1.1 The need for a ban treaty

Landmines are powerful and unforgiving devices. Unlike other weapons of war, most of which must be aimed and fired, anti-personnel landmines are “victim” actuated. That is, they are designed to be detonated by a person stepping on or handling the device, or by disturbing a tripwire attached to it.² Once emplaced, anti-personnel mines are indiscriminate in their effects and, unless removed or detonated, long lasting. Even today, landmines laid during the Second World War continue to be discovered and, on occasion, to kill or wound, more than 50 years after the end of the conflict. Landmines cannot “distinguish” between the soldier and the civilian. They kill or maim a child playing football just as readily as a soldier on patrol. Especially in post-conflict societies, it is most often the civilian going about his or her daily activities that is the unfortunate victim.

² Anti-vehicle mines, on the other hand, are designed to be detonated by the weight of a vehicle. When left on roadways that are not used solely by military personnel, they also take their toll on civilian lives and injuries. Anti-vehicle mines are discussed further below.

While all war wounds are horrific, the injuries inflicted by anti-personnel mines are particularly severe. These weapons are designed to kill, or, more often, to disable permanently their victims. They are specifically constructed to shatter limbs and lives beyond repair. The detonation of a buried anti-personnel “blast” mine rips off one or both legs of the victim and drives soil, grass, gravel, metal, the plastic fragments of the mine casing, pieces of the shoe, and shattered bone up into the muscles and lower parts of the body. Thus, in addition to the traumatic amputation of the limb, there is a serious threat of secondary infection. As wounds such as these are not often seen by civilian doctors, treating a mine-injured patient can be a challenge to the most competent surgeon.

If they survive a landmine blast, the victims typically require multiple operations and prolonged rehabilitative treatment. Unfortunately, most mine accidents occur in countries with limited medical and rehabilitative resources. Access to proper treatment and care is thus difficult or impossible. Moreover, transportation to a medical facility immediately following an accident is often arduous. In some countries it may take victims between six and 24 hours to get to a hospital capable of treating them. Many die before reaching any medical facility.

Following the provision of medical care, most mine victims will require extensive rehabilitative treatment. Not only must amputees be fitted with artificial limbs to ensure mobility, but their loss of dignity and their psychological distress must also be addressed. Few survivors have access to such long-term care and assistance programmes. Even if rehabilitated, many victims are disabled, cannot work or provide for their families, and are likely to suffer intense anxiety, with little hope of improving their situation.

In addition to the devastating impact on individual lives, mines also have severe social and economic consequences, particularly for a country attempting to rebuild after the end of an armed conflict. The presence of mines can leave large portions of the national territory unusable. Farmland, grazing pastures and other food-producing areas may be rendered inaccessible and, as a result, the ability of a community to feed itself is impaired. Mined roads and railways make the movement of persons and goods, including the delivery of humanitarian aid, extremely difficult. Mine clearance, although essential, is a slow, dangerous and expensive process.

Although international humanitarian law and traditional military doctrine have set clear requirements for the “responsible” use of anti-personnel mines, too often these rules have not been implemented. Research conducted on behalf of the International Committee of the Red Cross (ICRC) by military experts has shown that in 26 conflicts since the beginning of the Second World War, anti-personnel mines have only rarely been deployed in accordance with the existing legal and military requirements. Even well-trained professional armies have found it extremely difficult to use mines correctly in combat situations. Furthermore, mines have increasingly been used as part of a brutal and systematic war against civilians, especially in the bitter internal conflicts that have come to characterize warfare in the late twentieth century.

It is these tragic realities which make the antipersonnel mine a particularly abhorrent weapon and which have led the ICRC and many other organizations and individuals to call for its prohibition and stigmatization. The use of poison gas and exploding bullets has already been stigmatized and condemned by the international community. Both are weapons of war that are considered as violating the most basic principles of humanity however and whenever they are used. Now, with the adoption of the Ottawa treaty, anti-personnel mines will also be considered as a weapon which carries a level of humanitarian costs that far outweighs their limited military value.

1.2 The existing law

In 1990, the ICRC and other humanitarian organizations began to document a dramatically high number of civilian mine casualties. Many of the victims were wounded during periods when no fighting was taking place or after the end of hostilities. Subsequently, the ICRC, National Red Cross and Red Crescent Societies and the International Campaign to Ban Landmines (ICBL) - an international coalition of non-governmental organizations - began efforts to raise awareness about the devastating effects of these weapons and press for an end to their use. During the years leading up to the conclusion of the Ottawa treaty in 1997, these efforts were the dominant force in mobilizing public opinion, stimulating military and political debate, and ensuring that the plight of the victims and communities living under the threat of landmines was not forgotten.

The use of anti-personnel landmines is restricted by international law, specifically international humanitarian law, which contains several general rules applicable to these weapons. Two of the most important provisions are derived from the customary rules of warfare and are consequently binding on all sides in every situation of armed conflict:

a) Parties to a conflict must always distinguish between civilians and combatants, and civilians must not be attacked. In accordance with this principle, any weapon that is inherently indiscriminate must never be used.

b) It is prohibited to use weapons which are “of a nature to cause superfluous injury or unnecessary suffering”. This means that any weapon designed to cause more injury than required to take a soldier “out of action” (i.e. one intended to inflict gratuitous suffering), even when directed solely against combatants, is unlawful and must not be used.

In addition to these general customary rules, more detailed provisions specific to anti-personnel mines are contained in various international agreements. Prior to the conclusion of the Ottawa treaty, the principal agreement governing the use of landmines was the 1980 UN Convention on Certain Conventional Weapons (CCW).³ Protocol II of this treaty specifically regulates mines, booby-traps and other devices. Since this is an international legal agreement, as opposed to international customary law, it applies only to those countries which agree to be bound by its terms.

³ The full title is the United Nations 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.

As the civilian impact of landmines grew more apparent, it became evident that existing provisions of the CCW were too weak and were not being adequately followed in many of the recent conflicts where mines were being used. Following a formal request by France in 1993, governments agreed to meet and review the treaty and, in particular, to strengthen the provisions of Protocol II dealing with anti-personnel mines. Following two years of meetings of government experts in Geneva, the Review Conference of the CCW opened in Vienna in September 1995. Hopes were high that substantial and meaningful prohibitions and restrictions on landmines would be agreed by the governments taking part in the negotiations. However, although the Conference successfully adopted a new protocol banning the use and transfer of blinding laser weapons, talks to prohibit or strictly limit the production, transfer and use of anti-personnel mines became deadlocked and the conference was adjourned without any new limitations being placed on these weapons.

The Review Conference was reconvened in Geneva for two sessions in 1996. Although this time changes to the mines protocol were agreed upon, the ICRC, the ICBL and many governments considered the results disappointing and inadequate. The provisions drafted were extremely complex and many doubted whether they would or even could be effectively implemented in most situations of armed conflict. Few believed that the amended protocol would be sufficient to stem the proliferation of the weapon and consequently to reduce the number of civilian landmine casualties. At the closing session of the Review Conference, the Canadian government announced its intention to invite pro-ban countries and interested organizations and agencies to attend a conference later in the year convened to develop strategies aimed at effectively ending the affliction caused by landmines. The scene was set for the beginning of what would be termed the “Ottawa process”.

1.3 The Ottawa process

The Canadian-sponsored strategy conference, Towards a Global Ban on Anti-Personnel Mines, took place in Ottawa in October 1996 with the active support of 50 governments, the ICRC, the ICBL and the United Nations. On 5 October 1996, the conference adopted the Ottawa Declaration, which committed the participants to carrying out a plan of action intended to increase resources for mine clearance and victim assistance and to working to ensure that a ban treaty was concluded at the earliest possible date. At the closing of this Conference, the Canadian government once again seized the initiative by inviting all governments to come to Ottawa in December 1997 to sign a treaty prohibiting the production, stockpiling, transfer and use of antipersonnel mines. The “Ottawa process” had been officially launched.

International support for a ban on landmines continued to build. In December 1996, the UN General Assembly passed Resolution 51/45S, which called upon all countries to conclude a new international agreement totally prohibiting anti-personnel mines “as soon as possible”. A total of 157 countries voted in favour of this resolution, none opposed it, and only 10 abstained from the voting. To support the Ottawa process, the Austrian government prepared a draft text of the ban treaty and circulated it to interested governments and organizations. This draft, which was subsequently revised a number of times, was the basis of the ban treaty concluded in Oslo in September 1997.

International discussion on the draft text began in Vienna in February 1997 at a meeting hosted by the Austrian government. In its address to the meeting, the ICRC called for a comprehensive ban treaty based on an unambiguous definition of an anti-personnel mine. In April 1997, the German government hosted a special meeting to discuss possible verification measures to be included in a total ban treaty. Views were divided between those who stressed the central importance of establishing a humanitarian norm against anti-personnel mines and others who considered effective verification mechanisms to be essential to the success of the treaty.

The formal follow-up to the 1996 Ottawa conference took place in Brussels from 24-27 June 1997. The Brussels International Conference for a Global Ban on Anti-Personnel Mines was attended by representatives of 154 countries. It was the largest gathering of governments to date for a conference devoted specifically to the issue of landmines. On the closing day, 97 governments signed the Brussels Declaration, launching formal negotiations on a comprehensive landmine ban treaty, greater international cooperation and assistance for mine clearance and the destruction of all stockpiled and cleared anti-personnel mines. The Declaration called for the convening of a diplomatic conference in Oslo to negotiate such a treaty on the basis of the draft prepared by the Austrian government.

In accordance with the Brussels Declaration, which by now had been signed by 107 countries, formal treaty negotiations took place from 1 to 18 September 1997 at the Oslo Diplomatic Conference on an International Total Ban on Anti-Personnel Land Mines, hosted by the Norwegian government. Ninety-one countries took part in the negotiations as full participants and 38 countries were present as observers, as were the ICRC, the ICBL and the UN.

The Oslo Diplomatic Conference proved to be a tremendous success. Propelled by its South African Chairman, Ambassador Jakob Selebi, on 18 September the Conference solemnly adopted the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction - the “Ottawa treaty”. The treaty was opened for signature at a ceremony on 3 and 4 December 1997, when representatives from a total of 121 countries signed it on behalf of their governments. It came into force on 1 March 1999, the fastest entry into force ever for a multilateral arms-related treaty. An overview of the content of the treaty is set out in the pages that follow.