National Legislation

Legal, Administrative and Other Measures to

Prevent and Suppress Prohibited Activities

International Committee of the Red CrossFiona Barnaby

Outline of presentation

Ottawa in brief Ottawa's must haves Measures Statistics A few points to note

Ottawa in brief Basis The Ban Definitions Cooperation and Assistance

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

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

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 kill one 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

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

Ottawa in brief

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

Articles 4 and 5

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

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

Ottawa's must haves :

Article 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"

Ottawa's must haves

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)

Ottawa's must haves :

Article 9

National legislation must :

Apply definitions consistent with Article 2

Recognise the exceptions permitted under Article 3

Ottawa's must haves :

Article 9

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

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

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

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

Ottawa's must haves :

Article 9

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.

Measures

This checklist includes two parts:

1. Legislative measures required by Article 9

Does your legislationprohibit and provide

punishment for these violations?

(Art. 9)*

Is there a prohibition for assisting,

encouraging and inducing these

violations? (Art. 1 c and Art. 9)*

Use (Art. 1 a)

Acquisition (Art. 1 b)

Stockpiling (Art. 1 b)

Retention (Art. 1 b)

Transfer, including the physical movement of AP mines into or from national territory, and the transfer of title to and control over the mines (Art. 1 b, and Art. 2(4))

Development (Art. 1 b)

Production (Art. 1 b)

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?

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

Measures

When implementing the Convention, each State may choose from:

1. Special legislation;2. Amendment to existing legislation;

or3. Combination of 1 and 2

M'sia, Canada, UK, Australia, Cambodia, South Africa f.e. have special legislation

Measures

Tools for implementation :

ICRC – ICBL – Gov. of Belgium Information Kit on the Development of National legislation to 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

Statistics

AlbaniaAustraliaAustriaBelarusBelgiumBelizeBosnia and HerzegovinaBrazilBurkina FasoCambodiaCanadaChadColombia*Cook Islands

Costa RicaCroatiaCyprusCzech RepublicEl Salvador

Estonia FranceGermanyGuatemalaHondurasHungaryIcelandItalyJapan

LiechtensteinLuxembourgMalaysiaMaliMalta*MauritaniaMauritius MonacoNew ZealandNicaraguaNigerNorwayPeruSaint Vincent and the Grenadines

SenegalSeychelles South AfricaSpainSwedenSwitzerland Trinidad & TobagoTurkey United KingdomYemen ZambiaZimbabwe

54 States Parties report having adopted legislation

to implement the Convention (of 155)

* = countries are new in this category

Statistics

25 States Parties report considering existing laws to be sufficient to give effect to the

Convention* = countries are new in this categoryAlgeria

Andorra BulgariaCentral African Republic DenmarkGreeceGuinée-BissauHoly SeeIrelandIndonesiaKiribati LesothoLithuaniaFYR Macedonia

MexicoMoldovaNetherlandsPapua New Guinea PortugalRomaniaSamoaSlovakiaSloveniaTajikistanTanzaniaTunisia

Statistics

AfghanistanArgentinaBangladeshBeninBoliviaBotswanaBrunei*BurundiCameroon

Chile D.R. CongoR. CongoCôte d'IvoireDjibouti*EcuadorGuineaJamaicaJordanKenyaMadagascar

MalawiMozambiqueNigeria PanamaParaguayPhilippinesRwandaSaint Lucia

SerbiaSurinameSwazilandThailandTogoUgandaUruguay *Vanuatu

36 States Parties report being in the process of adopting

legislation to implement the Convention

* = countries are new in this category

Statistics

5 States Parties report assessing whether to adopt legislation

Namibia, Nauru, Sierra Leone, Solomon Islands, Timor-Leste

Statistics

30 States Parties for which information is as yet unavailable or

unclear * = countries are new in this category

AngolaAntigua and

BarbudaBahamasBarbadosBhutanCape VerdeComorosDominicaDominicanRepublicEquatorial

GuineaEritrea

EthiopiaFiji Gabon GambiaGhanaGrenada GuyanaLatviaLiberia MaldivesNiue

QatarSaint Kitts & NevisSan MarinoSao Tome & Principe Sudan Turkmenistan UkraineVenezuela

Statistics

5 New Member States that have not yet reported

Haiti Iraq Kuwait Montenegro Palau

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 5Totals 144 150 153 155

Statistics

A few points to note

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

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

Thank you for your Thank you for your attention!attention!