Rwanda (80 000), Chad (70 000), Namibia (50 000), Liberia (18 250)."4 The above must be seen against a background of an estimated annual production of between 500 000 and 1 million landmines (1993), even though circumstantial evidence shows that the international trade in landmines has declined significantly in recent years.5

The commitment to lift mines is equally depressing. In 1995, pledges announced for mine clearance amounted to approximately US $100 million of the estimated US $33 billion required to clear all currently placed mines.6 Compared to the unit price of a mine of between US $3 to US $75, it costs on average between US $300 and US $1 000 to lift that mine.7 Only in the aftermath of Operation Desert Storm in Kuwait was the international community willing to commit significant resources – to the tune of US $800 million – to a concerted military mine-clearance campaign.

In reaction to the growing abhorrence of the effects of AP mines on civilians, the defence industries developed so-called smart mines. The most secure of these have a self-destruct timer and a limited battery life. In other words, if the self-destruct timer fails, the mine becomes dormant and therefore harmless after a certain period. Technically, this solves the problem for those armed forces that could afford to acquire such sophisticated and expensive mines or replace their existing stocks of mines. However, most mines are planted during internal and irregular conflicts by armed forces that do not abide by the accepted law on armed conflict. Similarly, it is unrealistic to expect that the estimated 100 million dumb mines in stockpiles around the world would all be replaced by smart mines.

In effect, the limited military utility of AP mines stands in sharp contrast to the humanitarian, post-conflict costs of such mines. In the case of the latter, the debate relates to both the nature of the weapon itself, as well as its military utility. A number of advocacy and human rights organisations have investigated and studied the utility of AP mines on the battlefield.8 All these studies point to the obvious conclusion that mines have a limited utility as part of a wider defence system, but that this utility is not crucial to armed forces or to defence except within very limited parameters. Clearly, AP mines are not central to military defence or attack. They are, therefore, not 'essential' weapons.

The question is whether AP mines are indiscriminately and/or excessively injurious in cases of both military and civilian casualties. On the surface, there appears to be little doubt that AP mines cause indiscriminate civilian casualties and that the nature of injuries are excessively grievous. According to the International Committee of the Red Cross (ICRC), more than eighty per cent of the roughly one million AP landmine victims since 1975 were civilians. The horrible effect of these weapons is further evident in the ratio of amputees to the total population in a number of countries: 1:236 in Cambodia; 1:470 in Angola; 1:650 in North Somalia; 1:1 100 in Uganda; 1:1 682 in Mozambique; compared to a ratio of 1:22 000 in an unaffected country such as the United States.9 Yet, statistics are limited in their ability to relay the suffering and costs involved to children. The prostheses for a child with an amputated limb have be changed every six months, and every three to five years in the case of an adult. In low-income developing countries this means in effect that a juvenile mine victim has to use crutches. In 1995 alone, the ICRC's 33 prosthetics programmes provided nearly 8 000 amputees with prostheses and manufactured some 11 000 prosthetic devices. In the preceding ten years, the ICRC had treated over 30 000 mine victims and co-operated with local and national medical personnel to assist many more.10

According to some estimates, AP mines kill or injure 500 people per week and, in the process, terrorise and impoverish entire communities. They burden developing countries with the special and costly needs of victim assistance and force communities to re-experience the horrors of war through the experiences of individual victims. They impede the work of humanitarian relief organisations and United Nations peace keepers significantly. It is furthermore common practice to lay mines around key economic installations, such as electric power stations, high voltage lines (a practice which was very common in Mozambique), water treatment plants, major roads, etc. – each of these are key institutions in post-conflict economic growth.

Similar to blinding lasers, a strong argument can be made that AP mines cause unnecessary suffering and maiming of soldiers. Article 35 of Protocol 1, additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts of 1949, reiterates a long-standing customary rule of humanitarian law: "It is prohibited to employ weapons ... of a nature to cause superfluous injury or unnecessary suffering."11 This rule is intended to protect combatants. It is understood to prohibit the infliction, by design, of greater injury than necessary to remove a soldier from combat. The President of the ICRC presents a graphic description of the effects of such mines: "If a person steps on a buried anti-personnel mine, his or her foot or leg is blown off. The force of the blasts drives earth, grass, the vaporised mine case and portions of the victim's shoe and foot upwards into the tissues of the other leg, buttocks, genitals, arms and sometimes the eyes. ... If the wounded person gets to a hospital with the necessary facilities and expertise (both of which are rare in mine-affected countries) he or she will require several operations. Awaiting the survivor is permanent and severe disability with all the social, psychological and economic implications of being an amputee. Mines are designed to produce these effects."12 These characteristics place AP mines squarely in the same category as poison gas, blinding lasers and dumdum bullets.

In reaction to the growing awareness of these characteristics, the international community is increasingly viewing the use of AP mines as no longer being a military or security issue. It has become a humanitarian issue of global proportions and the future of mines, therefore, should not be negotiated within the confines of arms control issues, but in terms of humanitarian law.

THE INTERNATIONAL CAMPAIGN TO BAN LANDMINES

An important component of any campaign against landmines is that their use, either by governments, guerrilla forces or any other organisation or movement, should be stigmatised to the extent that the associated political and other costs following their use outweighs the potential military advantage. Stigmatisation requires the ongoing mobilisation of civil society to ensure that the issue remains clearly visible on the public radar, as has been the case with nuclear weapons since the seventies.

Sweden was the first country to formally propose a total ban on AP mines during August 1994 in the initial stages of the review of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to have Indiscriminate Effects (CCW Convention). At the time, the Swedish proposal was met with scepticism and even surprise by many governments. Today, slightly more than two years later, an international ban on AP mines is being formulated and is within reach.

The landmine issue has effectively been driven by a remarkable coalition of non-government organisations (NGOs) who formed the International Campaign to Ban Landmines (today composed of some 650 NGOs throughout the world), in conjunction with the ICRC which has thrown its considerable weight behind the campaign. The ICRC, the entire Red Cross and the Red Crescent Movement launched an international media campaign in 1995 to stigmatise AP mines and call for their elimination.13

The extent of the momentum that has built up during the last few years is remarkable. In October 1995 when the CCW Review Conference took place in Vienna, only fourteen governments were in favour of a ban on AP mines. By May 1996, at the end of the CCW Review Conference, the total had grown to 39 governments.14 During the recent conference in Ottawa, fifty governments attended.

CCW CONVENTION

To date, the only international agreement legally regulating the use of AP mines is an instrument of humanitarian law – specifically Protocol ll of the CCW Convention.15

The CCW Convention was opened for signature in 1981 in Geneva. It came into force on 2 December 1983 and was subsequently ratified by 57 countries. The convention is supplemented by three protocols, of which the second relates to the 'prohibitions on the use of mines, booby-traps and other devices'.

The content of Protocol II can be summarised as follows:

mines may only be employed against military targets;



remotely delivered mines may only be used if their positions are accurately recorded and if they are fitted with effective self-destruct mechanisms;



records of locations of pre-arranged minefields should be preserved; and



at the end of hostilities the parties involved should strive to reach agreement on those measures needed to clear minefields.16

The many shortcomings in this Protocol and the failure on the part of the international community to restrict the use of AP mines, led the UN Secretary-General to convene a Review Conference to propose amendments to Protocol ll. To that end, a Group of Governmental Experts was established to formulate, as a matter of priority, concrete proposals for amendments to Protocol ll. Four work sessions were held during 1994 and early 1995 at the Palais de Nations in Geneva.17 The second resumed session of the CCW to discuss these recommendations took place in Geneva from 22 April to 3 May 1996.

The Review Conference ended with the adoption of the important new Protocol IV on Blinding Laser Weapons and amendments to Protocol ll. The most significant improvements of Protocol ll are as follows:18

The scope of the Protocol has been extended to include conflicts of a non-international (i.e., internal) nature.



The general humanitarian restrictions are stronger, requiring greater discrimination between civilian and military objectives, prohibiting anti-sensing devices, and requiring advance warning of mines, booby-traps and other devices.



The use of non-detectable anti-personnel mines, as well as remotely delivered AP mines that do not self-destruct and self-deactivate, has been prohibited.



Certain prohibitions and restrictions on the transfer of mines have been introduced.



An obligation to impose individual penal sanctions on persons who violate the material provisions of the Protocol has been introduced. Thus, violations of the Protocol will basically be treated as war crimes.



The rules to protect peacekeeping and other forces and missions of the UN, as well as humanitarian missions and missions of the ICRC, from the effects of landmines, have been strengthened.



The general restrictions on the use of all types of mines, particularly regarding marking and recording, have also been tightened. The Protocol firmly places the final responsibility on the minelaying party, either to clear or to maintain minefields.

The Convention has also provided for a new Review Conference in 2001, as well as annual meetings of States Parties, as soon as the amended Protocol enters into force.

Despite the impressive list of technical issues that was addressed, it was clear that the Review Conference had failed to produce real improvements in the Protocol that would have a significant impact upon the global AP mine problem. However, this should not detract from the overall importance of the CCW process. The amended Protocol sets a minimum global framework – won through exhaustive and tortuous negotiations that appeared to severely indict the negotiating forum and structure. Cornelio Sommaruga, the President of the ICRC was scathing in his criticism: "... the new limitations on the use of anti-personnel mines, covering detectability and self-destruction of certain mines, are weak and overly complex. There is a danger that these provisions will not be implemented in the type of conflicts in which most recent use has occurred. Poorly trained or equipped forces may be unwilling or unable to abide by a complex set of rules or pay an increased price for self-destruction mines. It is indeed appalling that parties are not required to implement even these minimal restrictions on use until 9 years after entry-into-force of the revised Protocol, which means around 2007. By this time we expect that mines will have claimed well over 200 000 new victims ..."19

The co-ordinator of the South African campaign, Ceasefire, was particularly virulent in her condemnation, stating that "the limited changes in this convention will only come into force after twenty countries have ratified the amendments, which could take two years or more. There is also a nine year transition period for countries to convert to meet the requirement of the convention. So even the modest changes will not come into effect for at least 11 years. In that time 260 000 people will fall victim to landmines."20

SOUTH AFRICAN POLICY AT THE CCW

Until 1993, South Africa had no coherent policy on landmines. In 1994, shortly before the April elections which brought Nelson Mandela to power, the National Party Government announced a moratorium on the marketing, export and transit of all types of landmines. South Africa – in the past a large producer of landmines – has subsequently made significant policy changes.

South Africa acceded to the CCW Convention on 13 September 1995 and became a State Party to the Convention on 13 March 1996 – one of only six African countries, the others being Benin, Niger, Togo, Tunisia and Uganda. Five other African countries have signed the Convention but have not yet ratified it: Egypt, Morocco, Nigeria, Sierra Leone and Sudan.21

In September 1995, at the commencement of the CCW Review Conference, South Africa announced its intention to discontinue the use of so-called longlife AP mines and, instead, to develop self-destruct and self-deactivating AP mines (smart mines). The move – also propounded by a number of other governments – met with international condemnation, captured in the slogan 'Smart mines, dumb idea'.

During the conclusion of the second resumed session of the CCW in Geneva in May 1996, it became clear that the South African position had changed when it was announced that "[t]he South African Government ... supports efforts to achieve an international prohibition on the production, stockpiling, transfer and use of all anti-personnel land-mines. ...[and] has decided unilaterally to suspend the operational use of anti-personnel land-mines by the South African National Defence Force (SANDF). [T]he SANDF has been re-evaluating the future military utility of anti-personnel land-mines and will shortly report to Cabinet. In addition, the Government, having earlier decided to impose a moratorium on the export of land-mines, has now decided to replace this moratorium with a prohibition on the export of all type of land-mines."22 It was announced at the same time that the SANDF was surveying the military utility of AP mines.

But the truth was that, during 1995, the South African Government had steadily moved from an initial ambivalent position, to one where it supported a ban on so-called dumb mines (but continuing with the development of detectable smart mines) and, by mid-1996, clearly supported a total ban. Yet, South Africa was somehow uncomfortable about being too far ahead of its Southern African Development Community (SADC) partners in its position on any issue, even though it was literally the only African country actively participating in the debate.

In keeping with its role in disarmament and in global efforts towards peace (viz. the South Africa role with regard to the Nuclear Non-Proliferation Treaty, the Pelindaba Treaty and the Comprehensive Test Ban Treaty (CTBT), South Africa is moving towards a total prohibition of the use of AP mines. In the Memorandum of Co-operation of Arms Control and Disarmament that was signed by President Mandela and the Prime Minister of New Zealand on 8 August 1996, the two leaders called for "... the world-wide elimination of anti-personnel land mines."23 Within the South African Government, this commitment is also strongly shared by Deputy-President Thabo Mbeki, both the Minister and Deputy Minister of Foreign Affairs, the chairperson of the National Conventional Arms Control Committee and by senior officials of the Department of Foreign Affairs, such as the Deputy Director Multilateral Affairs.24

South Africa's policy on AP mines has also been considered by the Parliamentary Committees on Foreign Affairs and Defence, both having supported South Africa's prohibition of AP mines. But the Department of Defence had indicated that it was not yet ready to support such a move, pending the outcome of its study on the utility of AP mines.

CIRCUMVENTING THE CCW – THE CANADIAN INITIATIVE

By mid-1996, the international campaign to ban AP mines had gained substantial momentum, but the results of the CCW negotiations were disappointing. The question remained of how to move the debate forward – and on this there was considerable division. Some countries, like France, called for the First Committee of the General Assembly of the UN to adopt clear guidelines, namely "... a resolution recommending negotiation, in the most appropriate international forum, of a non-discriminatory multilateral treaty banning anti-personnel mines with an international mechanism for monitoring compliance."25 The US introduced a draft resolution which was adopted by 141 votes to none against, and ten abstentions. It "[u]rges States to begin work on an international agreement to ban use, stockpiling, production, and transfer of anti-personnel landmines with a view to completing the negotiations as soon as possible. Urges the widest possible accession to the Convention on Prohibitions of Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects and Protocol ll as amended on 3 May 1996, and urges all States immediately to comply to the fullest extent possible with the applicable rules of Protocol ll as amended on 3 May 1996. Welcomes the various moratoria already declared by States on anti-personnel landmines. Calls upon States that have not yet done so to declare and implement such moratoria, bans, or other restrictions – particularly on operational use and transfer – at the earliest date possible. Requests the Secretary-General to prepare a report on steps taken by Member States to implement such moratoria, bans or other restrictions and to submit it to the General Assembly at its fifty-second session under the item entitled General and Complete Disarmament."26

In the absence of a credible forum, many countries argue that detailed negotiations should resume within the Conference on Disarmament (CD) in Geneva. The CD has the advantage that the recent expansion in its membership, in which South Africa played an important brokering role, has provided it with enhanced legitimacy. The CD, however, remains a forum based on consensus, within which countries such as India, Pakistan and China, engage in petty 'tit-for-tat' politics. In respect of the CTBT, negotiations eventually stalled and were referred to the General Assembly of the United Nations during September 1996. On the other hand, the international community was clearly averse to the establishment of yet another multilateral negotiating forum to negotiate a ban on AP mines – an issue which all governments did not consider to be important.
It was Canada that deftly moved in to capture the initiative.

CANADA CAPTURES THE HIGH GROUND

From 3 to 5 October 1996, the Canadian Government sponsored an International Strategy Conference, Towards a Global Ban on Anti-personnel Mines in Ottawa. The conference was important both in terms of its interaction between NGOs and governments, as well as its outcome. It brought together fifty governments that had pledged support for a total ban on AP mines, 24 observer states, and a host of NGOs. Some NGOs and governments were part of joint delegations, others attended the event separately. The purpose of the conference was, among others, "a commitment to work together to ensure:

the earliest possible conclusion of a legally-binding international agreement to ban anti-personnel mines;



progressive reductions in new deployments of anti-personnel mines with the urgent objective of halting all new deployments of anti-personnel mines;



support for a United Nations General Assembly 51 resolution calling upon member states, inter alia, to implement national moratoria, bans or other restrictions, particularly on the operational use and transfer of anti-personnel mines at the earliest possible date..."27

The conference itself was split into plenary sessions, after which delegates were divided into either formal groups (i.e., for government delegations only) or NGO groups for further deliberations.

During the proceedings it became clear that the scope of the human and economic devastation wrecked by AP mines and the extensive resources required to clear mines were leading an increasing number of countries to support the goal of a total ban. At the conclusion of the Ottawa conference, fifty states adopted the Declaration of the Ottawa Conference in which they committed themselves to ensure, among others, "the earliest possible conclusion of a legally binding international agreement to ban anti-personnel mines."

A Chairman's Agenda for Action on Anti-Personnel (AP) Mines which was adopted during the closing session, outlined activities to be undertaken by the international community – at global, regional and national levels – to promote the conclusion of an agreement banning AP mines. Regarding Africa, the Agenda stated the following:

"Efforts to enhance the de-mining capacities of African countries with priority given to heavily mine-affected countries. This will include a Conference of African Experts in Demining and Assistance to Victims of Landmines (1997);



Meetings to engage military/national security experts on AP mines issues at the sub-regional level – including an ICRC seminar in Southern Africa (1997);



4th ICBL Conference on Landmines: Towards a Mine-Free [Southern] Africa, February 25-28, 1997, Maputo, Mozambique;



Work towards the implementation of the three-part programme of the Union Inter-africaine des droits de l'homme."28

All of the above were commendable, but the issue of translating this undeniable momentum into a binding international treaty, was still unresolved. It was on this issue that the Canadians produced their trump card. They had brought the international community together, set them up, and then moved in for the kill when the opportunity presented itself. Canadian Foreign Minister Lloyd Axworthy, the second last speaker in Ottawa, delivered his country's resounding message: "And so, today, I commit Canada to this goal, to work with our global partners to prepare a treaty [to ban AP mines] that can be signed by December 1997 and implemented by the year 2000 ..."29 With the offer to host a treaty signing conference in December 1997, Canada circumvented the possibility of having to deal with tortuous negotiations through the Conference on Disarmament in Geneva and, similar to Australia's introduction of the CTBT in the General Assembly of the United Nations in 1996, cut the Gordian knot of global multilateral negotiations to the severe discomfort of countries such as India, Pakistan and China, and to the annoyance of their allies. It was a masterful political performance, with the Canadians stealing a march on the rest of the world to the clear delight of Axworthy and his sometimes coy officials.

The unexpected Canadian announcement was, in particular, a direct challenge to the US and several other countries that refused to endorse a timetable, despite a barrage of verbiage. The US was the first country in the world to have instituted a unilateral one year (later a three year) moratorium on the export of AP mines by a vote of Congress on 23 October 1993. It was also the country that sponsored the resolution in the General Assembly of the UN (A/Res/48/75K of 16 December 1993) urging landmine producing member states to institute and apply a moratorium on the export of AP mines.30 The US three year moratorium has subsequently been made permanent through an announcement on 17 January 1997.

In the weeks that followed the Ottawa conference, the 141 states in the UN General Assembly co-sponsored another US-sponsored resolution. An International agreement to ban Anti-Personnel Landmines urged states to "pursue vigorously an effective, legally-binding international agreement to ban the use, stockpiling, production and transfer of anti-personnel landmines with a view to completing the negotiations as soon as possible."

TOWARDS A WORLD-WIDE BAN

It is, of course, not necessary to wait for an international ban to initiate action. Many governments have taken unilateral steps. Countries such as Belgium, Norway, Germany, the Philippines, Sweden and Switzerland, have unilaterally banned AP mines. These and other countries have also already embarked on the complete or partial destruction of their stockpiles.

At present, 47 governments have unilaterally already agreed to stop exports. The European Union (EU) has called on countries for such a ban and on 13 May 1996, the European Parliament called on all member states to unilaterally ban the production and use of AP mines and to destroy stocks.31 More than twenty governments have stated that they will not produce landmines. Many argue that policy statements should be translated into national legislation. A few countries, such as Norway, have already completed the total destruction of all AP mine stockpiles.

For the International Campaign to Ban Landmines, this year will be critical as events build up to the December 1997 conference.

The eventual framework convention to be tabled in Canada would probably consist of four protocols: production, stockpiling, use and export. A commitment to adhere to strict timetables for the destruction of current stockpiles, transparency on the extent of stockpiles and their destruction and some provision for verification, will have to be part and parcel of these protocols. A truly global ban will imply that all countries will have signed all four protocols. China (a major producer and exporter in the past), for example, may not be prepared to accede to the export protocol, although it has already stated that it will not export AP mines that do not meet the new technical specifications of the revised CCW Protocol ll with regard to detectability criteria and self-destruct/deactivate parameters. There are many indications that the international arms traffic in AP mines has already come to a standstill. In theory, the international community has a Resolution of the General Assembly of the UN that calls on all states to ban AP mine exports. Although not a treaty, it carries the weight of a consensus resolution.

There is a perception that there should be a 'global ban' on AP mines. There are no existing global arms control treaties, although it could be argued that strategic weapons require such treaties. Landmines are tactical weapons. There is therefore no compelling reason for South Africa not to ban landmines if China, for instance, does not. The response of one country to a neighbouring country's deployment of landmines, furthermore, is not necessarily more landmines as a countermeasure, but rather landmine clearance. In fact, a country whose neighbour deploys landmines should technically only have a legitimate concern if it harbours hostile intentions against that neighbour.

Another issue in the debate relates to the scope of any such agreement to ban landmines. Although the NGO community would like to expand the definition of what AP mines are, the international community within the CCW has in fact argued for some time about the definition contained in the CCW Protocol ll. This definition categorises mines according to their primary intention. Despite the problems of classification discussed elsewhere, it is to be expected that this definition, or a similar one, will be retained. Most armed forces will balk at the inclusion of anti-tank mines in a world-wide ban, and the argument that anti-tank mines are excessively injurious and are indiscriminate weapons, will be difficult to sustain.

The question of defining AP mines is also bound to be controversial. AP mines can be divided into a number of more or less distinct groups: blast or fragmentation mines (such as the PDM-6 and PMN), directional fragmentation mines (such as the Claymore and POMZ-2), and bounding fragmentation mines (such as the OZM-4). The inclusion of anti-handling devices in anti-tank mines has somewhat blurred the distinction between AP and anti-tank mines, but the primary purpose of the mine would probably serve once again as a source for classification. Equally so, the method of detonation may also be included in the issue. A directional fragmentation mine, such as a Claymore, which is detonated by tripwire may be considered an AP mine. The same mine, when set up for command detonation, may present a different quandary. Its application in this context is no different from that of a large shotgun or machine gun.

Clearly, an international agreement to ban anti-personnel landmines will not be completely effective. Few treaties are. In fact, most countries that have already banned AP mines, such as France and the US, state that they will ban exports and reduce dumb mine stockpiles but retain smart mines, as well as their right to use them. The control or the release of the use of AP mines has thus either been moved higher up in the military hierarchy or shifted to the political level. Furthermore, armed forces argue that they require continued training on AP mines, since a potential enemy may still have these weapons and their own forces would be in jeopardy should they not maintain their expertise. Limited stockpiles of AP mines and continued research and development (R&D) to design countermeasures, are therefore inevitable military requirements, until such time when responsible governments can be sure that a potential enemy would not use these weapons and therefore place its own forces at a permanent disadvantage.

Most countries presently appear to be in favour of keeping a small number of AP mines (about 2 000) for training and R&D, while continuing with demining training and the development of counter-mining measures. China may be the most important exception to an eventual treaty and will probably not participate in the process, although it may sign some of the envisaged protocols of the convention.

National governments and regional or sub-regional organisations, such as the Organisation of African Unity (OAU) and SADC can decide to eliminate AP mines in their own territories and thus contribute to a global solution. During June 1996, the Organisation of American States called for the establishment of an AP mine-free zone in the Americas. A similar initiative of the Central American Parliament, in which national renunciation of AP mines is combined with increased assistance for mine-clearance and victim assistance, could make Central America the first mine infested region to declare itself free from this scourge. In February 1996, the Council of Ministers of the OAU called on sub-regional organisations such as SADC, to launch initiatives to prohibit AP mines in support of the OAU's previous commitment to a total ban.

At the global level, the progress of negotiations on AP mines raises a number of interesting precedents. For one, there is the increased saliency of the General Assembly of the UN which has gained a new role in both disarmament and humanitarian affairs. In this process, the developing countries most affected by a scourge such as landmines – Angola, Mozambique, Egypt, Afghanistan, Cambodia – have had the opportunity to participate actively in debates on an issue which has a direct impact upon their populations, although not all have seized this opportunity. In effect, the international community may be moving to an era of unprecedented non-government involvement and influence in international affairs – a development, many would argue, that simply reflects the reality of the emerging world order within which coalitions of like-minded countries, organisations and interested parties collaborate. In the case of the campaign to ban AP mines, this collaboration between international organisations such as the ICRC, NGOs and governments has followed a twin track strategy. While formal negotiations occur to build the text of an agreement, a parallel process drives the political momentum and will. In this process, much use is made of the international media and pressure groups (issue-driven) that interact globally and react more rapidly than governments.

CONCLUSION

In reply to a question in Parliament on 15 May 1996, Joe Modise, the South African Minister of Defence, stated that the South African National Defence Force (SANDF) had a total of 311 179 landmines in stock, of which 261 423 were of the anti-personnel type and 49 756 anti-tank mines.32

The SANDF, at present, does not use or deploy any mines other than for training purposes and, according to the information supplied to the Department of Foreign Affairs, South Africa does not manufacture mines for stockpiling purposes. South Africa has also offered bilateral assistance and assistance through the UN to other states in solving their landmine problem. For example:

In July 1995 South Africa pledged assistance for mine clearance training programmes to the UN Stand-By Capacity to the value of R600 000.



In 1995, South Africa signed a Declaration of Intent with the Government of Mozambique to co-operate in demining efforts in Mozambique. South Africa is also assisting the Angolan Demining Institute with demining training. Mechem, a South African company, is involved in demining activities in Angola in co-operation with the UN.

At its heart the issue is simple: turn off the tap (stop the manufacture and destroy the existing stockpiles of AP mines), demine or mop up the mines that are already planted (a process that at present rates of clearing will take more than 100 years) and provide support to the victims of landmine explosions (medical and related care, provision of aftercare service, counselling, etc.).

Based on humanitarian considerations, the South African Government should participate actively in international efforts to ban anti-personnel landmines and take a leading role in African efforts in this regard. This will make it possible in the longer term to declare Africa to be a mine-free continent. South Africa bridged the gorge that divided the nuclear north from the non-nuclear south with the signing of the Nuclear Non-Proliferation Treaty. In banning landmines, South Africa can play a similar leading role.

ENDNOTES

International Committee of the Red Cross (ICRC), Landmines: Time for Action – International Humanitarian Law, ICRC, Geneva, undated, p. 8.



ICRC, op. cit., p. 10.



See Statement by the Head of the Delegation of the Republic of Korea, International Strategy Conference Towards a Global Ban on Anti-Personnel Mines, ICRC, Ottawa, 3-5 October 1996.



Committee of Ambassadors and Other Plenipotentiaries, Report of the Secretary-General on the Problems Posed by Anti-personnel Mines in Africa and on the Implementation of Resolution CM/RES.1593 (LXII), Second Ordinary Session, OAU, Addis Ababa, 14-16 February 1996, p. 2.



In 1993, the ICRC estimated that between 35 to 40 countries were thought to produce between 500 000 and 1 million mines per year. Of these countries, 24 were known exporters. ICRC, op. cit., p. 22; also Interview with Bob Lawson, Canadian Ministry of Foreign Affairs, 20 November 1996.



C Sommaruga, Towards a Total Ban on Anti-personnel Mines, paper presented at the International Strategy Conference, op. cit., p. 4.



Committee of Ambassadors and Other Plenipotentiaries, op. cit., p. 6.



There have been a number of studies by a range of organisations, including the ICRC, the American Vietnam Veterans, Demilitarisation for Democracy (formerly the Project on Demilitarisation and Democracy), Making the World Unsafe for Landmines: A Timetable for Developing Military Alternatives and implementing a Worldwide Ban on the Smallest Weapon of Mass Destruction, Washington DC, June 1995. International Committee of the Red Cross, Anti-personnel Landmines Friend or Foe?, ICRC, Geneva, March 1996.



Ibid., p. 3; ICRC, op. cit., p. 16.



Sommaruga, op. cit., p. 1.



Ibid., p. 4.



Ibid.



Ibid.



C Moon, ICBL Presentation to the Opening Session, International Strategy Conference, op. cit., pp. 2-3.



An interesting dimension of this issue relates to the relationship between international customary and treaty law. By its nature, the CCW Convention deals with threats that are deemed to be 'excessively injurious or to have indiscriminate effects', i.e. it does so within the context of humanitarian law. The question posed by international lawyers was how to prove that mines were excessively injurious and/or indiscriminate. At present, international customary law would indicate that AP mines have been in use and it is therefore hard to argue that their use should now be banned. On the other hand, international treaty law can be changed. In effect, with due changes in the practice of states through the introduction of treaties, bans and moratoria, customary law may be changed.



Committee of Ambassadors and Other Plenipotentiaries, op. cit., p. 7.



These recommendations were that: the use of non-detectable AP mines should be prohibited; there should be a requirement to equip mines remotely delivered with self-destructive devices; hand or machine emplaced AP mines outside of marked, guarded and fenced minefields should also have a self-destruct mechanism. The Group also submitted a new Protocol prohibiting the use of blinding weapons as an instrument of war. Ibid., p. 9.



Statement by Ambassador J Molander of Sweden, Towards a Global Ban on Anti-Personnel Mines, International Strategy Conference, op. cit., pp. 2-3.



Sommaruga, op. cit., p. 2.



P McKenzie, Anger at CCW Failure to Ban Anti-personnel Mines, Ceasefire Anti-war News, July 1996, p. 3.



South Africa's Policy on Anti-Personnel Landmines, (Annexure 1), International Strategy Conference, op. cit., p. 3.



Statement by the South African Delegation at the closing plenary of the CCW Review Conference, Geneva, 3 May 1996.



South African Department of Foreign Affairs, South Africa's Policy on Anti-Personnel Landmines, International Strategy Conference, op. cit., p. 2.



Alfred Nzo, Aziz Pahad, Kader Asmal and Abdul Minty, respectively.



France, Remarks on a Verifiable International Ban on Anti-personnel Mines, International Strategy Conference, op. cit., p. 3.



Text of US proposed UNGA Resolution, circulated at the International Strategy Conference, op. cit., p. 2.



Declaration of the Ottawa Conference, International Strategy Conference, op. cit.



Chairman's Agenda for Action on Anti-Personnel (AP) Mines, International Strategy Conference, op. cit., pp. 8-9.



Notes for an address by the Honourable Lloyd Axworthy, Minister of Foreign Affairs at the Closing session, International Strategy Conference, op. cit.



Congress requested the US President to seek verifiable international agreements prohibiting the sale, transfer or export and further limiting the use, production and possession of AP mines. One year later, in December 1994, the General Assembly adopted a second resolution (A/Res/49/75D), calling for further international efforts to seek solutions to the problems caused by AP mines with a view to their total elimination. Committee of Ambassadors and Other Plenipotentiaries, op. cit., pp. 10-11.



Sommaruga, op. cit., p. 3.



Anon., SA's Landmines, Ceasefire, July 1996, p. 2.