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”.