National Legislation Legal, Administrative and Other Measures to

1. National Legislation Legal, Administrative and Other Measures to Prevent and Suppress Prohibited Activities International Committee of the Red Cross Fiona Barnaby

2. Outline of presentation • Ottawa in brief • Ottawa's must haves • Measures • Statistics • A few points to note

3. Ottawa in brief • Basis • The Ban • Definitions • Cooperation and Assistance

4. Ottawa in brief Basis : international humanitarian law • the rights of the parties of an armed conflict to choose means and methods of warfare not unlimited • prohibition against use of weapons which cause superfluous injury or unnecessary suffering • distinction between civilians and combatants

5. Ottawa in brief The ban • 22 Articles • Article 1 : The ban on States • Use • Development • Production • Acquisition • Stockpiling • Retention • Transfer • Assistance, Encouragement, Inducement of the above

6. Ottawa in brief Definitions • Art. 2(1) : Defines : APM : a mine designed to be exploded by the presence, proximity or contact of a person AND that will incapacitate, injure or killone or more persons. c.f. • Art. 2(2) : Defines : Mines : a munition designed to be placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or a vehicle. • Exception : Art. 3 : retention\transfer for training and destruction purposes permitted

7. Ottawa in brief Cooperation and Assistance • Art. 6: International Cooperation …each State party has the right to seek and receive assistance • the right to seek and receive results in an obligation to provide • Art. 8 : States may Request for Clarification of a matter related to compliance

8. Ottawa's must haves • Article 4 : Destruction of stockpiled APM • Article 5 : Destruction of APMs in mined areas • Article 7 : Transparency measures • Article 9 : National implementation measures

9. Articles 4 and 5 Ottawa's must haves : States must : • Art. 4: Destroy anti-personnel mine stockpiles (4yrs after entry i.f.) • Art. 5: • Destroy anti-personnel mines (10yrs after entry i.f.) • Mark, monitor, fence mined areas • Possible extension of time frame up to 10 yrs

10. Ottawa's must haves : Article 7 States must : • Report to Secretary-General of the United Nations • An initial report • 180 days after the entry into force • Annual reporting • On 30 April of each year • Content • national implementation measures, total stockpiles • mined areas location, de-mining programs

11. Article 9 Ottawa's must haves " 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"

12. Ottawa's must haves : Article 9 National legislation must: • Criminalise and provide penal sanctions for all activities prohibited by Article 1(a), (b) and (c) • individual criminal responsibility (military and civilian) for violations of the Convention • AT ALL TIMES (Not only in times of armed conflict) • in normal times : private companies (mine producers) and farmers (crop stealing)

13. Ottawa's must haves : Article 9 National legislation must : • Apply definitions consistent with Article 2 • Recognise the exceptions permitted under Article 3

14. Purpose and extent Purpose of implementation : to prevent and suppress any activity prohibited by the Convention Penal sanctions should be proportionate to the crime : usually prison and/or fine, forced labour Extent of coverage :Persons or on territory under its jurisdiction or control Extraterritorial jurisdiction? : PKOs, Business Ottawa's must haves : Article 9

15. Ottawa's must haves : Article 9 IHL in peace support operations • Problem • UN cannot be party to Geneva Conventions 1949 and similar weapons treaties • countries contributing troops have different legal bases

16. Ottawa's must haves : Article 9 APMs in PSOs • Solution = common code of conduct • UN SG Bulletin 1999/13 on the "Observance by UN Forces of International Humanitarian Law" • sets out fundamental rules and principles of IHL applicable to UN Forces conducting operations under UN command and control • Means and methods of combat • principle of limitation • prohibition of certain methods and weapons

17. Ottawa's must haves : Article 9 Recap : Article 9 • Who? – Each State Party must • What? Take all appropriate measures • Legal, administrative and other measures • Including penal sanctions • Why implement? to prevent and suppress any activity prohibited by the Convention • How far? activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control

18. Measures

19. Measures ICRC Proposed Article 9 checklist • In order to guide States in the preparation of their Annual Article 7 reports: • Form A concerns national measures (especially legislation) • ICRC encourages States to ensure that Article 9 measures are included in Form A, not just mine action steps.

20. Measures This checklist includes two parts:1. Legislative measures required by Article 9

21. Measures 2. Other appropriate legal, administrative and other measures • a) How would a fact finding mission (Art. 8) be facilitated: under what law, regulation, or other measure? • b) Is destruction of AP mines (Art. 4 and 5) provided for by law, regulation or by other measure? • c) Is there legislation, regulation or other measure to assist the Ministry or Department responsible for annual Article 7 reports, for example by requiring all persons, including other government officials, to provide the necessary information?

22. Measures Other appropriate national implementation measures : • For States Parties with stockpiles: • measures to facilitate stockpile destruction (Article 4) • For mine-affected States Parties: • measures to facilitate implementation of Article 5 (i.e. mine clearance and other mine action)see GICHD Guide to Developing Mine Action Legislation

23. Measures When implementing the Convention, each State may choose from: • Special legislation; • Amendment to existing legislation; or • Combination of 1 and 2 M'sia, Canada, UK, Australia, Cambodia, South Africa f.e. have special legislation

24. Tools for implementation : ICRC – ICBL – Gov. of Belgium Information Kit on the Development of National legislationto implement the Ottawa Convention (English, French, Spanish, Russian) ICRC Model Legislation for Common Law States (English) ICRC Table of Article 9 National Implementation Measures, and the ICRC Article 9 Checklist (May 2006) ICRC's Advisory Service assists States in developing implementing legislation Measures

25. Statistics

26. Statistics 54 States Parties report having adopted legislation to implement the Convention (of 155) * = countries are new in this category Albania Australia Austria Belarus Belgium Belize Bosnia and Herzegovina Brazil Burkina Faso Cambodia Canada Chad Colombia *Cook Islands Costa Rica Croatia Cyprus Czech Republic El Salvador Estonia France Germany Guatemala Honduras Hungary Iceland Italy Japan Liechtenstein Luxembourg Malaysia Mali Malta *Mauritania MauritiusMonaco New Zealand Nicaragua Niger Norway Peru Saint Vincent and the Grenadines Senegal Seychelles South Africa Spain Sweden Switzerland Trinidad & Tobago Turkey United Kingdom Yemen Zambia Zimbabwe

27. Statistics 25 States Parties report considering existing laws to be sufficientto give effect to the Convention * = countries are new in this category Algeria Andorra Bulgaria Central African Republic Denmark Greece Guinée-Bissau Holy See Ireland Indonesia Kiribati Lesotho Lithuania FYR Macedonia Mexico Moldova Netherlands Papua New Guinea Portugal Romania Samoa Slovakia Slovenia Tajikistan Tanzania Tunisia

28. Statistics 36 States Parties report being in the process of adopting legislation to implement the Convention * = countries are new in this category Chile D.R. Congo R. Congo Côte d'Ivoire Djibouti *Ecuador Guinea Jamaica Jordan Kenya Madagascar Afghanistan Argentina Bangladesh Benin Bolivia Botswana Brunei *Burundi Cameroon Malawi Mozambique Nigeria Panama Paraguay Philippines Rwanda Saint Lucia Serbia Suriname Swaziland Thailand Togo Uganda Uruguay *Vanuatu

29. Statistics 5 States Parties report assessing whether to adopt legislation Namibia, Nauru, Sierra Leone, Solomon Islands, Timor-Leste

30. Statistics 30 States Parties for which information is as yet unavailable or unclear* = countries are new in this category Angola Antigua and Barbuda Bahamas Barbados Bhutan Cape Verde Comoros Dominica Dominican Republic Equatorial Guinea Eritrea Ethiopia Fiji Gabon Gambia Ghana Grenada Guyana Latvia Liberia Maldives Niue Qatar Saint Kitts & Nevis San Marino Sao Tome & Principe Sudan Turkmenistan Ukraine Venezuela

31. Statistics 5 New Member States that have not yet reported • Haiti • Iraq • Kuwait • Montenegro • Palau

32. Statistics Changes between 2005 and 2007, number of States Parties in the following categories: 2005 2006 2007 Oct 2007 • Legislation adopted 43 48 52 52 • Considering whether to adopt legislation 6 5 5 5 • State considers its existing legislation is adequate 25 25 25 25 • Legislation is in process 36 32 36 37 • Unclear or not reported 34 34 31 31 • New States parties that have not yet reported  6 4 5 Totals 144 150 153 155

33. A few points to note

34. A few notables Article 19 : Ottawa is one of few treaties to which reservations cannot be made when becoming a party : significance : take or leave it Article 20 : the right to withdraw in the exercise of national sovreignty must give notice with full explanation w.e.f. 6 mths after instrument of withdrawal if State withdrawing not in armed conflict at that time other remaining States Parties still bound Points to note

35. A few notables Retaining a stable number of mines year after year under Article 3 : retention forever or training forever indicates that they are not being used for a permitted purpose and could amount to stockpiling (i.e. prohibited activity) Legislation should contemplate : civilian criminal code AND military criminal code Points to note

36. Thank you for your attention!