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Published online by Cambridge University Press: 04 July 2014
Countries all over the world, from Angola to Afghanistan, from Cambodia to Nicaragua, are littered with uncleared mines. In 1994, it was estimated that more than 100 million anti-personnel mines (hereinafter: AP mines) were scattered wantonly in over sixty countries. In 1997, over 110 million mines were deployed and another 100 million stockpiled around the world. Mines can be scattered over large areas by airplanes or delivered by rockets and do not need to be laid manually.
AP mines were originally designed to slow down the advancement of enemy troops and to defend territory. For thirty years, AP mines have injured large numbers of civilians, although this remained practically unreported up until the 1980s, when these mines were used increasingly as a deliberate military strategy to spread terror among civilians.
Docteur en Droit des Organisations Internationales et des Relations Economiques Internationales (Panthéon-Sorbonne), Paris; Senior Lecturer, Ramat Gan Law College; Teaching Fellow, The Faculty of Law, The Hebrew University of Jerusalem. The author gratefully acknowledges the grant provided by the Ramat Gan Law College and wishes to thank Sharon Vardi and Moshe Levi-Eskenazi for their assistance in the research.
1 Cahill, K.M., ed., Clearing the Fields, Solution to the Global Landmine Crisis, (Basic Books and the Council of Foreign Relations, 1995) 3 Google Scholar.
2 The Arms Project of Human Rights Watch, Landmines, A Deadly Legacy, (Human Rights Watch, New York, 1993) 5 Google Scholar; Russbach, R., “Mines Anti-Personnel: Une Honte pour l'Humanité”, (Nov. 1992) 203 Bull. CICR I Google Scholar; Anderson, K. and Schurtman, M., “The United Nations Response to the Crisis of Landmines in the Developing World”,(1995) 36 Harv. Int'l L.J. 364 Google Scholar.
3 Cahill, supra n. 1, at 3.
4 Protocols to the 1980 Conventional Weapons Convention, Message from the President of the United States, 7 January 1997, 105th Congress, 1st Session, Letter of Transmittal to the Senate, p. IV.
5 Art. 35 (1) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, 8 June 1977, (Protocol I) reprinted in Schindler, D. and Toman, J., eds., The Laws of Armed Conflicts, A Collection of Conventions, Resolutions and Other Documents (Sijthoff & Nordhoff, 1981) 551 Google Scholar (hereinafter: the 1977 Additional Protocol I).
6 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, 29 November/11 December 1868, reprinted in Schindler and Toman, ibid., at 95.
7 Art. 23(e) of the Annex to Hague Convention (IV) Respecting the Laws and Customs of War on Land, 18 October 1907, reprinted in Schindler and Toman, supra n. 5, at 63.
8 The 1977 Additional Protocol I, Art. 35(2). The principles enshrined in Arts. 35(1) and 35(2) are considered as “classical principles” of the laws of armed conflict. Karlshoven, F., “Arms, Armaments and International Law”, (Recueil des Cours, The Hague Academy of International Law, 1985) vol. 2, p. 243 Google Scholar; David, E., Principes de Droit des Conflits Armés (Bruylant, 1994) 281 Google Scholar; Matheson, M.J., “The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions”, (1987) 2 Am. U. J. Int'l L. & Policy 424 Google Scholar, supporting this principle.
9 Not explicitly articulated in an international legal instrument up to the 1977 Additional Protocol I, there was no doubt of the existence of a customary principle of international law according to which the civilian population is to be protected against the effects of war. Arts. 51(4) and 51(5) of the 1977 Additional Protocol I, defines and codifies the customary prohibition of indiscriminate attacks. For a reprint of this Protocol see, Schindler and Toman, supra n. 5, at 551.
10 The following categories of weapons were brought up for discussion at one time or another: certain anti-personnel cluster warheads, so-called fuel air explosives, fléchettes fragmentation weapons, landmines, booby traps and similar devices, incendiary and small caliber weapons. The first three categories where already abandoned at the preparatory stage. Attempts to prohibit small caliber projectiles came to an end in 1979 due to inconclusive experiments that these projectiles can cause even worse effects than traditional projectiles and from a military aspect, their usefulness was established.
11 From 1973 to 1980, several conferences were held under the auspices of the International Committee of the Red Cross and thereafter by the U.N. General Assembly. For the proceedings of ICRC conferences see, ICRC, Report of the Conference of Government Experts on the Use of Certain Weapons (Lucerne 1974; Geneva, ICRC, 1975)Google Scholar; and ICRC, Report on the Conference of Government Experts on the Use of Certain Weapons, (Lugano 1976 Google Scholar; Geneva, ICRC, 1976). For the preparatory conferences of the General Assembly see Report of the Preparatory Conference for the U.N. Conference on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, U.N. GAOR; U.N. Doc. A/CONF. 95/3, May 25, 1979.
12 The Convention with the annexed protocols was adopted on 10 October 1980. U.N.G.A. Doc. A/CONF. 95/15, October 27, 1980. The original weapons convention included three Protocols: Protocol I on Non-Detectable Fragments; Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices; Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons. For text of the Convention and annexed to the Protocols see (1980) 19 I.L.M. 1523. In most of the legal literature, the Convention is referred to as the Weapons Convention of 1980, the year in which it was adopted by the U.N. Conference, but the date on which it was opened for signature was 10 April 1981. The Convention entered into force on 2 December 1983. Israel ratified the Convention on 22 March 1995. To date, there are 65 parties to the Convention. On 13 October 1995, the Additional Protocol IV on Blinding Laser Weapons was adopted and entered into force on 30 July 1998.
13 Article I of the Convention provides that: “This Convention and its annexed Protocols shall apply in the situations referred to in Article 2 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, including any situation described in paragraph 4 of Article I of Additional Protocol I to these Conventions”.
Art. 2 common to the 1949 Conventions states, in part:
“In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.
Article I, para. 4 of the 1977 Additional Protocol includes “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination”.
14 In Afghanistan, the mine-using state (the Soviet Union) claimed that it was an internal conflict.
15 “Mines” are defined as “any munition placed under, on or near the ground or other surface area and designed to be detonated or exploded by the presence, proximity or contact of a person or vehicle”, and “remotely-delivered mine” means “any mine so defined delivered by artillery, rocket, mortar or similar means or dropped from an aircraft”.
16 According to Art. 1: “This Protocol relates to the use of mines, booby traps and other devices, defined herein, including mines laid to interdict beaches, waterway crossings or rivers crossings, but does not apply to the use of anti-ship mines at sea or in inland waterways”.
17 Neither the 1981 Convention nor Protocol II define the terms “civilian population”. The drafters of this Convention often turned to the Geneva Conventions of 1949 and to the 1977 Additional Protocol for definitions. “Civilian population” is defined by Art. 50 of the 1977 Additional Protocol as comprising “all persons who are civilians” and a civilian is defined as anyone who is not a member of the armed forces of a party to the conflict. However, civilians who directly participate in the hostilities are not protected by Protocol II. See Report of the Working Group on Land Mines and Booby Traps, UN AGORA, A/CONF. /CW/7, 1980, p.3.
18 Art. 3(3)(c) of Protocol II.
19 De Lupis, I. Detter, The Laws of War (Cambridge University Press, 1987) 185 Google Scholar.
20 Art. 3(3) of Protocol II.
21 The Arms Project of Human Rights Watch, Landmines, A Deadly Legacy, supra n. 2, at 284.
22 The meaning of an effective neutralising mechanism according to Art. 5(1)(b) of Protocol II, is “a self-actuating mechanism which is designed to render a mine harmless or cause it to destroy itself when it is anticipated that the mine will no longer serve the military purpose for which it was placed in position, or a remotely-controlled mechanism which is designed to render harmless or destroy a mine when the mine no longer serves the military purpose for which it was placed in position”.
23 The Arms Project of Human Rights Watch, Landmines, A Deadly Legacy, supra n. 2, at 300. See also Ekberg, P.J., “Remotely Delivered Landmines and International Law”, (1995) 33 Columbia J. Transnt'l L. 149 Google Scholar.
24 Carnahan, B.M., “The Law of Land Mine Warfare: Protocol II to the United Nations Convention on Certain Conventional Weapons”, (1984) 105 Military L.R. 80 Google Scholar.
25 Ibid.
26 The Arms Project of Human Rights Watch, Landmines, A Deadly Legacy, supra n. 2, at 300.
27 Arts. 7(1) and 7(2) of Protocol II.
28 Carnahan, supra n. 24, at 85.
29 Art. 7(3) of Protocol II.
30 Art. 8 of Protocol II.
31 An important first step in this context was the 1992 U.S. Landmine Export 31 Moratorium (Public Law 102-484-Oct. 23, 1992). This moratorium, just as the export moratoria decided upon thereafter (22 states by the end of 1995), does not concern the production or use of AP mines by the country which has declared it. It is a qualified moratorium prohibiting the sale, export and transfer abroad of AP mines for a limited period of time. On 30 June 1994, the Israeli government announced a comprehensive 2-year ban on the export of AP mines. This moratorium was renewed in May 1996 for a period of 3 years. Wider-ranging steps were undertaken by Switzerland, where after having announced a moratorium on export of AP mines on 11 May 1994, the Federal Military Department decided on 24 November 1995, to totally renounce possession and use of AP mines. On 13 December 1996, the Swiss Parliament adopted an amended law prohibiting the development, production, transfer, import and export of AP mines.
32 As a result of this request, a group of governmental experts was created, sessions were held in 1994 and 1995. The recommendations for the revision of the Weapons Convention were submitted to a Review Conference held under the auspices of the UN in October 1995. Final Document of the Review Conference of the States Parties to the Convention, Conf. Soc. CCW/CONF. 1/16, 1996, p. 4.
33 See Bettati, M., “Examen de la Convention sur l'Interdiction des Armes Classiques Produisant des Effets Traumatiques Excessifs”, (1995) 41 AFDI 189 CrossRefGoogle Scholar.
34 The minimum standard proposed by the United States, was of the equivalent of 8 grams of metallic content in a single AP mine. This would simplify the burden of demining and diminish the risks involved in this task. Some mines on the market today have only trace elements in the fuse or body. Recently produced mainly by the former Soviet Union, former Yugoslavia, Italy and China, and by the United States around the mid-century, their low metal content makes detection difficult, since common detectors used by military forces rely on detecting the metal in the mine. Cahill, supra n. 1, at 29.
35 Matheson, M.J., “International Law and Anti-Personnel Land Mines”, (1996) 2 ILSA J. Int'l & Comp. L. 630 Google Scholar.
36 Countries having large stockpiles of mines containing less than the equivalent of 8 grams of metallic content, such as China and India, were not ready to accept such a requirement. For an assessment of the preparatory work and controversies, see Goldblat, J., “Land-Mines and Blinding Laser Weapons: the Inhumane Weapons Convention Review Conference”, in SIPRI Yrbk, Arms Disarmament and International Security (1996) 755–760 Google Scholar.
37 M. Bettati, “Examen de la Convention …”, supra n. 33, at 190; Matheson, “International Law and Anti-Personnel Land Mines”, supra n. 35, at 632. Compared to ordinary mines, the production of self-deactivating and self-destructing mines is more complex and the latter are therefore more expensive to purchase. A less developed nation confronted with the choice of buying a self-destructing mine for $30, or an ordinary mine for $1, will choose the less expensive one. If Protocol II would have been adopted as it stood after the first Review Conferences at the end of 1995, it would have legitimised the use of technically sophisticated mines. It was unrealistic to expect that economically weaker or less developed nations would agree to a ban on manually emplaced mines that do not contain de-activation devices and that, at the same time, wealthier countries continue to manufacture, sell and use remotelydelivered mines equipped with such systems.
38 Matheson, M.J., “The Revision of the Mines Protocol”, (1987) 91 A.J.I.L. 165 Google Scholar.
39 Lachowski, Zdzislaw, “Conventional Arms Control”, in SIPRI Yrbk, Armaments, Disarmament and International Security (1997) 496 Google Scholar.
40 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (as amended on 3 May 1996), Protocol II 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, reprinted in (1996) 35 I.L.M. 1206. According to Ambassador Robbie Sabel, Deputy Director General of the Arms Control and Disarmament Division of the Israel Ministry of Foreign Affairs, Israel's ratification of the Amended Protocol II is in the process.
41 Art. 5(2) and Art. 8(1)b of the 1981 Weapons Convention to which the Amended Protocol refers. The article on the entry into force of the Amended Protocol, appears at the end of the Technical Annex as follows: “Article 2: Entry Into Force — This amended Protocol shall enter into force as provided for in para. 1(b) of Art. 8 of the Convention”. To date, 16 states ratified the Amended Protocol II and it therefore did not as yet enter into force.
42 Para. 1 of Art. 2 of the Amended Protocol repeats the definition of “mine” provided under the original Protocol II (see supra n. 15). The term “mine” (or “landmine” in Art. 1 — Scope of Application), thus includes AP mines, anti-tank and anti-vehicle mines. General restrictions on the use of mines provided by Art. 3 of the Amended Protocol, are therefore applicable to all these types of mines as under the original Protocol II. Unexploded ordinance (which results from a malfunction of a munition), not being designed to be detonated by the presence, proximity or contact of a person, was not, and is not covered by Protocol II.
43 According to Art. 2(2) of the Amended Protocol, a “remotely-delivered mine” means a mine not directly emplaced but delivered by artillery, missile, rocket, mortar or a similar means, or dropped from an aircraft. Mines delivered from a land-based system from less than 500 meters are not considered to be “remotely-delivered”, provided that they are used in accordance with Article 5 and other relevant Articles of this Protocol”.
44 The Amended Protocol contains several other general and technical definitions. For an in-depth analysis of all the definitions, see “The Article-by-Article Analysis of the Amended Mines Protocol”, attached to the Letter of Submittal to the Senate, Protocols to the 1980 Conventional Weapons Convention, 105th Congress, 1st session, pp. 4-10.
45 In addition to the circumstances referred to in Art. 1 of the Weapons Convention (in internal armed conflicts and wars of national liberation, see supra n. 13), Art. 1 of the amended Protocol II adds: “This Protocol shall apply in addition … to situations referred to in Article 3 common to the Geneva Conventions of 12 August 1949 …”. Art. 3 concerns non-international armed conflicts occurring within the territory of a state. The amended Protocol expressly excludes situations of internal disturbances such as riots, isolated and sporadic acts of violence. Concerning the application rationae loci, the Amended Protocol repeats the provision of the original Protocol II verbatim.
46 Although the Amended Protocol relies heavily on the 1977 Additional Protocol II to the 1949 Geneva Conventions, it does not include the provision of Art. 1(1) of the Additional Protocol II, which limits its application to conflicts between a party and “dissident armed forces or other organised groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, 12 December 1977, reprinted in Schindler and Toman, supra n. 5, at 619.
47 See supra, p. 654.
48 Although the Amended Protocol does not state that the Technical Annex constitutes an integral part of the Protocol, the intention of the parties to consider it so, derives from the terms used in the Amended Protocol when reference is made to the Technical Annex:
“Weapons to which this article applies shall strictly comply with the standards and limitations specified in the Technical Annex with respect to each particular category”, Art. 3(4);
“It is prohibited to use anti-personnel mines which are not detectable, as specified in paragraph 2 of the Technical Annex”, Art. 6(1):
“All information concerning minefields, mined areas, mines … shall be recorded in accordance with the provisions of the Technical Annex” Art. 9(1).
49 According to Art. 31(1) of the Vienna Convention on the Law of Treaties, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. For the text of the Convention, see A/CONF.39/27 reprinted in (1969) 8 I.L.M. 679.
50 Art. 3(6).
51 Art. 3(5).
52 The 1981 Weapons Convention Protocol I on Non-Detectable Fragments prohibits the use of any weapon “the primary effect” of which is to injure by fragments which in the human body escape detection by X-rays. Plastic mines were not prohibited by Protocol I as their “primary effect” was not to injure by fragments escaping detection by X-rays.
53 For a list of minimum-metal mines producers and exporters, see The Arms Project of Human Rights Watch, Landmines, A Deadly Legacy, supra n. 2, at 242, n. 21.
54 Para. 2(c) of the Technical Annex. The 9-year period starts to run on the date of entry into force of the Amended Protocol, para. 3 (c) of the Technical Annex.
55 Art. 3(2). A comprehensive set of procedures for the fulfillment of these responsibilities during and after the cessation of active hostilities is established, see Arts. 5(2) and 10 of the Amended Protocol.
56 Art. 4.
57 Art. 5(1)-5(4).
58 A total ban on mines not equipped with self-deactivating and self-destructing devices would result in continual destruction and replacement of millions of mines, unless countries renounced to minefields in their border areas. See Matheson, “The Revision of the Mines Protocol”, supra n. 38, at 165.
59 Mines delivered by aircraft or artillery from a distance of more than 500 meters.
60 Art. 6(1). This prohibition, however, is not as absolute as it appears, as para. 1(b) of the Technical Annex on recording provides that the estimated location shall be specified and ascertained “and when feasible marked on the ground at the earliest opportunity”. This wording allows the parties to justify non-compliance. It has to be stressed, however, that the Amended Protocol and the Technical Annex require that the total number and types of mines laid, the date and time of laying and the self-destruction time periods be recorded, which no doubt, constitutes an improvement, if compared with the original Protocol II.
61 Para. 3(c) of the Technical Annex. Note that the deferral period runs from the entry into force and not from the date on which the Amended Protocol enters into force for the particular state in question.
62 Para. 3(c)(ii) of the Technical Annex.
63 In view of the vague compliance mechanism established by the Amended Protocol, this undertaking might be very difficult, if not impossible, to verify.
64 See infra, p. 667.
65 Art. 8(1)(a) and Art. 8(2) of the Amended Protocol.
66 Art. 25 of the Vienna Convention on Treaties provides that “A treaty or part of a treaty is applied provisionally if: (a) a treaty itself so provides …”
67 Art. 18 of the Vienna Convention on the Law of Treaties reads: “A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty”.
68 See Goller, N.K. Calvo and Calvo, M., The Legal Aspects of the SALT Agreements, Content, Application, Verification (Martinus Nijhoff Publishers, 1987) 205–219 Google Scholar and accompanying notes for an analysis of prohibited acts as of the signing of an agreement relating to weapons as well as for the legal nature of Art. 18 of the Vienna Convention on the Law of Treaties.
69 Art. 8(1)(b) of the Amended Protocol.
70 Nevertheless, the prohibition to transfer mines limited to non-state entities is a step backwards from the export moratoria prohibiting exports to anyone, including states and states agencies. On the other hand, moratoria are limited in time and subject to change as they are political, and not legal undertakings.
71 Art. 8(1)(c).
72 Art. 8(1)(d).
73 The proposals of a fact-finding and inspection mechanism proposed at the original conference by the Western group met with strong opposition by the Soviet Union and non-aligned countries.
74 See Final Report of the Group of Governmental Experts, Conf. Doc. CCW/CONF.1/GE/23, App. 1 (1995); see also Matheson, “The Revision of the Mines Proocol”, supra n. 38, at 165.
75 Art. 14(2).
76 Art. 14(4).
77 For the text of the Convention see (1997) 36 I.L.M. 1507. As of March 1998,124 states signed and 5 ratified the Convention. As of March 1998, no public records were available on the various conferences leading to the signing of the Convention.
78 Preamble to the Convention.
79 Ibid. The Preamble stresses the “role of public conscience in furthering the principles of humanity” and recalls the basic principles of international humanitarian law.
80 Art. 1(1) of the Convention. In view of the legal background of the Convention, the terms “never under any circumstances”, cover any situation ranging from an all-out international armed conflict to sporadic internal disturbances or riots.
81 AP mines were redefined and are covered by the Convention, even if not “primarily” designed — criteria of the Amended Protocol — to explode by the presence, proximity or contact of a person. Anti-vehicle mines, even if equipped with anti-handling devices, are not covered by the Convention as they are not considered AP mines (Art. 2 of the Convention).
82 Arts. 1(1) and 1(2) of the Convention. Contrary to the Amended Protocol, the prohibition to transfer AP mines to anyone includes transfers between state parties. In arms control treaties, the prohibition to transfer “indirectly” is aimed at preventing transfer of technology and transfer through third parties. Under Art. 2(4) of the Convention the term “transfer” involves, in addition to the physical movement of anti-personnel mines into or from national territory, the transfer of title to and control over the mines, but does not include the transfer of territory containing deployed AP mines.
83 Art. 3(1) of the Convention. It is not stated what is meant by the “minimum number absolutely necessary” of AP mines.
84 Art. 4 of the Convention. It will be interesting to see if the application of this undertaking as ownership, contrary to possession and control, does not always cease with the transfer. Will the owner and the possessor be jointly responsible for the destruction? Much will depend on the nature of the agreements concluded between the transferring and recipient state.
85 Arts. 5(1) and 5(3) of the Convention.
86 The decision to grant the requested extension is taken by a majority of votes of state parties present and voting in the context of the Meeting of the States Parties or of the Review Conference. See Art. 11 for the functions and the calendar of the Meetings of the States Parties (to take place within one year after the entry into force of the Convention and annually after that until the First Review Conference (Art. 12) to be convened 5 years after the entry into force of the Convention).
87 Until 1996, there seemed to be no available alternative which consisted principally “of a person with a stick probing the ground a few centimeters at a time”. Cahill, supra n. 1, at 22. For the difficulties involved in mines clearance see as well The Arms Project of Human Rights Watch, Landmines, A Deadly Legacy, supra n. 2, at 234-260. But there is some hope. Although not commensurate with the extent of the problem, and probably not affordable for many mine-infested countries, more efficient methods already exist. See University of Alberta, “A Mechanical Means of Land Mine Detection”, http://www.mece.ualberta.ca/landmine.html; “Humanitarian Demining Equipment Catalog 1997”, Clearance/Neutralization Equipment — http://www.demining.brtrc.com/catalog/catclear8.htm.
88 According to United Nations 1995 estimates, the removal costs run from $300 to $1,000 per mine, see Anderson, K. and Schuttman, M., “The United Nations Response to the Crisis of Landmines in the Developing World”, (1995) 36 Harv. Int'l L.J. 362 Google Scholar.
89 Art. 5(1) of the Convention.
90 Art. 6(1) of the Convention.
91 Art. 6(3) of the Convention.
92 Assistance may be provided through the United Nations system, through international or national organisations or institutions, or on a bilateral basis or by contributing to the United Nations Voluntary Trust Fund for Assistance in Mine Clearance (Art. 6(4) of the Convention).
93 Information specifically required concerns means and technologies of mine clearance, lists of experts, expert agencies or national points of contact for mine clearance (Art. 6(6) of the Convention). Assistance for the elaboration of national demining programs may be requested in order to determine the extent of the AP mine problem, the resources and time required for their destruction (Art. 6(7) of the Convention).
94 According to Art. 9: “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”. It is regrettable that individual criminal liability of violators is not explicitly provided for and that there is no obligation to actively prosecute such persons.
95 Art. 7(1).
96 “The worst fights, apparently, were between countries that supported the Mexican position — which was dead set against verification initially, partly arguing from purist legal principles, and partly arguing that it isn't practical — and those countries that supported the German position. The Germans had always said that they need something that looks a bit like real verification, and that has sharper teeth than States filing reports about themselves”. Velin, J., “Stage Three of the Ottawa Process: The Oslo Diplomatic Conference”, (September 1997) Special Landmine Report, Disarmament Diplomacy 13 Google Scholar.
97 Arts. 8(2) and 8(3). Until the convening of such meeting, parties may request the Secretary General of the United Nations to use his good offices.
98 Art. 8(5). In this meeting a quorum shall consist of a majority of the parties.
99 A list of experts will be established by the Secretary General of the United Nations. A party may object to the inclusion of a specific expert on this list. According to Art. 14(2) of the Convention, the costs of the fact-finding missions shall be borne by the state parties to the United Nations scale of assessment.
100 Art. 8(14).
101 Arts. 8(14)(a) and (b).
102 Art. 8(14)(c).
103 Art. 8(18). The Meeting or the Special Meeting of the States Parties may suggest means to further clarify or resolve the matter under consideration, including “the initiation of appropriate procedures in conformity with international law”. Art. 8(19).
104 See Art. 9 and Verification Annex of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, (1993) 32 I.L.M. 800. It might be argued that AP mines do not directly threaten the existence of states, that they are not weapons of mass destruction. But AP mines do not just threaten; due to their indiscriminate use and their effects, they kill many more civilians than chemical weapons ever did.
105 Art. 10(2) of the 1977 Convention.
106 Art. 13(1).
107 Art. 13(3).
108 Art. 17(1).
109 Art. 18 of the 1997 Convention. This provision goes far beyond the rule provided in Art. 18 of the Vienna Convention on the Law of Treaties. See supra, pp. 664-665, and n. 66. Art. 18 of the Vienna Convention will apply to States which at the time of ratification did not make a declaration on the provisional application of Art. 1(1) of the 1997 Convention.
110 Art. 19.
111 Art. 20(1).
112 Art. 20(2).
113 This provision, contrary to others provided by Art. 20 (2) of the Convention, has no precedent in arms control agreements and constitutes a significant improvement, as it prevents parties from setting aside prohibitions which are most significant in time of armed conflict. On the other hand, the right to withdraw from the 1997 Convention leaves the parties more leeway as it does not, contrary to over half a dozen arms control agreements, imply the occurrence of “extraordinary events, related to the subject matter” considered by the withdrawing party as “having jeopardised its supreme interests”.
114 As of March 1998.
115 See supra, p. 657 and n. 41.
116 The relevant paragraphs of Art. 30 of the Vienna Convention state as follows: Para. 3: “When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty”. Para. 4: “When the parties to the later treaty do not include all the parties to the earlier one: a) as between States parties to both treaties the same rule applies as in paragraph 3; b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both states are parties governs their mutual rights and obligations”.
117 Rousseau, C., Droit International Public (Tome I, 1970) 163 Google Scholar. See Bastid, S., “Les Traités dans la Vie Internationale”, (1983) Economica 165–166 Google Scholar, for a commentary on Art. 30 of the Vienna Convention.
118 Caflisch, L. and Godet, F., “De la Réglementation à l'Interdiction des Mines Antipersonnel”, (1998) 8 Revue Suisse de Droit International et Européen 33–34 Google Scholar (publication forthcoming). We wish to express our gratitude to Prof. Caflisch for having shared his final draft with us.
119 Adapted from U.S. Department of State, “Hidden Killers: The Global Problem with Uncleared Landmines”, (1993) in Cahill, supra n. 1, at 136-137.
120 Ibid., at 1.
121 Interview by Arieh O'Sullivan with the Foreign Ministry's spokesman Shiron, Aviv, The Jerusalem Post Magazine, 26 December 1997, p. 10 Google Scholar.
122 This information was obtained from the IDF spokesman, Public Relations Branch.
123 The Jerusalem Post Magazine, 26 December 1997, p. 10 Google Scholar.
124 Interview with the Foreign Ministry's spokesman, supra n. 121.
125 Ibid.
126 Israel has had an export moratorium in force since 1994 (see supra n. 31), it ratified the original Protocol in 1995 and is in the process of ratifying the Amended Protocol. Israel participated in mine clearing projects in Angola by sending Israeli volunteer experts and contributes financially to UNICEF's Mine Awareness Project. The use of Israeli expertise in mine clearance around the world is in the process of evaluation.
127 According to the IDF spokesman there are no alternatives to the use of AP mines. The dependency on these mines for the protection of its armed forces in the Korean Peninsula is the main reason why the United States did not sign the 1997 Convention.
128 To comply with the obligation to clear all AP mines in view of the number of square miles affected by mines in the north of Israel (mostly laid by Syria), might pose enormous difficulties, but this is not the reason which prevents Israel from signing the 1997 Convention.
129 Jordan is the only country in the Middle East which has signed the 1997 Convention.